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    James and Blake v. Yanderheyden and another,
    Feb. 3d.
    It is essential to an escrow that it be delivered to a third person to be delivered to the obligee or grantee upon the happening of some event, or upon the performance of some condition.
    Where a bond and mortgage and deed were delivered to a third person to be kept by him during the pleasure of the parties, and subject to their further order, held that the papers were not escrows, and that he was a mere depositary.
    In January, 1823, S. Yanderheyden, deceased, and the plaintiff Blake, entered into a written agreement, by which the latter agreed to sell to the former a farm in Saratoga for $6,000. Blake was to convey the farm freed and discharged from every incumbrance or lien, judgment or demand of every kind, in law or equity, with covenants of warranty as to the title and the quantity of land contained in the farm; and the purchaser was to secure $4,500 of the purchase-money, by bond and mortgage on the premises, payable in eight years from the date of the mortgage with annual interest, and give his obligation for the remaining $1,500, payable in goods in three annual payments from the date of the obligation. About the 1st of March, 1823, under the supposition that the agreement would be carried into effect, Yanderheyden contracted with J. Adams to let the farm to him, and he went into possession soon after that time, and has remained there ever since. At the time of the agreement, J. Thompson held a mortgage and judgment against Ring, the former owner of the farm, for about $4,000, which were liens thereon, and Blake was not able to complete the title, in consequence of not being able to raise the money to pay off these incumbrances. Both parties being anxious to consummate the purchase with the least possible delay, and Yanderheyden being at Saratoga with his wife, on the 5th of April, 1823, *the deed and bonds and mortgage were drawn and acknowledged, and at the suggestion of R. M. Livingston, an attorney, left in his hands as “ escrows,” with written instructions; and to be kept ky him subject to such order of the parties as should arise out of any subsequent agreement between them. Livingston also testified that it was the understanding of the parties at the time the papers were drawn, that the deed and mortgage should be recorded. After the papers were completed and ready for delivery, Vanderheyden brought them to Livingston, together with a written memorandum, signed by both parties, in the words following:
    “ Be it remembered that R. M. Livingston, Esq., has received of Robert Blake and Samuel Vanderheyden, as escrows, the following papers, to wit, a deed from Robert Blake to Samuel Vanderheyden, conveying the Ring farm, (so called;) a bond and mortgage for $4,500; a bond conditioned for the payment of $1,500 worth of goods given by the said Samuel; which said several instruments it is hereby agreed that R. M. Livingston, Esq., shall hold as escrows during the joint pleasure of the said Robert and Samuel, or their legal representatives. S. Vakdebheyden.
    “ Saratoga, April 5th, 1823. R. Blake.”
    About three weeks after the papers were left in the hands of Livingston with this written memorandum of the parties, he carried the deed and mortgage to the clerk’s office and had them recorded. Nothing was done by Blake towards removing the incumbrances from the farm, or consummating the bargain previous to the death of Vanderheyden in November thereafter. In the fall of 1823, Vanderheyden was applied to by Adams for a written agreement respecting the occupation of the farm; but he declined giving one at that time, on the ground that the bargain between him and Blake was not yet completed. Vanderheyden died without children, but leaving his wife then enciente with the defendant S. D. Vanderheyden, who was born some months after the death of his father. The executors named in the will ofS. Vanderheyden renounced the execution thereof, and the validity of the will was a long time in contest between the widow and collateral kindred of the deceased; and administration with the will annexed was finally given to the widow *in the spring of 1826. In March, 1824, Livingston delivered up the bonds and mortgage to the complainants, on receiving an agreement from James to pay off the incumbrances which Thompson held against the farm; and Blake thereupon assigned the bonds and mortgage and all his interest in the mortgaged premises to James, to secure the payment of a note upon which the latter was his indorser at the bank. James, finding there were other incumbrances on the farm, instead of paying up and discharging the mortgage and judgment held by Thompson, advanced him the amount and took an assignment of his claims. He afterwards offered to assign these incumbrances to the administratrix, or to discharge them if she preferred that course; but she declined doing anything on the subject.
    The complainants thereupon filed their bill in this cause, without any allusion to the agreement of January, 1823, but setting out an agreement materially different for the sale of the premises, alleged to have been made on the day of the date of the deed and mortgage, and praying a foreclosure and sale of the mortgaged premises, and the payment of the balance of the bonds out of the estate of Yanderheyden, and for general relief. The defendants, by their answer, denied the validity of the deed and bonds and mortgage, and set out the agreement of January, 1823, and insisted that the title to the farm was defective; and setting out various incumbrances besides those assigned to James by Thompson, which they insisted were liens on the premises. The cause was heard on pleadings and proofs.

      J. King, for the plaintiffs.

      A. Van Vechten, for the defendants.
   The Chahcellor :—The writings left in the hands of Livingston, although called by him and the parties escrows, were not so in fact. It is essential to an escrow that it be delivered to a third person, to be delivered by him to ^ obligee or grantee, upon the happening of some event or the "“'performance of some condition, from which time it becomes an absolute deed. But whether we are confined to the written agreement signed by the parties and deposited with the papers, specifying the conditions on which they were left with Livingston, or are permitted to resort to the paroi conversations and declarations of the parties previous to the execution of that paper, there is no evidence that they ever intended to authorize him to deliver up the papers to either party without some further directions from both. He swears that he proposed they should leave the papers with him as “ escrows,” and that they should leave with him written instructions relative to the manner in which he was to dispose of them; and that they should be kept by him subject to such order of the parties as should arise out of any subsequent agreement between them. He drew several memorandums specifying the terms, but Vanderheyden rejected the whole, and finally drew for himself the one now before the court. This was probably signed by the parties at the time they signed the other papers. Livingston was not present, and never saw the parties together afterwards. It would, therefore, be a dangerous species of evidence to substitute his belief of what the parties intended, derived from their previous conversations, for this written and formal declaration of their intent. It is probable that Vanderheyden supposed there were no other incumbrances on the farm than those in the hands of Thompson; but that was not sufficient to authorize the witness to infer an agreement that he would take the title subject to all others which might be discovered before the agreement was actually completed, and look to the personal responsibility of Blake for his indemnity. The written memorandum shows that the papers were left with Livingston as a mere depository, and that it was not intended they should become absolute deeds without the farther consent of both parties authorizing a delivery as such. Livingston swears that Yanderheyden came to him alone, and brought the papers and written agreement in their present situation, and that he also directed him to hgve them recorded. In this he is partially supported by the imperfect recollection of his wife. On the other hand, Dr. Douglass and D. Buel, junior, *testify that Livingston told them he put the papers on record of his own accord. It is not material to decide which is right in this particular. After the lapse of three or four years, he may very honestly have substituted the declarations of the parties when they were together at the drawing of the papers, for a supposed direction given to him by Yanderheyden at the time they were left in his hands. In either case, he would be likely to leave them to be recorded, unless there was some express prohibition; but in neither ease would it alter the nature of the transaction as between the parties. Livingston himself swears that he supposed the recording the papers would not alter the rights of the parties, and therefore he made no suggestion that it would be improper. The other parties undoubtedly acted on the same supposition, and Vanderheyden particularly, as, notwithstanding any directions he might have given as to the recording, he was so as to indorse the word “ escrow ” on the back of each instrument. This clearly shows he never intended the papers to operate as absolute deeds without some further agreement or understanding between him and Blake. Admitting, for a moment, that the recording of those papers would at law give them a different effect from what was intended by the parties, surely a party who comes into a court of equity for relief cannot be permitted to gain any advantage from that mistake.

This is not the case of a Iona fide purchaser of the legal estate, without notice of a latent equity which is attempted to be set up to defeat his title. James in this case is in no better situation than Blake. He is the assignee of a chose in action, with sufficient notice to put him on inquiry. He has not been injured by any mistakes of the other parties, as he took the assignment to indemnify himself against a pre-existing responsibility. Hnder the assignment from Blake he has all the legal title to the farm which Blake had; and it would be inequitable to compel the representatives of Vanderheyden to take an incumbered farm or a defective title, and look to the responsibility of Blake, who has left the state, and is probably insolvent.

*The complainants dare not even pay off the incumbrances which have been assigned to them, because they see that the lien of Knickerbacker’s judgment would then attach upon the whole farm, as it does now upon the surplus value over and above those incumbrances. Those incumbrances are about three-fourths of the value of the farm, and it will be necessary to foreclose the mortgage and sell on the judgments, or buy off Kniclcerbaoker’s lien, before a good title can be had. This is an expense which at all events ought to be sustained by Blake, and not by the defendants.

But there is also a failure of title as to forty acres of the farm. More than twenty-five years ago, Or. Seymour purchased this forty acres of Andrews, who was in possession claiming title, and paid $1,000 for the purchase-money. Seymour went on to the same and died there, leaving his widow in possession with her infant daughter. The widow married Lee, who came on to the farm with her, and after-wards, without any right, sold the forty acres to St. John or Tull, from whom Davis purchased. Ring purchased of Davis, and Blake of Ring. This testimony would be sufficient to enable the daughter of Seymour to recover in ejectment against any one deriving title under Blake. It is not material to inquire whether there is sufficient evidence of the loss of the deed to Seymour. He paid the consideration money, and was entitled to a deed, and under the circumstances it may probably be presumed. But even if the legal title still remains in Andrews, it is out of the complainants, and renders their title to the forty acres equally defective. I am therefore satisfied it would be inequitable and unjust to enforce these bonds and the mortgage against the defendants before a perfect title can be made to the farm, and free from all incumbrances.

If the complainants can satisfy these outstanding claims and clear the premises, they may perhaps even now be entitled to a specific performance of the original agreement of January, 1828; but on this question I have not formed any definite opinion. This bill is not properly framed for such relief in this suit, because no such agreement is set out, but one entirely different. If the complainants intend to avail themselves of that agreement hereafter, they are at liberty to have this bill ‘^dismissed with costs, but without prejudice to their right to file a new bill for that purpose.

But there is one kind of relief which the complainants are entitled to, if they prefer to abandon the contract of January, 1823. The deed and mortgage remaining on the records of the county arc a cloud upon the title: they are therefore entitled to a decree declaring the deed and mortgage void and inoperative; and if they abandon the contract of sale, they will be entitled to an account of the rents and profits of the farm while it has been in the possession of Yanderheyden or his tenant, after deducting therefrom the defendant’s costs in this suit to be taxed.

        Mersted v. Avery, 4 Paige, 9; Johnson v. Gatlin, 2 John. Oh. 248; Oilman v. Ghwrch, 15 Wen. 656 ; Johnson v. Baker, 4 Bam. & Aid. 440; 4 Kent. 454. Such delivery must be to a stranger, and not to one of the parties. 10 Smeed. & M. 9. The presence nor express assent of the grantee is not necessary. Merrils v. Swift, 18 Conn. 251; see also Tompkins v. Wheeler, 16 Peters, 106; Wesson v. Stephens, 2 Ired. Eq. 551. Such assent will be presumed, from the beneficial interest of the grantee in the deed, unless a dissent is proved. Lady Superior, dec. v. McNamara, 3 Barb. Oh. 315.
      “ An escrow," says Chancellor Kent, “is only a conditional delivery to a stranger, who is to keep the deed until certain conditions are performed, when he is to deliver it to the grantee. Until the conditions are satisfied the estate does not pass, but remains in the grantor. It becomes absolute from the time of the second delivery: but this general rule does not apply when justice requires a resort to fiction. The relation back to the first delivery, so as to give the deed effect from that time, is allowed in cases of necessity, to avoid injury to the operation of the deed from events happening between the first and second delivery. Thus, if the grantor was a feme sole when she executed the deed, and she married before it ceases to be an escrow by the second delivery." 4 Kent. 454.


source: Caselaw Access Project

license: Public Domain

text:
    I. W. Smith v. A. Smith and G-. Clark.
    Feb 6th.
    The time for bringing appeals from the equity courts being regulated by rule, the Chancellor, on sufficient cause being shown, may dispense with the rule and enlarge the time.
    This court alone has the power to suspend the operation of the rule, and give relief in such a case.
    Where a creditor, having a judgment lien upon property, agreed with the vendor and purchaser to relinquish it, and take an assignment of the mortgage given for the purchase-money in lieu thereof) he is entitled to satisfaction of the mortgaged premises, to the extent of his judgment Hen, in preference to an equitable claim of off-set in behalf of the mortgagor, which has subsequently arisen.
    This was an appeal from an interlocutory order of the Equity Court of the eighth circuit, ordering a conditional dissolution of an injunction. The defendant Clark was the assignee of a bond and mortgage given by the appellant to A. Smith, and the injunction restrained him from proceeding to sell the mortgaged premises under the statute. The appellant used due diligence for the purpose of entering his appeal within the time prescribed by the rule of this court, but in consequence of the remoteness of the residence of the circuit judge from the clerk’s office, the necessary certificate was not procured until the evening of the last day for appealing. The solicitor for the appellant went immediately to the clerk’s *office to file the same and enter the appeal, but finding the office shut, he entered the appeal and made the necessary deposit the next morning. An application was made to this court for leave to the appellant to proceed on the appeal, notwithstanding -the expiration of the 15 days, and that the injunction be revived until the decision of this court.
    March 23d.
    The Chancellor held, that as the time for appealing was regulated by a rule of this court, the rule might be dispensed with, and the time enlarged on sufficient cause being shown; and that this court alone had the power to dispense with the rule, and give relief in such a case. He directed that the appeal should be deemed to have been entered in time, and that the injunction should be revived until a hearing of the appeal on its merits:
    The appeal was noticed for hearing on the next motion day, and was submitted "without argument.

      J. Dixon, for the appellant.

      G. C. Bronson, (attorney-general,) for respondent.
   The Chancellor:—The bill charges that Clark is not a bona fide assignee of the bond and mortgage, but took it subject to the equitable claim of the appellant under the bond given to secure to him the enjoyment of the good will of the practice, which he purchased at the time the bond and mortgage was given. The answer, which in this respect must be considered as responsive to that charge in the bill, alleges that Clark had a judgment hen on the mortgaged premises, which he agreed to relinquish, on condition that the bond and mortgage should be assigned to him to secure the debt; and they were delivered over to him accordingly, immediately after their execution. This equity of the defendant Clark is prior in point of time to any which the appellant can have on account of a breach in the condition of A. Smith’s bond to him. As between equal equities, the maxim qui prior est in tempore potior est in jure, applies. If, in addition to this, the party-having the prior equity has also the legal right, it would be contrary to the settled principles of this court to interfere and deprive him of it.

*The amount of the instalment now due is less than the judgment lien which Clark relinquished at the time the bond and mortgage were given. The circuit judge was correct in requiring payment of that amount as a condition of the continuance of the injunction. The decretal order must be affirmed with costs; and the injunction must be dissolved, unless the conditions of that order are complied with in thirty days from this time. And the cause must be remitted back to the equity court, to be further proceeded in there.


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    Case and wife v. Abeel, Executor, &c.
    Feb. 17th.
    A surviving partner has the legal right to the partnership effects.
    But in equity he is considered merely as a trustee to pay the partnership debts, and to dispose of the partnership property for the benefit of himself and the estate of the deceased partner.
    He cannot derive any exclusive profit from the use of the partnership funds.
    An executor or trustee cannot purchase the trust property from his co-executor or trustee without being liable for the profits arising from the property purchased.
    It is the duty of executors and trustees to keep the trust fund separate and distinct from their private funds.
    If they use the trust funds of mix them with their private funds, they will be made liable for all losses which may arise from their neglect or mismanagement.
    The defendant, Garret Abeel, and his brother John, were partners in the hardware business in the city of New York, for several years previous to the death of the latter, which took place in the spring of 1811. About two years before the death of John, he made his will, and thereby adopted his niece, now the wife of R. D. Weeks, and Mrs. Case, one of the plaintiffs, and two children of Phebe Howell, as his children; and devised and bequeathed unto them in equal shares, all his estate, real and personal, with some few exceptions. There was a limitation over of the share of either who should die without issue, to the survivor or survivors; and with remainder over to the nephews and nieces of the testator, if all his adopted children should die without issue. He also gave to Phebe Howell an annuity of $100, during the pleasure of *his executors, or the survivor of them, with authority to the executors to increase the yearly allowance to her, in their discretion. After giving a few other specific and pecuniary legacies, the testator directed his executors to convert his personal estate into money, and with the proceeds thereof to purchase $3,000 of stocks, and put out the residue at interest, on bond, and mortgage; upon real security. They were further directed to pay the pecuniary legacies and the annuity to Phebe Howell, and maintain and educate the adopted children out of the interest; and to pay them their respective proportions as they severally came to the-age of twenty-one years. In the meantime he directed the real and personal estate to be vested in the executors, or the survivor of them, for the purposes of the will; and gave them five per cent, on the income of the estate, for their care and trouble in the management thereof. By a codicil, made in 1810, reciting that Phebe Howell was then pregnant, the testator directed the executors to maintain and educate the child out of the estate, in the same manner as the other children adopted by him in his will, and pay it $500 out of his estate as a portion, if it should live to the full age of twenty-one years. The child was born in due course, and is John H. Abeel, one of the defendants in this suit. The niece, Mrs. "Weeks, was of age on the 28th of May, 1823, and Mrs. Case, on the 28th of December, 1826. The testator died on his passage from Rio Janeiro, and the news of his death was received in New York about the first of July, 1811. Whereupon Garret B. Abeel proved the will, and shortly afterwards the other executor also obtained probate thereof; but the latter never intermeddled with the estate except to settle the partnership transactions with his co-executor. He died pending this suit: no part of the estate came to Ms hands, and notMng was claimed against him.
    In February, 1827, the plaintiffs filed their bill in this cause, for an account and settlement of the estate, in which they charged that the acting executor continued to trade with the partnership funds, and made large profits therewith ; that he did not put out the moneys at interest as directed by the will, but kept the same in his own hands, except very small portions *thereof, for the purposes of trade; and loaned out other sums to his friends and connections at low rates of interest, and neglected to collect the interest and re-invest the same, &c.
    The defendant, Garret B. Abeel, in his answer, admitted that he continued to trade with the partnership stock in trade, and made a profit by its rise in value. But alleged that by the advice of counsel, he took an inventory of the partnership stock, as it existed on the first of July, 1811, when the partnership was published as dissolved; that it was submitted to several respectable merchants and dealers in hardware and iron mongery, who examined the inventory, and estimated the value of the articles; that they decided that 33 1:3 per cent, should be added to the cost of such articles as were charged at sterling prices, and those articles wMch were charged at currency prices should be estimated at the prices at wMch they were charged, as their fair value. That such valuation was adopted by him and Ms co-executor as the fair and just value of the articles; that it was expressly agreed, or clearly understood between them, that he should retain the whole of the stock at that valuation. That the estate of John Abeel was thereupon, on the first of July, 1811, credited by him with one-half the amount at wMch it was valued, after deducting the balance due to Garret B. Abeel on account of his stock in trade at the time he took John into co-partnership, with interest thereon. And that the stock in trade was not sold at auction because the executors, under the advice of counsel, did not conceive it necessaiy; and because he was willing to take it at its full value, and to allow more for it than any other person would do. He admitted the receipt of the rents and profits of the real estate of the testator, and that he received several sums on the sale thereof under proceedings in partition; but denied that he had kept money in his hands to answer the exigencies of his business, or that the moneys were not put out for the best rates of interest that could be obtained. That he had kept an interest account from the first of July,-1811, and allowed the estate lawful interest on all sums which had come into his hands, and he believed *he had allowed more interest than he was bound to do. It appeared also by the answer of Garret B. Abeel that after Mrs. Weeks became of age, he set apart $10,000 for the support of Phebe Howell and her son, and to pay the $500 legacy to the latter, if he attained the age of twenty-one, which he insisted he was not bound to render an account to the complainants of at this time, or in this suit. He also admitted that he kept no separate account in bank of the moneys belonging to the estate, but that the same was placed to his own credit, and the credit of himself and partner, and used by them occasionally in the course of their business. The other defendants having put in their answers, the cause was heard on the bill and answers as to them, and on pleadings and proofs as to the acting executor
    S. A. Foot for complainants:
    The defendant, Garret B. Abeel, is bound to account to the complainants for the profits of the partnership property, notwithstanding the arrangement between him and his co-executor to take the same at the valuation of the merchants who were applied to to appraise it. Abeel should have sold the partnership goods, and invested the portion belonging to the estate of his deceased partner. He stood in the character of trustee, and could not purchase from his co-executor. He made an extra profit upon the partnership goods, in consequence of the non-intercourse act and the war with. Great Britain.
      (Green v. Winter, 1 John. Ch. R. 27; Parkist v. Alexander, 1 id. 394; Schieffelin v. Stewart, 1 id. 620; Brown v. Rickets, Executor, &c., 4 John. Ch. R. 303; Evertson v. Tappan, 5 John. Ch. R. 497; Hawley v. Mancius, 7 John. Ch. R. 174; Holdridge v. Gillespie, 2 John. Ch. R. 30; Matthews and wife v. Dragaud, 3 Dessaus. 25.) It is a settled rule that trustees can derive no benefit from the trust property, and must account for all the profits they receive from its use. (Devoe v. Fanning, 2 John. Ch. R. 252.) There is no distinction between surviving partners and trustees. (15 Ves. jun. 227.) A trustee cannot purchase any part of the trust property, except under the sanction of the court, or by the consent of the cestui gue trust. However fair the purchase *by the trustee may be, yet it will be set aside by the court upon the application of the cestui gue trust. The defendant, therefore, upon these principles, must account for all the profits up to this time; and if he should be unable to give a correct statement of such profits, on account of their being mixed with his individual property, he must be charged with compound interest. (Schieffelin v. Stewart, 1 John. Ch. R. 620; Evertson v. Tappen, 5 John. Ch. R. 497; Stoughton v. Lynch, 2 John. Ch. R. 209

      C. Baldwin, for defendants:
    The defendant was not compelled to sell the partnership property. If he had sold it at public auction he could not have bid himself, and the property might have been sacrificed. The present is unlike the cases cited by the opposite counsel. (Toller, 238.) If an executor pays a debt of the testator, he may take and retain any specific chattel at its value, if not more than sufficient to discharge his debt. If a personal chattel of the testator is sold for debt, the executor may purchase at the sale. (Lee v. Brown, 4 Ves. 369; Howe v. Earl of Dartmouth, 7 Ves. 150.) If application had at that time been made to the Chancellor, he would have permitted the defendant to take the goods at a fair valuation. In this case it is impossible there should be a resale. The severe rule that a trustee cannot purchase, ought not to be encouraged.
   The Chancellor :—The first point presented by the pleadings and proofs in this case is, whether the acting executor is to be permitted to account for the partnership stock at the price fixed upon by himself and his co-executor.

I took up the case with a sincere desire to sustain the agreement or understanding upon which A. B. Abeel assumed to himself the sole ownership of the stock in trade, but I find it cannot be sustained without overturning principles of equity which have long been deemed essential to protect the rights of those whose property is committed to the care or guardianship of others. These principles are discussed at length in Defoe v. Fanning, (2 John. Ch. Rep. 252;) in Rogers v. Rogers, (1 Hopk. 515;) and in Hawley v. Cramer, (4 Cowen, 717.) It is therefore sufficient merely to advert *to these general principles here. The surviving partner has the legal right to the partnership effects but in equity he is considered merely as a trustee to pay the partnership debts, and dispose of the effects of the concern for the benefit of himself and the estate of his deceased partner. He cannot therefore be permitted to make any gain or profit by the use of the partnership funds and effects for his own exclusive benefit. In this case, if the surviving partner had not stood in the situation of executor, he might have made a valid agreement with the personal representatives of his deceased brother, to take the stock on hand at a fixed valuation; and whatever profit was made upon the bargain would have been his own exclusively. But one executor or trustee can make no valid agreement to purchase, or take the trust property at a fixed valuation from his co-executor or trustee, without being liable for the profits, if any are made by the agreement. It follows from these principles that the cornplainants would be entitled to an account of the profit made by the increased value of the stock in trade, in the hands of the acting executor, if it could be ascertained. But the stock in trade of the partnership having been mixed with other goods of the defendant, and sold out by Tetail at different periods, those profits -cannot now "be ascertained.

Under these circumstances, I should still be disposed to let the original valuation stand, if I had not reason to believe there was some mistake in the estimate then made. The witnesses speak of the value of such kinds of goods in the middle of the year 1811; and the estimate of Duryea and Mowatt was undoubtedly made with reference to the state of the market on the 1st of July in that year, when the partnership was advertised as dissolved by the death of John Abeel. But it is certain the surviving partner did not at that time determine to take the goods on hand at the valuation of Duryea and Mowatt.

It is true, he says in his answer, that half the stock in trade was credited to the estate on the 1st of July, 1811. But, by adverting to the testimony and exhibits, it is evident he did not mean to say he had at that time concluded to take the property, and actually credited the estate with its proportion *on that day. He came to that conclusion some time afterwards, and then credited the same as the 1st of July, 1811. He had not determined to take it at that valuation when the opinions of Mr. Riggs and Mr. Harrison were obtained, on the 6th and 10th of August. Soon after these opinions were taken, they commenced inventorying the goods. Dunscomb says it was a long and tedious business, and that they were engaged a month or six weeks in doing it. After this inventory was completed, Duryea and Mowatt made their valuation. They undoubtedly made it with a reference to the state of the. market on the 1st of July preceding, as the surviving partner acted under the erroneous impression that he was entitled to retain the stock at its then value. Under this impression he very honestly credited the amount to the estate as of that date, that the interest might commence from that time. But in this he acted under a mistake as to his equitable rights. It does not distinctly appear at what time he did finally conclude to take the goods, and charge the amount to himself in his account with the estate. But by adverting to the history of the times, it is pretty evident that the value of the stock had been enhanced between the first of July and the completion of the inventory; or, at least, that circumstances had so changed that an advance in the price of such articles might be reasonably expected.

The proclamation of the president, announcing the revocation of the Berlin and Milan decrees, was issued on the 2d of Kovember, 1810 ; of course the non-intercourse act went into operation against Great Britain on the 2d of February thereafter. In the intermediate time it is probable considerable importations of hardware and' iron mongery were made. This circumstance, in connection with the fact that it was generally supposed Great Britain would repeal the orders in council, would for a time keep down the value of that description of goods, although fresh supplies could not be immediately obtained. The last information received from the British cabinet, previous to the close of the session of Congress after the intercourse was stopped, was a declaration from the minister that the British system would be *abandoned as soon as the repeal of the French decrees had actually taken place. But in the course of the summer of 1811, the prospect of obtaining fresh supplies from England was materially changed. It was officially known that instead of repealing the obnoxious orders, Great Britain had enforced them more rigidly; and Commodore Rogers had been compelled to chastise the insolence of one of her naval officers, in attempting to execute those orders; on which occasion blood was shed. On the 24th of July, the president called a special meeting of Congress, to take place early in Kovember; towards the close of which session it is well known war was actually declared. From the time when this special meeting of Congress was called, a war with England, or a much longer continuance of the non-intercourse system at least seemed inevitable. A very considerable advance in the value of hardware and iron mongery must, therefore, have been anticipated before the inventory of the goods in question was completed. Kotwithstanding this great change in our commercial relations with Great Britain, the currency goods, more than five-sixths of the value of the whole stock of the partnership, were estimated at the original cost. It also appears from the inventory that at least $30,000 of the currency goods6 was in rolled and bar iron, steel, anchors and anchor palms, share moulds, nail rods, and other articles of that description, which could not be very materially injured by lying on hand. And the actual value of those articles could readily have been ascertained, without reference to the original cost. The witnesses in this case may not have succeeded in conveying their real meaning. Possibly the currency price is a nominal value put on the articles, from which a deduction was made on the original purchase. But as I understand the testimony, these goods were estimated at the original prices paid for them on the purchase, without any addition for commission or importation charges. Whether the $6,768 worth of stock actually sold by the surviving partner, before the inventory was completed, is estimated at the original cost, or put down at the price for which the goods actually sold, does not appear.

*There must, therefore, be a new valuation put upon the stock in trade on the first of October, 1811, which is probably full as early as the time when the acting executor assumed the absolute ownership of the property. The valuation must also be made in reference to the nature of the particular stock on hand, and the then existing and probable relations of the country; and the good will of the business must also be taken into consideration. The goods sold before that time, as mentioned in the inventory of currency goods, must be separated therefrom; and if estimated at the original costs, must be charged with the additional prices obtained on the sale. Interest must be charged against the acting executor, and the accounts taken upon the principles sanctioned by the last decree of this court and the decision of the Court of Errors in Clarkson v. De Peyster, except that in stating the account, the five per cent, allowed to the executors on the income of the estate must be deducted from the interest or income from time to time, and only the balance thereof charged. This account must thus be continued up to the time when Mrs. Weeks came of age.

The next- question is as to the manner in which the account is to be taken so as to give the adopted children a support out of the general funds of the estate, on principles of equality. If the same expense had been bestowed upon each, the niece, who was much the oldest, would have in fact received a less proportion of the property than the younger children-who were to be supported out of it for a much longer period, provided that support was taken from the bulk of the estate, instead of being charged upon the particular share of each. But it was probably in the contemplation of the testator that each should be supported out of her own share, as the executors are directed to pay over their proportions as they respectively arrive at the age of twenty-one. The expenses of each would be greatly increased as they approached the termination of their minority. If the oldest was supported out of the bulk of the estate until twenty-one, and then permitted to withdraw the whole-of her share from the fund, great injustice would be done to the younger children; and if this principle is adopted, the *payment of the $2,500 to Mrs. Weeks as an equivalent for support which was not actually rendered or necessary, cannot be sustained. The executor has acted on the supposition that he was not to bestow an equal expense for the support and education of each child, but was authorized to exercise a discretion in relation to that matter. His niece was about nine years of age at the death of the testator, and she has had expended for her support and education, for the period of twelve years, $6,545, which is about $1,500 more than waq expended on Mrs. Case for a period of time three years and a half longer. The expenses bestowed upon the two children of Phebe Howell were probably much less. Ho injustice, therefore, will be done to Mrs. Weeks and Mrs. Case, if the whole amount of their support is charged upon their respective proportions of the estate, leaving the future as well as the past expenses of the two infant children of Phebe Howell to be charged on their respective shares of the estate only.

As the will originally stood, there could be no difficulty in keeping the accounts of each of the children separately. A sum sufficient to raise the annuity to Mrs. Howell should have been set apart for that purpose, and the rest divided into four equal shares and kept separate and distinct. Even after the codicil had provided for the support of another child out of the estate, there would have been no difficulty in setting aside a sufficient sum for that purpose, or, what would have been more simple than either, the executor might annually have charged one-fourth of the support of Phebe Howell and her son to the share of each of the adopted children. In consequence of the manner in which the fund has been kept and managed, it must be extremely difficult to state the account aneAV from the beginning; but I see no other way of doing justice between the parties.

Executors and trustees must be made to understand that it is their duty to keep the funds of their trust separate and distinct from their other funds and business; that they should, upon no consideration, use the trust moneys themselves, or permit it to be mingled Avith their OAvn moneys or property. In no other Avay can they save themselves from trouble, litigation and censure. If they neglect this obvious duty, they *have no reason to complain if they meet Avith trouble and expense, and sometimes Avith heavy loss. The protection of the rights of those who are not in a situation to protect themselves, makes it the duty of courts of justice to require fiduciaries to make good all losses which have been occasioned by their neglect.

As the executor has made a final settlement Avith Weeks for the share of his wife’s estate up to the time when she became of age, no new account need be taken of her share previous to that time. But she will be entitled to an account of the administration of her portion of the $10,000 set apart for the support of Phebe Howell and her infant son.

The master must state three separate accounts up to the 28th of May, 1823, when Mrs. Weeks became of age, between the acting executor and Mrs. Case and the two daughters of Mrs. Howell.

In the account with Mrs. Case, the master must charge the executor one-fourth of all sums properly chargeable against him on account of the estate, and interest on the principles before stated, after deducting commissions, and must credit him one-fourth of all moneys expended for the general purposes of the estate, and for the payment of the specific or pecuniary legacies or debts, or for the support of Mrs. Howell or her infant son, and the whole amount expended for the maintenance and education of Mrs. Case, or other expenditures properly chargeable upon her share exclusively. And the accounts between the executor and the two children of Phebe Howell must be taken in the same manner. On the 28th of May, 1823, $2,500 must be taken from the balance due each, to make up their shares of the $10,000 fund, appropriated, at that time, for the support of Mrs. Howell and her son. The separate accounts must then be continued upon the balance, in the same manner, except as to the support of Mrs. Howell and her son and the general expenses of the estate, which must, from that time, be charged upon the $10,000 fund. And a distinct account of the administration of that fund, as between the acting executor and all the adopted children, mustbe taken by the master. The executor is not to be charged for a greater rate of interest than was actually *received on moneys Iona fide loaned by him on bond and mortgage. There is no foundation for the charge that he put it out for a rate of interest less than seven per cent, unnecessarily or improperly. His own interest required that he should procure the greatest possible income from that part of the estate which was loaned out on bond and mortgage; and I am satisfied from the testimony that all the loans which were made under seven per cent, were so made in good faith.

There must be a reference to a master to take and state the account upon these principles and directions; and he must also ascertain and report the situation of the trust fund which is now invested in stocks or on bond and mortgage, and whether the same is properly secured and safely invested. And the question of costs, and other questions and directions are to be reserved.

        Murry v. Mumford, 6 Cow. 441; Van Kuren v. Parmellee, 2 Comst. 523.

      2] As to the general principal that a trustee, executor, agent, or other person acting in a fiduciary character, cannot become a purchaser for himself; or otherwise derive a private benefit from the disposal and management of trust property or funds, or from the peculiar relation in which he stands as a trustee. See Wedderburn v. Wedderburn, 2 Keen, 722; S. C., 4 M. & Cr. 41; Anon., 2 Russ. 350; Shaw v. Rodes, id. 539; Lees v. Nuttall, 1 Russ & M. 53; S. C., 2 M. & K. 819; S. C., Taml. 282; Docker v. Somes, 2 M. & K. 664; Taylor v. Salmon, 4 M. & C. 139; Green v. Winter, 1 John. Ch. 26; Packist v. Alexander, id. 394; Holridge v. Gillespie, 2 id. 30; Hart v. Ten Eyck, id. 104; Davoue v. Fanning, id. 257; Schieffelen v. Stewart, 1 id. 620; Duncomb v. Duncomb, id. 510; Brown v. Ricketts, 4 id. 305; Moor v. Frowd, 3 M. & C. 45; Stiles v. Burch, 5 Paige, 134; Reed v. Warner, id. 650; Hawley v. Cramer, 4 Cow. 717; Van Epps v. Van Epps, 9 Paige, 238; Quackenbush v. Leonard, id. 334; Torrey v. Bank of Orleans, id. 663; Smith v. Langford, 2 Beav. 362; 1 Story’s Eq. sec. 316, 465; 1 Liv. Agency, 422, 425; Hill on Trustees, 379.
      In Docker v. Somes, 2 Mylne & Keen, 664, it was decided that, if a trustee mixes trust funds with his private moneys, and employs both in trade for his benefit, the cestui que trust may insist on a proportionate share of the profits, if he prefers it instead of interest on the amount of trust funds so employed. Lord Brougham, on this occasion, delivered the following judgment, which strikingly exemplifies the rule in the text. “Whenever a trustee, says Ms Lordship, or one standing in the relation of a trustee, violates his duty and deals with the trust estate for Ms own behoof, the rule is, that he shall account to the cestui que trust for all the gain he has made. Thus, if trust money is laid out in buying and selling land, and a profit made by the transaction, that shall go, not to the trustee who has so applied the money, but to the cestui que trust, whose money has been thus applied. In like manner (and cases of tMs kind are more numerous), where a trustee or executor has used the fund committed to his care in stock speculations, though loss, if any must fall upon himself; yet, for every farthing of profit he may make, he shall be accountable to the trust estate. So, if he lay out the trust moneys in a commercial adventure, as in buying or fitting out a vessel for a voyage, or put it in the trade of another person, from which he is to derive a certain stipulated profit, although I will not say that tMs has been decided, I hold it to be quite clear that he must account for the profits received by the adventure, or from the concern. In all these cases it is easy to tell what the gains are. The fund is kept distinct from the trustees, other moneys and whatever he gets he must account for and pay over. It is so much fruit, so much increase on the estate or chattel of another, and must follow the ownership of the property and go to the proprietor. So it is also, where one not expressly a trustee, has bought or trafficed with another’s money. The law raises a trust by implication, clothing him, though a stranger, with the fiduciary character, for the purpose of Making him accountable. If a person has purchased land in his own name with my money, there is a resulting trust for me; if he has invested my money in any other speculation, without my consent, he is held a trustee for my benefit. And so an attorney, guardian, or other person, standing in a like situation to another, gains not for himself, but for the client, or infant, or other party, whose confidence has been abused. Such being the undeniable principle of equity, such the- rule by which breach oí trust is discouraged by intercepting its gains and thus frustrating the intentions that caused it; punished by charging all losses on the wrong-doer, while no profit can ever accrue, can the court consistently draw the line, as cases would seem to draw it, and except from the general rule those instances where the risk of the malversation is most imminent; those instances where the trustee is most likely to misappropriate; namely, those in which he uses the trust funds in his own traffic ? At first sight, this seems grossly absurd. Some reflection is required to understand how the court could ever, even in appearance, countenance such an anomaly. The reason which has induced judges to be satisfied with allowing interest only, I take to have been this. They could not easily sever the profits attributable to the trust money, from those belonging to the whole capital stock; and the process became still more difficult where a great proportion of the gains proceeded from skill or labor employed upon the capital. In cases of separate appropriation, there was no such difficulty ; as, where land or stock had been bought, and then sold again at a profit. And here, accordingly, there was no hesitation in at once making the trustee account for the whole gains he had made. But where having engaged in some himselfj he had invested the trust money in that trade along with his own, there was so much difficulty in severing the profits which might be supposed to come from the money misapplied, from those which came from the rest of the capital embarked, that it was deemed more convenient to take another course, and instead of endeavoring to ascertain what profit had been really made, to fix upon certain rates of interest, as the supposed measure or representative of the profits, and assign that to the trust estate. This principle is undoubtedly attended with one advantage; it avoids the necessity of an investigation of more or less nicety, in each individual case, and it thus attains one of the important benefits resulting from all general rules. But mark what sacrifices of justice and expediency are made for this convenience. All trust estates receive the same compensation, whatever risks they may have run during the period of their misappropriation; all profit equally whatever may be the real gain derived by the trustee from this breach of duty; nor can any amount of profit made, be reached by the court, or even the most moderate rate of mercantile profit that is the legal rate of interest, be exceeded, whatever the actual gains may have been, unless by the very clumsy and arbitrary method of allowing rests, in other words, compound in'terest; and this -without the least regard to the profits actually realized. Tor, in the most remarkable case in which this method has been resorted to, (Raphael v. Boehm, which is indeed always cited to he doubted, if not disapproved,) the compound interest was given with a view to the culpability of the trustee’s conduct, and not upon any estimate of the profits he had made by it. But the principal objection which I have to the role, is founded upon its tendency to cripple the just power of this court, in by far the most wholesome, and, indeed, necessary exercise of its function, and the encouragements thus held out to fraud and breach of trust. What avails it towards preventing such malversation that the contrivers of sordid injustice feel the power of the court only where they are clumsy enough to keep the gains of their dishonesty severed from the rest of their stores ?
      It is in vain, they are told, of the court’s arm being long enough to reach them, and strong enough to hold them, if they know that a certain delicacy of touch is required, without which the hand might as well be paralyzed or shrunk up. The distinction I will not say, sanctioned, but pointed at by the negative authority of the cases, proclaims to executors and trustees that they have only to invest the trust money hi the speculations, and expose it to the hazards of their own commerce, and be charged 5 per cent, on it; and then they may pocket 15 or 20 per cent, by a successful adventure. Surely the supposed difficulty of ascertaining the real gain made by the misapplication, is as nothing compared with the mischiefs likely to arise from admitting this "tule, or rather this exception to one of the most general rules of equitable jurisdiction. Even if cases were more likely to occur, than I can think they are, of inextricable difficulties in pursuing such inquiries, I should still deem this the lesser evil by far, and be prepared to embrace it. Mr. Solicitor-Gen"eral put a case of a very plausible aspect, with a view of deterring the court from taking the course which all principle points out. He feigned the instance of an apothecary buying drugs with 10 0Z. of trust money, and earning l,O00Z. a year by selling them to his patients; and so he might have taken the ■case of trust money laid out in purchasing a piece of steel or skein of silk, 'and these being worked up into goods of the finest fabric, Birmingham trinkets or Brussels lace, where the work exceeds by 10,000 times the material in value. But such instances in'truth prove nothing; for they are cases, not of profits upon stock, but of skilful labor very highly paid; and no reasonable person would ever dream of charging a trustee, whose skill thus bestowed had so enormously augmented the value of the capita], as if he had only obtained from it a profit; although the refinements of the civil law would certainly bear us out, even in charging all gains accruing upon those goods as in the nature of accretions belonging to the true owners of the chattels.”


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    George Hall v. Thaddeus M. Wood.
    Feb. 17th.
    Where exceptions to an answer have been allowed, and the defendant on the application of the adverse party, puts in an entire new answer to the bill, the complainant has no right to treat it as an answer to the exceptions only; but if the new answer is insufficient, he must file new exceptions.
    Where matters charged in the bill, as the acts of the defendant himself, are of such a nature that he can be presumed to recollect them if they ever took place, a positive answer is, in general, required.
    But where the facts are such that it is probable he cannot recollect them so as to answer more positively, a denial of the facts, according to his knowledge, recollection and belief will be sufficient.
    This was a case on exceptions to a master’s report on exceptions to an answer. The facts appear in the opinion of the court.

      D. W. Forman, for complainant.

      S. M. Hopkins, for defendant.
   The Chahcellob :—The complainant filed exceptions to the original answer of the defendant, which, on reference to a master, were, in part, allowed. The bill having been *taken as confessed inconsequence of the neglect of the defendant to put in a further answer and pay the costs, he applied to be let in to make a defence on affidavits of merits and of mistake, or accident having prevented his complying with the former order of the court. The answer being very voluminous, he was desirous of saving the expense of an entire new answer; but the complainant’s counsel insisted that if he was let in they were entitled to anew answer, which should be full and complete; and that the defendant ought to be prohibited from setting up the statute of limitations as a defence in the new answer. The court compelled the defendant to submit to these terms; and also required him to pay $50 over and above the taxable costs to remunerate the complainant for counsel fees and extra expense. The order for taking thfe bill pro confessa was set aside on condition that such costs and extra allowance were paid, and a full and perfect answer put in within forty days, The defendant complied with these conditions, and put in a new answer. Instead of excepting to this answer, in the usual form, the complainant referred it to the master upon the voluminous exceptions taken to the first answer, many, or most of which were wholly inapplicable. The master, without inquiring into the regularity of this proceeding, examined the answer in respect to the exceptions which were allowed by him to the original answer, and certified that the same was a good and sufficient answer to the bill, and that the exceptions ought not to be further insisted on.

The whole of this reference and proceeding before^the master has been irregular. The complainant had a right to retain the former answer and proceedings thereon, and to compel the defendant to answer further. The defendant wished to do this, but the complainant insisted upon having an entire new answer. After he had succeeded in this request, and been paid for the intermediate costs, he had no right to treat this as an answer to the exceptions. And if it was an insufficient answer to the bill, he should have filed new exceptions.

' Under these circumstances, I have not looked into the new answer for the purpose of determining whether it was a '"'technical answer to all the exceptions which were allowed by the master on the reference of the first answer; but only so far as to see whether the new answer was sufficient in substance. For this purpose the new answer must be examined by itself, and without reference to what was contained in the former answer. And for the purposes of this application it must also be taken to be true.

The defendant has annexed copies of the accounts, and brought into the register’s office the partnership books, from which the complainant may be enabled to obtain all the information which his co-partner, the defendant, possesses on the subject. And he swears that the account given by him is the best he can make or render in the premises, and is as full and complete as he is capable of making it. And as to certain specific inquiries as to sums and amounts, he says he does not know, is not informed, has no means of knowing and cannot answer. If this is true, he certainly could not give a more perfect answer to those particulars without committing perjury.

It is supposed by the complainant’s counsel, that he ought to have denied positively that he had within six years received any other sums than those mentioned in his answer. He swears that he did not receive any other sum or sums from any person or persons to his knowledge, recollection, information or belief, and he therefore denies that he did receive any other sum or sums. The objection to the answer in this particular is founded upon one of Lord Clarendon’s orders, which is thus stated in Hoffman’s Chancery; “ An answer to a matter charged as the defendant’s own fact, must be direct, without saying that it is to his remembrance, or as he believeth, if it be laid to be done seven years before, unless the court upon exception taken, shall find special cause to dispense with so positive an answer.” The exception in the rule takes this case completely out of its operation. Certain facts and transactions make such an impression upon the mind of the defendant, that he is presumed to be able to answer positively whether they were so or not, unless he set forth some reason or excuse, from which it may appear possible that the circumstances have escaped his recollection. *A non mi ricordo answer, as to such facts, is always considered evasive. But even there compelling the defendant to answer positively, is a measure of doubtful policy, except with a view to a conviction for perjury; for if he had prevaricated in the first instance, he would probably give a positive denial of the fact if compelled to answer further. But in the case now under consideration, the court must see that it is impossible for a man who has been collecting outstanding accounts for many years, to swear positively that he has not received any other sums than those entered on his books of account. A positive answer, in such a case, to a conscientious man, might appear very much like swearing to what he could not know. And upon the exception in Lord Clarendon’s order, the court must see special cause to dispense with so positive an answer where there is room to doubt whether the defendant can answer in the manner prescribed by that rule, without doing violence to his conscience. In Hall v. Bodily, (1 Yern. 470,) decided since the order of Lord Clarendon, the defendant answered, that he received no more than the sum of £ to his remembrance, and it was held so far a good answer.

On the whole I am satisfied with the decision of the master upon this answer. The exceptions must be overruled, and the report confirmed; and the complainant must pay to the defendant his costs on the reference and upon the hearing on the exceptions to the report.


text:
    Casper J. Cook v. Joseph Grant, Administrator, &c., of Henry J. Cook deceased.
    Where a testator devised Ms real and personal estate to two of Ms sons, provided they should pay certain legacies given in the will, and the legatees filed their bill against them and obtained a decree for the sale of the real estate to pay the legacies, which, upon being sold, proved insufficient; and no decree having been asked in that suit, charging the devisees personally with the payment, held, that the legatees could not file a new bill against them for that purpose.
    Feb. 17th.
    *The legatees should have asked and obtained all the relief to which they were entitled, against the devisees in the first suit.
    By the will of John Cook, who died in 1804, he devised to his wife, during her life or widowhood, the possession of all his estate real and personal. And after her death he devised the same in fee to his sons John and Henry, in separate and distinct parcels, provided they should pay certain legacies to the complainant and others. In 1815, Henry and his mother sold and conveyed to J. Vosburgh, with warranty, all the lands devised to him by the will, for the consideration of $3,000. In 1819, the complainant, Casper J. Cook, and the other legatees, filed a bill in this court against the devisees and the purchasers under them, setting forth a payment of part of the legacies, and praying that the devisees and purchasers might pay the residue, or in default thereof that the lands might be sold to pay the same. That bill was taken pro confessa against the several defendants therein, by the consent of some, and by the default of the others ; and a reference was made to a master to ascertain the amount due to the legatees. On the coming in of the master’s report, a final decree was entered in the cause, directing all the devised premises to be sold, subject to the life estate of the mother of the devisees, and that the costs of the suit and balance of the legacies be paid out of the proceeds; and that the residue of the purchase-money, if any there should be, remain in court to abide the future order thereof. Under that decree the complainant bid in all the lands for $200, which was but little more than sufficient to pay the costs; leaving nearly $2,000 still due to the legatees. He afterwards obtained assignments of the interest of all the other legatees. After the death of Henry J. Cook, and more than six years after the sale, he filed his bill in this cause against the administrator, claiming the balance unpaid on the legacies to be a personal charge against Henry J. Cook, and that he was entitled to a preference in payment out of the estate, on the ground of the decree in the first suit.
    The administrator put in an answer, referring the complainant to such proof as he could make of his case, and leaving *his rights to the determination of the court. The cause was submitted on pleadings and proofs.

      H. Loucks & A. Haring for complainant:
    The defendant’s intestate, by accepting the devise in the will of John Cook, became personally liable for the payment of the legacies given therein to the complainant and his four sisters. The rule is settled that where land is devised, charged with the payment of a legacy, and the devisee accepts the devise, he takes it cum onere, and becomes personally liable for the legacy. (Glenn v. Fisher, 6 John. Ch. Rep. 33; Jackson v. Bull, 10 John. R. 148.) In this case the intestate enjoyed the lands devised to him for several years, and then sold them for $3,000, and received the consideration money. He has also made payments towards the legacies charged upon the lands. In Van Orden v. Van Orden, (10 John. Rep. 30,) it was held that the acceptance and enjoyment of the estate devised, and payment on account of an annuity, was equivalent to an express promise. (Tole v. Hardy, 6 Cowen, 333.) The sale of the land devised under the former decree did not discharge the intestate from his personal liability. That decree charged him personally. The money received by the defendant on the Gross bond forms a part of the assets to be administered by him. This bond was taken by the intestate in payment of a bond belonging to his wife. This act of the intestate was a sufficient reduction into his possession of the bond of his wife. It was equivalent to receiving the money due upon it. (Schuyler v. Hoyle, 5 John. Ch. R. 196, 207.) But if this bond had not been reduced into possession by the intestate, he became entitled to it as the administrator of bis wife, having survived her. (1 Chit. Pl. 21; Schuyler v. Hoyle, 5 John. Ch. Rep. 206, 207; Whitaker v. Whitaker, 6 John. Rep. 112.) And although the intestate died without administering upon her estate, still her administrator is a trustee for the representatives of the husband. (Stewart v. Stewart, 7 John. Ch. Rep. 229, 244; Whitaker v. Whitaker, 6 John. Rep. 112; Schuyler v. Hoyle, 5 John. Ch. Rep. 206, 207.)
    The former decree against the intestate being equivalent to a judgment at law, is a debt of record, and is entitled to *priority in payment out of the assets of the intestate. Equity will not destroy priorities which the law gives, although a creditor should be obliged to go into Chancery for assistance. (Thompson v. Brown, 4 John. Ch. Rep. 619, 634; Codwise v. Gelston, 10 John. Rep. 507; Woodcock v. Bennet, 1 Cowen’s Rep. 711.) The defendant ought to be charged with costs. Before the commencement of the suit, he was served with a copy of the decree, and a written notice of the complainant’s claim; and payment was then demanded from him. (Glen v. Fisher, 6 John. Ch. Rep. 33; 7 John. Ch. Rep. Gen. Index, p. 47.)

      S. Beardsley for defendant:
    The intestate acquired no title to the lands devised to him, until the payment of the legacies. He could not, therefore, until the legacies were paid, convey any title to a purchaser; and the legatees having applied to Chancery, and obtained a sale of the devised premises to satisfy the legacies, cannot now charge the devisees personally with such legacies. If they bad not enforced their claim against the land, they could undoubtedly have charged them personally. (2 Cruis. Dig. tit. Devise, ch. 16; Wheeler and wife v. Walker, 2 Com. Rep. 197; Jackson v. Martin, 18 John. Rep. 35; Jackson v. Bull, 10 John. Rep. 151; Glen v. Fisher, 6 John. Ch. Rep. 33.) The legatees have deprived the intestate of the gift to him, and they should not now subject him to charges made upon the subject of that gift. This distinction is peculiarly proper in this case. For here the widow of the devisor was entitled to the possession during her widowhood; and before that time expired, the legatees proceeded and obtained a decree for the sale of the devised premises, and actually sold the same to discharge the legacies. The former bill filed by the legatees did not seek to charge the defendants personally. Under the decree in that suit, the complainant purchased the devised lands; and he now seeks to claim the legacies also. If the complainant is not entitled to relief, then the defendant should recover his costs against him; and if he is entitled to relief, then the defendant ought to have his costs out of the fund.
   *The Chancellor :—It is not necessary for the decision of this cause, to examine the question whether Henry J. Cook was originally liable for the payment of the legacies charged on the land devised to him. This bill is not framed properly, or with the necessary parties to settle that question here, without reference to the proceedings and decree in the original suit. The only question now" is, whether by that decree he was personally charged with the payment of the legacies. The legatees were bound to ask and obtain all the relief to which they were equitably entitled, in the first suit. If they had claimed to charge him personally in that suit, and obtained such a decree, it is hardly probable he would have left the property to be sold for a nominal sum merely. He has paid part of the legacies, and has received nothing under the devise. The life estate of his mother continued till after the sale under the decree. Although he had before that time joined with her in a conveyance of the property, he was bound to refund the whole purchase-money under his covenant of warranty.

On looking into the decree in that case, it is clear that it. never was intended to charge the devisees or the purchasers under them, with the payment of these legacies, personally. It is an absolute decree for the sale of the property, and the distribution of the proceeds only. There is not even an option given to the defendants in that suit to pay the money, or to have the land sold to satisfy the legacies. It is as much personal decree against the purchasers as against the devisees, but it never was intended to be personal against either. The complainants’ bill must be dismissed with costs.


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    *Piggot v. Mason.
    Feb. 17th.
    A covenant on the part of the lessor to renew alease for years at the expiration of the term, is a covenant running with the land.
    A surrender and conveyance to the lessor of a sub-lease of part of the premises, is no bar to a claim on the part of the lessee or his assigns for a renewal of the original lease agreeable to the covenant.
    The holder of the original lease is not entitled to a covenant for renewal in the new lease, as that would create a perpetuity.
    On the first of November, 1802, Joel Evans leased to James Cross a piece of land in the city of New York for the term of twenty years and six months, at a quarter yearly rent. The lessor covenanted with the lessee and his assigns that he or they might, at any time within thirty days after the expiration of the lease, remove from the premises all buildings erected thereon during the said term. Evans also covenanted with the lessee to renew the lease at the expiration of the term, at a fair valuation, by persons indifferently chosen between the parties. In 1803, all the interest of Cross in the premises was sold on an execution, and conveyed by the sheriff to Stevens. In 1804, the right of Stevens was sold and conveyed to J. Drennan. In May, 1805, Drennan sold the premises to T. Garniss and W. H. Pyke, who divided the premises into three lots. They leased No. 3 to J. W. Griffiths and C. Green for the residue of the term, at a yearly rent of $42 50, and the lessees covenanted to surrender up the premises on the last day of the term. Garniss and Pyke covenanted to pay them for their improvements and buildings on the last day of the term, or to suffer the lessees to take them off within thirty days thereafter. They also covenanted,, that if they obtained a new lease of the premises at the expiration of the term, they would assign to Griffiths and Green, on the same rent and conditions upon which they should receive such lease. In July of the same year, lot No. 2 was leased by Garniss and Pylce to J. Spies upon the same terms. In 1811, Pyke sold and assigned to Garniss all his interest in the undivided half of the premises. Two years afterwards, Garniss sold and assigned all his interest in the *whole of the leasehold premises to the complainant, and delivered over to him the original lease, with all the intermediate assignments and sub-leases.
    In 1821, the defendant became the owner of the reversion and of all the interest which Evans formerly had in the premises, subject to the rights claimed under the lease. After this purchase, the complainant paid to the defendant the rent for the original lease to the end of the term. The defendant endeavored to purchase in the outstanding claims under the original lease, but the parties could not agree as to the terms. A few days before the expiration of the term, the defendant procured from the executrix of Spies a surrender of his sub-lease and a conveyance of all her interest in the premises; which surrender and conveyance, he now insists, is a complete bar to the complainant’s claim for a renewal of the original lease.
    The bill and answer set out various negotiations between the parties as to the mode of fixing a rent on renewal of the lease, and the persons to be selected for that purpose, which have no bearing on the merits. The cause was heard upon the pleadings and a statement of facts agreed upon by the parties.

      R. Bogardus, for the complainant:
    The only question in this case is, whether the purchase by the defendant of the sub-lease of a part of the demised premises, is a bar to the complainant’s claim to a renewal of the original lease. At the time the original lease was given, it must have been expected by the parties that the premises would be divided by the lessee, and sub-leased to different persons. The doctrine cannot be sanctioned, that the act of the reversioner in purchasing the interest of one sub-lessee, should take away the right to a renewal of the original lease. The injury that would result to the tenant by a refusal to. perform the covenant for a renewal, is the consideration for the execution of a new lease. Not only the covenantor but also his assignees are bound by the covenant of renewal.

      P. A. Jay and W. Slosson for the defendant:
    The subleases by the complainant, although in form leases, were in fact assignments of all their interest in that part of the ° demised ^premises so sub-leased. There cannot be a lease without a reversion in the lessor. The covenant of renewal, contained in the original lease is not devisable. The landlord cannot be compelled to cut up Ms lands into several parts, by executing several new leases. The covenant is for a renewal of the lease as to the entire whole and not of a part of the demised premises. The covenant is also too vague for a decree of specific performance. No mode is pointed out to ascertain the amount of the new rent, or the time for which the new lease is to run. The Chancellor must make a new contract, in order to render effectual a decree for specific performance. (Spencer's Case, 5 Coke’s R. 16 a; 1 Saun. R. 287, c. note 16; Dumpor's Case, 4 Coke’s R. 119, 120; 3 Com. Dig. 128, tit. Condition, c. 2; Soprani v. Skurro, Yelverton’s R. 19.)
   The Chancellor, :—The objection that the covenant to renew contained in the original lease was personal, and did not pass by the assignment of the lease, cannot be sustained. It was a covenant running with the land, and passed to the complainant by the several mesne assignments of the term. It is well settled, even at law, that the assignee may recover in Ms own name for a breach, of such a covenant, if the breach was committed after the assignment. (Lamette v. Anderson, 6 Cowen, 302; Withey v. Mumford, 5 id. 137; Kane v. Sanger, 14 John. R. 89; Grescot v. Green, 1 Salk. 199.) And it lies either for or against an assignee, although he is not named in the covenant. (Hyde v. The Dean and Canons of Windsor, Cro. Eliz. 552.) The assignee of a part of the premises may also recover pro tanto, if the covenant be in its nature divisible. (Touchstone, 199; Co. Litt. 385 a.) A case is mentioned by Gawdy, (Moor, 159,) very similar to this. The lessor of a term for years covenanted to renew at the end of the term, and afterwards granted the reversion; and the assignee of the lease was permitted to maintain an action in his own name for a breach of the covenant against the assignee of the reversion.

If the defendant in this case had obtained an advantage by procuring the surrender and conveyance of the sublease to Spies, as he obtained it with full knowledge of the complainant’s *rights, this court would not permit him to retain such advantage. But such is not the fact. The leases to Griffiths and Green and to Spies were strictly subleases, and did not convey to them all the interest of the lessors in those particular portions of the premises. The lessors retained an interest in those portions of the premises by the new rent reserved to themselves. They did not give to the sub-lessees an absolute right to take off the buildings which they should afterwards erect. If buildings had been previously erected, the absolute right to them at the expiration of the term belonged to the complainant, if the lessees did not think proper to take new sub-leases; and the right of the complainant to take the renewal of the original lease in his own name is evidently reserved in the sub-leases.

The defendant is therefore bound to give to the plaintiff a new lease of the whole premises, and he will then be entitled to a renewal of the sub-lease for lot No. 2, on the terms and conditions specified in the lease to Spies.

As the parties cannot agree upon persons to fix the value of the rent to be inserted in. the new lease, it may be fixed under the direction of the court; and the proper sum to be inserted must be ascertained by the report of a master. The other conditions of the lease are sufficiently ascertained by the one originally granted. The new lease must be for a similar term, and with the like covenants and conditions inserted therein, except the covenant for renewal, which the complainant is not entitled to have inserted in the new lease, as that would, in effect, create a perpetuity. (Fritton v. Foot, 2 Bro. Ch. R. 636; Hyde v. Skinner, 2 P. Wms. 196.) The amount of the rent to be inserted in the new lease must be estimated in reference to the value of the land in May, 1823, without taking into consideration any buildings or improvements made thereon by the original lessee or those who succeeded him in the occupation of the premises.

It would be for the interest of all parties if the defendant should give to the complainant, or to him and Griffith separately, a new lease or leases of lots No. 1 and 3 only, and retain No. 2 himself, with a proportionate reduction of the rent. The amount of the rent may be fixed by *three freeholders, to be selected by such master as may be agreed on by the parties or designated by the court. H the defendant consents to that arrangement, a decree will be entered accordingly, and without costs to either party. Otherwise there must be a decree for a specific performance of the covenant of renewal contained in the original lease, with a provision therein for the execution of a sub-lease to the defendant for lot No. 2, and a reference to a master to settle the form of the lease and sub-lease, and fix the amount of rent to be reserved in each. And that the question of costs, and all other questions and directions be reserved until the coming in of the report of the master.

       But a covenant in a lease which relates to a thing not ire esse, but to be. done upon the land, does not run with the land so as to bind the assignee, unless he be named in the covenant. Tallman v. Coffin, 2 Comst. 134.

        Astor v. Miller, 2 Paige, 68.

        Carr v. Ellison, 20 Wen. 178; see also Abeel v. Radcliffe, 13 John. 297; but see Bridges v. Hitchcock, 5 Brown’s P. C. 6. A covenant to renew on such terms as might be agreed on, is void for uncertainty. Whitlock v. Duffield, 110; S. C., 26 Wen. 55.


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    Henry H. Ross and Wife v. John Crary, surviving executor, &c., of Mary Williams, deceased.
    Feb. 17th
    Where several suits are brought by different legatees for general legacies, ancl the estate is insufficient to pay them all, the court will direct an account of the estate to be taken in one cause only, and in the meantime direct the proceedings in all the other suits to be stayed.
    It is a matter of discretion as to which suit the account shall be taken in. The court will therefore direct the suit which is most beneficial for the legatees to be proceeded in: and if there is doubt on that subject, will refer it to a master to ascertain which suit is most for the interest of the legatees and other persons interested in the estate.
    Several of the general legatees of Mrs. Williams brought separate suits against the executors to recover the amount of their legacies. The estate being insufficient to satisfy the whole, the defendant applied to have the proceedings in this suit stayed, and that the complainants come in under the decree obtained in one- of the other suits which was subsequently commenced.

      J. Edwards, for the complainants."

      A. Van Vechten, for the defendant.
   *The Chancellor :—The opinion of the late Chancellor, in Kettle and wife and Wynhoop and wife against the defendant in this cause settles the principle, that where there are divers suits for general legaciest and there is an allegation of a deficiency of the fund, so that an account of the estate is *necessary, the court will protect the defendant from unnecessary trouble and expense by directing an account in one cause only; and in the meantime stay the proceeding in the others, leaving all the parties interested in the fund, to come in under the decree. From the reservation in the decretal *order in that ease, which has been recently settled and entered as of the 18th of April last, it is evident he did not intend to settle the question as to which suit should be proceeded in. This must always be a matter of discretion in the court, which, while it protects the rights of the defendant, *will also see that no injustice is done to the complainants in any of the suits. It does not distinctly appear by the papers before me, what are the pleadings in the other suit; but, from the opinion of the late Chancellor, I infer that no replication was filed to the answer. If so, it is probable the answer would be conclusive against all persons who should come in under a decretal order in that suit. In this suit, three answers of the defendant have been found insufficient, and a fourth is put in, to wihch the plaintiff has filed a replicatian. The order of reference in the other cause also appears to be defective in *many particulars. I shall therefore direct a reference to James King, a master, to ascertain and report which suit it will be most for the interest of the legatees and parties interested in the estate, to have the account taken in; that notice be given to the complainants in each suit, that they may appear and be heard before the master on the reference; that either of the parties in this suit be at liberty to take out a summons and proceed on the reference before the master; and that the proceedings in all the suits be stayed until the further order of the court. All other directions are reserved until the coming in of the master’s report.

       The following is the opinion of Chancellor Jones above referred to:
      Kettle and wife v. Crary, Executor, &c.
      The Chancellor:—This is a bill by legatees against an executor and trustee, for payment of legacies. The defendant, who is surviving executor of the will of Mary Williams, put in his answer, setting forth the will, which contains the bequests to the complainants and numerous other legatees; and also setting forth the inventory filed by himself and his co-executor, and suggesting the insufficiency of the assets to pay the debts and satisfy the legacies, whereby a proportionable abatement has become necessary; and stating that another bill had been filed against him in this court by Henry H. Eoss and Susannah, his wife, for a legacy bequeathed by the same will to the said Susannah. To which bill he has put in an answer, and which is still pending, and submitting, that according to the course and practice of the court after suit brought by one legatee, the other legatees should be made parties thereto, or come in under the decree that may be made therein; but offering to account as executor and trustee as aforesaid in such manner as the court may direct.
      The cause is submitted on bill and answer, and the form of an order is presented by the complainants, directing references on the principle suggested by the answer.
      The only point made by the executor is, that all the legatees and cestui que trusts ought to be made parties to the suit, as well because the estate is inadequate to the full payment of the legacies, and the legacies must therefore abate, as because he is a trustee as well as an executor.
      It seems to be the settled principle of the court that creditors are not to he permitted to prosecute separate suits for them respective demands, but that the claims of all are to be brought in under a decree upon one bill, and the same principle would seem to apply with equal force to legatees in the case, especially of the inadequacy of the assets to the full payment of all the legacies. The inconveniences attending the simultaneous prosecution of numerous suits against the same party for a participation in a common fund aro alone decisive against the practice. The proceeding is open to the objection of a useless multiplicity of suits, and to all the difficulties consequent upon different decrees and different reports, which, if conducted by different solicitors, may be variant in their results and principle from each other; and the expense to the estate must always be onerous, and may be ruinous.
      I am satisfied, therefore, that an order would, in ordinary cases, be proper, directing the proof to bo taken of the legacies claimed by the complainants, and for an account of the estate by the executor and trustee; and that all other legatees be at liberty to come in under the decree, and be restrained ftom prosecuting separate suits for them legacies; and an order, with proper directions to the master for conducting the reference, would have been made in this case if no previous suit had been pending. But Eoss and wife commenced their suit before the complainants filed this bill. That cause has not been brought to a hearing, and the complainants who prosecute it are not before me upon this hearing.
      Do they possess any rights resulting from the pendency of their suit which can interfere with the exercise of the discretionary power of the court to make the order in this cause, otherwise usual in similar cases ? I incline to think that the order may be made in the cause which is first ripe for a decree, whether that cause was first commenced or not: and that -when the decree is made in the younger suit, then the proceedings in the elder suit must be stayed, and the complainants in that suit are to come in and prove their legacies under the decree in the second suit. In the case of Jackson v. Leaf, (1 Jacob & Walker, 229,) the Chancellor held that if one creditor filed a bill in this court, and afterwards another creditor files his bill, and the executor answers the second bill directly, and a decree is obtained, it is competent to the executor himself to restrain the first from proceeding; and he shows that the course has lately been, when a creditor is thus stopped, to pay him the costs that he has incurred prior to his having notice of the decree. And the Chancellor said that he took the rule to be universal. That was a case of creditors. But it certainly is not a greater exercise of power to restrain a legatee than it is to restrain a creditor from proceeding in his suit.
      An opinion seems since to have prevailed that the executor must, in such oases, apply to the court for an injunction to restrain the other creditors or legatees from proceeding in their suits. But the more simple course of a motion in the cause wherein the decree is made has been introduced into the modern practice of the court and is certainly preferable to the more expensive proceeding by bill; and it is equally efficacious in its operation with an injunction upon suits and proceedings in the same court, and it may indeed be said, substantially between the same parties. If, then, an order is effectual for the purpose, that order may be made a part of the decree, and the legatees who are prosecuting other suits upon notice of the order which directs the proceedings in those suits to be stayed, will be in contempt if they afterwards proceed.
      The principle recognized and acted upon by the court in the case to which I have referred had long been in existence, and had become familiar to the English Court of Chancery. In Gilpin v. Lady Southampton, (18 Ves. 469,) where a motion was made for an injunction to restrain a creditor from proceeding at law after the usual decree at the Bolls by consent, upon the bill of a creditor against the defendant as administrator of Lord Southampton, which involved the same principle applied to a much stronger case, Lord Chancellor Eldon said, that ever since he had known that court, suits had been allowed against executors; and, in truth, by executors in the name of a creditor against themselves; and when once a decree was made, it was impossible to permit a creditor to go on at law. And the same reason for enjoining the suit at law, must surely be sufficient to induce the Chancellor to restrain the further prosecution of a suit in his own court.
      This rule of equity was first noticed in the Court of Chancery of this state, by Chancellor Kent, in the case of McKay v. Green and others, (3 John. Ch. Rep. 56,) where the case of Gilpin v. Lady Southampton was cited; and the Chancellor expressed a disinclination to follow the rule it prescribed, as he said that he was not sufficiently informed or prepared to assume the entire and exclusive jurisdiction of suits against executors and administrators merely for the purpose of enforcing a rateable distribution of assets; but he soon had occasion, upon more full consideration, to change his first impression; and in the case of Thompson v. Brown, (4 John. Ch. R. 642,) after an able review of all the cases, he fully approves the principle of the English Courj; of Chancery, and adopts their rule. He winds up his review of the English cases with the conclusion, that the doctrine of the English Court of Chancery as finally settled is, that upon the usual decree to account in a suit by one or more creditors against an executor, either simply for themselves or specially on behalf of themselves and all other creditors, the decree is for the benefit of all the creditors, and in nature of a judgment for all: and that all are entitled, and are to have notice to come in and prove their debts before the master; and that from the date of that decree, an injunction will be granted upon a due disclosure of assets, on the motion of either party to stay all proceedings of any of the creditors at law.

        Brown v. Ricketts, (3 John. Ch. Rep. 553,) was a bill against executors and trustees by one legatee, in behalf of himself and such other legatees of the testator as might choose to come in and contribute to the expense of the suit, An objection was taken at the hearing for want of parties, on the ground that the other cestui que trusts were neither plaintiffs nor defendants. But the Chancellor sustained the bill. He admitted that, ordinarily, all persons interested in the fund must be parties to the suit, but held that creditors and legatees form exceptions to the rule; and that one creditor or one legatee may sue on behalf of himself and the rest, and the others may come in under the decree. The case of creditors, he observes, is a familiar exception, and the exception as to legatees, (not being residuary legatees,) seems to be equally well known. The cases in the English Court of Chancery to which Chancellor Kent refers, fully support the rule, lord Thurlow, in Parsons v. Neville, (3 Bro. C. R. 365,) where the bill was by some of the residuary devisees in behalf of themselves and the other devisees, ruled that all the devisees must be parties. But Lord Eldon, in Cockburn v. Thompson, while he recognizes the general principle of that decision, qualifies it by the exception of cases where it is not necessary or convenient that all should be before the court; and I deduce from that and other cases the principle, and in the case of residuary legacies, in common with all the cases where it is impracticable to make parties, or when the inconvenience and expense would greatly overbalance the utility of the proceeding, and all the rights and interest of the whole class of persons to be affected by the decree, may be protected and preserved by their subsequent accession to the suit on the reference before the master, this court will dispense with them as parties on the record, and give the opportunity of introducing them into the suit, by subsequent proceedings before the master.
      It is not necessary, however, in this case, to pursue that inquiry; for supposing the exception of residuary legatees to remain in its full extent, this is not the case of residuary legatees. The will, it is true, does bequeath a residue of the estate to residuary legatees; but the complainants in this suit, as well as in that of Eoss and wife against the same defendant, sue for particular legacies bequeathed to themselves, and in which no others are interested with them. And each of these legatees had the undisputed right to sue separately for their own legacy; and to their suits the principle clearly applies, that the decree in one suit is for the benefit of all who are similarly circumstanced, and in the nature of a judgment for all. Indeed, if the suggestion of the inadequacy of the estate to satisfy the legacies proves to be true, there can be no residue left for the residuary legatees; and if that suggestion should he groundless, I see no sufficient reason why the residuary legatees may not come before the master and protect their interest, and ultimately be embraced in the decree which is to settle the estate, and determine and adjust the rights of the parties, as beneficially as they could do if made parties upon the record, and brought into court by subpoena. If their interest should be found to involve difficulties not now foreseen, it will be time enough to apply the remedy when the mischief makes its appearance. It is sufficient for the purpose of the pending suits, that the residuary legatees are not necessary parties to them, and that all the special pecuniary legatees are to be satisfied before the residue, belonging to residuary legatees, can be ascertained, or it can be known whether .there will be any residue or not.


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    Leavitt v. Cruger and Wife
    Feb. 17th.
    Where a bill is filed against husband and wife, the husband is bound to enter a joint appearance, and put in a joint answer for both.
    But if the wife refuses to join in an answer or a plea, the husband will be permitted to put in either separately.
    The service of a subpoena upon the wife, is only necessary where the proceeding is against her in respect to her separate estate.
    On a bill to forclose a mortgage executed by husband and wife, the subpoena was served on the husband only, the wife residing in France. The husband entered an appearance for himself, and filed a separate answer. A solicitor appeared for the wife separately, and the plaintiff served him with a copy of the bill, but no answer for her had been put in.
    Tillinghast, for the complainant,
    presented a petition praying that the answer of the husband might be taken from the file, and that he enter a joint appearance for himself and wife, and put in a joint answer, or that the bill be taken as confessed.

      J. Rhoades, contra,
    insisted that the complainant had waived a joint appearance and answer by serving a bill on the wife’s solicitor, on her separate appearance; and that it did not appear that he had entered the usual rule for the husband and wife to appear
   *The Chancellor:—The husband is bound to enter a joint appearance, and put in a joint answer for himself and wife, unless he shows a sufficient excuse. But if she refuses to join with him in an answer, or to swear to a plea, he will be permitted to put either in separately. (Chambers v. Bull, 1 Anst. 269; Pain v. -, 1 Ch. Cas. 296.) So far as relates to the appearance of the defendants jointly, it is probable that the complainant might have compelled it, either under the 114th or 115th rule. After the appearance had been entered, it would be incumbent on the husband to see that she answered jointly with him, or he should have obtained an order to answer separately, on showing that he could not prevail upon her to swear to a joint answer. If she had refused to answer, the bill would have been taken pro confessa against her, unless she applied and obtained an order to answer separately. Service of the subpoena on the wife is only necessary where the proceeding is against her in respect to her separate estate, in which case the husband is only a nominal party; and not where the estate is in the husband in right of the wife. (2 John. Ch. Rep. 139; 9 Ves. 486.) It does not appear from the papers before me in this case whether the mortgaged premises belonged to the husband in his own right, or in right of his wife.

The filing of the separate answer of the husband, without an order authorizing it, was irregular; and there does not appear to have been any replication filed, or other act of the complainant waiving the irregularity. It must therefore be taken off the files, and the husband must enter a joint appearance for himself and wife within ten days, or the bill be taken as confessed. After the appearance is entered, he must have six months to take out a commission and obtain the wife’s oath to the answer, unless the plaintiff stipulates in writing to receive the joint answer sworn to by the husband only. But on filing such stipulation, the defendants must put in such answer within thirty days after notice thereof, or the bill may be taken as confessed against them.

As the husband was misled by the service of the bill on the separate solicitor of the wife, neither party is entitled to any costs on this application.