text:
    A. Smith and wife vs. N. Smith and others.
    Where a bill is filed for the recovery of a legacy, and the executors are called upon either to admit assets, or to render an account of the estate, in their-answer, if they neither deny the sufficiency of assets, nor set out an account of the estate, the court will presume the estate in their hands is sufficient for the payment of the legacy, and will make a decree accordingly.
    A mere misdescription of the legatee does not render the legacy void, unless the ambiguity is such as to render it impossible, either from the will or otherwise, to ascertain who was intended as the object of the testator’s, bounty.
    Where the testator has expressed bis intention so ambiguously as to create a difficulty which makes it necessary to come into the court of chancery to give a construction to his will, or to remove the difficulty, the costs of the litigation are usually directed to be paid out of the estate j and the general residue is the primary fund for the payment of such costs..
    This was an appeal by N. Smith, and wife, and by Barker and Carpenter, two of the executors of C. Thomas, from the decree of the vice chancellor of the first circuit. The facts in the case and the reasons for the decree of the vice chancellor are stated in his opinion as reported in 1 Edward?s CL ■ Rep. 189.

      October 28.

      W. Silliman, for the appellants.

      R. Bogardm, for the respondents.
   The Chancellor.

A mere misdescription of the legatee does not render a legacy void, unless the ambiguity is such that it is impossible to ascertain, either from the will itself, of from proof dehors the will, who was intended as the object of the testator’s bounty. For the reasons stated by the vice chancellor, I think he was correct in the conclusion at which he arrived, that Mary Smith, the wife of Abraham Smith, the complainant in this suit, was the legatee intended by the testatrix. And the complainants, having been compelled to come into this court to obtain payment of the legacy, were entitled to their costs, either against the defendant N. Smith, who claimed the legacy as belonging to his wife, or against the estate of the testatrix, which had come to the hands of the executors. The complainants were also entitled to interest on the legacy. By the complainants’ bill the executors were called upon to render an account of the property left by the testatrix, or to admit sufficient assets for the payment of the legacy. As no account is rendered, and the executors do not in their answers state that there is any deficiency of assets, I must presume there is sufficient for the purposes of this suit. It would therefore be a useless expense to direct an account to be taken of the estate of the testatrix which has come to their hands. If the surplus has been paid over to the residuary legatees, I take it for granted that the executors have obtained the usual security to refund in case of a deficiency.

The only question, therefore, which arises on this appeal is as to the costs as between the original defendants. As a general rule, if the testator has expressed bis intention so ambiguously as to create a difficulty, which makes it necessary to come into the court of chancery to give a construction to the will, or to remove the difficulty, the costs of the litigation, must be borne by his estate. And the general residue is the primary fund for the payment of such costs. (3 Brown's C. C. 27. 6 Vessey's Rep. 349. 1 Sch. & Lef. 12. 3 Peer Williams, 303.) In this case, however, the litigation was produced by the claim of the defendant N. Smith, and has evidently been earned on for his benefit. I cannot, therefore, say that the whole costs ought, in equity, to be paid out of the estate belonging to the residuary legatees, instead of being charged personally upon him. That part of the decree which directs the costs of his defence to be paid out of the assets in the hands of the executors, goes beyond the opinion of the vice chancellor, and was probably inserted in the decree through inadvertence or by mistake. As this is a joint appeal, by two of the executors and by N. Smith and wife, in which all of the appellants appear by the same solicitor and counsel, I cannot presume it was brought for the purpose of disposing of these questions of costs, as between themselves, in which questions the complainants have no particular interest.

The decree of the vice chancellor must therefore be affirmed, with costs to be paid by the appellants.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    The North American Coal Company vs. Dyett.
    Upon an appeal from the chancellor, or a vice chancellor, it is not necea» sary that the appellant should himself execute the appeal bond; it is sufficient if the bond is executed by two sufficient sureties.
    The time allowed for appealing from an interlocutory order, or decree, being fifteen days after notice of the same, the time does not begin to run against the party entering the order, until the actual entry thereof, although the caption of the order bears date as of a previous day.
    Where the appellant draws and enters the order, he is deemed to have had notice of such order from the time it is actually entered by him.
    This was an application to dismiss an appeal from an interlocutory order of the vice chancellor of the first circuit, for irregularity. The grounds of the application were, that the appeal bond had not been executed by the appellants, and that the appeal had not been brought within the fifteen days allowed by the statute for appealing from an interlocutory order. Two responsible sureties had joined in the bond, and more than fifteen days had elapsed from the date of the caption of the order appealed from, before the appeal was entered; but it appeared, by affidavits on the part of the appellants, that a delay of some days had occurred in settling the order, and that through mistake, or inadvertence, the caption of the order was made as of the day on which the decision of the vice chancellor was pronounced, and not as of the day when the order was in fact settled and entered. The appellants’ solicitor, not supposing the caption to be material, had servedzdf copy of the order on the solicitor of the adverse party,Avifhout making application for the alteration of the caption ; but the appeal was perfected within fifteen days after the order was actually settled and left at the clerk’s office to be entered.

      December 4.

      J. Blunt, for the appellants.

      H. W. Warner, for the respondents.
   The Chancellor.

The 116th rule of this court requires the bond for costs, on an appeal from the vice chancellor, to conform in all respects to the bond required by statute to be given upon an appeal from a decision of the chancellor to the court for the correction of errors. The eighteenth section of the statute, (2 R. S. 605,) declares that the appeal shall not be effectual, until a bond with sureties shall be given to the adverse party, and approved of by the proper officer of the court. Under this statute, it has been decided that the term sureties, in the plural, requires two or more sureties to join in the bond. The statute, however, being silent as to the appellant, it is not necessary that he should execute the bond also; and as the decree for costs on the appeal may be made against him personally, in the first instance, it can seldom be of any benefit to the respondent that he should join in the bond. Indeed, such a construction of the statute would in many cases deprive a party, against whom an interlocutory decision was made, of the power of appealing within the time allowed by law. Under the justices’ act of 1824, the supreme court decided that the appellant must join in the bond. But that decision was founded upon the express, provision of the statute, that the party appealing should execute a bond with •one or more sufficient sureties. (Laws of 1824. Ex parte Brooks, 7 Cowen’s Rep. 428.)

The order is presumed to have been entered at the time it bears date; and if the party who enters the order is required to do any particular act within a certain limited time after the making of the order, he is not permitted to say he has entered the order as of a wrong date. The time limited for appealing, in this case, however, was not from the time of making the order, but from the time when the appellant had notice of the order. (2 R. S. 178, § 59.) Where the appellant himself draws up and enters the order, he has notice, in fact, of the order, at the time he so enters the same; and it cannot be necessary for the adverse party to give him a formal notice, to limit his right of appeal. But as he could not have had notice of the entry of an order which had not in reality been entered at the time mentioned in the caption thereof, he may be permitted to show the true time when he received such notice; which, in this case, must have been within fifteen days of the entering and perfecting of the appeal.

This motion must therefore be denied, with costs.

       See Whitney v. Belden, ante p. 140.


text:
    The Manhattan Company vs. Evertson and others.
    A master’s summons or warrant should either be properly underwritten, osr the nature of the reference to be proceeded in, or the object of the attesdance required, should be briefly stated in tlie body of the warrant.
    Whether the proceedings will be set aside for irregularity, upon the service of a general warrant, where the person upon whom the warrant is served-is not misled thereby ? Quaere.
    Where an irregularity has occurred previous to the reference of the cause to a vice chancellor to bear and decide the same, so that the cause was not in fact in readiness for a hearing, the vice chancellor is not authorized to hear the application to set aside the proceedings for the irregularity; but the application must be made to the chancellor to vacate the order of reference and to correct the previous irregularity.
    December 17.
    The object of this suit, originally, Was to foreclose a mortgage ; and several judgment creditors, and others, having claims upon the estate, were made parties. After a sale and satisfaction of the complainant’s mortgage, one of the defendants obtained an order of reference, under the 136th rule, to ascertain and report the amounts due to the several defendants, which were liens upon the surplus monies; and as to the priorities of such liens. Under this order, the master proceeded and made a report; which report was excepted to by some of the parties who- appeared before the master. The cause standing for hearing on these exceptions, it was referred to a vice chancellor to hear the cause upon the exceptions, and to make such disposition of the residue of the cause as should be proper. In this stage of the proceedings, B. Cor-lies and three others, who had a judgment against the mortgagor which they insisted was a lien upon the surplus monies, and entitled to a preference, and who were also defendants in the suit and had appeared by their solictor, previous to the decree of sale, applied for and obtained an order to show cause why the order of reference to the vice chancellor, together with the master’s report and all subsequent proceedings, should not be set aside for irregularity; in order that they might be let in to prove their" claim to the surplus monies, upon the reference to the master. The facts, as they appeared upon the hearing of the parties on the day for showing cause, were, that the solicitor for Corlies and others, after giving notice of appearance and suffering the bill to be taken as confessed, heard nothing more of the cause until after the order of reference as to the surplus monies was obtained. He then received a summons from a master to attend a hearing on an order of reference; which summons, however, did not specify the object of the reference, or the name of the solicitor prosecuting the same, and had no underwriting whatever. The solicitor supposing the amount due to the complainants had not been computed by the master, and that it was a summons for that purpose, paid no attention to the same. And he knew nothing of the subsequent proceedings until a few days before the time of granting the order to show cause, when he ascertained that the mortgaged premises had been sold under a decree, and a master’s report as to the surplus had been made, in which the rights of his clients were not provided for.

      J. Rhoades, for Corlies, Mabbett & Cd.

      S. Cleveland, for J. Lockwood and others.
   The Chancellor.

The application in this case could not have been made to the vice chancellor, under the order of reference to him, notwithstanding he was authorized to decide upon the exceptions and make a final disposition of the suit. For if the report of the master and the subsequent proceedings have been irregular, the reference to the vice chancellor is also irregular. And it must be set aside to enable the applicants to obtain their rights. It appears that proof was exhibited to the master, of the service of the summons on the solicitor for Corlies, Mabbett & Co. But I apprehend there is nothing in the affidavits in opposition to this application from which I am authorized to presume that the summons which was proved to have been served, had any underwriting; or that it differed in any respect from the copy set out in the papers before me, and which was received by such solicitor.

It is not absolutely necessary that the master’s summons or warrant should be underwritten; although that is the usual . practice. It will be sufficient if the nature of the reference . to be proceeded in, or the object of the attendance, is briefly stated in the body of the warrant. But the master, before he signs the warrant, should see that it is properly underwritten; or that there is sufficient appearing in the body thereof to apprise the party upon whom it is served, of the nature of the proceedings which are to be had before the master. Even upon a general warrant, however, if the party was not misled, perhaps the court ought not to set aside the proceedings for irregularity. But in this case, as the proceeding was upon an ex parte order of which the solicitor for these applicants had never heard, and as the original decree had been obtained without his knowledge and irregularly, he had a right to suppose, and unquestionably must have supposed, it was the ordinary reference to compute the amount due to the complainants; as to which it would probably have been useless for him to have appeared before the master. Having been misled by this general warrant, the proceedings must be considered so far irregular, in relation to his clients, as to authorize or permit them to go before the master and litigate their claim with the several parties who have appeared and preferred claims upon the fund in controversy.

The master’s report, and all subsequent proceedings, including the reference of the exceptions, &c. to the vice chancellor, must be set aside. And the subject must be referred back to the master, with directions to him- to receive such further evidence as either of the parties to the reference may deem necessary to settle and ascertain their sevéralrights as between Corlies, Mabbett & Co. and any of the other parties who appeared on the original reference. But such other parties are not to be at liberty to take any further testimony in relation to their several rights as between themselves, without the further order of the court; and upon such terms, as to the costs of the former proceedings on the reference and the master’s report, as may be deemed just arid equitable. The master, upon such new evidence as may be introduced before him -in conformity to this order, and upon the evidence which was previously before him, is to make up a new report, and to settle it in the usual manner; after hearing the objections, if any, of the respective parties. And upon the coming in of , ... such report, any of the parties are to be at liberty to me exceptions thereto.

Neither party is to have any costs, as against the other, upon this application. Neither are such costs hereafter to be charged upon the fund. The costs of so much of the former proceedings, however, as are rendered useless, by the order referring the subject back to the master, as well as the general costs of the reference, are to abide the further order of the court.


text:
    Halsey vs. Van Amringe and others.
    An appeal, from the sentence or decree of a surrogate, duly entered in the court below, suspends all proceedings by the surrogate upon such sentence or decree until the appellate court authorizes proceedings thereon, although the appellant neglects to file his petition of appeal in the court of chancery within the fifteen days allowed for that purpose by the 118th rule.
    If the appeal is waived by the neglect of the appellant to file his petition of appeal, or if'a party who is interested in the sentence or decree appealed from is not made a party to the petition of appeal, the proper remedy is by an application to the chancellor to dismiss the appeal, or for leave to proceed in the court below notwithstanding the appeal,.
    The petition of appeal may be filed in the court of chancery, before the transcript of the proceedings before the surrogate is returned and filed; but the respondents cannot be compelled to answer the petition until the transcript is returned by the surrogate.
    Upon an appeal from a surrogate, the mode of compelling a return of the transcript, or of correcting any omissions or imperfections therein is by order, and by attachment for disobedience to the same, in conformity with the practice of the court of chancery in similar cases.
    This was a petition by Van Amringe and wife, parties in whose favor a decree of a surrogate had been made upon the final accounting of an administrator, for leave to proceed before the surrogate, on the ground that the appeal entered in the court below had been waived by the neglect of the appellant to file his petition of appeal in this court within the time prescribed in the 118th rule. The appeal was filed in the office of the surrogate, and was perfected, by giving a bond aa required by the statute, on the first of November, 1833. And no petition of appeal had been filed in this court, on the 19th of the same month, when notice of this application was served on the appellant’s solicitor. It appeared by the affidavit of the appellant’s solicitor that the delay, in filing the petition of appeal, arose from his supposing it necessary to obtain the transcript of the proceedings in the court below, before he could file the petition of appeal; that such transcript was not obtained until the 20th of November; when the petition of appeal was filed with the assistant register. It was also urged, as a preliminary objection to the application, that, if the petition of appeal was not served in time, the application for leave to proceed shoidd have been made to the surrogate, and not to this court.

      December 17.

      C. Graham, for the appellant.
    ,7. Rhoades, for the respondents.
   The Chancellor.

By the 118th rule, if the appellant neglects to file his petition of appeal addressed to this court, with the register or assistant register, within fifteen days after he has entered the appeal with the surrogate, by filing the appeal and giving a bond as required by the statute, (2 R. S. 611, § 117,) the appeal is to be considered as waived. This, however, is not such a waiver as to deprive this court of all jurisdiction over the case, and to authorize the surrogate to proceed as if no appeal had ever been entered. But it is such a waiver as to enable this court to declare the appeal deserted, and to direct the surrogate to proceed notwithstanding the appeal which has been entered in his office. By the practice of the ecclesiastical courts, though an appeal apud acta was entered, and apostles were granted by the judge a quo, it did not prevent the court below from proceeding to execute the sentence, after the expiration of the time limited by that court for the appellant to retro-certify what steps had been taken by him on the appeal. But the appellant, if he wished to stay the proceedings "upon the sentence appealed from, was obliged to 'obtain an inhibition from the appellate court. (Law's Ecclesiastical Pr. 312.) That inhibition, however, when served, stayed all proceedings in the court below, even after the expiration of the primara fatale, or first year, within which the appellant was required to prosecute his appeal to effect; unless the appellate court declared the appeal deserted, or authorized the judge a quo to proceed and execute his sentence* (Conset’s Eccl. Pr. 194, pt. 5, § 2, sub. 6. Cockburn, 182.) Here, by the statute, the filing of an appeal with the surrogate, and giving the bond required by law, suspends all proceedings in the court below until the appellate court shall authorize proceedings therein. And if such appeal is deserted, by the neglect of the appellant to file his petition of appeal in this court within the time prescribed by the rule, or if any person who would have been entitled to proceed on the sentence or order appealed from if such appeal had not been entered, is not made a party to such petition of appeal, by the usual prayer that he may answer the same, the party whose proceedings are stayed must apply to this court for leave to proceed before the surrogate notwithstanding the appeal.

By the practice of the ecclesiastical courts in England, upon an appeal in a testamentary cause, the appellant was not required to wait until he had obtained the transmiss from the judge a quo before he filed his libel of appeal; but the transmiss of the proceedings in the court below must be exhibted before the conclusion of the cause; that is, before the cause could be in readiness for a final hearing on the appeal. (Cockburn, 193, § 9.) If the judge or his register neglected to transmit the proceedings, the appellant might compel a return thereof by monition, or if the transmiss was imperfect he might, upon a proper application to the appellate court, obtain a monition for a further return of such parts of the proceedings as were omitted or imperfect in the original transmiss. (Cockburn, 191, § 2, 193, § 13.) Here, the petition of appeal, which corresponds with the libel of appeal in the ecclesiastical court, and which is also founded upon the proceedings and the appeal in the court below and not upon the transcript, may likewise be filed before the transcript is obtained. Though perhaps, in strictness, the transcript should be filed in this court before the respondent will be compelled to answer the petition of appeal. The mode of compelling the surrogate to furnish the transcript, or to correct any omissions or imperfections therein, must be by order, and by attachment for disobedience thereto, in . conformity to the practice of the court of chancery in other similar cases. The fact that the transcript could not be obtained, in this .ease, within fifteen days after the appeal was entered, is not therefore, of itself, a sufficient answer to this application. But as the appellant’s solicitor has acted in good faith, and under a mistake as to the practice of the court, he must be permitted to proceed on the petition of appeal which is now filed. The appellant, however^ must pay the costs of this application.


text:
    The People, ex rel. Hawley, vs. Bennett.
    A party who is committed as for a contempt for the non-payment of costs or other sum of money, is entitled to the gaol liberties; and unless the commitment is for costs only, he may be discharged from imprisonment under the statute, upon presenting a petition and making an assignment of his property. •
    But where a party is committed for the non-payment of a fine imposed upon him by the court, for the breach of an injunction, or other contempt, he must he confined by the sheriff within the walls of the prison.
    If the process of commitment does not show that the defendant was convicted of a contempt, and that the sum he was ordered to pay was a fine imposed upon him on such conviction, the sheriff cannot be punished for allowing him the benefit of the gaol liberties.
    December 17.
    The defendant in this cause Was adjudged guilty of a contempt, for a breach of an injunction. And he was fined $130,- : 54 as an indemnity to the relators, and to satisfy their costs - and expenses, in conformity to the statute. A part of the fine -was directed to be paid into court, or to be secured to the satisfaction of the register, and the residue to be paid to the solicitor for the relators; and the defendant was directed to be committed to the common gaol of the county of Onondaga, until the fine was paid, or paid and secured, as directed in the order. . Upon the- petition of the relators, and on an affidavit showing that the sheriff had not imprisoned the defendant as directed in the order, but had permitted him to go at large upon, the gaol liberties, a tule was obtained requiring the sheriff to show cause why an attachment should not issue against him for having disobeyed the command, in the writ of commitment. Upon the day assigned for showing cause, the sheriff produced affidavits from which it appeared that, by the writ of commitment, he was commanded to take the defendant and commit him to the common gaol, and to detain him there until he should pay $24 to the register, or give security therefor, and pay the sum of $106,54 to J. K, the solicitor for the relators, for his costs upon an attachment issued against the defendant; that the defendant offered bail for the limits; and that upon consulting with counsel, the gaoler was advised that the defendant was entitled to the gaol liberties; and that the sheriff, believing he would be subjected to an action if he refused the defendant the gaol liberties, took bail from him accordingly.

      J. King, for the relators.

      S. Sherwood, for the sheriff.
   The Chancellor.

Where a rule or order of this court has been made requiring a party to pay the costs of any proceedings, or other sum of money, arid he is committed, for not paying the same, in conformity with the fourth section of that title of the revised statutes which relates to proceedings as for con-tempts to enforce civil remedies and to protect the rights of parties in civil actions, (2 R. S. 535,) he is in execution in a civil action,.or on attachment for not paying the sum directed to be paid. In such a case, he is entitled to the gaol liberties; and unless such commitment is for the non-payment of costs only, he may be discharged under the statute, (2 R. S. 31,) upon presenting a petition and making an assignment of his property. (1 Caines' Rep. 452. 3 Paige, 38. 2 R. S. 433, § 40.) But the provisions of the revised statutes relative to the gaol liberties, and to the discharge of a party imprisoned on execution in civil causes, upon making an assignment of his property, do not extend to the case,of a party who is committed for the non-payment of a fine, imposed upon him as a punishment for a contempt of the court. The defendant in this case was convicted of a contempt, and was fined therefor to the extent of the injury which the relators had sustained; and he was ordered to be imprisoned thereon as directed by the statute. (2 R. S. 538, § 20, 21, 25.) By the seventh section of the title of the revised statutes in relation to county prisons, the keepers of such prisons are to receive and safely keep every person duly sentenced to imprisonment in such prisons upon conviction for any contempt or misconduct, or for any criminal offence; and are not, without lawful authority, to let out of prison, on bail or otherwise, any such person. The next succeeding section also clearly shows that it was the intention of the legislature that persons who were imprisr oned on convictions for contempts, should be actually confined within the walls of the prison. It would indeed have been desirable that the legislature should have fixed some limit to the time that a party was to be incarcerated for the non-pay- ■ ment of a fine, or have authorized the court to discharge him upon terms, or in its discretion, after a limited imprisonment sufcient to satisfy public justice; where the party injured by the conduct complained of could not be fully indemnified, in consequence of the utter inability of the party convicted of the; contempt to pay such fine. As the law stands, however, I know of no remedy for the party imprisoned, unless it be by a resort to the general pardoning power, if that power extends to such a case.

In the present case, although the relators had a right to commit the defendant to the walls of the prison, the sheriff has not been in fault; because the process of commitment-did not show that the defendant had been actually convicted and fined for a contempt, and that he was committed for the nonpayment of such fine. As the process did not recite that part of the order of, the court which adjudged the defendant guiliy of a contempt, and imposed a fine'upon such conviction-for the indemnity of the relators, the sheriff had a right to pre-~ sume, from the general direction in the process, to imprison the defendant until he paid a sum of money to the register, and another sum to the solicitor for his costs, that it was a commitment under the fourth section of the statute, upon which the defendant would be entitled to the gaol liberties.

The order to show cause must therefore be discharged, with costs.


text:
    The City Bank vs. Bangs and others.
    Where a sum of money is paid into court while the suit is pending before the chancellor, and the cause is subsequently referred to a vice chancellor to hear and decide the same, the party in whoso favor the decision is made¿ must, for the purpose of obtaining the fund, obtain an order from the chancellor that the register or assistant register pay over the fund, in conformity with the decree of the vice chancellor.
    Where the whole fund which is the subject of litigation is in court, and a decree is made directing its payment to one of the parties, from which decree the adverse party appeals, it is not necessary for the appellant to give security for the payment of the money which is in court, in order to make the appeal a stay of proceedings.
    A decree or order, directing the appellant to pay costs to the adverse party, is a decree directing the payment of money, within the meaning of tha statute; and to make the appeal a stay of proceedings, so far as relates to the collection of such costs, a bond must be given to the adverse party in double the amount of the costs, either separately or in connection with the usual appeal bond.
    Where the costs awarded to the adverse party have not been taxed, at the time of entering an appeal, if the appellant wishes to stay the proceed» ings for the collection of such costs, the officer who approves the bond for the stay of proceedings, should fix the penalty at such sum as he shall consider to be at least equal to double the probable amount of tho costs.
    Upon the bill of interpleader filed in this cause, and while the same was pending before the chancellor, the fund in dispute was paid into court, and was directed to be invested by the assistant register. The master having made his report, under the order of reference to him to ascertain the rights of the several defendants claiming the fund, and exceptions having been filed to that report, it was referred to the vice chancellor of the first circuit, to hear and decide the cause upoii such exceptions, and upon the equity reserved. The vice chancellor allowed the exceptions of the defendant Bangs, and overruled those of the other defendants. And he made a final decree in the cause, awarding the whole fund in courtj with the income thereof, to the defendant Bangs. He also decreed that the other defendants should pay to Bangs their several portions of the master’s Bill upon the reference ; and that Bangs should have execution against such defendants, respectively, to obtain satisfaction thereof. From this decree two separate appeals were entered, by different defendants, who claimed the fund in opposition to Bangs and to each other, Upon each appeal, a bond was given, in the penalty of $100, Conditioned to pay the costs and damages which might be awarded against the appellant on such appeal. But no security was given by either of the appellants, for the payment of the fund remaining in court, or for the payment of the amount directed to be paid by them for their respective proportions of the master’s bill. The present application was therefore made, on behalf of Bangs, for leave to proceed on the decree of the vice chancellor notwithstanding the appeals.

      January 7.

      R, Bogardus, for the defendant Bangs,

      J. Edwards, for the several appellants.
   The Chancellor.

The objection that this application should have been made to the vice chancellor, is not well taken in the present case. The fund in controversy having’ been paid into court while the suit was pending before the chancellor, it can only be paid out upon his order, founded upon the vice chancellor’s decree.

I think, however, that the counsel for Bangs is under a mistake in supposing that the appellants were required to give security for the payment of the fund in court, in order to stay the proceedings upon the decree. The statute is indeed general in its terms, that if the decree directs the payment of money, a bond with sureties shall be given, in double the sum decreed to be paid, in order to make the appeal a stay of proceedings on the decree. But this provision of the revised statutes, evidently was only intended to apply to those cases in which some of the parties in the cause were directed, by the decree, to pay money, or were personally charged with the payment of a loss which had arisen, or which might arise, in relation to a fund in court. In this case there is no probability of any loss upon the fund in court, except such as may arise from the difference in interest between the legal rate and that which the fund now produces. And such loss maybe recovered, under, the present bonds, as damages to be awarded against the appellants on the appeal; provided the penalties of the bonds are sufficient to cover such damages, as well as the costs on the appeah This court has probably erred in adopting a rule by which the penalty in the appeal bond is fixed at an amount which, in many cases, will be insufficient to cover the costs and damages that may be awarded to the respondent. It is sufficient, however, for the appellants to show that they have complied with the standing rules of the court.

The respondent also objects that the appellants have not given security, as required by the eighty-second section of the statute, (2 R. S. 606,) for the payment of the amounts directed to be paid by them, respectively, for their proportions of the master’s bill. This objection appears to be well taken. A decree directing a party to a suit in chancery to pay costs to the adverse party, out of his own property, or out of a fund in his hands, is a decree directing the payment of money. In the analogous case of a writ of error, to reverse a judgment where nothing but costs have been awarded against the party suing out such writ, the plaintiff in error must give security for the payment of the costs recovered against him in the court below, if he wishes the writ of error to operate as a stay of the proceedings of the adverse party for the collection of such costs. (2 R. S. 595, § 27.) And there is no reason why a different rule should be adopted as to the stay of proceedings in this court for the collection of costs. An appeal from the decree in such a case does not therefore stay the proceedings of the adverse party, so far as relates to the collection of the costs, unless a bond for the stay of proceedings .is given ; either separately or in connection with the usual appeal bond. If the costs have not been taxed, at the time of entering, the appeal, the officer who approves the bond for the stay of proceedings, must fix the penalty thereof in such a sum as he shall consider to be at least equal to double the probable amount ofthe costs directed to be paid by the decree appealed from. And where such bond is taken ill connection with the ordinary appeal bond, required by the eighteenth section of the statute, the amount of the penalty must be increased accordingly. In that case, also, the condition of the bond must be made to conform to both sections of the statute; so as to ensure the payment of the costs, or other sum of money, directed to be paid by the appellant, in the court below, as" well as the costs and damages occasioned by the appeal.

As this is a new question arising upon the construction of a recent statute, and as these appeals have been brought in' good faith, and not for the mere purpose of delay, the appellants are to have twenty days to give additional bonds, to stay the proceedings against them respectively, upon the decree. Such bonds to be approved Of, as to the amount, and the sufficiency of the sureties, by the vice chancellor of the first circuit. And neither party is to have costs as against the other, on this application.


author: The Chancellor,

text:
    Hart vs. Small.
    Where a party seeks to set aside the proceedings of his adversary for an irregularity which is merely technical, he must .make his application for that purpose the first opportunity.
    If a solicitor, after notice of an irregularity, takes any step in the cause, or lies by and suffers his adversary to proceed therein under a belief that his proceedings are regular, the court will not interfere to correct the irregularity, if it is merely technical.
    January 7.
    By a mistake of the master, the time fixed by him for the "service of the summons on the defendant to attend a reference was a few days short. But the defendant had notice in .time to have enabled him to attend; so that the irregularity in the summons was merely technical. The defendant’s solicitor made no objection; but neglected to appear before the master on the reference. And he suffered the complainant to go on before the master, and to obtain and file the master’s report, under the belief that the summons was regular. And the complainant having entered an order, founded on the report of the master, requiring the defendant to put in a further answer, the defendant now applied to set aside the report, and subsequent proceedings, for the irregularity of the summons ; although several motion terms had elapsed since its service.

      S. Stevens, for the complainant.

      J. Williams, for the defendant.
   The Chancellor,

said there was a technical irregularity in the summons; and that if the defendant had been prejudiced by it, he must now have an opportunity to except to the report of the master, in the same manner as he might have done if he had appeared and argued the exceptions to the answer before the master. That if the defendant’s only object was to set aside the proceedings on the ground of the technical irregularity, he should have applied to the court the first opportunity; or should have appeared before the master and made the objection, as soon as he had notice of the irregularity by the service of the summons. That the court would not encourage motions which were founded upon technical irregularities merely, and which could be of no substantial benefit to the parties. That if the solicitor, after notice of an irregularity, takes any step in the cause, or lies by and suffers his adversary to proceed therein under a belief that he is proceeding regularly, the court will not interfere to correct the irregularity if it is merely technical.


text:
    Potter vs. Baker and others.
    Upon an appeal from a vice chancellor to the chancellor, the appellant imisfr within the time allowed By law for appealing, serve a notice of the appeal apon the solicitors of the several parties whose interests' as to such appeal are adverse to that of the appellant; a mere constructive notice is not sufficient.
    The appellate court, under the provisions of the revised statutes, with the assent of the obligors, may amend the appeal bond in matters of substance ; as by adding the names of other sureties, where, by mistake or through inadvertence, the requisite number of sureties have not joined íb the bond.
    January 7.

    This was a motion to dismiss an appeal from a final decree of the vice chancellor of the eighth circuit. The original suit was a bill of interpleadér to settle the conflicting claims of three classes of defendants to a sum of money received by the complainant from the United States, on account of the destruction of a school house. The original proprietors of the building formed one class of claimants, and claimed the whole fund. The trustees of school district No. 1 formed a second class, and also claimed the whole. And the trustees of district No. 2 constituted the third class, and claimed one half of the fund as belonging to themselves, and that the other half belonged to the second class of claimants. The vice chancellor having decreed the whole fund in controversy to the trustees of district No. 1, the original proprietors of the school house appealed to the chancellor. After this appeal had been duly entered and perfected, the trustees of district No. 2 appealed from so much of the decree as adjudged that district No. 1 was entitled to the whole fund, and that district No. 2 was not entitled to any part thereof. The respondents applied to dismiss the last appeal, on the ground that notice of the appeal had not been served on the solicitor of the original proprietors of the school house, the appellants in the first appeal; and also on the ground that the appeal bond was defective in the manner of its approval, and in not containing the requisite number of sureties.

      JÍ. Tabor, for the appellants,

      J. Edwards, for the respondents.
   The Chancellor.

The sixtieth section of the title of the revised statutes relative to the court of chancery, (2 R. S. 178,) directs tiie appeal from an order or decree of a vice chancellor to be made by serving notice of such appeal upon the solicitor of the adverse party, and on the register or clerk with whom the order or decree is entered. This notice should be in writing ; and if only a part of the decreé is appealed from, the notice should specify such part. The notice of the appeal which the solicitor of the original proprietors of the school house had in this case, by seeing the appeal bond when it was presented to him in his character of master in chancery, was not a notice served on the solicitor, within the spirit and intent of the statute. A mere constructive notice, or a notice which might put the adverse party on inquiry, is not sufficient in such a case. I am satisfied, however, that notice of the appeal to the original proprietors was not necessary, in this case, to render the appeal valid; as they were not the adverse parties to the appellants in this particular appeal. If the first appeal should be dismissed, no question could arise between the original proprietors and the trustees of school district No. 2, on this last appeal; as it is not broad enough for that purpose. The claim of the original proprietors to the whole fund will be disposed of on the first appeal. And if they succeed, the whole case will be disposed of. But if they fail, then the second appeal will enable the two school districts to settle their respective claims to the fund, as between themselves.

The appeal bond, however, was defective, as there was but one surety. (Van Wezel v. Van Wezel, 3 Paige’s Rep. 38.) And the motion to dismiss the appeal must be granted, unless the court has the power to relieve the appellants, by an amendment of the bond, or otherwise. The proceedings upon appeals from the vice chancellors, except as to the time within which the appeal must be entered, by filing and serving the requisite notices, are regulated by a rule of the court, and not by statute. I am therefore inclined to think that this court has the power to relieve the appellant, independently of any statutory provision. (See Rule 126, and 1 Paige’s R. 391.) It is not necessary, however, to decide' that question 'here; as I am satisfied this case comes within the 34th section of the title of the revised statutes which contains the general miscellaneous provisions concerning suits and proceedings in civil cases. (2 R. S. 556, § 34.) The counsel for the respondents supposes that the amendments authorized by that section of the statute, can only be amendments of mere formal defects; such as are described in the next preceding section. But the legislature never contemplated an actual amendment of a mere formal defect in the bond. Such defects are cured by the 33d section, without the necessity of an application to the court. The legislature having thus disposed of this class of cases, they intended, in the language of the re-visors, in their note to the 34th section, to carry out the principle, by providing for an actual amendment of the bond, in matters of substance, where an error had occurred through in-ad vertence, or from a misapprehension of the law. In the present case there was no intention to delay the proceeding of the adverse party, by putting in an insufficient or defective bond. The appellant’s solicitor had also some reason to suppose his practice was regular; as an officer of the court, whose duty it was to see that the bond was correct, approved of the same. The statute having authorized the court to amend the bond, where it is defective in any respect, this is a very proper case to grant such relief. The appeal bond may therefore be amended, by adding another surety thereto, with the written consent of the present obligors; which consent must be annexed to and filed with the bond.

The appellants must pay the costs of this application to dismiss the appeal. And they are to have thirty days to amend the appeal bond. If it is not done within that time, their appeal is to be dismissed, with costs.


text:
    In the matter of Sanders and others.
    Where the testator, by his will, devised to his grand daughter a bouse and lot of land from and immediately after his youngest grandchild, named in the will, attained the age of twenty-one, to hold the same to the grand daughter for life, with remainder in fee to such child or children as might be born of her body; and devised other real estate, in like manner, to his other grand children for life, with remainder to their children in fee; and by a subsequent clause of his will, directed that if any of bis grand children should die without leaving lawful issue at the time of their death, the devise to such grandchild so dying without issue, should vest in the other grand children, their heirs and assigns forever; Held, that the grand daughter took a contingent estate for life in the house and lot, which became vested in possession when the youngest grandchild of the testator arrived at the age of twenty-one; and that such of the children of the grand daughter as were then in existence, or if none were then in existence, then those who were born afterwards, at their birth, took a remainder in fee, subject to the contingency of their dying without leaving issue living at the death of their mother, and subject also to open and let in after born children.
    After an express limitation to ajman for life, in a devise of lands, if the remainder is given or limited to his sons, or his children, and their heirs, or the heirs of their bodies, he takes an estate for life only; and the sons or children, and not the father, take the residue of the estate, by way of remainder.
    The term children, in its natural sense, is a word of purchase, and it is to be taken to have been used as such, unless there are other expressions in the will which show that the testator intended to use it as a word of limitation only.
    Where, by the terms of the will, an estate is given to a man and his children, if he has children at the time of the devise, he takes a joint estate with the children ; but where there are no children in esse at the time of making the will, the term children, in such a devise, may be construed as a word of limitation merely.
    This was an application to discharge Barent Bleecker as a trustee, and to substitute Barent Sanders and his wife, who claimed to be solely interested in the trust fund, as trustees in his place. Upon the presenting of the petition, the chancellor directed notice of the application to be given to the children of Mrs. Sanders; and appointed a guardian ad litem for such of the children as were infants. The facts of the case, so far as is necessary to understand the decision, aré stated in: the opinion of the chancellor.
    January 7.

      J. Rhoades, for the petitioners,
    contended that Mrs. Sanders took an estate in fee tad, in the premises in question, under the wdl of her grandfather, which was turned into an estate in fee by the statute abolishing entails. He cited 4 Cruise Dig. tit. 32, ch. 25, sec. 5; the rule in Shelly’s case, (1 Preston on Estates, 263 ;) 4 Kent’s Com. 206,1st ed.; 1 Coke’s R. 104 ; Theebridge v. Killburne, (2 Ves. sen. 233.)

      A. C. Paige, for the children of Mrs. Sanders,
    contended that Mrs. Sanders took under the will only a contingent estate for life in the premises, which became vested when the youngest grandchild of the testator arrived at the age of 21; and that such of her children as were then -in existence took a vested remainder in fee, which opened and let in after born children; and that such remainder in fee was subject to the contingency of all the children of Mrs. Sanders dying without leaving issue at her death. He cited Doe v. Provost, (4 John Rep. 61;) 4 Cruise’s Dig. tit. 32, ch. 25, sec. 30, 31, 33, 35; Fearne on Con. Rem. pages 28, 34, 37, 71, 203, and notes 148, 149, and n. a. and 187; Jackson v. Luquere, (5 Cowen, 221;) Jackson v. Elmendorf, (3 Wendell, 222;) Rogers v. Rogers, (3 Id. 503;) Jackson v. Robins, (16 John. Rep. 537, 589 ;) Cruise, tit. 38, ch. 9, sec. 4, 2, 15; Doe v. Perryn, (3 T. R. 484.)

   The Chancellor.

The principal question to be considered in this case is whether the children , of Mrs. Sanders have any interest in the trust fund. For, if they have, this court should not change the trustee, and substitute a new one, without requiring ample security for the protection of their interests in the subject matter, of the trust. The fund in the hands of this trustee is a part of the proceeds of a lot of ground in the city of Albany, which was taken by the corporation of that city for the widening of State street between Market street arid the basin. The lot originally belonged to G. Van Sante, the grandfather of Mrs. Sanders. By his will, made in 1806, he devised this lot, with other property, to Mrs. Sanders, then Catharine Bleeker, from and immediately after his youngest grandchild named in the will should attain the age of twenty-one years: to hold the same to her for life, with remainder to such child or children as might be born of her body, and to the heirs and assigns of such child or children forever. Other property of the testator was also devised in the same manner to his other grand children for life, with remainder to their children in fee. And the testator, by a subsequent clause in his will, further directed that if any of the grand children should die without leaving lawful issue at the time of their death, the devise to the grandchild, so dying without issue, should devolve upon and vest in the other grand children, and their heirs and assigns forever. The mayor’s court decided that the $17,244, allowed as a'compensation for this lot, belonged to Mrs. Sanders, exclusively; on the ground that she took a fee simple absolute in the premises, under the will of her grandfather. A judgment, in favor of the" corporation, against the husband, and a mortgage given by Sanders and his wife to a third person, were therefore ordered to be paid out of the fund. And the chamberlain of the city was directed to pay the balance, amounting to about $14,000, to such person as might be legally authorized to receive the same for Mrs. Sanders, underthe direction of the mayor’s court; so that her rights in the same as a feme covert might be protected.

It is not material for the purposes of the present application to consider what would have been the legal effect of this decision of the mayor’s court upon the rights of the children of Mrs. Sanders, if the subsequent declaration of trust had not restored them to their former rights; so far, at least, as the balance of 14,000 was affected by that decision. By the written agreement, and declaration of trust, under which the present trustee has been permitted to receive that balance, with the sanction of the mayor’s court, he now holds the fund in trust, in like manner, and with the like effect, so far as regards the beneficial interest of Mr. and Mrs. Sanders and their children therein, as the lot itself was holden before it was taken for the street. The counsel for the petitioners insists that by the will of G. Van Sante, Mrs. Sanders took an estate tail in this lot, which was turned into an estate in fee simple by the operation of the statute abolishing entails. If he is right in this construction of the will, the children of Mrs. Sanders have no interest in the trust property, and it is only necessary ^or^le court to protect the wife’s equity therein. But if the guardian ad litem for the children is correct, in supposing that their mother had only a life estate in the lot, and that the children were entitled to the same after her death, as the owners of the remainder in fee, she and her husband have already received more than her share of the trust fund. And the whole which now remains, including the income thereof, should be preserved for the benefit of her children already born, and such as may be born hereafter. In support of the construction contended for by Sanders and wife, their counsel relies upon the ex parte opinions of two distinguished jurists,f given in 1824, as to the legal effect of a similar devise, in this will, to another of the grand daughters of the testator. I apprehend, however, that these eminent lawyers, when they gave these opinions, did not advert to the distinction between a devise to a man forlife, with remainder to his children, or the children of his body, and a similar devise to him for life, with remainder to his heirs, or the heirs of.his body. According to the rule in Shelly’s case, a devise to a man for life, with remainder to his heirs, or the heirs of his body, gives to him the whole estate in fee simple in the one case, and an estate in fee tail in the other. This rule is applied to limitations in which the word heirs is used, on account of the peculiar signification of that word, and upon the maxim that no one is an heir of the living. But after an express devise or limitation of lands to a person for life, if the remainder is given or limited to his sons, or bis children, and their heirs, or the heirs of their bodies, he takes an estate for life only; and the sons, or children, and not the father, take the residue of the estate in fee, or fee tail, by way of remainder. (1 Coke’s Rep. Thomas and Fraser’s ed. 263, note. 4 Cruise’s Dig. tit. 32, ch. 25, § 30. Revisors’ note to ch. 1, pt. 2 of R. S. p. 26.) The word heirs, in its natural signification, is a word of limitation; and, it is presumed to have been used in that sense by the testator, unless a contrary intention appears. But the term children, in its natural sense, is a word of purchase; and is to be taken to have been used as such, unless there are other expressions in the will showing that the testator intended to use it as a word of limitation only. Where, by the terms of the will, the estate is not limited to the father for life with remainder to his children, but is given to him and his children, the construction of the devise varies according to circumstances. If the devisee, in such a case, has children at the time of making the will of the testator, it has been holden that he takes a joint estate with his children; as in Oates v. Jackson, (2 Strange, 172.) But where there are no children in esse at the time of making the will, the word •children, in a devise to a man and his children, has sometimes been construed a word of limitation merely, so as to create an estate tail in the devisee. (See Wild’s case, 6 Coke's Rep. 16, and Burton on Real Prop. 208.) I am not aware, however, of any case where the parent’s estate was expressly limited to him for life, with the remainder to the children of his body, in which the term children was construed a word of limitation, and not of purchase; whether such parent had or had not children living at the time of malting the will. Indeed, such a construction of a will which contained a devise in that form, would unavoidably defeat the intention of the testator. Independent, therefore, of the decisions in our own courts, I do not see any good reason for sustaining the construction of this will which is contended for on the part of the petitioners. This question, however, is put at rest by the decision of the court of dernier resort in this state, in the case of Rogers v. Rogers, (3 Wendell’s Rep. 503.) In that case, as in this, there was an estate given to the first object of the testator’s bounty, Thomas Rogers, junior, for life, with remainder to the children of his body, after his death. And although, in the habendum clause, the term heirs of his body was substituted for that of children, it was held that nothing but a life estate was devised to the son, and that his children took the estate, after his death, as a remainder.

In this case, Mrs. Sanders took a contingent estate for life in the lot in question, by way of executory devise; which became vested in possession when the youngest grandchild, named in the will, arrived at the age of twenty-one. And if she had any children at that time, the remainder immediately vested in such children in fee, subject, however, to the contingency of then- dying without leaving issue living at t^ie death of their mother, and subject also to open, and let in after bom children. If she had not children at the time her life estate took effect in possession, the remainder was contingent until the birth of her first child, when it vested in such child, subject to be opened in like manner, to let in her after born children.

Sanders and his wife, therefore, having received a much larger portion of the fund than her life estate in the income of such fund would amount to, have no right, as the cestui que trusts, to apply for a change of the trustee. But if the present tmsteewish.es to be relieved from his trust, he is at liberty to invest the trust fund on bond and mortgage, or in other permanent securities, in the name of the register of this court, for the benefit of those who may be entitled to the same on the death of Mrs. Sanders. Or Sanders himself may be substituted the trustee, upon his giving sufficient security to the register, by bond and mortgage on unencumbered real estate, conditioned to account, upon the death of the mother, for so much of the fund as belongs to the children, as this court shall direct. The security in that case, however, must be sufficient to cover the whole sum of $14,000, exclusive of the income thereof, during the life of Mrs. Sanders; as the substitution of him as the trustee may deprive the present trustee and the cestui que trusts of their remedy, to recover back that part of the principal of the fund which has already been received by him.

The costs of the guardian ad litem appointed to protect the rights of the children of Mrs. Sanders, on this petition, should be paid out of the trust fund belonging to the children.


text:
    Wood and others vs. Wood, executor, &c.
    'Under the revised statutes, if the circumstances of the executor are such as not to afford adequate security for the faithful discharge of his trust, and the objection is made by a person interested in the estate, the surrogate is bound to require security from the executor, although the testator, at the time of making his will, was aware that the executor was irresponsible.
    Where the executor is about to remove from the state, the surrogate must require security from him, although the testator, by his will, directed the executor to remove with the property bequeathed, into another state.
    Tins was an appeal from an order of the surrogate of Albany county, granting letters testamentary to J. B. Wood, the respondent, as executor of 8. 8. Wood, deceased, without requiring security from him as such executor. The testator died in the spring of 1833, leaving a widow and three infant children ; the eldest of which children was six years of age. He left property of the value of about $18,000 ; most if not all of which consisted of money, stocks and other personal estate. His debts amounted to about the sum of $3000. By his will, which was made a few months before his death, he appointed bis brother J. B. Wood, the respondent, his executor, and the guardian of his infant children. The testator also gave to his executor all his estate, in trust for the purposes of his will. And in his will he directed his executor to convert all the estate into money; and, after paying his, the testator’s debts, and the expense of transporting his widow and children to the state of Ohio, he directed the executor to invest two thirds of the residue, in that state, for the benefit of the children, and of the widow, during her widowhood. The other third of the estate, and also the income of the children’s share, during their minority, was given to the executor, to enable him to support and educate them. The executor was a single man, without any visible property. But, upon his examination before the surrogate, he stated that, in addition to the interest he expected to derive under this will, he had a claim against his father, of about $1000, for services rendered after he arrived at the age of 21. The executor also stated that it iras Ins intention to remove to Ohio, and there to invest (fie estate of the testator, as directed by the will.

      January 7.

      Jl. Tabor, for the appellants.
    I grant that the testator might have given his property to whomsoever he pleased, or perhaps have directed it to be destroyed, or used for the annoyance instead of the benefit of Ms family, without being controlled by the municipal law. But since he has directed a part of it to be given to his wife and children, the municipal law requires the courts to take such security as shall insure its being so applied; and that without any reference to the intention of the testator as to security. The law only, not natural right, confers on the testator the power of disposing of his property after death. (2 Bl. Com. 10, 11.) ' The same law requires the surrogate to take security from.an incompetent executor for the benefit of the living, without reference to the intention of the testator. The testimony objected to, but admitted by the surrogate, was inadmissible. (Gray v. Goodrich, 7 John. Rep. 95. Jackson v. Kniffen, 2 Id. 31. Wilson v. Boerem, 15 Id. 286.) The question was not what the testator thought of the competency and responsibility of the executor, but what the fact was—of which fact his declarations were not evidence; and the declarations of jhe testator are not competent evidence even of what he thought on this subject. The surrogate did not sufficiently inquire into the objection to the competency of the executor, and ascertain whether his circumstances afforded adequate security to the creditors, &c. (2 R. S. 70, § 6.) If further evidence is necessary to protect the rights of the infants, it is prayed for in the petition of appeal, and this court will now order it to be taken. (Scribner v. Williams, 1 Paige, 550.) Before the surrogate there was affirmative evidence that the-circumstances of the executor did not furnish adequate security to the creditors. (2 R. S. 70, § 6, above cited, and p. 61, § 28.) The design of removing out of the state to reside, is of itself a circumstance which should have induced the surrogate to require security, under the manifest spirit and intent of the statute. (2 R. S. 70, § 7. Id. 72, § 18, 19, 20, 21.) The mother is not obligfed to leave this state ; and the father, if living, would have no right to leave her here and take her children to Ohio. He would be controlled in such an attempt, by the courts. (Commonwealth v. Addecks, 5 Binney’s Rep. 520. United States v. Green, 3 Mason’s Rep. 482. De Manneville v. De Manneville, 10 Vesey’s Rep. 51. State v. Smith, 6 Greenleaf’s Rep. 462. Matter of Waldron, 13 John. Rep. 418. Matter of Wollstoncraft, 4 John. Ch. Rep. 80. Wellesley v. Duke of Beaufort, 2 Russ. Rep. 1. Lyons v. Blenkin, 1 Jacob, 245, and cases there cited.) A testamentary guardian is as much under the control of this court, though appointed in pursuance of a statute, as the father. (The Duke of Beaufort v. Berty, 1 P. Wms. 703.) In England, the court of chancery will not suffer a ward to be taken out of its jurisdiction by the guardian, even into Scotland. (Mountstuart v. Mountstuart, 6 Vesey’s Rep. 362. 10 Id. 51.) A limitation too extensive in its creation is wholly void. (2 Vesey Beames, 61, 54. Cox’s Ch. Cas. 324.) The counsel also cited 1 Sim. & Stu. 69, 1 Swanst. 566, 1 Jac. & Walk. 583, 4 Mad. Ch. Rep. 484, and 1 Russell, 416.

      S. Cheever, for the respondent.
    It should be the object of the court to carry into effect the intention of the testator; not to defeat it. The testator had a right to give his property to whom he pleased, and upon such conditions as he pleased. The testator selected his brother, in whose integrity and business capacity he bad confidence, to execute his will. The executor has an interest in one third of the property. When that is taken out, he is worth $6000, and has $10,000 to administer, which he is to invest immediately for the children, in their name, and in real estate, which is always regarded by this court as a favorable investment. The executor says he is ready to proceed to Ohio and execute the will according to its provisions. Did he intend otherwise, it would be cause for this court to interfere. This will was recently made. No change in the circumstances or character of the executor, since making it, is pretended. Should the court require bail, and the executor should not give it, is the court certain that any one will be found ready to take administration cum testamento annexo ? and should no such one be found, must not the chancellor make a new will 1 The fact that the testator directed his property to be taken out of the state, is a reason why bail should not be required, because it increases the difficulty of procuring it; and if not procured, the objects of the will will be defeated. The property is not to be taken beyond the reach nor beyond the protection of laws. The testator had a right to designate the state under whose laws he was willing to trust his property and his children, and this court should not grant a ne exeat to prevent it.
    The statute authorizing the surrogate to require bail, was intended for the safety of creditors, and of legatees in extreme cases. Here the creditors would have been paid long ago, if letters testamentary had been granted; and will be immediately, when it is done. There is no pretence of alarm on their account; and where the testator has imposed no terms on the executor, as to legatees, the court should not. (2 R. S. 70, § 6. Revisor s’ Notes, pt. 2, ch. 6, tit 2, § 6. Peer Williams, 119, 218. 3 Salkeld, 162. 1 Id. 36, 299. 1 W. Bl. Rep. 456. 3 Atk. 566. 2 Id. 126. Strange, 857. Fitzg. 125, 365.)
   The Chancellor.

The only question which is properly before me on this appeal, is, whether the surrogate was right in granting letters testamentary to the respondent, without requiring security for the faithful execution of his trust. If the will is invalid, from a want of capacity in the testator to make it, or if the proof of the will was not properly made before the surrogate of Albany, on the ground of a different residence of the testator at the time of his death, the remedy of the widow and next of kin was by an appeal to the circuit judge. And if the testamentary guardian, improperly or without any sufficient cause, attempts to remove these children out of the jurisdiction of this court, or deprives them of the nurture and cave of their mother at their present tender ages, her application must be made directly to the chancellor; and not by way of appeal from the decision of a surrogate.

Previous to the revised statutes, the surrogate was obliged to grant letters testamentary to the executor named by the testator, although he was known to be insolvent. (The King v. Sir Richard Raines, Carthew, 457.) But where the executor became insolvent after the mating of the will, although the creditors and legatees of the testator could obtain no relief in the ecclesiastical court, the court of chancery sometimes interfered to protect the estate from waste, or loss, by such insolvency. (Utterson v. Mair, 4 Bro. C. C. 270. 2 Vesey, jun. 95, S. C.) But poverty alone, if known to the testator, was not of itself sufficient to authorize the court of chancery to take the administration out of the hands of the executor selected by him. (Howard v. Papera, 1 Mad. Rep. 142.)

The revised statutes, however, have introduced a new principle into our testamentary law. Any person interested in the estate of the testator may now object to the granting letters testamentary to the executor named in the will, on the ground that his circumstances are such as not to afford adequate security to the creditors, legatees, &c. for the due administration of the estate. And if the surrogate is satisfied of the validity of the objection, he may require security as in cases of intestacy. Where the executor is a non-resident of tire state, he must also give the like security. (2 R. S. 70, § 6, 7.) Under these provisions of the revised statutes, it is not material to inquire whether the testator was aware of the want of responsibility in the executor at the time of making the will. For if the testator has been so improvident as to commit the administration of his estate to one whose cirumstances are such as not to afford adequate security for the faithful discharge of his trust, the court must interfere for the protection of the estate against the effects of such improvidence. The declarations of the testator, as proved by the gentleman who drew the will in this case, were therefore wholly irrelevant to the inquiry which was pending before the surrogate. They merely proved that the testator was willing to trust the executor with his estate that, however, was previously shown by the will itself, which named him as the executor, without requiring him to give any security. From the evidence, as to the standing and circumstances of this executor, I think the surrogate erred in supposing those circumstances were such as to afford adequate security for the faithful administration of this estate; especially as the trust, as to most of the property, is to continue for nearly twenty years. And in the mean time the whoie property, as well as the person of the executor, is to be removed beyond the jurisdiction of this state. The third of the estate which is given to the executor, for the purpose of enabling him to support and educate the children, should not be taken into account in ascertaining the value of the executor’s property in reference to this trust. The whole of it may be required for the specific object for which it was given. And one of the reasons for requiring bonds of the executor, is to secure the faithful application of that third of the estate to the support and education of the children, if it should be necessary for their support. All that the executor has then, which can be called his property, is an unliquidated, and probably an unadmitted demand, of several years standing, against his father, for his services while he remained at home. And there is nothing in the testimony to show whether this claim, evén if it is a legal one, can or cannot be collected of the father.

There is, however, another provision of the revised statutes which shows the impropriety of granting letters testamentary without security, in this case, more clearly still. By the 20th sect, of the title of the revised statutes before referred to, (2 R. S. 72,) it is made the imperative duty of the surrogate to require security from an executor, upon proof that he has removed, or is about to remove from the state. And if letters testamentary had been granted in this case, without security, the widow and children might have immediately applied to the surrogate to compel the executor to give security; as he admitted, on his examination, that he was about to remove to the slate of Ohio. No good, therefore, could have resulted from a grant of letters testamentary, in conformity with the decision of the surrogate. But the executor, in the mean time, and before any citation could have been served upon him, might have departed with the property beyond the jurisdiction and control of the surrogate; and thus might have evaded this salutary provision of the statute.

The decree of the surrogate, directing letters testamentary to issue without security, must therefore be reversed, with costs to the appellants, to be paid out of the estate of the testator. A transcript of the decision, or decretal order to be eniered on this appeal, must be remitted to the surrogate ; with directions to him to enter an order, in conformity with the decision of this court, requiring the executor to give a bond with sureties, as is required by law of administrators in cases of intestacy, before such executor shall be entitled to letters testamentary on the estate of the decedent.


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    Acker & Chapman vs. J. D. & D. A. Phœnix.
    Where "certain creditors agreed to compound with their debtors, and to re* ceive twelve shillings in the pound in foil satisfaction of their respective debts, and it was expressly provided in the composition deed that it should not be binding on any of the creditors executing the same, until all and every creditor of such debtors had executed the deed; Held, that the debtors could not vary the terms of the written agreement, by showing that there was a parol understanding between them and those who executed the composition deed, that certain creditors, denominated confidential creditors, were not to execute the same, but Were to be paid by the debtors in full.
    An agreement by a creditor to accept from his debtor a part of his debt in full satisfaction for the whole, is without consideration and void, unless the agreement is in writing, and is also under seal, which imports a consideration.
    The court of chancery will not aid a párty who is seeking the specific performance of a mero voluntary agreement, which is neither founded on a good or a valuable consideration.
    The bill in this cause was filed to compel a specific performance of a composition agreement, between the complainants and the defendants, as their creditors. By the composition deed, which was dated the 18th of April, 1832, and executed by the defendants and several, other creditors, the creditors severally agreed to accept of the complainants’ securities at the rate of twelve shillings in the pound, in full satisfaction of the debts due to them respectively torn the complainants jointly, or from Henry Acker separately. The amount of such composition was payable in nine, thirteen, and eighteen months; and was to be secured by satisfactory notes, to be delivered to the respective creditors before the 15th of May; and to be approved of, on behalf of the creditors, by an individual named in the deed. The deed contained a proviso, that it should not be binding upon any of the par- . ties who executed the same, until all and every of the creditors of Acker & Chapman, jointly, and of Acker individually, sealed and subscribed the same. The complainants, in their bill, after setting out the deed of composition, alleged that all the creditors did subscribe and seal the same, except certain creditors usually called confidential. That the composition deed was executed by the defendants and the other parties thereto, with full knowledge of the existence of such confidential debts; and with an understanding between the persons executing the same, and the complainants, that the confidential debts were to be first paid, and that the deed of composition was not to be executed by the confidential creditors. That the complainants procured the notes for the creditors, as mentioned in the deed of composition, within the time prescribed; and that the same were approved of by the individual therein mentioned, and were accepted by all the creditors except the defendants. And that the notes were tendered to the defendants within the time prescribed; but that they refused to receive the same. The complainants further alleged, that the defendants, previous to the execution of the deed of composition, bad commenced suits for the recovery of their debts, and that when the deed was executed, in the city of New-York, they gave a letter to the complainants directed to the attorney who was prosecuting the suits, requesting him to discontinue such suits, upon payment of the costs by the complainants, unless he liad previously obtained security for the debts. That the complainants afterwards delivered this letter to the attorney of the defendants and offered to pay the costs, and requested him to discontinue the suits ; but that the attorney, having previously received another letter from the defendants countermanding the order to discontinue the suits, declined doing so until he had further directions from his clients. And that shortly afterwards the complainants received a letter from the attorney informing them that his clients instructed him to proceed in the suits, unless the debts were paid or secured without delay. It appeared also by the bill, that the present defendants recovered judgments in those suits a few days afterwards for the amount of tlieir debts, and took out executions thereon. The complainants, therefore, prayed for a specific performance of the agreement of composition; that the judgments and executions might be discharged; and for an injunction,to restrain the defendants from further proceedings thereon.

      January 28.

      The defendants put in a general demurrer to the bill, for want of equity.

      Jl. Taber, in support of the demurrer,
    contended that the ■complainants had no rights, as against the defendants, either at .law or equity; that they could not contradict the composition agreement by parol evidence ; that the verbal agreement, set up in the bill, was without consideration and void. And that if the complainants had any remedy, it was by an application to the supreme court to set aside the judgments recovered by the defendants. He cited 1 Dunl. Pr. 336 ; Lansing v. Eddy, (1 John. Ch. Rep. 49 ;) Carter v. Utica Ins. Co. (Id. 463 ;) Wollam v. Hearn, (7 Ves. 217, 218;) Higginson v. Clowes, (15 Id. 516 ;) Stevens v. Cooper, (1 John. Ch. Rep. 425, 429;) Livingston v. Tompkins, (4 Id. 415;) Newkirk v. Willett, (2 Caines’ Cas. in Error, 296;) M’Intyre v. Mancius, (16 John. Rep. 592;) Seymour v. Minturn, (17 Id. 169;) Harrison v. Close, (2 Id. 448.)

      J. Rhoades <$• Jl. Van Veehten, for the complainants,
    cited 2 R. S. 135; King v. Baldwin, (17 John. Rep. 384;) Clason v. Morris, (10 Id. 530;) American Ins. Co. v. Fisk, (1 Paige’s Rep. 90;) Lattimer v. Harsen, (14 John. Rep. 330.)
   The Chancellor.

The deed of composition signed by the defendants in this case is as explicit as language can make it, that it shall not be binding on any of the creditors who have executed the same, until all and eveiy of the creditors of the complainants shall have subscribed and sealed it. But these complainants are now attempting to vary the effect of this written agreement in a very essential point, by an allegation that there was a parol understanding, at the time of the execution of the deed, that this provision, that all the creditors should join therein, was only to extend to a particular class of creditors; and that another class, who are sometimes called confidential creditors, were not to join in the composition deed.' This is wholly inadmissible; and as the complainants admit that all their creditors did not execute the deed, they have no defence, either at law or in equity, against the payment of the whole of the defendants’ debts.

Again; even if the written instrument could be varied by parol proof, the complainants are not entitled to relief here; as the agreement by the defendants to accept a part of their debt in satisfaction of the whole, was entirely without consideration. And the court of chancery will not aid a party who is seeking the specific performance of a mere voluntary agreement, which is neither founded on a good or a valuable consideration. (Minturn v. Seymour, 4 John. Ch. Rep. 497. Banks v. May’s heirs, 3 A. R. Marsh. Rep. 436.) It is well.settled that the payment, by the debtor, of a less sum of money than the real debt forms no valid consideration for an agreement to discharge the residue. And such an agreement will be no satisfaction of the larger sum, unless it is under seal; which imports a consideration. (Harrison v. Close, 2 John. Rep. 448.) In this case the composition deed is not executed by the complainants. Therefore there is not even an agreement, on their part, to secure the payment of the amount which was to be received as a composition. If there was a valid agreement to discontinue the suits, which I think there was not, the remedy of the complainants was by an application to the supreme court, to set aside the judgments for irregularity.

The demurrer is allowed; and the bill must be dismissed, with costs.