author: Bronson, Ch. J.

text:
    Mersereau vs. Ryerss and others.
    it seems that the heir and the personal representative of a deceased person can not be joined in a suit brought by a creditor under the statute (2 R. S. 452) to charge the heir in respect to lands descended.
    But all the heirs must be joined, and in order to charge them it must be shown, either that the personal assets of the deceased were not sufficient to pay the debt- or that after due proceedings before the proper surrogate’s court and at law, the creditor has been , unable to collect the debt or some part thereof from the personal representative.
    And where it is not shown that the personal assets were insufficient, the non-residence of the administrator within the state is no excuse for not taking due proceedings in the proper surrogate’s court.
    And where in a suit against the heir, the pleadings and proofs did not make out a proper case under the statute, held, that a stipulation for a reference to state an account between the parties, and to take proof “on other points in issue” did not waive the objection.
    Appeal from the supreme court. The bill was filed in the Late court of chancery, before the vice chancellor of the sixth circuit) against the heirs of John P. Ryerss, who died intestate in 1839, for the purpose of charging them, on account of real estate which descended to them, with a debt due from the decedent to the complainant. The vice chancellor, after hearing the cause upon pleadings and proofs, and upon the report of a master to whom it had been referred to take an account of the indebtedness and dealings between the complainant and the intestate, sustained the bill and decreed according to the prayer thereof. The supreme court sitting in the sixth district, on appeal, reversed the decree and dismissed the bill. The complainant appealed to this court. In the opinion of the court will be found a sufficient statement of the questions and of the facts on which they arose.

      J. A. Collier, for appellant.

      N. Hill, Jr, for respondents.
   Bronson, Ch. J.

The bill was filed against the defendants as the heirs at law of John P. Ryerss, who died intestate, to recover a debt which the complainant claims against the deceased. The bill states the granting of administration to the defendant, Joseph W. Ryerss, one of the heirs.; but I think that fact was only mentioned for the purpose of making out a case against the heirs, and not for the purpose of making Joseph a party as the personal representative of the deceased. Indeed it has been decided, that the heir and personal representative can not be joined in a suit under this statute. (Butts v. Genung, 5 Paige, 259 ; Schemerhorn v. Barhydt, 9 id. 45 ; Wambaugh v. Gates, [Ct. App. Nov. ’47.]) But if there can be a case where it would be proper for the creditor to join them, I think this bill was not framed with that view. The complainant intended to charge Joseph, as well as the other children, as heir at law, and not in any other character.

In a suit of this kind, whether at law or in equity, all the heirs must be joined; (Stat. 1837, p. 537, § 73;) and they are not liable for the debt, “ unless it shall appear that the personal assets of the deceased were not sufficient to pay and discharge the same; or that after due proceedings before the proper surrogate’s court, and at law, the creditor has been unable to collect such debt, or some part thereof, from the personal representatives of the deceased, or. from his next of kin or legatees;” (2 R. S. 452, § 33;) and it is incumbent on the creditor to show these facts and circumstances to render the heirs liable. (§ 36, cases above cited, and Gere v. Clarke, 6 Hill, 350.) Now in this case the complainant alledges in the bill that John P. Ryerss died possessed of a considerable personal estate, estimated, as he was informed, at about three thousand dollars; which is more than the sum that has been found due to the complainant ; and it does not appear that the intestate owed any other debt. The defendants admit in their answers that John P. Ryerss died possessed of a considerable amount of personal property; and they alledge that there was sufficient to pay the debts which he owed at the time of his death. There is no proof to show a deficiency of personal assets ; and it lies on the creditor, as we have already seen, to make out the case provided for by the statute. It follows, that there is no foundation for the suit on the first alternative mentioned in the 33d section, to wit, making it “ appear that the personal assets of the deceased were not sufficient to pay and discharge” the debt. No such fact is established, either by the pleadings or proofs.

The other alternative is, “ due proceedings before the proper surrogate’s court, and at law” to collect the debt, without success. There have been no proceedings whatever, for the collection of the debt, either at law, or before the surrogate of Steuben county, where the intestate resided at the time of his death, and where the letters of administration were granted. The only excuse which has been offered for the want of such proceedings is the fact that the administrator, at the time the letters were granted, and ever since, has resided out of this state, at Philadelphia in the state of Pennsylvania, beyond the reach of our process. This may be enough to excuse the want of a suit against the administrator; but it is no answer to the want of proceedings before the surrogate. The complainant might have applied to the surrogate, and obtained an order requiring the administrator to render an account of his proceedings ; (2 R. S. 92, § 52;) and although the administrator resided out of the state, the order might have been served, either personally, or by publishing it pursuant to law. (Stat. 1837, p. 537, § 76.) The complainant might have had a decree for the payment of his debt; and a suit on the administrator’s bond to enforce the decree. (2 R. S. 116, § 18, p. 77, § 42 ; Stat. 1830, p. 391, § 23.) He has not, as he should have done, exhausted his remedy against the personal estate, before resorting to the heirs.

It is said that the defendants are entitled to the whole estate, real and personal, and that it is not important to them out of which fund the debt is paid. But the legislature did not so view the matter. The statute makes no exception; but requires the creditor in aE cases to seek satisfaction from the personal property, before he resorts to the real estate in the hands of the heir.

I do not see that the stipulation for a reference to take and state and account between the parties amounted to a waiver of the right to make this objection. In addition to what is said about the account, the stipulation provides for taking proof upon other points in issue, not relating to said accounts and either party had the right to set the cause down for a final hearing upon the master’s report, and the pleadings and proofs in the cause.” The parties evidently contemplated other questions besides those which might arise upon the master’s report; and I think their only object in making the stipulation was to expedite the cause. It is certainly to be regretted that so much expense should have been incurred in taking an account which turns out to be useless ; but that can not obviate the objection that the complainant brought his suit before he had laid a proper foundation for maintaining it.

I am of opinion that there is no error in the decree of the supreme court dismissing the bill, and that it should be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Hurlbut, J.

license: Public Domain

text:
    Culver vs. Sisson.
    An action of debt will not lie upon a chattel mortgage to recover the sum of money secured thereby, unless the instrument contains an express agreement to pay the sum, or a distinct acknowledgment of an existing debt
    In a chattel mortgage executed by the defendant to the plaintiff under seal there was no express covenant to pay the money, nor any acknowledgment except that the instrument was declared to be executed for the purpose of securing the payment of a certain sum. There was a proviso that the instrument should cease and be void on payment of the sum; and in case of default the plaintiff was authorized to sell the goods and apply the proceeds in payment, rendering the overplus to the defendant. Held, that debt would not lie upon the instrument.
    Appeal from the supreme court, where the action was debt brought by Culver against Sisson. The declaration set forth in substance that on, <fcc. at, &c. the defendant by an instrument in writing under his hand and seal acknowledged himself to be indebted to the plaintiff in the sum of $345,70, which remained unpaid, and thereby an action had accrued for the recovery of that sum. The instrument declared upon was set forth on oyer, and was in the form of a chattel mortgage. It transferred to the plaintiff certain goods and chattels “for the purpose of securing the payment of the sum of $345,70,” with a proviso that, the instrument should cease and be void on payment of'the money by a certain day; and, in case of default, it authorized the plaintiff to sell the goods and to apply the proceeds in payment, rendering the overplus to the defendant. Until default the defendant was to retain possession of the property. There was no express covenant to pay the money, nor any acknowledgment of a debt other than is contained in the words before quoted. The defendant demurred to the declaration, and the supreme court sitting in the seventh district gave judgment in his favor. The plaintiff appealed to this court.

      Geo. F. Comstock, for appellant.

      N. Hill, Jr. for respondent.
   Hurlbut, J.

It is contended on the part of the defendant, that the instrument declared upon contains neither an acknowledgment of indebtedness on his part, nor any express covenant or agreement to pay money, without one or the other of which this action cannot be maintained.

It is clear that the instrument set forth contains no express covenant to pay money, and this case must therefore fall within the principle determined in Briscoe v. King,(Cro. Jac. 281;) Suffield v. Baskeroil, (2 Mod. R. 36;) Smith v. Stewart, (6 Blackf 162;) Scott v. Field, (7 Watts. 360;) Drummonds. Richards, (2 Munf. 337;) Salisbury v. Philips, (10 John. 57;) unless the defendant has bound himself by an express acknowledgment of indebtedness to the plaintiff. Now the language of the instrument which is relied on for this purpose falls far short of the requirements of the law. The defendant merely recites an intention to secure the payment of a sum of monéy ; and he might have done this although nothing was due to the plaintiff ; or he might have transferred the chattels for the purpose of securing the debt of another, without intending to become personally bound for its payment.

It was for the plaintiff to show that the instrument declared on contained a clear and unequivocal recognition of a debt due from the defendant to himself, in order to escape from the application of the rule established in Briscoe v. King, and to bring his case within the principle laid down in Elder v. Rouse, (15 Wend. 218.) In the latter case, the defendant executed an instrument under seal, by which he recited in express words that he was indebted to the plaintiff in the sum of $100, and for the purpose of securing the payment of that debt he sol'd and conveyed to the plaintiff certain church pews, with a proviso, that if the defendant should pay the $100 with interest in one year, then the transfer should be void. The action of debt, for $100 was sustained on this instrument, on the ground that the debt was expressly acknowledged to be due, on the face of it; and the case was thus distinguished from that of Briscoe v. King, and others of that class. The judgment of the supreme court must be affirmed.

Judgment affirmed.


author: Harris, J.

text:
    Hyde, receiver, &c. vs. Goodnow.
    A mutual fire insurance company had an agent residing in the state of Ohio authorized to receive applications for insurance. The agent received from a party also residing in Ohio, an application together with the premium note of the applicant, and transmitted them to the office df the company in this state, where they were received, passed upon and approved, and where a policy was executed and transmitted to the applicant by mail. The agent had no authority to make insurances. In an action to recover the premium note, held, that the contract was made in the state of New-York at the office of the company, and not in the state of Ohio ; and therefore that the contract was not within the prohibition of the statute of that state declaring that “ no policy of insurance shall be signed, issued or delivered” in that state by any company not chartered by the laws thereof, except by any agent of such company who should first have obtained a license in the manner prescribed by the act.
    In general the rights of the parties to a contract, as distinguished from their remedies, are to be determined by the law of the place where the contract is to be performed.
    An exception to this rule, however, exists where the contract is declared void by the law of the state or country in which it is made, but would be valid in the place where it is to be performed. In such a case the contract cannot be enforced in either place. Per Harris, J.
    Appeal from the supreme court, where Hyde, as receiver of the Chenango County Mutual Insurance Company, brought an action against Goodnow, to recover the amount of two premium or deposit notes- The cause was heard before a referee, and on. the hearing the notes in question were given in evidence as follows:
    “ $100,00. For value received in Policy No. 4319, dated the eighth day of May, 1849, issued by the Chenango County Mutual Insurance Company, we promise to pay the said company, or their treasurer for the time being, the sum of one hundred dollars, in such portions, and at such time or times, as the directors of said company may, agreeably to their act of incorporation, require. Milton W. Goodnow.
    Theodore Williams.”
    “ $100. For value received in Policy No. 4334, dated the sixteenth day of July, 1844, issued by the Chenango County Mutual Insurance Company, we promise to pay the said company, or their treasurer for the time being, the sum of one hundred dollars, in such portions, and at such time or times, as the directors of said company may, agreeably to their act of incorporation, require. Milton W. Goodnow.”
    The defendant, at the time the notes were given- and the insurances therein referred to were effected, was a resident of Huron county in the state of Ohio, and the premises insured were situated in the same state and county- One Samuel L. Hatch, also residing in Ohio, was an agent and surveyor of the company duly appointed under its by-laws, and through him the applications for the insurances in question were made. The notes in suit were delivered by the defendant to Hatch, and by him, together with the applications, were forwarded by mail to the office of the company at Norwich in the state of New-York. The policies in question were issued on those applications, from the office of the company, and were mailed to the defendant personally. The conditions of insurance annexed to the policies, and referred to therein as forming part of the contract, declared that no insurance should be considered as binding until the application and premium note were deposited in the office of the company, and the application approved by the directors. The 13th by-law of the company provided that every person wishing to become a member of the company should, previous to being insured, deposit his application and premium note with the secretary, and, if approved by a director, the policy should bear date on that day, and take effect at noon, unless directed by the applicant to be dated on a future day. The same by-law as well as the conditions of insurance provided that five per cent of the premium note should be paid at the time of making the application, and one dollar to the surveyor for his services, and fifty cents to the secretary for each policy, by the person receiving it.
    It was insisted on the part of the defendant that the notes were illegal and void under an act of the legislature of the state of Ohio, passed March 12, 1831. The 3d section of that act is as follows:
    “ § 3. No policy of insurance of any description, or for any purpose, shall be signed, issued or delivered in this state, nor on any property of any kind situated in this state, by any association, company or corporation, not chartered by the law of this state, except by an agent of such company, who shall first have obtained license therefor from the county treasurer, as hereinafter provided; and every policy, covenant or agreement of insurance issued or delivered or effected contrary to the provisions of this section, shall be to all intents and purposes null and void; and the person who shall sign, issue or deliver the same, in behalf of any such company, corporation or association, shall forfeit and pay for every such offense the sum of one hundred dollars, to be recovered by action of debt, at the suit of the treasurer, and to be accounted for by him as for moneys received for taxes levied on such company, by the provisions of the succeeding section.”
    Sections 4, 5 and 6 provide for the licensing of agents, the giving of bonds, and the making of returns, &c. It was admitted that the agent Hatch had not complied with any of the provisions of the law. The referee reported in favor of the plaintiff for the amount of the notes, and the supreme court . affirmed his decision. The defendant appealed to this court.

      H. M. Hyde, for appellant,

      H. R. Mygatt, for respondent.
   Harris, J.

It is a general rule of international law, that the rights of the parties to a contract, as distinguished from their .remedies, are to be determined by the law of the place where the contract is to be performed. If a contract be made in one state or country, arid it appears upon its face that it is to be performed in another, it will be presumed that the contract was entered into with reference to the laws of the latter, and those laws will be resorted to in ascertaining the validity, obligation and effect of the contract. This general rule, however, has its exceptions; one of which is, that where a contract is declared void by the law of the state or country where it is made, it can not be enforced as a valid contract in any other, though by its terms it was to have been performed there. Thus, assuming that the contracts in question had been made in Ohio, and that by the laws of that state such contracts are declared void, the courts of this state would be bound also to declare them void, though by their terms they were to have been performed here, and though if made here they would have been valid contracts. This exception is required by that just comity and public convenience upon which all international law is founded. A contract which is illegal and void, either by the law of the place where it is made, or that of the place where it is to be performed, is illegal and void every where. (See Andrews v. Herriott, 4 Cowen, 510, note a, and cases there cited.)

The statute of Ohio, upon which the defense rests, declares, in substance, that every insurance effected in that state by a foreign company, except as therein provided, shall be, to all intents and purposes, null and void. It is not claimed that the insurance, for which the notes in question were given, was effected in the manner prescribed in the statule. It follows, upon the principles already stated, that if it was effected in Ohio, the whole transaction was void. It is necessary, therefore, in the first place, to determine where the contracts upon which this action is brought were made.

Hatch was the agent of the company. He was authorized “ to make surveys and receive applications for insurance.” This was the extent of his authority, and beyond this he did not assume to act. He received the defendant’s applications for insurance, with the premium notes executed by the defendant, and transmitted them to the company, at its place of business in the. state of New-York. When did the transactions become obligatory upon the parties as contracts ? In other words, when were the notes delivered to the company, so as to invest it with the legal right of enforcing payment according to their terms; and when did the company become bound to the defendant, as an insurer ? The answer to these questions involves the solution of the inquiry where the contracts were made.

The applications of the defendant for insurance could in no sense have been regarded as a contract until they had been accepted by the company. The agent did not assume to do any thing which would bind the company. His office was to receive, and submit to the company, the defendant’s propositions. Until the company acted upon such propositions, it was within the defendant’s power at any time to recall them. Before the company had agreed to insure, the defendant, notwithstanding the execution and delivery of the notes and applications to- the agent of the company, might have withdrawn his applications and upon his doing so, his notes would have been inoperative. Until then, the transactions were wanting in that mutuality which is essential to a valid contract. -But when the company having received the applications, accompanied with the notes, consented to insure, and issued its policies, what was before revocable became irrevocable.- What was before a mere proposition, then became invested with the attributes of a contract, and from that time each party became bound for its performance. If this be so, the contracts are to be regarded as having been made when the company received and accepted the defendant’s applications and issued and transmitted to him their policies. Of course, they were contracts made in the state of New-York, and not in Ohio. The insurance was not effected in Ohio, nor were the policies “ signed, issued, or delivered” there. The case therefore is not within the prohibitions of the statute. This being so, it is immaterial where the notes were payable, If the notes had been payable at the defendant’s store in Ohio, this would have constituted no ground of defence. Suppose the defendant had himself applied to the company, at Norwich, for insurance, and had made his premium notes payable at his own store in Ohio, would it be pretended that there was any thing unlawful in such a transaction 1 The statute does not prohibit notes, though given for insurance to a foreign company, from being made payable in Ohio. It only prohibits foreign companies from effecting insurance or issuing or delivering policies in that state. If this has not been done in this case, (and we have seen that it has not,) there is nothing to impair the validity of the defendant’s notes.

I think the learned referee, before whom this case was tried, decided correctly, and that the judgment of the supreme court should be affirmed.

Judgment affirmed.


text:
    Carroll vs. Upton.
    In an action against the drawer of a bill of exchange,, the notary who had protested the bill testified that he made “ diligent inquiry” for the drawer’s place of residence, and that his reputed residence was at the place to which the notice was sent; but the witness did not state what in particular the inquiries were. There was no objection to the evidence. Held, that the court below committed no error on the trial in submitting the evidence to the jury upon the question whether the drawer had been duly charged.
    In order to charge the drawer of a bill of exchange it is not sufficient to send notice of protest to the place where the bill is dated, if in fact the drawer resides at another place, and due inquiry for his residence be not made.
    The question of dqe diligence in charging a party to a bill of exchange is a mixed one of fact and law, and where the facts are ascertained, the question is one of law merely.
    Appeal from the superior court of the city of New-York, where Carroll brought assumpsit against Upton to recover the amount of a draft drawn by the latter in favor of the plaintiff. On the trial before Sandford, J. the plaintiff gave in evidence the draft in question, as follows ;
    “ Washington City, March 10,1845.
    $295,32. At three days’ sight please to pay to the order of Win. Thomas Carroll the sum of two hundred and ninety-five dollars and thirty-two cents, and charge the same as advised to Clayton Tiffin, and oblige Your ob’t serv’t,
    Francis H. Upton.
    To J. W. Arthur <fc Co. New Orleans.”
    For the purpose of showing that the defendant had been duly charged as drawer, the plaintiff read the deposition of Mr. Stringer, a notary public in New Orleans, who testified in substance, among other things, that he protested the bill, that at the time of the protest the defendant resided in Washington in the district of Columbia, to the best of his knowledge and belief, that Washington was his reputed place of residence, and the witness believed he was there at the time ; that he sent a notice of protest to the defendant at Washington by mail from New Orleans in due season; and that at the time of protest he made diligent inquiry as to where the drawer then resided, as to where he was at the time, and where a letter would reach him. He further testified, that it was the custom, practice, and law in Louisiana, to send notice of protest to the drawer of a draft at the place where it is dated when the drawer is absent from his usual place of residence ; also, that in his capacity of notary public two deeds were passed before him, one in December, 1844, the other in May, 1845, in which the defendant was described as a counsellor at law of the city of New Orleans.
    It was proved by a witness called on the part of the defendant, that at the time the draft was drawn and protested the defendant was a resident of New Orleans, and a practicing counsellor at law in that city ; that in the winter of 1845 he went to Washington solely for the purpose of attending to a suit pending in the supreme court of the United States; and that the draft in question was drawn in good faith and in the belief that it would be paid by the persons on whom it was drawn. The same witness testified that if Mr. Stringer, the notary, had taken proper pains to inquire, he might easily have learned that the defendant’s residence was in New Orleans.
    The evidence being closed, the defendant’s counsel requested the court to charge the jury, that there was no suEcient legal evidence to prove that said notary had used due diligence in inquiring for the residence of the defendant at the time the draft was protested. The court, refused so to charge, and did charge, that if the jury were satisfied that the notary made diligent inquiry for the residence of the defendant at the time the draft was protested, and his best knowledge and belief were that he resided at Washington, and was there at the time, and that such was his reputed place of residence as ascertained by the notary, the notice sent to Washington was suEcient to charge him, although in fact his residence was at that time in New Orleans. To the refusal to charge as requested, and to the charge as given, the defendant’s counsel excepted. The plaintiff had a verdict which the superior court refused to set aside, and after judgment the defendant appealed to this court.

      N. Hill, Jr. for appellant.

      J. A. Collier, for respondent.
   Bronson, Ch. J.

The fact that the bill purported to have been drawn at Washington City, where the notice was sent, furnished very little, if any, evidence that the drawer resided at that place ; and did not dispense with the necessity of inquiring for his residence. (Lowery v. Scott, 24 Wend. 358; Spencer v. Bank of Salina, 3 Hill, 520. And see Taylor v. Snyder, 3 Denio, 145.) In relation to inquiry, the defendant insists that the notary has sworn to nothing but a conclusion of law. But that is saying too much. When all the facts are ascertained, what is due diligence in making inquiries for the residence of the drawer is a question of law. But due diligence in the aggregate, includes both fact and law. When a witness swears to due diligence in making inquiries, he speaks of two things; first, that there was some diligence, which is a matter of fact; and second, that there was due or sufficient diligence, which is matter of law. In swearing to some diligence, the witness speaks of a fact within his knowledge; but in affirming that there was due or sufficient diligence, he is only giving his opinion upon a question of law, which he has no right to decide. Still if a notary should swear to due diligence in making inquiries, and the defendant should neither object to his testifying in that manner, nor cross-examine for the purpose of analyzing the testimony, and separating the fact from the law, I am not prepared to say that the evL deuce would amount to nothing. But it is not necessary to de-.. cide that point. The witness did not swear to due or sufficient diligence; but that he had made “ diligent inquiry” for the residence of the drawer. That was speaking to a matter of fact. The witness evidently intended to be understood as saying, that he had not only made inquiry, but that it was a careful, thorough, or business-like inquiry.

It is true that the witness should have told what in particular he did, so that the court, or court and jury as the case might be, could determine whether enough was done. But if the defendant allows a witness, without objection, to swear that there was a -diligent inquiry, and then puts no question on the cross-examination for the purpose of drawing out particulars, I think the case may properly go to the jury to say what the evidence is worth.

The witness was examined on a commission; but the interrogatories are not in the case. It may be that they put the very question which the witness has answered; and that the defendant neither objected to that question, nor proposed any cross-interrogatory for the purpose of ascertaining- what the witness meant by diligent inquiry. The defendant may have' been content to take the statement of the notary on the question whether the inquiry was a diligent one or not.

And besides; we have got only a part of the deposition of the notary. The case states, that he “ testified among other things, as follows.” We can not say that other parts of his testimony would not help out defects in the part which is given.

In addition to the fact of diligent inquiry for the residence of the drawer ; where he was at the time, and where a letter would reach him, the witness says, that “ at the time of the protest, the defendant resided at Washington in the district of Columbia, to the best of my knowledge and belief; that was his reputed place of residence, and I believe he was there at the time.” Now although “belief” would be nothing without inquiry, it is but reasonable to conclude, that what the witness believed after making diligent inquiry was founded on the information which he got in making the inquiry. And besides, the witness swears to the fact—not belief—that Washington was the drawer’s reputed place of residence

It is true that the witness should have told what information he received, and left it to others to say whether he was right in acting upon it. But here again it is proper to notice, that no objection was taken to the manner in which the witness testified ; nor does it appear that he was cross-examined, or what were the interrogatories annexed to the commission. And what is also important, we have only a part of the deposition j and there is no statement in the case that we have all that bore upon this question. Under such circumstances, I do not see how we can say, that'tliere was not sufficient evidence to carry the cause to the jury.

I am of opinion that the judgment of the superior court should be affirmed.

Judgment affirmed.


author: Gardiner, J. Pratt, J.

text:
    Allen vs. De Witt.
    A testator by his will authorized his executors “ to sell his real and personal estate in such parcels, at such times, and for such considerations as they should judge proper for the purpose of discharging his debts and creating funds for the support of his family.” After payment of Ms debts he directed the avails of his property to be equally divided among all his children. Before the testator’s debts were paid, the husband of one of the daughters being indebted to the plaintiff, procured from the executors a conveyance of a portion of the real estate for the purpose of enabling him to mortgage it to secure the debt. Nothing was paid for this conveyance, but the husband agreed to disencumber the land by paying the mortgage, and then to reconvey to the executor, or in default thereof, that the value of the land might be charged against his wife’s distributive share in the estate. On a bill filed to foreclose the mortgage given by the husband and wife according to this arrangement, held that the conveyance was riot an execution of the power contained in the will and passed no title, and therefore that the mortgage was not a lien upon the interests of the testator’s other heirs in the premises.
    Under such a power it seems that a sale of the real estate by the execptor, for the purpose of distribution among the testator’s children, could not be made until after the debts were paid, and that the sale should then be absolute for money or funds capable of distribution according to the will.

      Per Pratt, J. The power of sale contained in the will is restricted to a sale for the purpose of paying debts or creating funds for the support of the family until a settlement of the estate. By the term “ avails” of his property, as used in the will, the testator meant the corpus of his estate after payment of his debts, &c.
    Therefore, it seems, that the provisions of the will did not work an equitable conversion of the real into personal estate: and the real estate descended as such to the heirs subject to the execution of the power.
    Appeal from the supreme court. The case was .this: The late Simeon De Witt died on the 3d of December, 1834, leaving a will bearing date the 9th of September in that year, which, after making certain special devises and bequests, proceeded as follows: “I empower my executors to sell all my estate, both real and personal, not specially bequeathed or devised, in such parcels, at such times, and for such considerations as they shall judge proper for the purpose of discharging my debts and creating funds for the support of my family, and on such sales to give the proper legal conveyances.” “ After my debts shall have been paid, the avails of my property shall be equally divided among all my children.” He appointed his son Richard Varick De Witt and Charles C. Broadhead executors, but the former alone qualified, and letters testamentary were issued to him. Richard Varick De Witt, Susan L. Hubbell wife of Levi Hubbell, William L. De Witt and Mary L. De Witt were the only children of the testator and his heirs at law.
    The said Levi Hubbell was indebted to Gilbert Allen in the sum of $4000 and upwards, and being pressed for payment or security, procured from the executor of the will aforesaid á conveyance of certain premises situated in Ithaca, Tompkins county, of which the testator had died seised, for the purpose of enabling him to execute a mortgage thereon to Allen, to secure that debt. The conveyance was executed on the 8th of September, 1837. No consideration was paid by Hubbell, and the conveyance was executed under the expectation that he would soon be able to pay the mortgage, and would then reconvey the property; if not, the value of the land was to be charged in account against his wife’s distributive share in the estate. The debts of the testator were not paid at the time of this transaction. On the first day of October, 1837, Hubbell and wife executed their mortgage to Allen upon the premises so conveyed, to secure the debt above mentioned, and the bill in this cause was filed in the late court of chancery, before the vice chancellor of the first circuit, to foreclose that mortgage. Hubbell and wife, the mortgagors, Richard Varick De Witt, William L. De Witt, Mary L. De Witt and other persons were made defendants. All the de- , fendants suffered the bill to be taken as confessed, except the two last named children and heirs of the testator, and they ap peared and defended.
    The vice chancellor sustained the bill and decreed a foreclosure and sale. William L. De Witt and Mary L¡ De Witt appealed to the chancellor, and pending the appeal the cause became vested in the supreme court under the new Constitution. That court, sitting in the sixth district, reversed the decree of the vice chancellor, and adjudged that the mortgage in question was no lien upon the two undivided fourth parts of the premises, which, on the death of the testator, went to the appellants, William L. and Mary L. De Witt. The decree further provided that an equitable division of the premises be made by metes and bounds, and that the complainant have leave to sell the east half thereof, the said William L. De Witt having made certain erections and improvements on the other half. The complainant appealed to this court,

      A. Mann, for appellant,
    cited Niles & Sherwood v. Steven, (4 Denio, 399 ;) Peter v. Beverly, (10 Peters, 532;) 2 R. S. 109, § 55 ; Crosby v. Wendell, (6 Paige, 548;) Bogert v. Hertell, (4 Hill, 492;) 1 R. S. 734, § 96.
    S. Love, for respondents,
    cited Bloomer v. Waldron, (3 Hill, 364;) Chance on Powers, 52, Lond. ed. of 1831; Judson v. Gibbons, (5 Wend. 227 ;) 4 Kent’s Com. 326; Conklin v. Edgerton’s Adm'r, (21 Wend. 437.)
   Gardiner, J.

The question presented by this cause is, whether the power given to the executors to sell the real estate of the testator, was well executed by the conveyance to Hubbell.

The general rule is, “ that to the due execution of a power, there must be a substantial compliance with every condition required to precede or accompany its exercise.” (Chance on Powers, 172, § 454; 1 R. S. 737, § 121.) The condition in this will is, that after the debts of the testator shall have been paid, the avails of his property should .be equally divided between his children. By avails I understand cash, or securities, the representatives of money. The debts of the testator were not paid at the time of the conveyance to Hubbell.

The argument in support of the sale is, that it was in effect a division of the avails, and a sotting apart this parcel of land, considered as cash, to the’ use of Hubbell in right of his wife, in part satisfaction of her claim as one of the children of the testator, to an undivided fourth part of the proceeds of her father’s estate.

There are two objections to this view of the case. 1st. The execution differs from the power in this, that the sale to Hub-bell was before, while the testator declares that the division of the “ avails” shall be after the debts were paid. In Dike v. Rich, (Cro. Car. 335,) the power was to sell all the tenements, or so much as with the goods were sufficient to pay debts, &c. It was held not only that there must be a deficiency, but that a sale could only be made to the extent of it. Here the debts must be paid before the residue of the avails” can be divided. 2d. The power requires an absolute sale, for a consideration fixed by agreement between the executor and the vendee, which was to constitute part of the proceeds or avails of the estate, and as such to be capable of being applied in payment of debts, or of forming a fund for the maintenance of the family, and of ultimate division among the heirs. In this case, however, the sale was not absolute. Hubbell had the right and was bound to pay off the mortgage and reconvey the land to the executors. Failing in this, he was to allow the value, (not the consideration stated in the deed oi‘ agreed upon at the time of sale,) towards payment of the share of his wife in the estate. It is difficult to see how this agreement of Hubbell could be made available in the payment of debts, or in support of the family, or of division among the children of the testator. The complainant, as I understand his counsel, does not claim that the sale to Hubbell was valid against creditors, or that it might not be avoided by a sale by the executors for the purpose of creating a fund for the support of the family. The concession is inconsistent with the notion that the conveyance to Hubbell was a valid exercise of the power. The sale contemplated by the will was obviously one which should divest the executors of all further power over the land conveyed. "No second exercise of that power to divest a vendee of an interest acquired by a previous sale in conformity with its provisions, can be tolerated by any fair*construction of the will. The object of the sale, was the whole title, as the means of raising the fund to pay debts and for distribution.

What rights then did the complainant acquire by virtue of his mortgage? And 1st. The will creates a' general power of sale in trust for the benefit of creditors and the children of the testator. The fee descended to the heirs at law, of which Mrs. Hubbell was one, subject to the execution of the power which might be compelled after a reasonable time had elapsed by those for whose benefit it was created. (1 R. S. 734, § 96.)

Mrs. Hubbell’s interest, then in the mortgaged premises was an undivided fourth subject to the power. This she probably pledged to the complainant by the execution and acknowledgment of the mortgage in question, together with all her rights (if any) acquired by the conveyance to her husband. And this was all. Her claim to a share in the final division of her father’s estate was a chose in action in reference to which she was incapable of making a contract of any sort. The mortgage estopped Hubbell from insisting that he was not the owner of the land, but this did not apply to the respondents, who were at liberty to show the nature of his interest, or that he had none whatever. The deed to Hubbell is made by R V. De Witt, as acting executor under and by virtue of the authority contained in the will, and as it was not in pursuance of the power, it conveys nothing; although the executor, as one of the heirs, might be estopped by it, and by the agreement made with Hub-bell, under the circumstances disclosed by the proofs in the cause. If this be so, then the complainant acquired an interest in an undivided half of the premises subject to the power contained in the will. And this, so far as I can perceive, is the extent of his interest.

It is said that the doctrine of equitable conversion applies, and that in a court of chancery the real estate is considered as personal property, and that consequently, the right of Hubbell to his wife’s share was absolute, and he could make such disposiuon of it as he chose. I do not see how this view aids the complainant. Hubbell did not stipulate to pledge or mortgage his wife’s interest in her father’s estate, or any part of it, to the complainant. He agreed to give and the complainant to receive a specific lien by way of mortgage upon a particular parcel of land, of which Hubbell claimed to be owner in virtue of the execution of a power of sale, of the nature and extent of which the complainant was bound to take notice. It turns out that the mortgagor was not owner, and both parties are disappointed. It is true that he pledged his wife’s share to the executor, to indemnify the estate against the mortgage in the event that he failed to discharge it, and reconvey the land according to his agreement. If the complainant wishes to be substituted in place of the executor, and have the benefit of that arrangement, it must be upon a bill framed for that purpose with the proper parties. These respondents would have no interest in a question which was to determine who should take the share of Mrs. Hubbell, upon the ultimate division of the avails of the estate. It is a very different question whether land which they have inherited from their father shall be sold under this mortgage.

The decree, should be reversed, and a new one entered declaring the right of the complainant to sell an undivided half of the premises subject to the power of sale for the purposes mentioned in the will, &c.

Pratt, J.

The question in this case is whether the conveyance to Hubbell is a good execution of the power to sell conferred upon the executors by the will, and binding upon the other heirs and devisees of the testator. A bare statement of the facts of the case would seem to be sufficient. If, under a power of this character, executors are authorized thus to dispose of estates intrusted to their care, the rights of heirs and devisees are but feebly protected.

But let us examine the grounds upon which this gross perversion of the duty at least, if not the power, of the executor is sought to be sustained, and see if there be any. foundation therefor, either in any arbitrary rule of law, or in any peculiar equity arising out of the circumstances of this case.

It is insisted that the will gives the executor general power to sell not only for the purpose of paying the debts and providing for the temporary support of the family, but also for the general purpose of distribution ; that in such case the doctrine of equitable conversion applies; the land becomes assets in the ban ds of the executor; and the other legatees, before any equity in their favor can exist which shall give them a right to oppose the foreclosure of this mortgage, must show a deficiency of assets to satisfy their share of the estate.

First. I do not thus read the will. The power to sell is restricted to the purposes therein specified, viz. to pay the debts and to create funds for the support of the family. Wills are to be construed according to the obvious intention of the testator ; and we should not presume an intention to change the condition and character of the estate, unless such construction be clearly required by the terms of the will. It is not enough, as the learned vice chancellor suggested, that such construction could be given to the will without doing any violence to its provisions. Where it is contended that the testator intended to disinherit, the heir, or change the condition of the property, such intention must be affirmatively shown. In this case I can find no evidence in the language of the will tending to prove that the testator intended to confer upon the executor power to sell for the general purpose of distribution, it is clearly not contained in that part of the will conferring power to sell.

But it is insisted that the power should be inferred from the subsequent clause, providing for a division of the avails of the property, after satisfying the debts, among all the children. The word avails in that part of the will was evidently a careless expression, and does not convey the true intention of the testator. This was conceded upon the argument, but the counsel for the plaintiff contended that it should be read as the residue of “ the avails of the property.” It was doubtless intended as a residuary clause, but I think the testator meant simply the residue of his property not already disposed of, and not the residue of the avails. But whether this be the true meaning which the testator intended to give to the expression or not, it would be a dangerous exercise of the power of construction vested in the courts, to hold that a word, conceded to have been carelessly used by the testator, and which if literally construed would not express his intention, should have the effect to materially enlarge the power of the executor, and to change the condition and nature of nearly the entire estate.

The learned vice chancellor suggested that the power might be found in that provision of the will for creating funds for the support of the family ; that the support here spoken of might refer to a final distribution of the estate ; that in receiving their distributive share of the property the family would be receiving the means of support. These suggestions, although ingenious, I think are not sound. -We are to assume that the testator was acquainted with the ordinary use of language, and that he used it in his will intending to give it its ordinary signification. There is nothing peculiar in that expression. It was evidently intended to mean a temporary support of the family until the estate should be settled. The testator owed a large amount of debts, and it would require large sales of property both real and personal to raise the necessary funds to satisfy them, and hence considerable time must elapse before it could all be accomplished. In the meantime the family would require support. He therefore gives his executors power over his real property to sell the same for those purposes, and those only.

Suppose property sufficient had been sold .to pay the debts, and they had in fact been satisfied, could the children have compelled the executor to sell the residue for the purpose of distribution? If tile power is given in the will they have the right to compel its execution; but I am satisfied no such general power is given. If I am right in this construction of the will, the land descended to the heirs subject to the power to sell for the purposes therein specified. No sale of these lands for that purpose having been made by the executor, it follows that the respondents have not been divested of their title to the lands covered by the mortgage in question, and that it is no lien up on their interest therein.

Secondly. Let it be conceded that the will does authorize the executor to sell the property for general distribution; that it requires him to convert it into money and distribute the avails among the children of the testator. The evidence in this case shows that he sold this land for no such purpose. It was' intended merely as a temporary conveyance to enable Hubbeil to secure this debt which was pressing him, and with the expectation that in a short time he would be enabled to raise the mortgage and reconvey the land. As equity looks at the substance and not the form of a transaction, this should be deemed a mortgage by the executor to secure Hubbell’s debt. But if it De deemed a sale by the executor, it was a gross perversion and abuse of the power conferred upon him by the will, and vests no title in any one receiving the fruits of this breach of trust with knowledge of the circumstances. The plaintiff below must be deemed to have taken the mortgage with such knowledge. Claiming under the will, it is conceded that he must be deemed to know its contents. He knew also that Hubbeil paid nothing down for the land, for if he had had money to pay for the land he could have paid the debt without a resort to this method of securing it; besides, the executor swears that the agent of the appellant knew the purpose for which the conveyance was made. If, therefore, the construction of the will contended for by the appellant be the correct one, it only authorized the sale of the property to create funds for the payment of the debts, for the support of the family, and for a final distribution of the residue, and these purposes could only be effected by a sale for cash. In this case he neither sold for any of those purposes, nor did he receive any consideration on such sale. The grantee having knowledge of this breach of trust, the conveyance is void as against the children of the testator.

But it is claimed that Hubbeil was entitled to his distributive share of the estate, and that this conveyance should be construed as a payment to him of so much of the legacy to which his wife is entitled under the will. The conveyance on its face does not

v purport, to be given for any such purpose, nor does the evidence show that such was its object. If the appellant claims that he may be protected by that consideration, the onus probandi is clearly upon him to .show that it may be done without injury to the interest of others ; that by making such disposition Hub-bell will get no more than he is entitled to have; and that there will be enough left to satisfy the legacies to which the respondents are entitled. The evidence does not show this to be so. In the first place, it seems that in some way Hubbell has encumbered some $50,000 xvorth of the real estate, besides this xvliich is noxv in litigation. What the nature of that encumbrance is does not very plainly appear. If the claimants should succeed in establishing their claim, in that case Hubbell will have received a very liberal dixddend, and much more, I fear, than either of the respondents xvill ever realize.

■ In the second place, the evidence does not shoxv that there is property enough left to pay the share to which the respondents are entitled. If xve reckon as debts due from the testator at his decease the amount which has actually been paid upon his contingent liabilities, he oxved at that time $130,000, which, deducted from the estimated value of his property $220,000, would leave to be distributed $90,000. The respondents, xve may fairly assume, were entitled after paying the legacies to $40,000. Upon the doctrine of equitable conversion the executor xvas entitled to receive the rents and profits for the benefit of the legatees, and if they amounted to the interest upon the value, the share to xvliich the respondents xvould have been entitled at the time the testimony xvas taken, some ten years and upwards after the testator’s death, xvould amount to nearly $70,000. But the executor swears that there is noxv property over and above the amount in litigation only to the amount of $50,000 or $60,000. Out of this some $10,000 of debts must be paid, and it leaves from $40,000 to $50,000, shoxving quite a deficit in the amount to xvliich the respondents are entitled. It is true there may be evidence in existence to shoxv that the respondents have already received their shares, or so much of them that the property left is sufficient to satisfy them; but if that be so, the burden of proof is upon the appellant to show it. It does not affirmatively appear from the testimony before us. As-I have before remarked, the conveyance was a gross breach of trust on the part of the executor, of which the appellant is chargeable with knowledge. If he claims the right to retain the fruits of this breach of trust, it clearly is not asking too much to require him to show that it may be done without injury to others interested in the estate.

I am therefore satisfied that the conveyance to Hubbell was not a good execution of the power, and did not convey the interest of the respondents in the estate.

But the decree of the supreme court was erroneous in providing for a partition of the premises. I am not aware of any way in which that can be done in this suit. Other persons not parties may possibly be interested in that question. Even in a partition suit the court will not try the question of title. If the mortgage is a lien it is a lien upon the undivided moiety of the premises. The decree of the supreme court must therefore be modified in that respect. It should also provide that the decree shall be without prejudice to any equitable claim in any future proceedings which the respondents may have for improvements made by them upon the joint property. In other respects the decree of the supreme court must be affirmed without costs.

Ordered accordingly.


author: Ruggles, J.

text:
    McFarlan vs. Watson.
    Between the lessor and the under tenant of the original lessee there is neither privity of estate nor privity of contract; and therefore the lessor can not suo the under tenant upon the lessee’s covenant to pay rent.
    But where a lease was executed for a year at a quarterly rent, and the defendant, who entered under the lessee at the commencement of the term and occupied for the whole year, paid the three first quarters’ rent to the agent of the lessor, and took receipts from him as such agent; Iwld, that a jury might infer an "agreement to pay the rent to the lessor so as to sustain an action in his name for use and occupation during the last quarter of the term.
    McFarlan sued Watson in the superior court of the city of New-York, and declared in assumpsit for use and occupation. On the trial before Oakley, C. J. in April, 1848, it was proved that the plaintiff owned a house at New Brighton, Staten Island, which the defendant occupied from May 1, 1846, to May 1, 1847. The rent for the first three quarters of that year, was paid by the defendant, to Richard Oakley, who gave receipts as follows:
    “ New-York, August 5, 1846. Received from Mr. William Watson, seventy-five dollars, bn account of rent of cottage occupied by him at New Brighton, rented by H. H. Elliott.
    For the owners,
    Richard Oaicley.”
    “New-York, 10 November, 1846. Received from Mr. William Watson, eighty-one 25-100 dollars, in full, for one quarter’s rent of cottage occupied by him. Rented to H. H. Elliott. Due 1st instant. For Henry McFarlan,
    Richard Oakley, Agent.”
    “New-York, 11 February, 1847. Received from William Watson, Esq., eighty-one 25-100 dollars in full for one quarter’s rent of cottage occupied by him at New Brighton, due 1st inst.
    For Henry McFarlan,
    $81,25. Richard Oakley, Agent.”
    The rent for the last quarter- remained unpaid at the commencement of the action, and amounted to $81,25, which sum the plaintiff claimed to recover.
    On the part of the defendant, it was proved, that on the 3d of April, 1846, Oakley, the agent aforesaid, rented the premises by written lease to one Elliott, for the year commencing on the first of May, then ensuing ; that, after this lease was executed to Elliott, the defendant presented to the agent a written request from Elliott as follows:

      “ New-York, April, 10,1846.
    R. Oakley, Esq. Dear Sir: Be good enough "to "arrange with Mr. Watson, giving him the lease for the house at New Brighton, which I took for myself, and oblige,
    Yours truly, H. H. Elliott.”
    The agent distinctly refused to comply with this request, or to rent the premises to the defendant. The defendant went into possession on the first of May, and the evidence tended to show that he entered under Elliott. The evidence of J. M. Watson, the defendant’s brother, also tended to show that when the plaintiff’s agent received the first quarter’s rent he claimed to have authority from Elliott to receive the payment.
    The defendant’s counsel requested the court to charge the jury, that if they found that the plaintiff had leased the premises to Elliott, and that Elliott had underlet them to the defendant, or the defendant was the assignee of Elliott, the. plaintiff could not recover. The court so charged, but further charged, that if from the receipts and other evidence in the case, they believed there was an agreement on the part of the defendant, with the consent of Elliott, to pay rent to the plaintiff for any period, including the unpaid quarter, the plaintiff was entitled to recover, notwithstanding the original lease to Elliott. The defendant excepted to this part of the charge. The jury found for the plaintiff, and after judgment the defendant appealed to this court.
    S. Beardsley, for appellant.

      N. Hill, Jr. for respondent.
   Ruggles, J.

Between the lessor and the under tenant of the original lessee, there is neither privity of estate nor privity of contract; the lessor therefore can not sue the under tenant upon the lessee’s covenant to pay rent. In the present case, the lease by the plaintiff? to Elliott was not by deed; but the defendant entered under Elliott, and it was necessary for the plaintiff on the trial to show some privity of contract between himself and the defendant, that is to say; some promise by the defendant, express or implied, to pay the rent to the plaintiff. The action for the use and occupation of the premises could not otherwise be maintained by the plaintiff.

The case was put upon this ground in the court below, in the charge to the jury. The only question therefore, is, whether there was evidence proper to be submitted to the jury of the defendant’s promise, express or implied, to pay the rent to Mc-Farlan, the plaintiff.

I think there was such evidence. The defendant paid the first three quarters’ rent to Oakley, the agent of the plaintiff, and none of it to Elliott, under whom he now claims to have held the premises. Elliott resided in the city of New-York, and the rent might as conveniently have been paid to him as to the plaintiff’s agent; and no good reason is shown why the rent was not paid to Elliott, if the defendant did not intend to recognize McFarlan, the owner, as his landlord. The receipt' for the first quarter’s rent, d.ue on the first of August, is signed by Richard Oakley, as the agent “ of the owner.” The receipts for the next two quarters are signed, “ For Henry McFarlan, Richard Oakley, agent.” The last receipt contains no recognition of the lease to Elliott, but is drawn, in all respects, as if the defendant Watson was the immediate tenant of McFarlan. John M. Watson’s testimony does not materially contradict the effect of the first receipt. He says, that when he paid the first quarter’s rent on the 5th of August he had understood that Elliott was the agent of the owner of the house, and he wanted a receipt that would show the rent was paid to Oakley as the agent of Elliott, and the rest of the owners. This is not very easy to understand. McFarlan was the owner, and Elliott was his immediate lessee, under whom he says the defendant claimed to hold. But he insisted, it seems, on an acquittance from McFarlan, and he obtained it. The receipt was such an acquittance, but it was not in its terms an acquittance from Elliott.

These payments, and especially the last of the three, afford a strong presumption that the defendant, by the assent of Elliott had become the immediate tenant of the premises under McFarlan. Men do not often pay their debts to persons not entitled to receive the money, or take discharges from those who have no authority to give them. If the defendant was, and continued to be the tenant of Elliott, and not of McFarlan, the payments to McFarlan did not discharge the defendant from his liability to Elliott. The only authority from Elliott for the payments to McFarlan, is contained in his letter to Oakley, of the 10th of April, 1846, in which he requests Oakley to arrange with the defendant, by giving him the lease of the house; and although he refused to do this at the time, the payments and receipts for the rent are strong presumptive evidence that it was afterwards assented to, so far at least, as respects the year for which Watson appears to have taken the house.

There was nothing erroneous in denying the motion for a nonsuit, or in the charge to the jury.

Judgment affirmed.


author: Gardiner, J.

text:
    Howland & Aspinwall vs. Myer,
    A mutual insurance company was authorized by its charter, for the better security of its dealers, to take premium notes in advance of persons intending to receive policies, and to negotiate such notes for the purpose of paying claims or otherwise in the course of its business. Held, under this provision, that a note given to the company for premiums in advance, was a valid security, and might be transferred to a party, who had insured in the'company, on account of a claim for a loss.
    And heidfmihe?-, that a transfer of the note by the president of the company was valid, without a previous resolution of the board of directors; he being authorized by the by-laws to make contracts and transact the ordinary business of the company.
    Appeal from t.he superior court of the city of New-York, where Howland & Aspinwall brought assumpsit against Theodore A. Myet The cause was tried before Sandford, J. without a jury, in June, 1848 and on the trial the plaintiffs gave in evidence and claimed to recover upon a promissory note as follows:
    “ 13698,40. New-York, May 1, 1846.
    Twelve months after date, I promise to pay the Alliance Mutual Insurance Company or order, for value received, thirty-six hundred and ninety-eight dollars and forty cents.
    T. A. Myer.”
    (Endorsed) “ Pay Messrs. Howland & Aspinwall or order.
    The Alliance Mutual Insurance Company.
    James D. P. Ogden, President.”
    The Alliance Mutual Insurance Company was chartered by an act of the legislature of this state passed April 10, 1843, (Stat. p. 71.) The 12th section provides “ that the company, for the better security of its dealers, may receive notes for premiums in advance, of persons intending to receive its policies, and may negotiate the same for the purpose of paying claims or otherwise in the course of its business.” It was proved that the above mentioned note was given by the defendant as a subscription or premium note in advance, under the said 12th section and for the purpose therein mentioned; that on the 19th of February, 1847, it was transferred by the president of the company to the plaintiffs in the ordinary course of business, on account of a loss which was a valid claim against the company. It did not appear that there had been any previous resolution of the board of directors authorizing the transfer. The plaintiffs, when they took the transfer, had no notice of any want of authority in the president, and they dealt with him as the authorized agent of the company. The' company failed and became insolvent in May, 1847, and its affairs passed into the hands of a receiver.
    Upon these facts the judge ruled that the note was valid in the hands of the company, and might be negotiated to pay its losses; that the possession of the note by the plaintiffs not being mala fide, and not appearing to be contested by the receiver, they were entitled to recover. The plaintiffs accordingly had a verdict, and after final judgment the defendant appealed to this court.

      W. Kent, for appellant.
    (S. Beardsley, for respondents.
   Gardiner, J.

The note in question was a valid security in the hands of the insurance company, the original holders, and zoukl have been enforced by them against the defendant. (Deraismes v. The Merch. Mutual Ins. Company, 1 Comst. 371.)

Was it duly transferred by the insurance company to the plaintiffs 1 is the question in the present case. The 12th section of the act under which this company was incorporated provides “ that the company, for the better security of its dealers, may receive notes for premiums in advance, of persons intending to receive its policies, and may negotiate the same for the purpose of paying claims or otherwise, in the course of its business," (Sess. Laws 1843, p. 71.) These powers were essential to the existence of incorporations of this sort. It was anticipated that their capital would consist chiefly of potes, received for premiums, and that unless they were rendered available, the corporations would be compelled to suspend operations, upon the first serious loss that occurred. They were therefore authorized to negotiate their premium notes, for the purpose of paying claims, or otherwise, in the course of their business.

The judge ruled that the testimony established “ that this note was transferred to the plaintiffs by the president of the company, for a loss, in the usual way, and in the ordinary course of business; according to their custom to pay in notes.” As there was evidence tending to prove these facts, the finding of the judge is conclusive, and the negotiation of this note is accordingly brought within the very letter of the 12th section.

But if the facts had been otherwise, I apprehend that the company were not restricted by the statute, to a negotiation for the purpose of payment, exclusively. They might procure the note to be discounted, and apply the avails, in discharge of their responsibility for losses incurred ; or if this could not be done, the same result might be obtained by a transfer of the notes to the plaintiff, upon the indorsement of the company, the creditor giving, time until the securities matured. In a word, any bona fide settlement of a presumed loss, contingent or absolute, made with the dealers of the company, in the usual course of business, was, I think, authorized by the comprehensive language of the statute. .

It is however objected, that the assignment of the president was not obligatory upon the company. Their corporate powers were to be exercised according to their charter, by a board of trustees and such other agents as they might appoint. The president was such agent. This is manifest not only from the general usage of the company, but from their by-laws, which empower “ the president, vice president, or either of them, to make contracts for the corporation, to transact all its ordinary business, and to perform whatever belongs to the executive department. (1st By-law.) The negotiation of notes in the usual course of business was an act of this description; and it is accordingly found as a fact, that “ the plaintiff dealt with the president as the authorized agent of the company, in the usual way, and without notice.”

The 8th section of the article to prevent the insolvency of moneyed incorporations, it is said, prohibits this transfer, as it was not authorized by a previous resolution of the board of directors. (1 R. S. 591, § 8.) To this objection there are two answers. First. If the 8th section conflicts with the charter of this company, the former must yield to the latter, as the last expression of the legislative will. Second. There is evidence to show that the policy was surrendered by the plaintiffs at the time of the adjustment of the loss, and in consideration, of the assignment of the securities in question. As the judge reports the facts, “ the plaintiffs were in possession of the notes honestly and fairly, for a good claim, without notice of any want of authority in the president to make the transfer.” Assuming these facts to be true, the plaintiffs were bona fide holders of the note for a valuable consideration, without notice, and consequently not within the exception established by the section of the revised statutes above mentioned. The provision is, that the section shall not be so construed as to render void any assignment or transfer, in the hands of a purchaser for a valuable consideration and without notice. The judgment of the superior court must be affirmed.

Judgment affirmed.


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    Englishbe vs. Helmuth.
    The act of April 29, 1833, authorizing the commissioners of the latid office to felease lands escheated to the state, and the amendatory act of March 18, 1834, are not, so far as respects lands which have escheated since their passage, laws appropriating the public moneys or property within the meaning of the constitution, so as to require a two-third vote by the legislature.
    A person who purchases lands at sheriff’s sale, under judgment and execution, and receives the sheriff’s certificate, and dies while the time for redemption is running, dies “ seised ” of the premises within the meaning of the acts concerning escheats, and therefore the commissioners of the land office may release lands thus situated.
    Those statutes, it seems, wefe designed to embrace every interest whitih the state can acquire in lands by escheat.
    Appeal from the court of common pleas of the city of New-York, where Francis Englishbe brought ejectment against Simon Helmuth, to recover certain premises situated in the eighth ward of the city of New-York. After the commencement of the suit, Mary H. Jenkins, who had leased the premises to Helmuth, was admitted to defend the suit jointly with him. The case was this: James Englishbe, a native of Ireland, emigrated prior to 1798, and was naturalized in the city of New-York in 1807. On the 11th of November, 1833, he purchased the premises in question, at a sheriff’s sale, under an execution issued upon a judgment' docketed in the supreme court against one McQueen, and received the usual sheriff’s certificate. In August, 1834, he died intestate and without issue, leaving Mary Englishbe his widow. His kindred were all aliens, and but for such alienism, the plaintiff, who was his half brother, would have been his only heir. The widow was appointed' administratrix of the estate of the decedent in Sep • tember, 1834, and on the 13th of February, 1835, the sheriff of NeW-York, in pursuance of the sale aforesaid, executed a conveyance of the premises to the administratrix.
    In January, 1835, Mary Englishbe, the widow, applied to the commissioners of the land office for a release of the premises in question and of other premises, as escheated lands, pursuant to the “ act concerning escheats, passed April 29, 1833,” and the act amending the same passed March 18, 1834. The commissioners, the attorney general being present, granted the application on payment of $300 to the state, and letters patent under the great seal were accordingly issued to her on the 22d of April, 1835. ' She died December 5, 1845, in possession of the premises, and leaving a will whereby she devised the same to the defendant Mary H. Jenkins.
    Francis Englishbe, the plaintiff, emigrated to this country in November, 1841, and was naturalized in November, 1846. On the 9th of May, 1846, a private act of the legislature was passed by a two-third vote, releasing to him “ all the real estate situated in the city of New-York, whereof James Englishbe, late of said city, died seised or possessed.” (See Laws of 1846, p. 181.) On the 19th of November, 1847, another act was passed which added to the previous enactment the 'following words, “ or which were purchased by him at sheriff’s sale or sales, and to which he would have been at any time entitled to a conveyance, if living.” (See Laws of 1847, p. 488.) This act was also passed by a two-third vote.
    The court of common pleas rendered judgment in favor of the plaintiff, upon a special verdict, stating the foregoing facts, and the defendants appealed to this court.

      C. O’Conor, for the appellants.
    I. The premises in question escheated to the state on the death of James Englishbe. Francis Englishbe, the plaintiff, could not take as purchaser, under the sheriff’s deed; for “ the word heir will not serve for the name of a purchaser, unless the person claiming be lawful heir.” (Jarman’s Powell on Dev. 310, cases cited; Den v. Barnes, 1 N. C. Law Repos. 490; Doe v. Chaffey, 16 Mees. & W. 656.)

      II. The “ act concerning escheats,” passed April 29th, 1833, (Laws of 1833, p. 472,) as amended by laws of 1834, p. 31, authorized the release, to Mary Englishbe. (1.) The act is not unconstitutional by reason of the want of a two-third vote. (1 Cowen, 564; 4 Wheat. 625; 6 Cranch, 87.) It does not appropriate public property for private use; but merely authorizes the sale of an inchoate title upon equitable terms. (See title to act of 1832, p. 32; Jackson v. Adams, 7 Wend. 367.) It opened a common market for all persons who might happen to have the prescribed equitable right to favorable terms; and, therefore, it was not within the spirit or intent of the constitutional restriction. (Warner v. Beers, 23 Wend. 190; Gifford v. Livingston, 2 Denio, 402.) If unconstitutional in respect to lands which had previously escheated to the state, it could not be so in respect to lands which, like the premises in question, escheated subsequently to its passage. It imparted an equitable mitigation to all subsequent escheats, and was, substantially, a modification of the law of descents.
    (2.) James Englishbe died seised of the premises in question, within the true intent and meaning of the acts of ’33 and ’34. On general principles, the sheriff’s deed would relate to the time of sale. (1 Cru. Dig. 63; Taylor v. Horde, 1 Burr. 60; Watkins on Desc. 36, 37, 57, 3; Ratcliffe's case, 3 Co. 37; 2 Bl. Com. 209, (Chitty’s ed.) note 10; H. Chitty on Desc. ch. 4, § 3, pp. 40, 62, 51; Co. Lit. 48, a; 1 Coke’s Rep. 98, a; Jackson v. McCall, 3 Cowen, 81; Greenhill v. Greenhill, 2 Vern. 679; Langford v. Pitt, 2 P. Williams, 629.) The statute of 1830, relative to sales on execution, does not declare that the very benign and convenient doctrine of relation, shall not apply, but on the contrary, endeavors, by specific and detailed provisions, to apply it without defeating the debtor’s right of temporary occupation. (Laws of 1820, p. 167 ; id. 1824, p. 276; 2 R. S. 373, §§ 62 to 64; id. 336, §§ 20 to 22; Rich v. Baker, 3 Denio, 80.) The act of 1833 having been passed subsequently to these regulations, must be deemed to include the peculiar and qualified intermediate equitable seisin with which they vest the purchaser. The word seised, in the statue of 1833, does not import a strict technical legal seisin. The act embraced every case where the state acquired an interest in lands by es-cheat. (§§ 24, 25. Vanderheyden v. Crandell, 2 Denio, 24; Wendell v. Crandell, 1 Comst. 491; Amherst v. Skynner, 12 East, 263; Cumming v. Trysden, id. 272) note ; Shrapnel v. Vernon, 2 Bro. C. C. 268; Halsey v. Hales, 7 T. R. 194, 270, 271; Matthews v. Ward, 10 Grill & John. 443; Sugd. on Ven. 9th ed. 173, 179, 180, 181, 203, 277; 2 R. S. 1st ed. 373, § 61.) It is a rule that where the heir takes any thing which might have vested in the ancestor, the heir shall be in by descent, and this must be on the notion that the ancestor was, in a certain legal sense, seised. (Shelley’s case, 1 Co. 93, 97 b, 98, 99,106 b ; Co. Lit. 361 b ; Doe v. Griffiths, Burr. 1961; 7 Co. 38 a ; 5 T. R. 179, 180; 1 Co. 98 a ; Jackson v. Ramsay, 3 Cow. 75; Jackson v. Dickenson, 15 John. 309; 2 R. S. 1st ed. 370, §§ 42 to 45, 50, 51, 63, 64; 1 id. 1st ed.751, § 1; id. 755, § 27.) Other cases of relation. (Jackson v. Bull, 1 John. Cas. 81, 85; Johnson v. Stagg, 2 John. 510; 15 id. 309; Howard v. Cromwell, 4 Har. & McHenry, 353; Doe v. Dugan, 8 Ham. 87; Vroom v. Van Horne, 10 Paige, 558.)
    III. The letters patent are conclusive until repealed; and while they remain in force, it cannot be questioned thát all the interest of the state, legal or equitable, passed thereby. (Jackson v. Lawton, 10 John. 23; Houseman v. Hart, 12 id. 77.)
    IV. If the state did not acquire a title by escheat arising out of the seisin of James Englishbe, and his death, without heirs, then the widow, Mary Englishbe, took an absolute estate under the sheriff’s deed. (2 Black. Com. 328, 331; Jenk. Cent. 190 ; Burgess v. Wheate, 1 Eden, 177, 261, note ; Barclay v. Russel, 3 Ves. 430; Sir Geo. Sands' case, 3 Ch. R. 19; Taylor v. Haggarth, 8 Lond. Jur. 135; McCartee v. Orphan Asylum, 9 Cowen, 468; 1 Cruise, 418, tit. 11 Use, § 26 ; Bac. Read. 42, 61; Co. Litt. 8, a ; Com. Dig. Alien, ch. 1; Orr v. Hodgson, 4 Wheat. 453; Jackson v. Lun, 3 John. Cas. 121; Leggett v. Dubois, 5 Paige, 114; 1 R. S. 718, § 3, 1st ed.)

    V. The attempted grants to the plaintiff are void. (1.) The state could not convey before entry. (Bro. Abr. tit. Escheat
      28;. Acceptance, 25 ; Co. Litt. 268 ; 2 Kent, 54, and cases in note b ; St. 3 Ed. 1, ch. 24; 2 Inst. 206 ; Com. Dig. Prerog. D. 67 ; Co. Litt. 13, b; Fairfax's Lessee v. Hunter, 7 Cranch, 603; Jackson v. Adams, 7 Wend. 367 ; Wilbur v. Robey, 16 Pick. 177: Doe v. Redfern, 12 East, 96; see act of 1833, ch. 37, p. 31, § 7 ; Stamford, De. Pre. Reg. 54, a.) (2.) The premises were held adversely at the time of the making of the plaintiff’s pretended grant. (Commonwealth v. Hite, 6 Leigh, 588; Jackson v. Hudson, 3 John. 384.)

      John T. Doyle, for the respondent.
    I. The conveyance from the sheriff to the administratrix of James Englishbe was in trust for his heir at law, and therefore passed the legal title directly to the heir at law. No estate Vested in the administratrix. (2 R. S. 2d ed. 296, §§ 63, 64; 1 id. 721, 722, §§ 45, 47, 49, 55, 67.)
    II. The plaintiff also derives title to the premises as grantee of the state, under the acts of May 9, 1846, and Nov. 19, 1847, and by those acts he is invested not only with the state’s title thereto, but with the same powers, rights and actions to recover possession thereof as the people had before the passage of those acts. (Matthews v. Ward’s Lessee, 10 Gill & John. 443; Jackson v. Lane, 3 John. Cas. 109; People v. Cutting, 3 John. 11; Jackson v. Adams, 7 Wend. 367; Leggett v. Dubois, 5 Paige, 114; 1 R. S. 2d ed. 714, §§ 2, 3 ; id. 724, § 67.) Unless the people had, previous to the passage of those acts, made a valid grant of the premises in question to some other person, they had at the tune of the passage of those acts a right to bring an action of ejectment to recover them, and that right and action have by the acts aforesaid become vested in the plaintiff. (Hubbard v. Goodwin, 3 Leigh. 492, 514; 1 R. L. of 1813, p. 379; Sess. L. of 1818, p. 293, § 2 ; id. of 1820, p. 248, §§ 2, 5; General repealing act, 3 R. S. § 1, Nos. 99, 266, 214.)
    III. Prior to the passage of the acts of May 9,1846, and Nov. 19, 1847, the state had made no valid grant of the premises in question ; the letters patent issued by the commissioners of the land office to Mary Englishbe, were issued without authority and void, and consequently conveyed no title. (Jackson v. Stanley, 10 John. 133; Jackson v. Hart, 12 id. 77; Jackson v. Lawton, 10 id. 23; Jackson v. Marsh, 6 Cowen, 281; 2 R. S. 2d ed. 479, § 12 ; Rev. note, vol. 3, p. 787 ; Polk's Lessee v. Wendell, 9 Cranch, 87, (99;) Stoddard v. Chambers, 2 How. S. C. R. 284; Fairfax v. Hunter, 7 Cranch, 630.) The premises in question not having escheated “ by reason of the death of the person seised without heirs,” are not within the scope of the act concerning escheats, nor were they within the powers of the land commissioners under that act. (Russell v. Paine, 20 John. 3; Everton v. Sawyer, 2 Wend. 507; Farnham v. Clark, 10 Paige, 599 ; Case of Mary Ball, Ass. Doc. 1844; Bac. Abr. tit. Statute I. § 2. sub. 9, § 4, sub. 29; Merch. Bank v. Cook, 4 Pick. 411.)
    But the act concerning escheats, and the act amendatory thereof, (Laws of 1833, p. 472; id 1834, p. 31,) are not constitutional, and no title was derived by Mary Englishbe from the release under them. The constitution of 1821, article 7, sec. 9, required the assent of two-thirds of all the members elected to each branch of the legislature, to every bill appropriating the public moneys or property for local or private purposes. (Lewis v. Webb, 3 Greenl. 326; Governeur v. Porter, 5 Humphrey, 165; State v. Fleming, 7 id. 152; Stamford v. Barry, 1 Aik. 114; De Bow v. The People, 1 Denio, 14.) The acts above mentioned were not passed by the requisite constitutional majority, and are therefore void. (1 R. S. 2d ed. 143, § 3; Laws of 1842, p. 397, ch. 306, §§ 2, 3; De Bow v. The People, 1 Den. 14; Purdy v. The People, 4 Hill, 384; Opinion of Attorney Gen. Ass. Doc. 1844, No. 48.)
   After advisement, The Court arrived at the following conclusions :

That the act concerning escheats, passed April 29, 1833, and the act amending the same, passed March 18, 1834, did not require the assent of two-thirds of the members elected to each branch of the legislature, in order to render them valid and effectual in respect to lands which escheated after their passage; as to which, they are not to be regarded as acts appropriating public moneys or property for private purposes, within the meaning of article 7, section 9 of the constitution of 1821, but as statutes effecting a modification of the laws relating to escheats, and whereby the state upon proper application and on certain prescribed conditions, might in all cases waive or relinquish its claim to lands, the title to which should fail from a defect of heirs; which waiver or relinquishment in the mode prescribed and by a general law, it was as competent for the legislature to ordain by a majority vote, as it would have been by such vote otherwise to have amended, or to have abolished altogether the statutes relating to escheats.

The statutes in question having been designed to establish a liberal and benign policy on the part of the state, ought to receive a liberal construction ; and there appearing to be no reason why lands under the circumstances of this case should be excepted from the operation of these statutes, and their language being sufficiently comprehensive to embrace such lands, provided it be not taken in a strict and technical sense, but receive a liberal construction, it is the conclusion of the court upon the facts presented by the special verdict, that James Englishbe died seised” of the premises in question within the true intent and meaning of those statutes, which were intended to embrace every case where the state might acquire an interest in lands by escheat.

That it was therefore competent for the commissioners of the land office to release the lands in question by letters patent under the great seal of the state, as was done on the 22d day of April, 1835, to Mary Englishbe, the widow of James Englishbe, the person last seised, whereby the state was divested of all right or claim to such lands; so that the subsequent statutes in favor of Francis Englishbe, the plaintiff, did not operate to vest him with title. He therefore had failed to establish any right to the premises in question; and the judgment in his favor ought to be reversed, and a judgment rendered in favor of the defendants.

Ordered accordingly.


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    Delaplaine vs. Lawrence.
    Under the statute authorizing a surrogate to confirm or vacate a sale of real estate made by an administrator for the payment of the debts of a deceased person, it is competent for the surrogate, where different parcels have been sold, to confirm the sale in part and vacate it in part: And if, in his opinion, any one parcel was sold at a price disproportionate to its value, and will produce ten per cent more on a resale, it is his duty to order a resale of that parcel, although the other parcels were sold for their full value.
    Upon judicial sales of real estate it is the duty of the officer conducting them to sell the property in such parcels as will be best calculated to produce the highest aggregate price. Per Harris, J.
    A sale made by an administrator under the order of a surrogate is within this rule, and he may sell in subdivisions, although the order of sale describes the property as one parcel.
    Whether the decision of' a surrogate confirming or vacating an administrator’s sale of real estate, where the question before him was upon the mere weight of evidence as to the value of the property compared with the price bid, can be reviewed on appeal, guere.

    Appeal from the supreme court, where the case, so far as necessary to be stated, was this:
    John L. Lawrence, administrator of, &c. of Isaac Lawrence, late of the city of New-York, deceased, applied to the surrogate of that city and county for an order to sell the real estate of the decedent to pay debts. An order was made accordingly, directing the sale of forty-one separate parcels of land, and among them of a tract known as the Turtle Bay farm. A sale was had pursuant to the order, and the property was sold in separate parcels. The Turtle Bay farm was subdivided before the sale into 109 lots, which were separately sold, and several of them were bid off by John P. Delaplaine, the appellant. Other lots of the same tract were purchased by other persons.
    On a return of the proceedings of the administrator to the surrogate, the confirmation of the sale as to the Turtle Bay farm was opposed by William Beach Lawrence, one of the heirs at law of the decedent, and evidence was adduced before the surrogate tending to show that the aggregate price for which that-farm had been sold was disproportionate to its value. Mrs. Cornelia B. Lawrence, the widow of the deceased, executed and left with the surrogate an agreement that in the event of a resale of that parcel she would bid for the same a sum exceeding by ten per cent the amount for which it had been sold, together with the expenses of a new sale. To secure that result and the payment of the enhanced price she also gave her bond with proper security approved by* the surrogate. The surrogate thereupon made an order confirming all the sales except as to the Turtle Bay farm, and as to that parcel directing a resale. From this order Delaplaine appealed to the chancellor, alledging in his petition of appeal as the ground thereof that the surrogate had confirmed a part and vacated the residue of said sale. The supreme court, in which the proceedings became vested under the new constitution, dismissed the appeal and affirmed the order of the surrogate. Delaplaine thereupon appealed to this court.

      M. Hoffman, for appellant.

      W. B. Lawrence, for respondents.
   Harris, J.

Upon receiving the return of an executor or administrator who has been authorized to sell real estate for the payment of debts, it is made the duty of the surrogate to examine the proceedings, with a view to determine whether the sale has been legally made and fairly conducted, and whether a greater sum can be obtained for the property sold. For this purpose, the statute authorizes him to examine the executor or administrator, or any other person he may think proper to examine, upon oath. Having made this examination, he is required to determine whether the sale shall be confirmed or vacated. The rule, by which he is to be governed in deciding this question, is prescribed by the statute. “ If it shall appear to him that the sale was legally made and fairly conducted, and that the sum bid was not disproportionate to the value of the property sold, or if disproportionate, that a greater sum by at. least ten per cent can not be obtained, he shall make an order confirming such sale and directing conveyances to be executed.” (2 R. S. 105, § 30.) “ If he shall be of opinion that the proceedings were unfair, or that the sum bid was disproportionate to the value, and that a sum exceeding such bid, at least ten per cent, exclusive of the expenses of a new sale, may be obtained, he shall vacate such sale, and direct that another be had.” (2 R. S. 105, § 29.) Within these limits, the surrogate may be said to be vested with discretionary power. He alone is to judge of the kind and amount of evidence which will enable him to decide. If in his opinion” the amount to be realized for the creditors can be increased ten per cent by a resale, then it is made his duty to direct such resale. On the other hand, if “ it shall appear to him” that upon a resale the amount realized would not be increased to that extent, then it is equally his duty to confirm the sale already made.

To what extent his decision may be the subject of review in an appellate court, it is not necessary now to determine. It has been held by the chancellor, upon a motion to dismiss the appeal in this case, that an appeal would lie from the order of the surrogate vacating the sale of the Turtle Bay farm. (10 Paige, 602.) The statute authorizes an appeal from any order, decree or sentence of the surrogate, except in certain specified cases. Upon such an appeal, it would undoubtedly be the duty of the court of review, to see that the surrogate had not transcended the power vested in him by statute. If it should appear that he had arbitrarily set aside a sale, without any evidence that the amount bid was disproportionate to the value of the property, or liad confirmed a sale when the evidence that the amount specified in the statute might be obtained upon a resale was clear and uncontradicted, it would be the duty of the appellate court to reverse the order. On the other hand, where the decision depends upon the weight of evidence, and the importance to be attached to any particular circumstances in the case, I think it was the intention of the legislature that the opinion of the surrogate should be conclusive. But whatever may be the power of the appellate court to correct any erroneous opinion of the surrogate upon such a question, there is no necessity for its exercise here. There was abundant evidence before the surrogate to justify his conclusion that, upon a resale of the property in question, the amount realized would be increased to the extent specified in the statute. And besides, he took the precaution to secure this result, by taking a bond to that effect, and also requiring a deposit in advance to the amount of the ten per cent. Admitting, therefore, that it is the province of this court to review the grounds upon which the surrogate acted, there can be no doubt that, so far as this question is concerned, he acted judiciously. He was right in holding, as he did, that he was bound by the express provision of the statute, and could not confirm the sale.”

But it is insisted that the statute regards the entire sale as one transaction, and that the surrogate was not authorized to vacate the sale of the Turtle Bay farm, and confirm the sale of the residue of the property. Such a construction of the statute would certainly be very inconvenient in practice, and I find nothing in the terms of the law itself which requires its adoption. The whole tenor of the act relating to these sales, evidently contemplates proceedings similar to those which take place upon other judicial sales. In all such sales, it is the well known duty of the officer conducting them, to sell the property in such parcels as shall be best calculated to secure the greatest aggregate amount. I can not doubt that this was the duty of the administrator in this case. If he had sold the forty-one parcels of land embraced in the order under which he acted, together, upon a single bid, there can be no doubt that it would have been the duty of the surrogate to have disaffirmed the sale on the ground that it was not legally made or fairly conducted. I think, too, that the administrator, if he deemed it beneficial to the estate, as he undoubtedly did, had a right to sell the Turtle Bay farm, though in the order of sale it was described as a single parcel, in separate lots. It was for him to determine, in the first instance, to what extent the property was susceptible of judicious division. Nothing short of palpable error or gross abuse of his discretion would justify the surrogate in arresting the sale upon this ground.

In this case forty-one distinct parcels of real estate were directed to be sold. Of these thirty were in fact sold, as we are to presume, for" their full value. One other was sold for a price so far disproportionate to its value, as to make it the duty of the surrogate to vacate the sale, unless the entire sale of the thirty-one lots is to be regarded as but one sale. There is nothing in the statute which requires the creditors of the estate to submit to an unnecessary sacrifice of one parcel of the land because a fair price has been paid for thirty others. The only sensible and practical construction to be given to the statute is that the criterion, which it has prescribed by which to determine whether a sale is to be confirmed or vacated, is to be applied, independently, to each distinct parcel sold. When any parcel has been fairly sold, and for an adequate price, the sale should be confirmed. If another parcel has been sold for an inadequate price, and the surrogate is satisfied that upon a resale ten per cent more can be realized, it is his duty to vacate the sale, whatever else may be done, in respect to the other property sold.

Upon the merits, therefore, the order of the surrogate was right. Of course it is unnecessary to examine the questions raised by the respondents upon the sufficiency of the appeal. The order of the supreme court should be affirmed with costs.

Order affirmed.