text:
    Benedict & Oakley vs. Smith and others.
    A chattel mortgage which is not accompanied by an actual and continued change of possession of the whole property mortgaged, and which mortgage is not filed in the proper clerk’s office, as required^by the act of 1833, is absolutely void as against the creditors of the mortgagor; and not merely void as to so much of the property mortgaged as remained in the possession of the mortgagor.
    Where a creditor’s bill was filed to reach the property of the defendant in a judgment, after the return of an execution unsatisfied, and a supplemental bill was afterwards filed to set aside a chattel mortgage given by him to the defendants in such supplemental bill; Held, that one of the mortgagees was an incompetent witness, to establish the fact of the due settlement and discharge of the judgment upon which the original bill was based; as the supplemental bill against the witness must, of course, be dismissed if the complainants failed in sustaining their original bill against the judgment debtor.
    1843. February 21.
    Under the provisions of the revised statutes the general authority of the attorney of the plaintiff in the suit, in which a judgment is obtained, to receive payment and acknowledge satisfaction, is presumed to continue for at least two years ; but it may be revoked within that time.
    Where an attorney has obtained a judgment the collection of which is doubt, ful, it seems that he is authorized, by virtue of his general" retainer, to discharge the judgment upon receiving a part thereof and security for the payment of the residue. But where the debt is fully secured, by the levy upon property of the defendant more than sufficient to satisfy the judgment, the attorney is not authorized, without a special authority from his client, to discharge the lien of the judgment and execution without receiving payment of the.debt in full. And if the client repudiates the transaction immediately, and gives up the securities taken by the attorney, the judgment will not be considered as discharged as against the defendant therein, who knew the facts, and had therefore legal notice that the attorney exceeded the authority which he possessed, under a general-retainer in the suit.
    Where a person, without authority, assumes to act as the agent of another, the one for whom he assumes to act cannot claim the benefit of his agency in part and reject it as to the residue of the same transaction.
    If the attorney upon record goes beyond his general power, in compromising or taking security in discharge of a debt entrusted to him for collection, and the client, upon being informed of the transaction, does not within a reasonable time signify his dissent, the court will presume the attorney had a special authority thus to act'for his client; especially where the client receives the benefit of the security taken by the attorney on such compromise.
    This was an appeal from a decree of the vice chancellor of the eighth circuit, dismissing the complainants’ bill against the defendant E. ‘Smith, and their supplemental bill against Ithamar Smith and others. The original bill was filed to reach the property of the defendant therein, after the return of an execution upon a judgment against him unsatisfied ; and the object of the supplemental bill was to set aside a chattel mortgage, given by E. Smith to the other defendants, on the grounds of fraud and that there had been no change of posssesion of the property, and that the mortgage had not been filed as required by law. The defence set up to the original as well as to the supplemental bill, was that the judgment in favor of the complainants, against E. Smith, had been satisfied and discharged by their attorney,E. Griffin. And Ithamar Smith, one of the defendants in the supplemental bill, was examined as a witness to prove that Griffin had a general authority, to settle the debt as he should think proper. The testimony was received by the examiner subject to the objection of the complainants’ counsel that the witness was incompetent.

      E. P. Smith & F. M. Haight, for the appellants.

      Orlando Hastings, for the respondents.
   The Chancellor.

The defendant Ithamar Smith was an incompetent witness in this case, either for his co-defendants in the supplemental bill, or for the defendant in the original suit. The chattel mortgage to him and his associates not being accompanied by an' actual and continued change of possession of the property, and not being filed in the proper clerk’s office, as required by the act of April, 1833, (Laws of 1833, p. 402,) it was absolutely void as against the complainants as creditors of the mortgagor. It is not material in this case that a part of the mortgaged property was delivered, inasmuch as a part thereof remained in the possession of the mortgagor. The statute does not avoid the mortgage merely as to so much of the property as remains in the possession of the mortgagor. But the mortgage itself is declared void, if not filed as directed by the act, where it is not accompanied by an immediate delivery and followed by an actual and continued change of possession of the "things mortgaged. And a change of possession as to part of the property included in the mortgage, is not a change of possession of the things mortgaged, within the intent and meaning of the statute. The mortgage must therefore be filed, unless there is an immediate delivery of the whole property embraced therein and a continued change of possession, or such mortgage is made absolutely and wholly void, as to creditors, by the express terms of the statute. The supplemental bill against the witness and his co-mortgagees must therefore be sustained, unless they can destroy the foundation thereof by showing that the judgment against E. Smith, upon which the original bill is based, was legally satisfied and discharged. The witness was therefore directly interested in the testimony which he was called on to give. For the supplemental bill, to set aside this chattel mortgage, falls of course, if the complainants fail in sustaining their original bill against their judgment debtor.

The execution which was first issued, upon the judgment, appears to have been sued out in the name of E. Darwin Smith as the plaintiff’s attorney ; and I have not been able to find any evidence that he was the general partner of Griffin in his law business at the time this judgment was recovered and the execution issued. But upon looking into the judgment record, which was produced in evidence, it appears that Griffin was the attorney on record of the plaintiffs in that judgment, and that Smith appeared for the defendant and signed the cognovit upon which the judgment was rendered. Griffin being the attorney on the record, therefore, his general power to receive payment of the judgment, and to acknowledge satisfaction thereof, is, under the provisions of the revised statutes, (2 R. S. 362, § 26, 29,) presumed to continue for at least two years after the rendition of the judgment; unless it appears that his general powers as the attorney for the plaintiffs in that suit had been revoked within that time. The defendant was therefore authorized to consider him as the attorney of the plaintiffs in the judgment, and as possessing the general power and control over the proceedings, for the obtaining satisfaction of that judgment, which the attorney on record has by virtue of his general retainer in other cases. And if the property levied on by the execution in this case had not been sufficient to pay the whole debt, if sold by the sheriff in the ordinary way, a question of some importance might have arisen, whether the attorney on record, who is employed to collect a doubtful debt for his client, may not, even after judgment, receive a part of the debt, and discharge the lien of the judgment upon receiving security for the payment of the residue of the debt.

In this case, however, the proof shows that the sheriff had levied upon property of the defendant in the execution, the title to which was undisputed, sufficient to satisfy the judgment. It also appears that the assignment of the land contract was made to the attorney, and not to the plaintiffs in the judgment. In taking such a security and discharging the lien of the execution, and agreeing that the sheriff should return the execution unsatisfied, the defendant was bound to know that Griffin went beyond the authority which an attorney possesses by virtue of his general retainer. And if the complainants had repudiated the transaction immediately, and offered to give up all the securities which Griffin had assumed to take for their benefit, as their attorney and agent, I think they would not have been bound by his acts ; but that the judgment would have been considered as in full force against the defendant therein. (Givins v. Briscoe, 3 J. J. Marsh. Rep. 532. Wickliff v. Davis, 2 Idem, 71. Greenville v. Roberts, 7 Louis. Rep. 66.)

But where one person assumes to act as the agent of another, without authority, the person for whom he assumes to act cannot claim the benefit of his agency in part only, and reject it as to the residue of the transaction. And where the attorney upon record goes beyond his general power, in compromising or taking security for a debt entrusted to him for collection, if the client upon being informed of the transaction does not dissent, without any unreasonable delay, the court may presume the attorney had a special power thus to act; especially where the client receives the benefit of the securities taken for him by his attorney. In the case under consideration, therefore, I think the vice chancellor was right in supposing that the complainants had adopted the acts of their attorney, by collecting the note taken by him on the settlement of the judgment, and by receiving from him the land contract which had been taken to secure a part of the debt. That the land contract was not intended to be taken as a mere collateral security for the balance of the judgment, leaving that judgment in full force pro tanto, is evident from the fact that the sheriff was directed to return the execution satisfied, upon'payment of his fees, and that Griffin gave a receipt in full for the debt and costs.

Upon the ground that the complainants have ratified the arrangement made by Griffin, by their subsequent acts, and that a subsequent ratification is equivalent to a previous authority, I must affirm the decree of the vice chancellor with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Quackenbush and others vs. Leonard and others.
    The marriage of a female complainant, although after the decree in the cause, is an abatement of the suit; and it must be revived either in favor of or against the husband before any further proceedings can be had in the cause.
    But a decree of the court for the correction of errors, made after the marriage of a female complainant, is not void, but will be carried into effect in tire court of chancery after the proper parties shall have been brought before the court.
    The marriage of a female defendant pendente lite does not abate the suit, and it is only necessary in such case to obtain an order that the suit proceed against her by her new name, in conjunction with her husband, who is also to be named in the subsequent proceedings.
    Where the suit is continued in the name of the female complainant, after her marriage, without making her husband a party, she will not be bound by the decision made in the cause if adverse to her interest; although the defendant would be bound by a decree in her favor, and could not afterwards urge the objection that the suit had abated by her marriage.
    When a suit abates by the marriage of a female complainant, it cannot be re. vived by petition, under the statute, but must be revived by a bill of revivor.
    Where the situation of a suit is such that the defendant as well as the complainant has the right to have it revived, the court will direct that if the complainant does not procure it to be revived within a specified time, the defendant shall be at liberty to file a bill of revivor.
    Where a complainant, at the coming in of the answer of the defendant, is apprized of the interest of a stranger in the subject matter of the suit, and waits until after a decree in the cause, he will not be permitted to bring such stranger before the court by a supplemental bill.
    A decree of the court for the correction of errors on an appeal from the court of chancery, must be carried into effect as made; and it cannot be altered in the court of chancery in any matter of substance without the consent of all the parties in interest.
    As a general rule the party obtaining an order of reference is entitled to the prosecution thereof in the first instance.
    And where a decree is made upon the hearing, directing a reference in which both parties have an interest, the complainant’s solicitor is entitled to prosecute the reference, unless the court in making the decree thinks proper to commit the prosecution thereof to the other party.
    1843. February 21.
    In such a case, if the solicitor of the complainant neglects to carry the decree into the master’s office and to take out and serve a summons upon the defendant’s solicitor within the time prescribed for that purpose by the 101st rule, the latter may apply to the court, upon notice to the adverse party, to have the prosecution of the decree committed to him, or for such other order as may be proper to expedite the proceedings.
    And where the party entitled to carry the decree into the master’s office neglects to proceed with due diligence, after he has commenced the prosecution of the reference by the service of a summons to proceed thereon, the remedy of the other party is by application to the master to have the further prosecution of the reference committed to him.
    A master cannot issue a summons, upon a reference, until the decree or order directing such reference is actually entered, and an authenticated copy thereof is brought into his office.
    It is the duty of the master to exercise the discretionary power committed to him by the 100th rule in such a manner as to do justice to both parties, and not to follow the directions of the solicitor for either party.
    "Where a decree gives all the consequential directions, so as finally to dispose of the whole case upon the coming in and confirmation of the master’s report, by a common order in the register’s office, without the necessity of bringing the case again before the court for any other decree or directions,, it is a final and not an interlocutory decree; although further proceedings must be had in the master’s office to carry the decree of the court into effect.
    Where the decree, upon a bill to redeem a mortgage, directed that the amount reported due should be paid within a specified time or that the bill should be dismissed; Held, that this was not a decree for the payment of money which could be enforced by execution; and that upon an appeal, by the complainant, he was not bound to give a bond to pay the amount due upon the mortgage, to make the appeal a stay of the proceedings upon the decree pending the appeal.
    Where the respondent is in possession of real estate which is directed to be sold under a decree of the court of chancery, and is in the receipt of the rents and profits of such property, the appellant is not bound to give him a bond to pay the rents and profits of the property, and that waste shall' not be committed, to render such appeal a stay of proceedings. Aliter; where the appellant, or any person other than the respondent who is entitled to the proeeeds of the sale, is in possession of the property directed to be sold.
    This was an application on the part of the complainants to make B. Slade, who had married one of the female complainants, a party to the suit; also to make G. Webster a party defendant, by a supplemental bill; and to set aside certain proceedings, on the part of the defendants, before a master, which had taken place during the pendency of an appeal to the court for the correction of errors. The complainants in their petition also asked for a modification of the decree which had been made by this court, and affirmed by the court for the correction of errors on appeal, in relation to the redemption of the premises in controversy.

      M. Fairchild & J. Crary, for the complainants.

      C. Stevens & S. Stevens, for the defendants.
   The Chancellor.

The marriage of one of the female complainants, although after the decree in this cause, was an abatement of the suit; and it must be revived, either in favor of or against the husband, before any further proceedings can be had in the suit, except to set aside the irregular proceedings which have been had in the master’s office in the mean time. But the decree of the court for the correction of errors, affirming the decree of this court, although made after the marriage of one of the complainants, was not void; and it must be carried into effect here after the proper parties are brought before the court. (Rogers v. Paterson, 4 Paige’s Rep. 409.)

The marriage of a female defendant pendente lite does not abate the suit; and it is only necessary in that, case to obtain an order that the suit proceed against her by her new name in conjunction with that of her husband. (Welf. Pl. 162. 1 Ves. sen. 182. Story’s Eq. Pl. 289, § 354.) But by the marriage of a female complainant she is no longer capable of prosecuting the suit in her own name. And the defendant may be injured by being compelled to continue a litigation with one who would not be bound by the decision if adverse to her interest. But if there is a decree in her favor, the defendant is bound by it, and cannot afterwards urge the objection that the suit had abated by her marriage. (1 Dan. Ch. Pr. 153. Mitf. Pl. 57. 1 Rep. in Ch. 231. Nels. Rep. 85.) And as the statute authorizing the revival of suits on a summary application to the court, by petition, does not apply to the abatement of a suit by the marriage of a female complainant, but only to revivals of suits which have abated by the death of a Party5 the proper course in this case is to proceed by bill of revivor. And as this is a case in which the defendants, .... as well as the complainants, have a right to insist that the suit shall be revived, if the complainants shall not procure the suit to be revived within sixty days, the defendants are at liberty to file a bill of revivor for that purpose.

It is too late in this stage of the suit to bring in Webster as a party, even if he would have been a proper party in the first instance. When the defendants denied, in their answer, that they had purchased Webster’s interest in the premises, if the complainants thought he was a necessary party in the cause, that was the proper time to amend their bill, and to bring him before the court. The application for leave to bring him before the court by a supplemental bill is therefore denied. In the present situation of the suit, and before it is revived, it would be improper to make an order to modify the decree as asked for in the petition ; even if this court had the power to change the provisions of a decree in a material part after such decree has been affirmed upon appeal to the court for the correction of errors. But to save the complainants the expense of a future application it may be proper to say, that the decree must be carried into effect as it is, without any alteration in matters of substance, unless by the consent of all parties interested.

The remaining questions to be disposed of are as to the regularity of the proceedings of the defendants upon the reference and whether the appeal to the court for the correction of errors operated as a stay of the proceedings upon the decree pending the appeal.

The first objection to the proceedings in the master’s office, and which I think is well taken, is that under the decree in this case the complainants’ solicitor was entitled to the prosecntion of the reference in the first instance; and that the solicitor of the defendants had no right to carry the decree into the master’s office until the solicitor who had the carriage of the decree had made default, and had been deprived of his right to prosecute the reference, by an order of the court. As a general rule, the party obtaining an order of reference is entitled to the prosecution thereof, in the first instance. And where a decree is made on the hearing, directing a reference in which both parties have an interest, the complainant’s solicitor is entitled to prosecute the reference, unless the court in making the decree thinks proper to commit the prosecution thereof to the other party. (Benn. Off. of Master, 6. 2 Dan. Ch. Pr. 792. Biddulph v. Fitzgerald, Sauss. & Scul. Rep. 434.) In such a case, therefore, if the solicitor of the complainant neglects to carry the decree into the master’s office, and to take out and serve a summons upon the defendant’s solicitor, within the time prescribed for that purpose by" the 101st rule, the latter should apply to the court, upon notice to the adverse party, to have the prosecution of the reference committed to him, or for such other order as may be proper to expedite the proceedings. And where the party entitled to the carriage of the decree neglects to proceed with due diligence, after he has commenced the prosecution of the reference by the service of a summons to proceed thereon, the remedy of the other party is by an application to the master, under the last clause of the same rule, to have the further prosecution of the reference committed to him. (Holley v. Glover, 9 Paige’s Rep. 9.)

The defendant’s solicitor was also irregular, in this case, in carrying the decree into the office of an ordinary master, who was not authorized to execute the order of reference, which was general, without the consent of both parties, under the provisions of the 99th rule. Where the parties in such a case do not agree upon a master to execute the reference, the party who is entitled to prosecute it should carry the decree into the office of one of the special masters, designated in that rule to execute orders of reference in such cases.

It was also irregular for the master to issue a summons to proceed upon a reference until the deeree was actually entered, and an authenticated copy thereof brought into his office. The possession of the decree or order of reference, by the master, is necessary, not only that he may know he has authority to execute the reference and to summon the parties to appear before him, but also to enable him to exercise a proper discretion in fixing a reasonable time for the service of the summons upon the parties who are to attend before him ; in reference to the nature of the matters to be enquired into, and the evidences of such parties and their solicitors. A discretionary power is committed to the master in this respect, by the 100th rule of the court. And it is his duty to exercise it in such a manner as to do justice to both parties ; and not, as is too often the case, to permit the party who has the prosecution of the reference to fix the time and place of the reference, and the time of service of the summons, so as to suit his own convenience only, without any reference to that of the other parties in the suit.

I have arrived at the conclusion also in this case, that the entry of the appeal to the court for the correction of errors, and. the execution of the ordinary bond for $250, for costs, &c. operated as a stay of proceedings upon the decree appealed from 5 and that the complainants therefore are not too late to apply to set aside the proceedings in the master’s office for irregularity. The decree appears to give all the consequential directions so as finally to dispose of the whole case, upon the coming in and confirmation of the master’s report, by a common ordér in the register’s office, without the necessity of bringing the case again before the court for any other decree or directions. It is therefore a final, and not a mere interlocutory decree although further proceedings must be had in the master’s office to carry the decree of the court into effect.

The article of the revised statutes relative to appeals, after requiring security to be given and various acts to be done to render an appeal to the court for the correction of errors a stay of proceedings in certain specified cases, contains a general provision that in cases not otherwise provided for, the filing and perfecting the appeal, by the giving of the bond for costs on the appeal, shall stay all proceedings in this court upon the decree or order appealed from and upon the subject matter thereof. (2 R. S. 607, § 89.) And I am not able to discover that the decree in the case under consideration comes within any of the provisions of the statute requiring any thing further to be done besides the giving of the bond for costs, to make the appeal a stay of proceedings. The decree does not direct the payment of money, so as to entitle the respondents toa bond for the payment of the amount decreed in case the decree shall be affirmed. It is true the decree directs the amount of the mortgage money to be paid or that the bill shall be dismissed. But that is not a decree upon which an execution could be issued for the amount of the mortgage money, and of course no bond for the stay of execution was necessary.

The 85th section of the statute provides that where the order or decree appealed from directs the sale or delivery of the possession of any real property, the issuing and execution of process to enforce the same shall not be stayed until security is given not to commit waste, nor to suffer it to be committed, on the premises, and to pay the value of the use and occupation of the property pending the appeal. And where the appellant, or any person other than the respondent himself who is interested in the proceeds of the sale, is in possession of the property decreed to be sold, such a bond is necessary to render the appeal a stay of proceedings. But it never could have been the intention of the legislature," where the respondent himself was in possession of the premises decreed to be sold, and in the receipt of the rents and profits thereof, to require the appellant to give security to him for the payment of such rents and profits, or against waste. In the present case the respondents have the legal estate in the lands decreed to be sold, and are in the possession thereof; so far as that possession can be said to be in any body where the land is in a wild or uncultivated state. Again ; the decree for the sale of these lands is only conditional. For if the complainants neglect to redeem the mortgages, there is to be a strict foreclosure ; leaving the title and possession in the respondents without a sale.

The proceedings in the master’s office and the report made by him, and all subsequent proceedings founded thereon, must therefore be set aside as irregular and unauthorized •, so that when this suit shall have been revived the solicitor for the complainants may carry the decree into the office of a master who is authorized to execute the reference, and to proceed thereon as may be proper. And as the petitioners have succeeded in a part of their application only, neither party is to recover costs as against the other.


text:
    Mickles vs. Brayton.
    1843. February 23.
    Where a creditor’s bill against the defendant was dismissed with costs after the defendant had been discharged under the bankrupt act, the complainant cannot have such costs offset against the amount which was due to him upon the judgment against such defendant before such discharge.
    This was an appeal by the complainant from an order of the vice chancellor of the seventh circuit. The complainant recovered a judgment against the defendant, and after the return of an execution unsatisfied, he filed a creditor’s bill against the defendant in this court. On the 9th of July, 1842, the defendant obtained a final discharge from all his debts, under the bankrupt act; and subsequent to such discharge, he obtained a decree in this cause dismissing the complainant’s bill with costs. The complainant thereupon applied to the vice chancellor for leave to offset such costs against the amount due him on his judgment; which application was denied.

      H. Sheldon, for the appellant.

      G. Lawrence, for the respondent.
   The Chancellor.

As the complainant’s bill was dismissed with costs in this case, I must presume it was filed against the defendant without any just cause. The only question therefore is, whether the complainant has any right to set off his judgment, from which the defendant has been duly discharged under the bankrupt act, against the decree for costs in this suit; which costs the defendant has subsequently obtained against him. And I think it is clear that he has no such right, either legal or equitable. It is true, most of the services of the solicitor for which this decree for costs was afterwards made were performed before the defendant was discharged under the bankrupt act. And if the decree dismissing the bill with costs had been made before that time, the complainant would have had the technical right to offset his judgment against the costs, so as to deprive the solicitor of what was equitably due to him for his services. But as the defendant had no vested right to any part of the costs as against the complainant prior to the final decree, the solicitor cannot be deprived of the costs which are equitably his. If the complainant had slandered the defendant, or had assaulted him, while the judgment on which the bill in this case was founded was in full force, and the defendant had recovered damages for that injury subsequent to his discharge under the bankrupt act, no one could for a moment suppose that this judgment, which had been discharged before the recovery of such damages, could be offset against them. And yet the equitable right to an offset would be as strong in that case as in this, if not stronger.

The decision of the vice chancellor was therefore right, and the order denying the complainant’s application must be affirmed, with costs.


text:
    Pond and others vs. Bergh and others.
    Where, by a will made and published subsequent to the revised statutes, the testator devised all his real estate in the county of Schoharie, in general terms, to his four sons, subject to the payment of certain legacies to his other children; Held, that no real estate in that county except .such as the testator owned at the time of making his will, or in which he then had some right or interest, passed to the devisees; and that property which he afterwards acquired by devise or descent, and of which he was seized in that county at the time of his death, did not pass under that clause of the will.
    Under the provisions of the revised statutes, a general devise by the testator, of all his real estate of a particular description of which he shall die possessed, or which shall belong to him in a particular town or place, at the time of his death, will have the effect to pass to the devisee property which answers the description in the will, although acquired by the the testator subsequent to the making of such will. But a devise of all the testator’s real estate in a particular town or district of country, without any thing to indicate an intention to pass after acquired property which he may have in that particular town or district at the time of his death, the legal presumption is that the devise was only intended to relate to the real property the testator had there at the time of the making of his will.
    By the eighth, ninth and tenth sections of the chapter of the revised statutes relative to the descent of real property, the descent to collateral relatives of the decedent is placed upon the same footing as the descent to lineal heirs: That is, if all the heirs are in the same degree of consanguinity to the intestate, they take equally, however remote they may be from him; but if some of the class of relatives nearest to the decedent are dead and leave issue, the survivors of the class take equally among themselves, and the representatives of those who are dead take the share which their ancestors of that class would be entitled to if living.
    Where a testator died in 1789, leaving two sons and five daughters surviving him, and by his will devised certain lands to his son P. and his heirs and certain other lands to his sons P. and A. and then- heirs; and then directed that if one of his sons should die without issue, or if both should die without issue, his or their share or portion of the lands thus devised should go to the reviving son and his five sisters, their respective heirs and assigns, each an equal portion thereof forever; and if both sons should die without issue, such shares or portions should go to their said five sisters, their heirs and assigns forever, in equal portions; and P. died in 1839 without issue, having survived his brother A. and his five sisters, all of whom had issue living at the death of P.; Held, that the word reviving must be understood to mean surviving, so as to limit the devise over, upon a failure of issue of P. at the time of his death, and not upon an indefinite failure.; that P. did not take an estate tail, but a determinable fee in the lands devised to him, and the limitation over upon his death without issue was therefore valid.

      Held also that the issue of A. were entitled to one-sixth of the lands of P., under such limitation, notwithstanding A. died in the lifetime of his brother; and that the contingent interests of A. and his five sisters under this executory devise, were descendible to their heirs, and were capable of being devised by them in the lifetime of P. their brother. «
    And one of the sisters having died after the death of the father, during the lifetime of her brother P., and having devised to three of her children, all the land or real estate and all the money or personal estate which she was to get out of her father’s estate, which her father devised and bequeathed to her in and by his will; Held, that, her contingent interest, or estate, in the lands devised to her brother P. by the will of her father, passed to her devisees under her will.
    When the intention of the testator is apparent upon the whole will taken together, the court must give such a construction as will support such intent of the testator, even against strict grammatical rules. And to effectuate ■his evident intention, words and limitations may be transposed, supplied, or rejected.
    A possibility coupled with an interest is devisable, where the person in whom the interest is to vest in the event contemplated, is known or is capable of being ascertained. As to such interests devisable and descendible are convertible terms; and no particular form of words is necessary in a will to embrace contingent interests in real estate.
    A general devise, of all the testator’s real estate, will carry his real property of every description, and every estate or interest which he has therein, either in possession, reversion or remainder, and whether the same is absolute or contingent; unless such general devise is restrained by other words in the will.
    Under the revised statutes every estate or interest of the testator which is descendible to his heirs, may be devised by his will.
    The husband is not entitled to an estate by the curtesy in a contingent interest of his wife, in real property, where the wife was not seized of an estate or interest in possession in such property during her life; but her whole interest therein will descend to her heirs.
    Where the testator who had a contingent interest in remainder, under an ex-ecutory devise, in the lands in which his brother had a determinable freehold estate, devised the same to his sons, by the description of “ all my right, title and interest to the real estate which may fall to me from the estate of my brotherHeld, that the testator’s contingent interest in such lands was sufficiently described in the will to pass the same to the sons; the brother who had the determinable fee in such lands being living at the time of making the will.
    A devise will not be permitted to fail in consequence of a misdescription of the subject matter of such devise, where the intention of the testator is apparent.
    And words in a will which admit of a twofold construction, will be deemed to have been used by the testator in that sense which will render the testamentary disposition valid, and not in a sense which will render the clause in the will in which such words are used a mere nullity.
    Where the testator by his will devised all his lands in a particular county; Held, that his future and contingent interests, as well as his present freehold estates in lands in such county, which he had at the time of making the will, passed by such devise.
    1843. March 7.
    The term lands in a will is synonymous with real estate; and unless restrained by something else embraces future and contingent as well as present freehold estates in land.
    Where a quit-claim deed was executed, subsequent to the revised statutes, by which the grantor conveyed all his lands and tenements, wheresoever the same might be situated, with the hereditaments and appurtenances, to. gether with the remainders and reversions ; Held, that such deed conveyed, to the grantee, a contingent interest in remainder which belonged to the grantor at the date of the deed; and which contingent interest was limited upon a determinable freehold estate in lands.
    By the term land in a deed a remainder or reversion in lands will pass. And, by the revised statutes, any future estate in lands dependant on a precedent estate, may be created or transferred by the name of a remainder.
    And the word tenement embraces not only what may be inherited, but whatever may be holden in tenure.
    Under the provisions of the revised statutes a mere possibility coupled with an interest, in real estate, is capable of being transferred at law as well as in equity, by a mere quit-claim deed.
    The bill in this case was filed, to obtain a partition of sixteen parcels of land in the county of Schoharie. And upon the coming in of the master’s report, as to the rights and interests of the parties in the several parcels respectively, various questions arising upon the construction and effect of wills and conveyances under which portions of the premises were claimed, were presented to the chancellor for decision. From the pleadings and master’s report the following undisputed facts were established : Philip Bergh the elder, who died in 1789, was the owner of the first seven parcels of which partition was sought in this suit, constituting a farm which was subsequently occupied by his son Philip in the present town of Schoharie ; and of the eighth, ninth, tenth, and eleventh parcels, called the Brakabeen lands, situated in what is now the town of Fulton. And the other five parcels of which partition was sought were purchased by Philip Bergh the younger, in his lifetime, and were owned by him in fee at the time of his death.
    Philip Bergh the elder left two sons and five daughters, his only heirs at law ; to wit, Abraham, Philip,. Catharine, who married D. Sternbergh, Anna Eva, who married D. Lawyer, Elizabeth, who married P. Enders, Margaret, who married W. Deitz, and Christina, who married M. Shafer. By his will, which was executed a short time before his death, he devised certain portions of his real estate to his daughters, and another portion thereof to his son Abraham. And he devised the first seven parcels of which partition was sought in this case, constituting the Schoharie farm, to his son Philip, his heirs and assigns forever, and the next four parcels, called the Brakabeen lands, to his sons D Philip and Abraham, their heirs and assigns forever. His will then contained the following clause, under which most of the questions in this suit, not only as to the effect of the clause itself but also as to the construction and effect of subsequent wills and conveyances, arose : “ If one of my two sons should happen to die without issue, or both my sons should die without issue, then it is my will and order, and I do give and devise and bequeath such part, share and portion, so given and bequeathed unto either of them in this my last will and testament, unto the reviving son and the before named five daughters, their respective heirs and assigns, each an equal share and portion of the same forever. And if both of my two sons should happen to die without issue, such shares and portions I do give, devise and bequeath unto my before named five daughters, their respective heirs and assigns, each an even and equal share and portion of the same, forever.”
    Philip Bergh the younger died in January, 1839, intestate and without issue, having survived his brother Abraham and his five sisters5 all of whom had issue living at the time of Philip’s death. And the master decided that, in the event which had happened, the "contingent limitation over to Abraham and his sisters, of the Schoharie farm, and of the undivided moiety of the Brakabeen lands, was valid; so that their descendants took the same as the heirs or devisees of Abraham and his sisters, and not as the heirs at law of Philip Bergh the younger. He also decided that as the nearest relatives of Philip Bergh the younger, at the time of his death, were nephews and nieces, and his other heirs at law were the descendants of nephews and nieces who had died in his lifetime, the surviving nephews and nieces did not take their interests in the five last parcels, of which partition was sought, by representation, but equally; and that only the descendants of nephews and nieces took by representation.
    Christina Shafer, one of the daughters of Philip Bergh the elder, died in 1800, intestate, leaving three children her only heirs at law, one of whom died in 1825 intestate, and without issue. The other two survived their uncle, Philip Bergh the younger, and were parties to the suit.0
    Margaret Deitz, another daughter of Philip Bergh ,the elder, died in 1809, leaving six children ; all of whom survived their uncle Philip Bergh the younger. And her son Philip Deitz died in December 1839, leaving a widow him surviving, and four sons and four daughters, and six grandchildren, the issue of two deceased daughters, his heirs at law. Margaret Deitz his mother, by her will, which was executed in 1804, devised to three of her children, Abraham Deitz, Mary Dorothy the wife of J. Sidney, and Christina the wife of David Lawyer, all the land or real estate and likewise all the money or personal estate which she was to get out of her father’s estate; which said property that her father Philip Bergh gave devised and bequeathed to her in his last will and testament, she gave and devised to those three of her children in fee, share and share alike. The master decided that this devise did not pass her contingent interest in the Schoharie farm or in the Brakabeen lands, or in any way affect the premises of which partition was sought in this suit.
    Philip Deitz, one of the sons of Margaret, made his will before the death of his uncle Philip Bergh the younger, to wit, in February, 1830; and he thereby devised to his four sons all his real estate lying and being in the county of Schoharie, subject to the payment of certain legacies to his other children and some of his grand children. And the master gave effect to this will, not only to transfer to the devisees the testator’s supposed contingent interest in the Schoharie farm and in the Brakabeen lands, as one of the heirs of his mother, but also to transfer to them the interest in the other five parcels, which he obtained by descent from his uncle Philip Bergh the younger, subsequent to the execution of his will, but previous to his death, in December, 1839.
    Elizabeth Enders, another of the daughters of Philip Bergh the elder, died in 1834, leaving two sons and four daughters her heirs at law; one of which daughters, Elizabeth the wife of John Enders, died in 1835, leaving two children, Peter Enders, and Catharine the wife of L. Voorhees, her only heirs. By the will of Elizabeth Enders, executed in 1831, she devised to her four daughters, Elizabeth the wife of John Enders, Nancy the wife of Philip Deitz, Catharine the wife of J. J. Borst, and Maria the widow of Jacob Enders, all her right, title and interest in the real and personal property, lands, tenements and hereditaments then in possession of her brother Philip Bergh the younger, devised and bequeathed to him by her father, and which in right in law and equity passed to her by virtue of her father’s will, if her said brother should die without heirs. And she directed the same to be divided between her four daughters equally, share and share alike, after her death and the death of her brother Philip. The master decided that under this will the four daughters took the contingent interest of their mother in the Schoharie farm and in the Brakabeen lands, and that the two sons had no right or interest in those portions of the premises of which partition was sought.
    Abraham Bergh, the other son of Philip Bergh the elder, died in 1835, leaving four children, Philip, Abraham, David, and Catharine the wife of B. Pond, his only heirs at law. By his will, executed in 1834, he devised to his son Philip, one equal undivided half of the Brakabeen lands, subject to the estate devised to his wife during her life or widowhood. And she afterwards conveyed her interest in the same to the devisee. The testator also devised to his sons Philip and Abraham, all his right title or interest to the real estate that might0fall to him from the estate of his brother Philip Bergh the younger; to be divided equally between them. But the master decided that nothing passed to the two devisees under this clause of the will of Abraham Bergh; and that all the children of the testator were entitled- to equal interests in the Schoharie farm, and in an undivided half of the Brakabeen lands, as heirs at law of their father.
    Catharine Sternburgh, another daughter of Philip Bergh the elder, died in 1836, leaving three children, Peter, Henry, and Christina the wife of C. P. Vroman, and fourteen grand children, to wit, David the only child of her decased daughter Catharine Deitz, five children of her deceased daughter Maria Lawyer, Catharine the wife of J. Wood, and Maria the wife of C. Carpenter, children of her deceased son Philip Sternbergh, and six children of her deceased son David Sternbergh, her heirs at law. One of the grand children, Catharine the wife of J. Wood, died in 1840, leaving her husband surviving, and five children who were her only heirs at law. Another of the grand children, H. B-. Sternbergh one of the children of David Sternbergh deceased, also died subsequent to the death of Philip Bergh the younger, intestate and without issue; leaving his mother Elizabeth Sternbergh and his five surviving brothers and sisters his heirs at law. Catharine Sternbergh, by her will, which was dated in 1829, devised to her daughter Christina Yroman, the equal undivided third of all her estate and interest in the Schoharie farm, formerly owned and occupied by her father, and then in the possession of her brother Philip Bergh the younger, and also the equal undivided third of all her lands situated in the counties of Schoharie and Montgomery or elsewhere in the state of New-York. One other third of her interest in the Schoharie farm, and in all her other lands, she devised in the same manner to the children of her deceased daughter Maria Lawyer; and the remaining third she devised in like manner to David the only son of her deceased daughter Catharine Deitz. The master decided that under the will of Catharine Sternbergh the devisees respectively took all her contingent interest in the Schoharie farm, but no part of her contingent interest in the Brakabeen lands.'
    Anna Eva Lawyer, the other daughter of Philip Bergh the elder, died in 1837, leaving one daughter, Catharine, the wife of W. C. Bouck, and seven grand children, the issue of her deceased son Jacob I. Lawyer, her only heirs at law. On the 1st of November, 1831, after the death of her husband, Anna Eva Lawyer, by a quit claim deed, granted and conveyed to her son-in-law, W. C. Bouck, all her lands and tenements, wheresoever ■ they might be situated i together with all and singular the hereditaments and appurtenances, and the reversion and reversions, remainder and remainders, See. But the master decided that her contingent interest in the Schoharie farm and in the Brakabeen lands, under the will of her father, did not pass to the grantee by that deed. And he thereupon reported the rights and interests of the several parties to the suit in the respective parcels of land of which partition was sought, in conformity with his decisions upon these several questions.

      H. Hamilton, for the complainants.

      S. Stevens, for Bouck and wife.; for J. Deitz, one of the infant defendants ;
    and for the several defendants who claimed that Abraham Bergh and his five sisters had devisable interests in the Schoharie farm, and in the moiety of the Brakabeen lands.

      J. Rhoades, for the other infant defendants;
    and for the adult defendants whose interests were adverse to the claims of the defendants for whom Mr. Stevens appeared as counsel. •
   The Chancellor.

The first question which I shall consider in this case is whether the niaster has put the right construction upon the 8th, 9th and 10th sections of the chapter of the revised statutes relative to the title to real property by descent. (1 R. S. 752.) Under the former statute of descents in this state it was provided, in the case of lineal descendants of the person last seized, that if all the descendants'were of equal degree of consanguinity to him, they should take equally, however remote they might all be from him. And if any of that class had died leaving issue, that such issue should take as the representatives of the deceased relative of that class. But in relation to collateral heirs, a different rule was adopted ; so that if the nearest relatives of the decedent were nephews and nieces, they did not take equally, although they all stood in the same degree of consanguinity to the testator, but they took only as the representatives of their deceased parents. And no provision was made by the 5th canon of descents, for the representation, or even for equality among relatives of the same degree, beyond brothers and sisters’ children. (1 R. L. of 1813, p. 53, § 3. Jackson v. Thurman, 6 John. Rep. 322.) But the object of the 8th, 9th and 10th sections of the chapter of the revised statutes, on this subject, undoubtedly was to place the law of descents among lineal and collateral relatives upon the same footing in this respect. The class of nearest relatives of the decedent not only take equally where they are his only heirs at law, but all the original members of that class take equally, by themselves, or by their representatives where some of them- have died leaving issue ; in the same manner as if they had survived the person last seized and had then died intestate. The decision of the master that the surviving nephews and nieces of Philip Bergh the younger were entitled to share equally in the five last parcels of land mentioned in the ' complainants’ bill, and that the issue of those who had died previous to January 1839 took by representation, was therefore the correct construction of thcfse sections of the revised statutes.

The master erred, however, in awarding to the devisees of Philip Deitz the whole of his interest in the five parcels of land which his uncle Philip Bergh the younger acquired by purchase, and in which the testator Philip Deitz had no interest whatever at the time of making his will, in February, 1830. Previous to the adoption of the revised statutes it was the established law that a devise of all the testator’s real estate, or all his real estate in a particular place, only extended to real estate in which he had some property or interest, vested or contingent, at the time of making his will. Indeed, so far was this rale carried, that no words in a will, though showing ever so strongly the intention of the testator to devise all the real estate which he might be entitled to at the time of his death, could have the legal effect to transfer the legal estate in any after acquired lands, to the devisee. (4 Kent’s Com. 510. Bunter v. Coke, 1 Salk. 237. Powell on Dev. 196.) The recent English statute, it is true, has changed the rule of law upon this subject entirely, by providing that every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator ; unless a contrary intention shall appear by the will. (Stat. 1 Vict. ch. 26, § 24. Sugd. on Wills, 172.) Our revised statutes have not gone so far as to put wills of real estate upon the same footing as wills of personal property in this respect; though they have unquestionably abrogated the technical rule that the testator was incapable of devising an interest in land, or real estate, acquired subsequent to the date of the will by which he attempted to dispose of the same. The 5th section of the title relative to wills of real and personal property, (2 R. S. 57,) declares that " every will that shall be made by a testator, in express terms, of all his real estate, or in any other terms denoting his intent to devise all his real property, shall be construed to pass all the real estate which.he was entitled to devise at the time of his death.” This statutory provision proceeds upon the ground that in a general devise of all his real estate, the testator has reference to the real estate as it shall exist at the time of his death ; and that such a construction of the testamentary disposition of his property will be but carrying his intention into effect. Upon the same principle, therefore, if he devises all the real estate of a particular description, of which he shall die possessed, or which shall belong to him in a particular town or county, at the time of his death, although the devise would not be within the words of this section, it not being a general devise of all his real estate, I think it would clearly be within the spirit and intent of this statutory provision. But where the testator devises all his real estate at a particular place, or within a particular district of country, there is good reason to suppose he means to speak in refer-' ence to the lands he has already acquired there ; and that if he intended to give to the devisee all the lands or real estate which he should afterwards purchase at that place, or within the specified district of country, there would have been something in his will indicating such an intention. Here Philip Deitz made his will about nine years before the death of his uncle. And in distributing his real and personal estate among his children and grand children, he gave to his four sons all his real estate lying and being in the county of Schoharie, subject to the payment of certain legacies to his other children and descendants. I think, therefore, he must have had reference to the real estate in that county which then belonged to him, or in which he had some right or interest ; and not such as he should acquire afterwards by purchase, or devise, or by descent from others. All his children and grand children are, therefore, entitled to participate in the five parcels of land in which he acquired an interest as one of the heirs at law of his uncle Philip Bergh the younger.

In reference to the Schoharie farm, and the undivided moiety of the Brakabeen lands, it is'insisted-by the counsel for some of the parties that the same were devised to Philip Bergh the younger in fee j and that the limitation over was upon an indefinite failure of issue, and not upon the failure of issue living at the time of his death. If so, the limitation over was void ; and he was, at the time of his death, in 1839, seized of an absolute fee in that part of the propperty. And in that case his heirs at law will be entitled to share therein as in the other five parcels ; except as to the moiety of the Brakabeen lands which was devised to Abraham Bergh. I think, however, that the word reviving, in the will of Philip Bergh the elder, was unquestionably intended for surviving. That is sufficient, according to the decisions of the court for the correction of errors in Anderson v. Jackson, (16 John. Rep. 382,) and in Wilkes v. Lyon, (2 Cowen Rep. 333,) to show that the testator did not contemplate an indefinite failure of issue of his son Philip ; but a failure of issue at the time of his death, only. Philip Bergh the younger therefore did not take an estate tail in the lands devised to him ¡ but a determinable fee, which fee was subject to be divested, by the executory deviseover, in case, he should die without leaving any issue at the time of his death.

There is no possible doubt as to the intention of the testator to limit five sixths of the remainder in fee, in the premises devised to his son Philip to the five daughters, in the event of his dying without leaving any issue him surviving. And also to give them a similar interest in the lands devised to Abraham Bergh, in case of his death without leaving any issue surviving him. That the testator intended that the daughters should take 'the whole property devised to each of the sons, in case both should die without leaving any issue of either behind them, I think is equally evident from the terms of the will. But the limitation over as to each share, in the first instance, is to the daughters and to the surviving son ; and the question is what disposition did the testator intend to make of the undivided sixth part of the remainder in fee, which was limited to the survivor, in such shares or portions respectively, in the event that has here occurred % If Abraham had survived his brother, he would undoubtedly have been entitled to one sixth of the remainder in fee in the lands devised to the latter ; subject to be divested thereof in case he should die without leaving any issue surviving him. But the will contains no words of limitation which in terms give the one sixth of the remainder in fee to Abraham or his issue, after the death of Philip without issue, in the event which has actually occurred. The devise of the remainder in fee must therefore fail as to that sixth of the property, so as to leave it absolutely in Philip Bergh the younger, and his heirs, under the previous general devise in the will, unless the court can find something in the will itself indicating an intention on the part of the testator that it should belong to Abraham or his issue, in case he should die in the lifetime of his brother and should have issue who should survive Philip Bergh the younger.

The intention of the testator, so far as it is consistent with the rules of law, must govern in the construction of a will. When, therefore, the intention is apparent, upon the whole will taken together, the court must give such a construction as to support the intent of the testator, even against strict grammatical rules. And to effectuate his evident intention, words and limitations may be'transposed, supplied, or rejected. (Marshall v. Hopkins, 15 East's Rep. 309. Spark v. Purnell, Hob. Rep. 75. Montagu v. Nucella, 1 Russ. Rep. 165. Doe v. Michlem, 6 East's Rep. 486. Fonereau v. Fonereau, 3 Atk. 315. Doe v. Hicks, 7 Term Rep. 437. Boon v. Cornforth, 2 Ves. sen. 219. Doe v. Sturlake, 12 East, 515.)

Here the testator evidently intended that if his son Philip died without issue, his brother should have one sixth of that share in case he survived and left issue at the time of his own death. And I think it is equally certain that he must have intended that the same one sixth should go to Abraham, for the benefit of his issue, in case he should die in the lifetime of Philip and leave issue who should survive the latter. To effectuate this intention, however, it is necessary to supply the words, which are now only left to be inferred, as has frequently been done in similar cases. The will must therefore be construed as if the words, or the son. who has died and left issue, who are then living, had immediately followed the words “ unto the reviving son,” in the will, itself. If such a construction cannot be given to the will, to carry into effect the general intention of the testator, the issue of the five daughters, in addition to their five sixths which they are entitled to under the limitation of this contingent interest in the land devised to Philip Bergh the younger, will also be entitled to share with the issue of Abraham in the other sixth ; which would certainly be contrary to the intention of the testator, and contrary to the construction which the children of the testator themselves appear to have put upon this clause of his will.

The next question for consideration is whether these contingent interests of Abraham Bergh and his sisters, in the lands devised to Philip Bergh the younger by the will of their father, were devisable interests ; and whether any and which of them have been disposed of by will or otherwise. Whatever doubt might have formerly existed on the subject, it is now the settled law that a possibility coupled with an interest is devisable, where the person in whom the interest is to vest in the event contemplated, is known or capable of being ascertained. In other words, it is settled that in relation to all such interests, descendible and devisable are convertible terms. (Roe v. Griffith, 1 W. Black. Rep. 606. Roe v. Jones, 1 H. Black. Rep. 30; 3 Term Rep. 88, S. C. Moore v. Hawkins, 2 Eden’s Rep. 342. 1 Rob. on Wills, 212. 4 Kent’s Com. 510.) And the revised statutes in terms declare that every estate and interest, in real property, which is descendible to heirs may be devised by will. (2 R. S. 57, § 2. See also 1 Idem, 725, § 35.)

It being settled that Margaret Deitz, who died in 1809, had a contingent interest, in the lands devised to her brother Philip, which would have descended to her heirs if she had died intestate, what was there to prevent that interest from passing to her devisees, under the general and comprehensive terms of her will 1 No particular form of words is necessary to embrace such an interest. But a general devise of all the testator’s real estate, will carry his real property of every description; and every estate or interest which he has therein, either in possession, reversion, or remainder, whether absolute or contingent, unless restrained by other words of the will. (Countess of Bridgwater v. Bolton, 1 Salk. Rep. 236. Watk. on Conv. 8 Lond. ed. 591.) Here the testatrix devised to three of her children all the land and real estafe, likewise all the money and personal estate, which she was to get out of her father’s estate ; which property he devised and bequeathed to her in his last will and testament. These last words do not restrict her devise to the property which was given to her absolutely. For this contingent interest was also devised and bequeathed to her by the will of her father. It must also be recollected that her will was made fifteen years after the death of her father. When she speaks, therefore, of the real estate which she is to get under his will, she undoubtedly had reference to this contingent interest particularly ; although the terms of the will are broad enough to cover the lands absolutely devised to her also. The master therefore erred in not giving effect to this will, in reference to her contingent interest in the Schoharie farm and in the Brakabeen lands. , And the rights of her descendants in those portions of the property must be declared in conformity to this decision.

The master decided in favor of the claim of the four daughters of Elizabeth Enders, under her will. It is stated in the complainants’ bill that Elizabeth, one of the daughters, had died in the lifetime of the mother ; and that the two children of the former were among the heirs at law of the testatrix at the time of her death. And this is admitted in the answers of the defendants, although the master reports the fact to be otherwise. But it is immaterial which is right as respects that matter, as this is not a case in which the husband of the devisee would be entitled to an estate by the curtesy. For his wife was not seized of an interest or estate in possession in the premises during her life ; and the revised statutes contain a provision which would prevent a lapse of the devise by the death of the devisee in the lifetime of the testatrix. (2 R. S. 66, § 52.)

Having come to the conclusion that Abraham Bergh was entitled to a contingent interest in the lands devised to his brother, and that such an interest is devisable as well as descendible, the only question arising under his will is whether he has described that interest, in the devise to his sons Philip and Abraham, in such a manner as to pass it to them. A devise will not be permitted to fail in consequence of a misdescription of the subject of the devise, if the intention of the testator is apparent. Thus in the case of Doe v. Tofield, (11 East’s Rep. 246,) where the testator used the words all my personal estates, but it was clear, upon the face of the will, that the testator meant not what is ordinarily understood by personal estate, but real property over which he had an absolute personal power of disposition and control, such real property was held to have passed to the devisee by that description. Words which admit of a twofold construction should also be deemed to have been used in that sense which wdll render the devise valid, and not in a sense which would render the clause of the will in which they are used a mere nullity.

In the present case the testator having a contingent right to an equal undivided one-sixth of the lands in which his brother Philip then had a determinable freehold estate, devised to two of his sons all his right, title, and interest to the real estate which might fall to him from the estate of his brother Philip. Construing the term estate to mean merely the determinable interest which his brother, Philip Bergh the younger, had in the Schoharie farm, and in the Brakabeen lands, this devise was an absolute nullity.- And it is scarcely more sensible, if applied- to the lands which at that time belonged absolutely to his brother Philip by purchase. For the testator had no right, title, or interest in those lands which could be the subject of a devise. But if, by the estate of his brother Philip, the testator meant, as he undoubtedly did, all his interest in the lands or real estate then in possession of his brother Philip, under the will of his father, this devise is not only valid but sensible. For the testator had a devisable interest in those lands, and which might fall to him as real estate in case his brother should die without issue. It is evident, therefore, that it was that contingent interest which the testator intended to give to his two sons, by this clause of his will. And the conclusion of the master that nothing passed to the devisees by virtue thereof, was erroneous. The rights of the children of Abraham Bergh deceased in this part of the property must be declared accordingly, in the decree.

The master was right in supposing that the devisees of Catharine Sternbergh were entitled to her contingent interest in the Schoharie farm by virtue of her will. But I think he erred in supposing that the general devise of all her lands, in the county of Schoharie or elsewhere in the state of JNew-York, was not sufficient to transfer to those devisees all her estate and interest in the Brakabeen lands to which she was or might become entitled under the will of her father Philip Bergh the elder. The term lands, in a will, unless restrained by something else, is sufficient to carry a future or contingent as well as a present freehold estate in lands. And in the will under consideration, I think the testatrix intended to use the word lands as synonymous with real estate; all her personal property being disposed of to the same persons by other clauses of the will. The devisees therefore are entitled to the whole of her share’of the Brakabeen lands, as well as of the Schoharie farm ; and the rights of her descendants must be declared accordingly.

The master was also wrong in supposing that the deed from Anna Eva Lawyer to her son-in-law W. C. Bouck, executed in 1831, did not transfer to him all her contingent interest in the Schoharie farm and in the Brakabeen lands, under the will of her father as well as all her right and interest in any other real estate to which she was then entitled either in possession or otherwise. The words lands and tenements, as used in this deed, are sufficient to convey any freehold interest which the grantor had in any real property. By the term land, a reversion or remainder will pass. (1 Atk. on Conv. 2.) And by the revised statutes, a future estate dependant on a precedent estate, as the contingent.interest of Mrs. Lawyer was in this case at the time of the execution of the deed to her son-in-law, is termed a remainder. The statute also declares that it may be created and transferred by that name. (1 R. S. 723, § 11.) The word tenements, in this conveyance, is also a word of large signification, embracing not only.what may be inherited, but whatever maybe holden in tenure. (See Shep. Touch. 91.) Whatever other lands or property therefore the grantor in that deed might have had, at the time it was given, the terms of the conveyance embrace the contingent interest which she then had in the Schoharie farm and in the Brakabeen lands. And the question whether a possibility coupled with an interest was capable of being transferred at law, by a quit-claim deed operating under the statute of uses only, had at the time of giving this deed been forever put at rest, by an express provision of the revised statutes. For the thirty-fifth section of the article, relative to the creation and division of estates, (1 R. S. 725,) declares that expectant estates are descendible, devisable, and alienable, in the same manner as estates in possession. Neither can the words “ in his actual possession now being,” as contained in this deed, and which were mere words of course formerly introduced into all conveyances, under the statute for transferring uses into possession, have the effect to restrict the grant to such lands only as were in the actual possession of the grantee at the time of the execution of the conveyance thereof; or to those in which the grantor then had a present estate in possession. None of the descendants of Anna Eva Lawyer have therefore any interest in her share of the Schoharie farm, or in the Brakabeen lands, to which she was contingently entitled under the will of her father. But the whole of that interest belongs to the defendant W. C. Bouck, in his own right, under the deed of November, 1831. And the rights of the parties must be declared accordingly.

The rights of the parties as they existed at the time of the argument, and when the suit was revived, can now be ascertained and declared in the decree without the necessity of a further reference to the master. The decree may therefore be drawn up by the solicitors, and settled and entered by the register, according to their rights as ascertained by this decision. It may be entered as of the time of the revival of the suit, nunc pro tunc, if any of their rights have been changed since that time, by marriages or otherwise. The usual decree for the sale of the premises will also be made; and for a distribution of the proceeds, after paying the taxable costs of all the parties out of such proceeds. And in the apportionment of the costs, the Schoharie farm, the Brakabeen lands, and the lands which belonged to Philip Bergh the younger in fee at the time of his death, must each bear a rateable share of the costs, in proportion to the proceeds of the sales of each of those three parcels.

As some of the tenants in common may have received more than their respective shares of the rents and profits of the premises, since the death of Philip Bergh the younger, the decree must reserve the right to any of the parties to apply for such further directions, upon the foot of this decree, as they may think proper to ask for in relation to such rents and profits.


text:
    A. M. & J. J. House vs. House and others.
    Where a tenant by the curtesy conveyed in fee, with warranty, lands belonging to his children, in which he only had a life estate, and then died intestate, leaving a widow and the children surviving him who were entitled to his personal estate; Held, that the children, upon confirming the title of the purchaser, were entitled to be substituted as creditors of the estate of their father for the amount for which the personal representatives of the intestate were liable upon the covenant of warranty.

      Held also that the amount for which the personal estate of the decedent was chargeable, upon the covenant of warranty, was only the amount of the consideration of the deed, and interest thereon from the termination of the life estate of the grantor in the premises; and that the grantee was not entitled to recover interest upon the amount of such consideration during the continuance of the life estate, as he was entitled to the rents and profits of the premises until the death of the grantor.
    The water-wheels, mill-stones, running-gear, and bolting apparatus, of a grist and flouring mill, and other fixtures of the same character, are constituent parts of the mill, and descend to the heirs at law as real property; and do not pass to the executors or administrators of the deceased owner of the mill as a part of his personal estate.
    The provision of the revised statutes making the mortgaged premises the primary fund for the payment of the debt seemed by the mortgage, applies to cases of absolute intestacy as well as to cases where the mortgagor has disposed of the whole or a part of his estate by will.
    1843. March 7.
    Where a widow is entitled to dower in the equity of redemption of mortgaged premises, she must keep down one third of the interest upon the amount unpaid upon the mortgage at her husband’s death, until the amount which was thus unpaid is required to'be paid off; and then she must contribute, towards such payment, a sum which will be equal to the then value of an annuity for the residue of her life upon the amount of principal and interest which was unpaid when her estate in dower commenced, by the death of her husband.
    But where the husband mortgages property, after his wife has acquired an inchoate right of dower therein, and she does not join in such mortgage, the heirs at law or devisees of her deceased husband must pay off the whole of the incumbrance themselves.
    The bill in this cause was filed by two of the children of E. House deceased, against his widow and personal representatives and his other child, for an account and administration of his estate. The decedent in his lifetime had sold, and conveyed with warranty, a lot of land belonging to the complainants by descent from their deceased mother; in land which the intestate had only a life estate as tenant by .the curtesy. And the complainants by their bill claimed to bé paid out of" the personal estate of the decedent the amount for which the lot was sold, with interest thereon from the time of sale. The defendants, in their answer, consented that if the complainants would confirm the title to the purchaser they would pay them the amount of the original purchase money which was paid to the decedent, upon the sale of the lot, with interest thereon from his death; under the direction of the court.
    E. House died intestate, subsequent to the adoption of the revised statutes, possessed of a considerable real and personal estate, leaving a widow and three children surviving him. Certain' portions of his real estate were incumbered by bonds and mortgages thereon, given by the intestate in his lifetime. And the complainants, in their bill, insisted that they were entitled to have these mortgage debts paid off out of the personal property of the decedent so as to relieve the real estate descended to them from the incumbrances ; or at least that the widow, who was entitled to dower in’the premises, should contribute to the payment of these bonds and mortgages. A part of the real estate belonging to the decedent at the time of his death consisted of a grist mill and flouring mill. And the defendants claimed that all the machinery and apparatus which was necessary for manufacturing flour in such mill and which were not fixed into the wall so as to be essential for its support, were personal property and belonged to the administrators of the intestate, under the provisions of the revised statutes. Some other questions were raised by the complainant’s bill, but which were amicably adjusted between the parties.

      S. Stevens, for the complainants.
    The fixtures, machinery, apparatus, &c. annexed to the flouring mill by the intestate, belong to the heirs as incidents or accessaries to the realty. Fixtures of this nature, when annexed to the freehold by the owner, are deemed to have been made for the benefit of the inheritance, and descend with the freehold to the heir. This has long been the settled doctrine of the common law. (Amos & Fer. on Fixt. ch. 4, p. 132 to 143, ed. of 1830. Miller v. Plumb, 6 Cowen’s Rep. 665. Walker v. Sherman, 20 Wend. 636.) The revised statutes have not made these fixtures assets in the hands of the administrators. (2 R. S. old ed. p. 82, § 6, subd. 4.) It was not intended by the section of the revised statutes in question to change the common law in relation to fixtures of this nature erected by the owner of the freehold, especially where the freehold cannot be enjoyed without them. (2 R. S. old ed. p. 82, § 6, subd. 4, also § 7, 8.) This section does not embrace such fixtures as between vendor and purchaser would pass to the purchaser. These fixtures would pass to the purchaser uhder a conveyance by the owner of the mill. Under a grant of a mill or the grant of land with a mill thereon, all the fixtures, machinery, &c. necessary for the use and enjoyment of the mill, pass as incidents to the freehold or principal subject of the grant, and that too although they may not be actually annexed to the freehold. (1 Hill. Abr. 16, § 90. 20 Wend.
      366. Le Roy v. Platt, 4 Paige, 77. Miller v. Plumb, 6 Cowen’s Rep. 665. Farrar v. Stackpole, 6 Greenl. Rep. 154.) As between the heir and administrator (there being no debts) the heir stands in the same situation as if he had purchased from the intestate in his lifetime, and he is entitled to all the rights of a purchaser. The administrators ought to have applied the assets in their hands to the payment of the bonds and mortgages. The bonds were a legal charge upon the personal estate of the intestate. (1 R. S. old ed. p. 749, § 4.) The statute requiring the heirs to whom any real estate descends subject to a mortgage, to discharge such mortgage, was not intended to apply to cases of intestacy, but only to cases where a man had disposed of his estate by will, (see Revisers’ JVotes, 2 R. S. 2d ed. p. 600,) because cases of intestacy are not within the reason or object of the statute. In cases of intestacy the real and personal estate descends to the same persons and is subject to the same application. The defendant Ann House, the widow of the intestate, is bound to contribute her just proportion to the payment of the mortgages.

      E. H. Kimball, for the administrators and the widow.
    The machinery and apparatus annexed to the flouring mill are to be deemed assets, and go to the administrators under our statute. (2 R. S. new ed. p. 24, § 6, subd. 4.) The letter of the statute clearly places the fixtures in question in the hands of the administrators as assets. The principal part of the machinery and apparatus is not fixed into the walls of the mill house ; and they are fixtures for the purpose of manufacture. The revisers’ notes explain the object of the statute. The object was to adopt the same rule between heir and executor as prevails between landlord and tenant. The bonds and mortgages upon the real estate must be paid by the heirs at law. (See Revisers’ Notes, 3 R. S. p. 639, 2d ed.) The statute is certainly conclusive upon this point. (1 R. S. p. 740, new ed. § 4.) The widow is only liable, if at all, to keep down one-third of the interest during her life. (4 Kent’s Comm. 46.)

      R. B. Kimball, for E. S. House,
    the infant defendant, cited Toller's Law of Ex'rs, 146, 147; 5 John. Ch. Rep. 482.
   The Chancellor.

The arrangement proposed in the answer, in relation to the lot of the complainants which was conveyed by the decedent in his lifetime, appears to be proper and equitable,'and is sanctioned by the court. The decedent could only convey his life estate in the lot, as tenant by the curtesy ; and the complainants, if they had thought proper, could have immediately brought their suit against the purchaser for the recovery of the premises. The latter would then have had a remedy over against the personal representatives of the decedent, upon the covenant of warranty. But as the complainants would only have been entitled to recover the mesne profits of th.e premises subsequent to the death of their father, the amount of the purchase money and interest from that time, in addition to the costs of the litigation, would constitute the damages for which the estate of the decedent would be liable on the covenant. (Staats v. The Executors of Ten Eyck, 3 Caines' Rep. 111. Bennett v. Jenkins, 13 John. Rep. 50.) The complainants, upon confirming the title to the purchaser, are therefore equitably entitled to be substituted as creditors of the estate to that extent, but no further.

The claim to the mill stones, bolts, and other machinery in the flouring mill, by the administrators in this case, is founded upon the supposition that the revised statutes have established the rule that every thing annexed to a building which is used for the purposes of trade, or of manufacture of any kind, and which is not necessary to support the walls of the building, goes to the personal representatives, and not to the heirs of the owner, upon his death. The revised statutes, in attempting to define what are to be considered assets in the hands of executors and administrators, to be applied and distributed-as personal estate of the decedent, contain, among other things, the following provision, as the fourth subdivision of the sixth section of the article relative to the duties of executors and administrators in taking and returning inventories : " Things annexed to the freehold, or to any building, for the purpose of trade or manufacture, and not fixed into the wall of a house so as to be essential to its support.” (2 R. S. 82.) Previous to the adoption of the revised statutes there was a distinction supposed to exist in relation to what was to be considered a part of the realty, as between landlord and tenant, and as betw^n the heir at law and the personal representatives. It was also supposed that an outgoing tenant might be permitted to remove fixtures, of a particular description, placed by him upon the premises for a special purpose, which as between the heirs at law and the personal representatives of the owner of the freehold would have descended to the heirs. But'the legislature, whether wisely or otherwise it is not for me to decide, in adopting the provision here referred to, probably intended to put the executor or administrator upon the same footing with a tenant as to the right to fixtures. Such at least was the ¡recommendation of the revisers ; as appears from their note to the 6th section, in which this provision is found. (3 R. S. 639, 2d ed.)

It was impossible, however, to define, in a short sentence of three lines, what was to be considered a part of the freehold itself, and what were mere fixtures or things annexed to the freehold for the purposes of trade or manufacture. We must therefore still go back to the common law, and to the decisions of the courts, for the purpose of ascertaining what is a substantial part of the freehold, and what is a mere fixture or thing annexed to such freehold. We must also resort to the same sourbes of information1 to ascertain what is to be considered a part of a building, and what is in its nature mere personal property and only annexed to such building temporarily for the purpose of trade or manufacture. And I think, in this case,- it may be safely assumed that it could not have been the intention of the legislature to authorize the personal representatives of the decedent, who owned this grist mill in fee at the time of his death, to strip it of its water-wheels, mill-stones, bolting apparatus, and running-gear; leaving to the heirs at law the mere sides or walls of the building, with its floors, partitions and roof. Such however, as I understand it, is the claim made by the defendants in this case. For it is not stated in the answer that there are any other fixtures in this grist mill and flouring mill, except machinery and other apparatus of that character and description. Fixtures of the character here claimed are not only convenient but essential to the proper enjoyment of the inheritance ; and are therefore as much a part of the freehold as the building and water power, which with them constitute the mill. The claim of the defendants to the fixtures must therefore be rejected.

The claim of the complainants to have the incumbrances upon the real estate, which were created by the testator himself, discharged by the application of his personal property for that purpose, cannot be sustained. It is true the revisers, in suggesting a reason why the former law should be changed, state one which does not necessarily apply to the case of an absolute intestacy. But the language of the section which they reported, and which the legislature adopted without alteration, clearly shows that they intended to make the new rulé applicable to intestate estates, as well as to those cases in which the decedent has disposed of his property, or a part of it, by will. (See 1 R. S. 749, § 4.) The mortgages therefore must be paid off by those who are entitled to the real estate upon which they are a lien.

It does not appear from the pleadings in this case whether the widow of the decedent joined with her husband in these mortgages, or whether they were or were not given before her intermarriage with him. But it is stated in the bill, and admitted in the answer, that the two mortgages upon the grist mill were given to secure the payment of the purchase money. In relation to that portion of the property she takes her dower subject to the mortgages. She must therefore keep down one-third of the interest, from the time of her husband’s death, upon the amount of principal and interest then unpaid, until the mortgages are required to be paid off; and then she must contribute, towards such payment, a sum which will be equal to the then value of an annuity of the amount of one-third of the interest upon the sum unpaid at her husband’s death for the residue of her life. (See Bell v. The Mayor, &c. of New-York, ante p. 49.) As to the other mortgage, if it was given previous to her marriage, or if she has joined with her husband in the mortgage, she must contribute to keep down the interest and pay off the mortgage in the same manner. For in such a case she is only entitled to dower in the equity of redemption, subject to the mortgage. (Hawley v. Bradford, 9 Paige’s Rep. 200.) But if the mortgage was executed, by the husb.and only, after his wife had become entitled tiran inchoate right of dower in the premisés, she must be endowed of one-third of the whole ; and the heirs at law of the deceased husband must themselves pay off the wdiole of that mortgage and the accruing interest thereon.

A decree must be entered declaring the rights of the parties accordingly; and directing a reference to a master to take the account of the estate in the usual form. And the question of costs and all further questions and directions are reserved until the coming in and confirmation of the master’s report.

The widow having remarried pending the suit, a suggestion' to that effect is to be made in the decree; with a direction that the proceedings be hereafter carried on against her and her husband as defendants.


text:
    Burr vs. Burr.
    1843. March 7.
    Upon an appeal by the husband, from a decree of separation from bed and board, the appeal bond should not be given to his wife in her own name, but should be in the name of her next friend, or in the name of the clerk or register of the court of chancery, as a trustee, for her use and benefit.
    Where in a suit for a separation from bed and board, instituted by the wife against her husband, the defendant was decreed to pay the costs of the suit and a certain amount immediately, for the alimony of the complainant from the time of the fling of the bill to the entry of such decree, and was also decreed to pay to her an annuity for life, for her permanent alimony, and to give security for the payment of such annuity, under the direction of a master; and the defendant appealed from the whole decree ; Held, that to stay her execution for the amount which was directed to be paid immediately, and for the costs of the suit, it was sufficient for the appellant to give a bond, with sureties, in double the amount thus directed to be paid; as directed by the 82d section of the title of the revised statutes relative to writs of error and appeals.

      Held also, that to stay the proceedings of the complainant upon the other branch of the decree, requiring the appellant to give security for the payment of her permanent alimony, and to prevent the execution of process of sequestration to compel the defendant to give security for such payment, the appellant must give the security required by the decree, and must deposit the same with the register to abide the final order and decree of the appellate court, as directed by the 84th section of the same title.
    After an execution has been issued upon a decree for the payment of money, and has been levied upon the defendant’s property, the execution of the appeal bond required by the 82d section of the statute does not of itself stay the sheriff from proceeding upon the execution. But the court will direct the proceedings upon the execution to be stayed, upon the giving of the security and paying the sheriff’s fees.
    Upon an appeal by the husband from a decree dissolving the marriage contract, or a decree annulling the marriage and declaring it void, the 'appeal bond may be given directly to the wife in her own name; as she will be considered as a feme sole from the time of the original decree if such decree is affirmed, and the bond of the defendant to her will be valid. Miter, upon a decree of separation from bed and board merely, where the common law relation of husband and wife still continues in other respects, so as to render a bond from the husband to his wife invalid.
    This was an application on the part of the defendant to stay the proceedings upon a decree against him pending an appeal to the court for the correction of errors. The bill was filed by the wife against her husband for a limited divorce, 'or separation from bed and board. She obtained a decree of separation, and for alimony from the time of the commencement of the suit; the arrears up to the 12th of October, 1842, at the rate of $10,000 per annum, together with the costs of the suit, to be "paid immediately, and at the same rate during the natural life of the complainant, to be paid quarterly. The decree also directed that the allowance for alimony should be secured to her, for her separate use, under the direction of a master and through the medium of a trustee ; with liberty for her to dispose of the same as she pleased, at her death, by an instrument in the nature of a will, and notwithstanding her coverture. The arrears of alimony and the costs of suit not being paid, the complainant’s solicitor caused the decree to be enrolled, and took out execution for the amount then due, as authorized by the terms of the decree ; which execution was levied by the sheriff upon the property of the defendant. After such levy, and before the sheriff had proceeded to sell, the defendant appealed to the court for the correction of errors. He executed an appeal bond to his wife, with two sureties, approved by an injunction master, in the penalty of $250, conditioned to pay the costs and damages which might be awarded against him upon the appeal; which bond was filed with the register. • He also executed another bond to his wife, with two sufficient sureties, in the sum of $60,000, conditioned to prosecute his appeal, and to pay the amount decreed to be paid, if the decree should be affirmed ; and to abide and obey the order of the court for the correction of errors to be made upon the subject of such appeal. This 'bond was also approved by the injunction master and filed with the register.

      W. Hay & D. Wright, for the appellant.

      S. Stevens & C. Stevens, for the respondent.
   The Chancellor.

Although the statute requires a bond to the adverse party upon the appeal, the bond must be given in such form as to be valid. . And if a husband cannot give any bond to bis wife which can be legally enforced in her name, the appeal bond must be given to her next friend, or to the register of the court, or to some other trustee, for her use and benefit. By the common law, the husband and wife are considered one person and a bond given by the husband to the wife would be invalid, as he canpot covenant with her. (Coventry’s Coke, 112.) If a man gives a bond to a feme sole and afterwards marries her the bond is discharged.' So if she marries one of the obligors in the bond. (Com. Dig. Baron & Feme, D. 1.)

The wife is undoubtedly the adverse, party in this case. And if it was an appeal from a decree granting an absolute divorce, or a decree annulling the marriage and declaring it void, an appeal bond given to the complainant in her own name would be valid. For if the decree should not be reversed upon the appeal, she would be considered as a feme sole from the date of the original decree. And if it was reversed, the condition of the bond would have been complied with. But in the case under consideration I think the bond should have been given to the next friend of the complainant, or to the register of the court as her trustee j which would have been a sufficient compliance with the statute requiring a bond to be given to the adverse party. The appellant, however, may amend, by filing a new bond in the penalty of $250, to perfect his appeal, or by depositing the amount in money, with the register, nunc pro tunc.

If the amount of alimony decreed to be paid hereafter, as .well as that which is now due and payable, is necessary to be secured, to make the appeal a stay of the execution for the amount now due, under the provisions of the 82d section of the statute relative to appeals, (2 R. S. 606,) the bond in this case is wholly insufficient. For the amount now due, and that which will probably become due during the residue of the respondent’s life, according to the usual tables of mortality, would be at least equal to the whole penalty of the bond. I am inclined to think, however, that in such a case as this the execution for the amount which is now due should be stayed, upon giving security by a bond in double that amount. But that will not stay the execution of process of sequestration, to compel the giving of security to the trustee of the respondent for the payment of the future alimony, unless such security is given in conformity with the decree, and deposited with the register to abide the final decree of the court for the correction of errors, as required by the 84th section of the statute. The decree in this case directs the payment-of money, and also requires the execution of certain securities, in trust, to secure future payments. In such a case, in order to stay the proceedings upon both branches of the decree, the provisions of both sections must be complied with. And if only one of them, which is applicable to but one part of the decree, is complied with, it will not stay the proceeding under the other part of the decree appealed from.

Although the execution of a bond, under the provisions of the 82d section of the statute relative to appeals, does not of itself stay the sheriff from proceeding upon an execution which had been previously issued, the court, m its discretion, will direct the execution to be stayed, upon the giving of the security and paying the sheriff’s fees upon the execution. (Clark v. Clark, 7 Paiges Rep. 607.) There must therefore be an order to stay all further proceedings upon the execution in the hands of the sheriff, upon the execution of a new bond to the register, or to the next friend, in trust for the complainant, in the penalty of at least fifty thousand dollars, with two sufficient sureties, to be approved by the proper officer and filed with the register within ten days, and paying the sheriff’s fees. This stay of the execution, however, is upon the condition that the ad interim alimony is paid from time to time, as directed by the former order of the court; to be deducted from the amount of permanent alimony, decreed to be paid, if the decree of this court is affirmed upon the appeal. But the complainant’s solicitor is to be at liberty to proceed to enforce the giving of the security for future alimony, under the other branch of the decree, unless the defendant shall think proper to stay such proceedings, pending the appeal, by giving the security required by the decree, and filing it with the register, to abide the final decision of the appellate court.