author: Gardner, J.

text:
    Selden vs. Vermilya and others.
    A trust to sell real estate for the payment of debts ceases when the debts are in any mode paid or discharged.
    A debtor conveyed lands to trustees upon trust to sell the same for the benefit of certain specified creditors, and to reconvey to himself such parts of the property as should remain unsold after satisfying the trusts. Afterwards he conveyed his residuary interest in the property to the same trustees for the benefit of the same creditors, and in satisfaction of their demands; the creditors on their part accepting the trust fund as a satisfaction of their claims. Held, that the origi nal trust was determined, and that the whole legal and equitable title to the property became vested under the statute (1R. S. 728, ^ 47, 49) in the creditors.
    The conveyance by the debtor of his residuary interest to the trustees, was preceded by and in pursuance of an agreement between the debtor and the creditors, in which he covenanted to execute such conveyance and they to discharge their claims; and in the same instrument the creditors agreed among themselves that arrangements should immediately be made for the disposition of the trust property, and that the same should be sold by the trustees, unless an amicable division without sale should be sooner agreed upon. This agreement was referred to in the subsequent conveyance of the debtor. Held, that the agreement and conveyance did not haye the effect either to continue the trust estate in the original trustees, or to continue or create in them a power in trust to sell the trust property.
    And, the whole title of the debtor having vested in the creditors, the original cestwis que trust; Jwldfwrtlier, that one of them might maintain against the others a bill for the partition of the property.
    An express trust in lands can not exist except for the purposes specified in the statute of uses and trusts; and where a trust estate is attempted to be created for a purpose not enumerated in the statute, no estate whatever vests in the trustees.
    It is indispensable to the creation of a trust or a power in trust, that authority to perform the required act should be delegated to the trustee by the owner of the estate or one having authority to dispose of it or of some interest therein.
    The bill in this cause was filed before the vice chancellor of the first circuit, on the 25th July, 1847, for the partition of lands. On the 2d of October, 1838, Benjamin W. Rogers borrowed of the Farmers’ Loan' and Trust Company $38,000, and to secure the payment thereof he conveyed to that company, in fee, certain lands in Livingston county, described in the bill. On the same day the company executed and delivered to Rogers a declaration of trust, reciting the loan of $38,000, and the conveyance in fee by Rogers, in trust, and among other things covenanting on the receipt of the money loaned, &c. to reconvey to Rogers the said lands, and the securities and moneys received .therefor.
    On the 3d day of October, 1843, Rogers, by deed of trust conveyed certain property to Noyes and Ogden, two of the defendants, in trust- to pay certain bonds and notes therein specified, which were for different sums and payable at different periods, to Selden the complainant, and Yennilya one of the defendants. the then holders thereof. This deed, among other things, recited that in order to secure the payment of the several sums of money in which Rogers was indebted to the said Vermilya and Selden respectively, as above mentioned, he had agreed to convey to Noyes and Ogden, upon the trusts and for the interests and for the purposes thereinafter set forth, one hundred and thirty-eight shares in the Apalachicola Land Company, and the residuary interest of said Rogers in the lands in Livingston county aforesaid, and in the proceeds arising from the sale thereof, and also one of the shares, or twentieth parts, of and in four tracts of land, called Seneca reservations, subject to certain payments and incumbrances mentioned. The deed then contains a description of the above property, and declared the trusts upon which it was conveyed; which were in substance, so far as they are material in the present case, as follows:
    That whenever default should be made for thirty days in the payment of the notes or bonds, or any part of them, or the interest, as they should fall due, the trustees, on the written requisition of the cestuis que trust, Selden and Vermilya, or either of them, should sell at auction in the city of New-York, on ten days’ notice, 1st. So many of the Apalachicola Land Co. shares as might be necessary to pay said bonds and notes, and charges of sale. And 2d. If the sale of said shares was insufficient for the purpose, then the trustees, on six weeks’ notice, were to sell so much of the other trust premises as were necessary to make good the deficiency ; and to grant and convey the same, as fully as Rogers could have done, before the execution of the trust deed. On the payment of the demands specified, the trustees were to account with Rogers for the surplus, and reconvey the remaining trust property to him.
    Subsequent to the execution of the deed, and prior to the 14th Oct. 1846, Vermilya had transferred a part of the demands provided for by the above trust, to Mr. Boyd and other persons, defendants in the suit. Boyd had required the trustees to sell, in pursuance of the trust, and they had advertised accordingly. On the day last above mentioned, Rogers and all the cestuis

      que trust except two, entered into an agreement, which is as follows:
    “ Whereas, pursuant to the terms of a trust deed, bearing date the third day of October, 1843, whereby certain property was conveyed by B. W. Rogers to William Curtis Noyes and Richard H. Ogden in trust, to pay certain bonds and notes herein specified to Thomas Vermilya and David Selden, a requisition has been made by J. J. Boyd, the holder of a part of the said securities, originally belonging to the said Vermilya, for a sale of so much of the trust property as will be necessary to pay and satisfy the same; and whereas a sale has accordingly been advertised, for the 14th instant, of 138 shares of the Apalachicola Land Company stock, it is deemed for the advantage of the other parties interested, that an amicable arrangement should be made for the. final settlement of all claims existing upon said property : It is agreed that the said Rogers shall release to the trustees aforesaid all his residuary interest in the property held by them in trust, for the benefit of the parties holding said bonds and notes; and that, upon said conveyance being made, he shall be discharged from all further claim on account of said indebtedness, and the trust fund shall be accepted as a satisfaction of the same, and the said bonds and notes be surrendered to said Rogers or otherioise cancelled.

      And it is further agreed, for the purpose of avoiding sacrifice by a forced sale, at the instance of one or more of the parties interested, and in order to make a proper settlement between all interested, that the sale of the Apalachicola shares, advertised as aforesaid, be countermanded, and that arrangement be immediately made for the disposition of the whole trust property, that the same shall be offered for sale by the trustees, unless an amicable division without sale shall be sooner agreed upon without unnecessary delay, upon a reasonable advertisement of the time and place, and under such conditions as will conduce to bring about a sale to the greatest advantage of the parties interested, upon which sale any of the parties interested may become purchasers.

      And in the event of any of the parties not consenting hereto,

      then a sale shall be made wider the trust deed, upon the requisition of the other parties subscribers hereto, for payment of the bonds and notes held by them, which are now due. It is further agreed, that the charges incident hereto, including' the fee of the counsel of the parties upon the settlement with the Farmers’ Loan and Trust Company, which is fixed at $1000, be paid out of the first proceeds of the sale.
    This agreement to be binding upon such parties as shall sign the same.
    In witness whereof we have hereunto set our hands and seals, this fourteenth day of October, in the year of our Lord one thousand eight hundred and forty-six.
    (Signed,) Thomas Vermilya. [l. s.]
    D. Selden. [l. s.]
    B. W. Rogers. [l. s.]
    J. J. Boyd. [l. s.]
    John A. Stevens, } Bxccutora °f [l. s.] Byam K. Stevens, ) s. stevens. [l. s.j
    Alexander H. Dana. [l. s.]
    Samuel E Lent. [l. s.]
    The above agreement was ratified by Vermilya as thé’trustee of V. J. and J. V. Christopher, the other cestuis que trust, who were minors, on the 8th of February, 1847, by a writing annexed to the agreement.
    On the 28th of November, 1846, Rogers of the first part, by deed of that date, released and conveyed all his right, title and interest in the trust property held by Noyes and Ogden under the trust of Oct. 1843, to the latter, as trustees. This deed in its recitals referred to the previous trust, and to the agreement of Oct. 1846, as follows: “ And whereas an agreement has been made and entered into between the said party of the first part, and the said Vermilya, Selden, and other parties having an interest in the said bonds or notes, bearing date the 14th day of October, 1846, to the effect that the said party hereto of the first part, should release to the parties hereto, of the second part, for the use and benefit of the holders of said bonds and promissory notes, all his interest in the property held by the said parties of the second part, under the trust deed hereinbefore referred to, for the benefit of the parties holding said bonds and notes, and that upon such conveyance being made, the said parties of the first part should be discharged from all further claim on account of such indebtedness, and the said trust fund should be accepted as a satisfaction of the same, and the said bonds and notes be surrendered to said party of the first part, or otherwise cancelled.”
    On the 5th of February, 1847, Rogers, Noyes and Ogden, trustees, and the bond and note holder, cestuis que trust under the trust deed executed to Noyes and Ogden on the 3d of Oct. 1843, in pursuance of a previous arrangement between them and the Farmers’ Loan Company, for the division of the lands in Livingston county, released all their interest in certain specified parts of those lands, to the Loan Company, with a view to settle and put an end to the trusts created by the deed of the 2d of Oct. 1838, in favor of said company. And the said company, at the same time, released to Noyes and Ogden, as trustees, all their interest in other parts of said land, in pursuance of the arrangement aforesaid. The release, and conveyance by Rogers, the trustees and cestuis que trust, to the company above mentioned, recited, among other things, the names of the persons who were interested in said bonds and notes, by assignment or otherwise from Vermilya, with the amount due thereon respectively. The agreement of the 14th Oct. and the conveyance of Rogers of the 28th of Nov. were referred to as follows:
    “And whereas, by an instrument executed by the said B. W. Rogers, Thomas Vermilya, David Selden, John A. Stevens, and Byam K. Stevens, executors of Samuel Stevens, deceased, Alexander H. Dana and J. J. Boyd, bearing date the 14th day of October, A. D. 1846, it was agreed, among other things, that the said Benjamin W. Rogers should release to the said William Curtis Noyes and Richard H. Ogden, trustees as aforesaid, all his interest in the premises conveyed to them in trust, including the residuary interest in the lands in Livingston county, held as aforesaid by the Farmers ’ Loan and Trust Company ; and that, thereupon, the said Benjamin W. Rogers should be discharged of and from all further liability to the said parties, and the said bonds and notes to be delivered up and cancelled ; in pursuance of which agreement the said Benjamin W. Rogers did, by an instrument, bearing date the 28th day of November, 1846, convey to the said William Curtis Noyes and Richard H. Ogden, trustees as aforesaid, all his interest in the said _■premises for the benefit of the holders'of said notes and bonds. At the same time Rogers was released by the bond and note holders, from all claim, &c. upon those securities, in pursuance of the agreement of Oct. 1846, above referred to.
    .The defendants subsequently requested Noyes and Ogden to sell under the agreement of Oct. 1846. And they noticed the property for sale at the Merchants’ Exchange in New-York, on the 25th February, 1847. The plaintiff avers in the bill, that the property, if sold so far from its location, will not command more than a small portion of the value thereof; that he is seised in fee simple, as a tenant in common, of nearly three-fourths of the property, and that the property is capable of partition. The bill then prays partition, by and between the plaintiffs and the several persons interested therein, according to their several shares therein, as expressed or created in and by the several instruments, deeds and agreements hereinbefore set forth, or referred to in the bill.

    The cause was heard before the superior court in the city of New-York, upon bill, answers and replications, and upon amotion to refer the same to take proofs and such accounts as might be requisite. The motion was denied by that court, and the bill dismissed with costs. The complainant appealed to this court

      P. Y. Cutler & G. Wood, for appellant.

      A. C. Bradley, for respondents.
   Gardner, J.

delivered the opinion of the court.

The original trust to Noyes and Ogden, created in October, 1843, by Rogers, for the benefit of Selden and Vermilya, was, I think, subsequently abrogated by the agreement and acts of all the parties interested. That it has been essentially modified is admitted. According to the provisions of this trust, the trustees were authorized to dispose of the trust property, “ to pay and discharge the bonds and notes then held by the cestuis que trust as they fell due respectively.” To pay off the demands mentioned in the prescribed order, was therefore the object of the trust, as the indebtedness of Rogers to Selden and Vermilya was the sole consideration for its creation.

By the agreement of October, 1846, executed by Rogers and all the cestuis que trust then having claims upon the fund, after reciting the trust and the proceedings under it, and that it was deemed for the advantage of the other parties that an amicable arrangement should be made for the final settlement of all claims existing against said property; it was agreed that Rogers should release to the trustees aforesaid, all his residuary interest in the property held by them in trust, for the benefit of the parties holding said bonds and notes, and that upon such conveyance being made, he should be discharged from all further claim on account of said indebtedness; and the trust fund should be accepted, as a satisfaction of the same, and the said bonds and notes be cancelled.” Upon the consummation of this arrangement, the indebtedness of Rogers was discharged for an agreed equivalent in property. The original trust was at an end. The trustees had no duty to discharge. They could not sell the property, or give preference in the application of the proceeds to the payment of demands, all of which were satisfied and extinguished by the act of the parties. The cestuis que trust ceased to be creditors ; and I am unable to perceive how a valid trust, “ to sell land for the benefit of creditors,” can be created or continued, where the relation of debtor and creditor has been annulled, and the indebtedness discharged by a legal accord and satisfaction. Reliance has been placed, upon a clause of the agreement of October, 1846, as distinctly recognizing the continuance of the original trust. That clause is as follows: “ And in event of any of the parties not consenting hereto., then a sale shall be made under the trust deed, upon the requisition of other parties subscribers hereto, for the payment of the bonds and notes held by them, which have become due.” The word hereto” refers to the agreement about to be executed by bondholders. It was expected that all of them would become parties to the arrangement, it was possible that some might not, and in that contingency, and that only, a sale was to be effected under the original trust. Accordingly we find, that the Christophers, who held some of the securities, did not ratify the agreement by their trustee, until February, 1847, five months after its subscription by the other bondholders. Rogers had then released his residuary interest in the property to Noyes and Ogden; and all the bondholders having subscribed, or ratified, the agreement, the arrangement was consummated, and the provision above referred to became inoperative by the failure of the contingency, upon which it depended.

II. Did the agreement of October, 1846, with the instruments subsequently executed in its performance, any or all of them, create a new trust, or power in trust, authorizing the trustees to sell and distribute the proceeds of the. property, conveyed to them by Rogers, among those who, at the time of its creation, were interested in the bonds and notes in question? This presents the second, and more important question in the cause, and the one which was principally discussed upon the argument.

The most that can be inferred from the agreement of 1846 is, the belief and expectation of the parties, that the trustees, by the conveyance of the residuary interest of Rogers, would acquire the legal title to all the trust property, and hold it subject to any arrangement, which the bond holders might make subsequently, for its disposition; and if none was made, that the trustees would be authorized to sell it for the benefit of those interested. If this expectation had been expressed formally in the deed from Rogers to the trustees, instead of being implied, from a preliminary agreement, it was unauthorized by the 55th section of the statute relative to uses and trusts, and would consequently have been void, as an express trust. It would not have been a trust to sell lands for the benefit of creditors,” in form or effect; because on the completion of the arrangement contemplated by the agreement above mentioned, the cestuis que.trust ceased to be creditors, as I have endeavored to show. Neither was it a trust under the 2d subdivision of the section above quoted, “ to sell lands to satisfy any charge thereon,” because the indebtedness of Rogers, which was the only charge pretended, was by the agreement of the parties, converted into land, and of course ceased to be a charge upon it.

But in the second place, neither an express trust, nor a power in trust, was created or conferred upon the trustees by the conveyance of Rogers, or of any other person having the requisite authority ; nor was there any stipulation to that effect, in the preliminary agreement. This objection, if well founded, is conclusive against the existence of either. The agreement of October, 1846, should be construed in reference to the different subjécts embraced in it, and the separate interests of the parties, by whom it was executed. To that agreement Rogers and the bondholders were the only parties. The former covenanted that he would release t.o the trustees his residuary interest in the property held in trust for the benefit of the parties holding said bonds and notes. And the latter agreed that “upon such conveyance being made, Rogers should be discharged from all farther claim, on account of his indebtedness.”. This was all that Rogers was to perform or receive. The bondholders then agree with each other, “ that an arrangement shall be made for the disposition of the whole trust property, and that the same shall be offered for sale by the trustees, unless an amicable division, without sale, shall be sooner agreed upon.” This was a distinct subject of the agreement; in which Rogers had no interest, and to which he was not a party. What concern had he, for example, in the amicable division of the property, after his conveyance and discharge'}

The whole clause presupposes a conveyance by him, and its object is to provide for a disposition of the property thus acquired. But nowhere in the instrument is the duty imposed upon Rogers to create a trust, or trust power for the benefit of the bond holders, nor do they stipulate for any thing of that nature among themselves. This has in effect been determined as to Rogers by this court. The cestuis que trust assumed that the original trust would continue, notwithstanding the debts of Rogers were discharged, so far as to enable the trustees to take, hold and convey the legal title to the real estate. Thejr did not therefore contract for its continuance, nor for the creation of a new trust, or trust power, as a substitute. It is impossible to mistake their views when we look at their acts, in performance of this agreement. On the 28th of November, Rogers released to the trustees his residuary interest, including whatever was before held by the loan company, for the benefit of the bondholders, and in performance of his covenant. It was accepted as such, and he was discharged from his indebtedness. Again, in the deed of confirmation and release to the Farmers’ Trust and Loan Company, of the 5th of February, 1847, to which Rogers, the trustees and the bondholders were all parties the conveyance of Rogers to the trustees previously executed, is recited as being made in pursuance of the agreement of October, for the benefit of the parties interested in the trust.

In obtaining a conveyance, therefore, of the residuary interest of Rogers, to trustees, for the use and benefit of the bondholders, without any other provision whatever; the cestuis que trust received all that they had contracted for, and in the precise manner stipulated in the agreement with Rogers. They assumed, as has been suggested, that this process, which they had defined by contract, would vest the legal estate in the trustees for their use. This the law prohibited, and transferred the whole title, legal and equitable, to the beneficiaries, as tenants in common. (1 R. S. 728. §§ 47, 49.) There was no uncertainty, as has been intimated, as to the persons beneficially entitled, nor as to their share in the property, respectively. Both are particularly stated, in the deed of the 5th of February above mentioned, and the cestuis que trust in addition covenant that they are the bona fide holders of all the bonds and notes remaining unpaid. An erroneous assumption, by the cestuis que trust, arising from a mistake of the law, can not control the legal effect of the conveyances executed in pursuance of their agreement. Nor will it alone furnish foundation for a trust or a power in trust. A power is defined, by statute, to be an authority to do some act in relation to lands, which the owner-granting the power, might himself lawfully perform. (1 R. S. 732, § 1.) An express trust includes a power and more. Therefore, where an express trust is created for a purpose, not enumerated in the statute, no estate vests in the trustees, but the power continues, and may be exercised, in the performance of any act, directed or authorized by the trust, which may lawfully be performed under a power. (1 R. S. 729, § 58.) But it is indispensable to the creation of a trust, or a power in trust, that the authority to perform the required act should be rightfully delegated to the trustee, by the person having authority to dispose of the estate, or some interest therein, in the manner directed by the trust or power. This has not been done in the present case. If Rogers was the owner of the lands in question, within the spirit of the rule suggested, as the defendants insist, he hks not granted, or assumed to grant, to the trustees an am thority to sell the trust property, and .distribute the proceeds. The loan company could not delegate it, for they were but trustees, with a mere lien upon the lands, which was satisfied when théy conveyed to Noyes and Ogden. The latter took the interest of Rogers, by virtue of the original trust; the conveyance of the company operating only as a release of a prior charge upon the estate. The bondholders could grant no such power, for at the date of their agreement, in October, 1846, they had only an interest in the original trust, and none whatever in the real estate. (1 R. S. 729, § 60.) Nor did they assume to do any thing of the kind. Again. The agreement of October is not a part of the subsequent conveyances, executed in pursuance of it. It can not be legitimately used to supply their deficiencies. It shows what ought to have been done by way of performance, not what was done.

The cases to which we have been referred as to the effect of the recital of one instrument in another, can not aid the defendants. (8 Peters, 83, 88; 8 Cowen, 586.) Because the part of the agreement upon which they rely to raise the trust, is not recited in, and consequently is not a part of, any conveyance subsequently executed; and because if it had been, it would show an agreement between the cestuis que trust, that the trustees should sell upon a certain contingency, after they had obtained the title. Not that Rogers, or any other person, should grant them such authority.

We think, for the reasons suggested, that the defendants have failed to establish an express trust, or a power in trust, for the sale of the lands in question. We think, also, that there are decisive objections against implying, from the agreement of the cestuis que trust, an irrevocable power of attorney to the trustees to dispose of this property. It is not the contract of the parties, but an equitable substitute. It can only be justified upon the ground that it will effect their real purpose, although by a different instrumentality from that which they have prescribed. The defendants affirm, in their answers, that their object in procuring a conveyance to trustees was, to give them the power to dispose of the entire property, and close up the trust.” This could be effected by a trust, or a power in trust, which would enable the trustees to transfer the title which they received, and not otherwise. A power of attorney must be executed in the names of the cestuis que trust, in whom the title was vested, subject to all incumbrances, dower included, which might exist at the time of the sale; not to speak of the difficulty in relation to those who were minors. The trustees could not bind their principals, or any of them, by a covenant, even against incumbrances imposed for their own benefit, by their own act. A partition would be a far more equitable method of adjusting the rights of the tenants in common, than by a sale by virtue of a power of attorney, under such circumstances, if indeed a purchaser could be obtained. It is to be inferred that this is the view óf the defendants, as their counsel disclaimed all reliance upon this point, and placed the defence exclusively upon the other grounds which have been considered. The decree of the superior court must be reversed.

And thereupon the decree of the superior court was reversed, and a decree for partition directed to be entered with special provisions.


source: Caselaw Access Project

author: Gardiner, J.

license: Public Domain

text:
    Hone and others, executors, &c. vs. Van Schaick and others.
    A testator left seven children, together with k granddaughter, J. K., who was the daughter of a deceased son, and three children of another deceased son, his only heirs at law. By his will he provided for the creation of a trust fund from the hulk of his real and personal estate, the income of which he directed to be divided into nine shares, one share to be paid to each of his seven children, or their representatives, one to the said J. K. “ daughter of, and representing Ms deceased son Philip,’’ but omitting her representatives, and one to his three grandchildren, “ children of, and representing his deceased son John.” He directed his executors to take the separate receipts of his sons and daughters for such payments of income, and to make payment to his “ granddaughter J. K.” for her separate use arid upon her receipt. In case of the death of a daughter leaving issue, prior to the expiration of the trust, her share of the income Was to be paid to her husband, if living; if not, to her children ; but no similar provision was made in case of the death of J. K. The executors were authorized, upon the request of the sons or daughters of the testator, to make advances to his grandchildren, the issue of such sons of daughters, from the capital of the trust fund. The trust was to continue twenty-one years from the date of the will, at the expiration of which the testator directed the trust fund to be divided among his said heirs, naming J. K. as one of them, or their legal representatives. In the partition of the fund the will declared that his granddaughter J. K. was to be considered as standing in the same situation with regard to her own rights and those of her issue, as the daughters of the testator, and all the rules applying to them, their husbands and issue, to be applied to her, her husband and issue.

    By a codicil annexed to the will the testator gave to each of his grandchildren living at his death a legacy of $6000, to be paid on their respectively attaining the age of twenty-one, or marrying, whichever event should first take place: such payment to be made in no case without the approbation of the parents of the grandchild, or the survivor of such parents, to be expressed in writing to the executors. At the time of making the will and codicil the testator had several- grandchildren under age and unmarried, hut his granddaughter J. K. was of age, married, and both her parents were dead.

      Held l.,That J. K. was not entitled with the other grandchildren to a legacy of $6000 under the codicil. 2. That her children in esse at the death of the testator, and being his great-grandchildten, could not take legacies utider the denomination of grandchildren as used in' the codicil.
    The language of a will should be construed according to its primary and ordinary meaning, unless the testator has manifested an intention in the will itself to give it a different signification.
    Where a testator in his will makes provision for his daughters, and under that denomination includes a granddaughter the daughter of a deceased son, and by a subsequent clause or codicil gives a legacy of a certain sum to each of his grandchildren, the latter provision will be held, it seems, to include tha children of the granddaughter.
    The questions in this case arose under the will of John Hone, who died at the city of New-York in April, 1832. By a codicil annexed to his will he gave to each of his “ grandchildren^ living at his death the sum of $6000, to be paid to them upon their attaining respectively the age of twenty-one years, or marrying, whichever event should first take place: such payment not to be made without the consent of the parents of the grandchild. Mrs. Joanna Kneeland was a granddaughter of the testator, but of age, and married, when the will was made, and both her parents were dead. The questions were 1st, whether she took, with the other grandchildren of the testator, a legacy of $6000 under the codicil; and if not, then 2d, whether, under the peculiar provisions of the whole will, her two children in esse at the death of the testator were entitled, under the denomination of “grandchildren” as used in the codicil, each to a legacy of $6000. The chancellor, before whom the case was heard on appeal from the vice chancellor of the first circuit, held that her children were so entitled, and he reversed the decree of the vice chancellor. See 3 Barb. Ch. Rep. 488, where the case is stated at length. From that decree an appealed was taken to this court.

      M. Hoffman, for appellants.

      Gerardus Clark, for respondents.
   Gardiner, J.

The respondents claim that Mrs. Joanna Kneeland, a granddaughter of the testator, is entitled to the legacy provided by the third article of the first codicil, in her own right as granddaughter of the testator, or if not, then that her children are included under the denomination of grandchildren, and that such of them as should be living at his death are each accordingly entitled to a legacy of $6000.

The testator has described the beneficiaries intended by him, first, as his grandchildren living at the time of his death ; secondly, by a direction that the legacy should “ be paid to them and each of them,” which applies to each and all of the persons to be benefited, “ upon their attaining respectively the age of twenty-one years, or marrying, whichever event shall first occur.” The legatees designated by the testator in the codicil above mentioned, were therefore to be grandchildren living at his death, minors, and unmarried. The subsequent clause of the third article, that such payment is in no case to be made without the approbation of the parents of such grandchild” to be expressed in writing, also shows who were intended to be benefited, and confirms the construction already suggested.

Mrs. Kneeland, at the date of the will, which was some years previous to the codicil, was of full age, married and without parents. She was a grandchild, living at the time of the death of the testator, but not of the class of grandchildren indicated by the codicil. To hold otherwise, we must reject the subsequent clauses of that instrument, which are do-extensive with and limit the bequests, and which provide that the beneficiaries shall receive the prescribed legacies respectively upon marriage or upon attaining their majority, and upon the approval of .their parents or the survivor of them expressed to the executors in writing. We have no such power. Accordingly we all agree that Mrs. Kneeland in her own right has no claim whatever to the legacy in question.

The second and more important question is, did the testator intend to include the children of Mrs. Kneeland under the denomination of grandchildren ?” They did not stand in that relation to the testator. On the other hand, there was a large class of persons when the will was made, and at the time of its republication by the execution of the first codicil, to which the description contained in that instrument was applicable in every particular. We are under no necessity, therefore, of enlarging the meaning of the terms adopted by the testator, in order to give effect to his will or render it sensible. His language should be construed according to its primary and ordinary meaning, unless the testator has manifested his intention in the will itself to give to it a different and more extended signification. This rule is affirmed by the learned chancellor in his opinion, and according to all the authorities is inflexible. (Wigram on Wills, prop. 1, 2, and cases p. 17; Godfrey v. Davis, 6 Ves. 42; Royle v. Hamilton, 4 id. 439.) In Cutter v. Doughty, (7 Hill, 305,) the principle was recognized, although the courts differed in its application. In that case the words of the devise were as follows : I give to my grandchildren and their heirs my said farm as follows, to wit, to the children of my step-daughter lot No. 1, to the children of my daughter lot No. 2,” &c. A subsequent clause provided that, if any of the devisees died without issue, their share was to be divided among the survivors of the testator’s children, or grandchildren. It vgas held by the supreme court and the court for the correction of errors, that the testator had denominated the children of his step-daughter grandchildren, in the first clause of his will; and by the latter court, in opposition to the chancellor and the supreme court, that they were included under the same denomination in the last clause. That case will control the present, if it can be shown that Mr. Hone has in his will denominated Mrs. Knee-land his daughter, or her issue his grandchildren.

Neither the will nor codicil furnish evidence of any such intention, that I have been able to discover. The whole instrument seems to have been carefully considered, and is drawn with legal precision. The testator first provides for the creation of a trust fund from the bulk of his real and personal estate. He then, in the 5th clause, enumerates his heirs, and among them Joanna Kneeland wife of Charles Kneeland, daughter of and representing his son Philip Hone deceased. He then directs that one ninth of the income of the trust fund shall be paid to each of his children, or their legal representatives, and one ninth to his granddaughter Joanna Kneeland, omitting her representatives. By the 6th clause, the executors, upon such payment, are to take the separate receipts of his sons and daughters, who are severally named; and are required to make payment to his granddaughter Joanna Kneeland for her separate use and upon her receipt; and to his grandchildren John, Emily and Maria, children of his son John Hone, jr. deceased, upon the receipt of their mother. The 7th clause directs as to the payment of the income of the trust fund in the event of the death of his sons or daughters, or either of them, and prior to the expiration of the trust. It provides, that upon the death of a daughter leaving issue, her share of the income should be paid to her husband if living, if not, to her children if of age or married, otherwise to their guardians. No allusion is had in this clause to Mrs. Kneeland, her husband, or her children. By the 10th clause, the executors were authorized, upon the request of his sons, their widows, or of his daughters, or their husbands surviving them, respectively, to advance to any of his “ grandchildren” the issue of such his sons and daughters who should be married or attain the age of 21 years, a certain amount from the capital of the fund. This clause was unconditionally repealed by the codicil. The children of Mrs. Knee-land are excluded from the benefit of this last provision by the language of the will, and she could claim nothing in her own right, as grandchild, as she has no parents, was married, and of age at the date of the will. This would have been true even if the 10th clause had not been repealed. The 7th and 10th clauses, it will be observed, relate to payments and advances to be made by the executors prior to the final distribution of the estate. That distribution is provided for by the 8th clause; according to which' the trust was to continue for twenty-one years from the date of the will, and the fund was then to be divided by the executors among his said heirs, (Mrs. Knee-land being named as one of them,) or their legal representatives; the representatives to take the share to which the ancestor would be entitled if living.

Thus far, it will be perceived, the will furnishes evidence that the testator not only knew, but carefully distinguished between the different degrees of consanguinity in which the devisees were related to him, and that each is designated, in an appropriate manner. He calls Mrs. Kneeland his grandchild; the children of his deceased son, his grandchildren, and the other devisees his sons and daughters, according to the relation they respectively sustained to him. Again, the interest secured by the will to the issue of the daughters of the testator, and the children of Mrs. Kneeland, were different. Her legal representatives are not mentioned in the 5th and 6th clauses; nor is Mrs. Kneeland, her husband or children included in the 7th. The consequence of this omission would be, that upon the death of Mrs. Kneeland her husband would take nothing by the will; but her share of the income of the trust property would either merge in the general fund, or accumulate for the benefit of her children, and be divided with the capital, at the expiration of the trust, according to the provisions of the 8th clause. There is therefore neither identity of denomination or of interest between the children of Mrs. Kneeland and the grandchildren of the testator, which requires that they should be classed together: so far from it, had the will closed with the 8th clause it would have been sensible, and capable of complete execution, by construing the language according to its popular and ordinary signification.

The ninth clause prescribes certain rules, to be observed by the executors in the partition of the estate, as directéd in the preceding article. They are numbered from one to six inclusive. The sixth rule, upon which the respondents place their chief reliance, declares, That my granddaughter Joanna Kneeland, to be considered as standing in the same situation, with regard to her own rights and those of her issue, as my daughters; and all the rules applying to them, their husbands, and issue, to be applied to her, her husband and issue.” This direction is limited to a single object, the ultimate division of the estate. This is apparent from the rule itself; and is placed beyond doubt by the explicit declaration of the testator, “ that in order to carry such partition into effect, I direct that my executors, in making the same, observe the following rules.” It does not follow, that because the testator provides for the final distribution of his estate in a particular manner, he therefore intended that a rule prescribed for that purpose should control other dispositions of his property which were to take effect prior to that event. On the contrary, it is believed that the application of rules framed by the testator for a special purpose, to different subjects, although embraced in the same will, would violate the plainest principles of legal criticism. And yet it is by this process that a grandchild is made a daughter, and the children of a grandchild the issue of a daughter:

But there is another answer. The 6th rule will not admit of the construction claimed by the respondent. It contains a description of the persons or devisees who are to share in the division of the trust fund, and of the interest therein to which they are respectively entitled. The persons are described as my granddaughter Joanna Kneeland, her husband and issue. Her right to and interest in the fund, and that of her children and husband, are described as identical with that of the daughters of the testator, their children and husbands. If Mrs. Kneeland had been an entire stranger to the blood of the testator, the description of her interest in the fund would have been the same, if he intended she should share equally with his daughters. This would not have made her a daughter, or tended to prove that the testator so considered her, unless identity of interest is equivalent to identity of relationship. The 6th rule above mentioned is therefore consistent with the other provisions of the will. In all of them Mrs. Kneeland, when referred to as devisee, is described as a grandchild, her children as the issue of a grandchild, the children of a deceased son as grandchildren—the words being used appropriately and according to their strict primary signification. In such case, says Mr. Wigram, it is an inflexible rule of construction, that the words of the will, if sensible, in reference to extrinsic circumstances, shall be interpreted in their strict and primary sense, and no other, although they may be capable of a secondary interpretation, and although the most conclusive evidence of an intention to use them in a secondary or popular sense be tendered. (Wigram on Wills, 17, prop. 2.) We are embarrassed by no such evidence in the present case. The children of Mrs. Kneeland stood one degree further removed from the testator than twenty-eight other persons specially designated as legatees. What their circumstances or necessities were does not appear; but the testator might have supposed, that with the ample fortune which Mrs. Kneeland inherited from her father in addition to the share devised to her in his will, her children might without injustice be excluded from the class of beneficiaries mentioned in the codicil. The petitioners must stand upon their legal rights; and as they are not named or described in the codicil, they can not claim the benefit of its provisions.

The decree of the chancellor should be reversed, and that of the vice chancellor affirmed.

Ordered accordingly.


author: Bronson, Ch. J.

text:
    Duane vs. The Northern Railroad Company.
    An order of the supreme court, made at a general term, reversing a judgment rendered at the circuit, before a single justice of that court, and awarding a new trial j is not a judgment within the meaning of the code, and therefore is not appealable to this court.
    Duane sued the Railroad Company under the code, and at the circuit there was a verdict and judgment for the defendants. The plaintiff appealed to the supreme court in general term, where the judgment was reversed, and a new trial ordered The defendants then appealed to this court.
    G. F. Comstock, for respondents,
    moved to dismiss the appeal, on the ground that the judgment was not final, and there fore an appeal would not lie. He cited the code, §§ 11,245, 280 281, 327, 328.

      N. Hill, Jr. for appellant,
    cited the code, §§ 264, 265, 348, 530, 11; Van Santvoord v. Tousey, (6 Hill, 157;) Jackson v. Walker, (id. 261.)
   Bronson, Ch. J.

There may be an appeal from “ a judgment,” [Code, § 11,) which, in the language of the code, “is the final determination of the rights of the parties in an action.” (§ 245.) We think this is not such a final judgment as comes within the definition.

Motion granted.


author: Catharine Ann Messerve,

text:
    Messerve vs. Sutton et al. executors.
    Where the supreme court on appeal reverses the judgment or decree of a subordinate court, an appeal will lie under the code to this court, although further proceedings are directed to be had in the court where the suit or proceeding originated.
    Therefore, where a surrogate dismissed a proceeding instituted before him to bring executors to account, and the supreme court, on appeal, reversed his decree with costs and directed him to proceed with the account, held, that an appeal would lie to this court.
   Catharine Ann Messerve,

in 1839, applied to the surrogate of the city and county of New-York, for a citation requiring George Sutton and others, executors of the will of George G. Messerve, deceased, to appear and account. The testator died in 1826, having by his will bequeathed to his executors $10,000 and a share of his residuary estate to his executors in trust, to pay the income to his son George Messerve, during life, and the principal after his death to his lawful issue. George Messerve died in 1835, and the petitioner claimed to be his only lawful child, and as such to be entitled to the principal of the legacy aforesaid. The executors, on being cited, appeared and contested the proceeding on the ground that the petitioner was not the legitimate child of George Messerve ; and. on that ground the surrogate dismissed the petition. The petitioner appealed to the supreme court, where, in January, 1849, the decision was reversed with costs, and the surrogate was directed to proceed with the account. From the order of the supreme court the executors appealed to this court.

C. W. Sandford, for appellants.

E. Sandford, for respondent.

Upon the cause being moved for argument a question arose, whether under the code of procedure,, the order of the supreme court could be reviewed here, and the point was reserved for examination, the cause in the meantime standing oyer.

On a subsequent day the court said that the order was appealable. The proceeding not having arisen in the supreme court the order of that court reversing the surrogate’s decree was a final determination within the meaning of the code, (§§ 11, 245,) and therefore the appeal was well brought. On this ground the case was distinguishable from Duane v. The Northern Railroad Co. (Ante, p. 545.)


author: Hubxbut, J. Bronson, Ch. J. Bronson, Ch. J.

text:
    Oakley vs. Aspinwall et al.

    Where a judge is disqualified to sit in a cause by reason of consanguinity to one of the parties, he can not sit even by consent of both the parties; and if he do, the judgment will be vacated.
    And the disqualification exists, although the party to whom the judge is related is a mere surety for another, or is fully indemnified against the consequences of the suit.
    Accordingly, where, upon an appeal being moved on for argument in this court, one of the judges stated that he was related to the appellant in the sixth degree, and was about to leave the bench, and the counsel for both parties thereupon waived the objection, the respondent’s counsel requesting and soliciting the judge to sit, which he did bn a suggestion being made that the appellant was indemnified by another person not a party, and therefore had no real interest; it was held, that the judgment of reversal rendered in the cause by this court was irregular, and the same was set aside and a reargument ordered on the respondent’s motion. Bronson, Ch. J. Jewett, J. and Harris, J. dissenting.
    In every grant of judicial power an exception is implied that the judge shall not sit where he is interested or related to the parties; and this exception it seems is implied in the provision of the constitution declaring that the court of appeals shall be “ composed of eight judges.”
    Notwithstanding the provision of the constitution declaring that the court of ap* ■ peals shall be composed of eight judges, it is competent for the legislature to enact that a less number shall constitute a quorum. Bronson, Ch. J. and Jewett, J. dissenting.
    And where a motion to vacate a judgment and for a reargument was maje before seven of the judges, (six constituting a quorum by act of the legislature,) held that a concurrence of only fowr was necessary in order to grant the . motion. Bronson, Ch. J. and Jewett, J„ dissenting.

      Hiram P. Hastings, for the plaintiff, .made a motion in March last, to vacate the judgment of reversal which had been rendered in this cause in December last, and that the cause either be re-argued or judgment of affirmance be entered. The grounds on which the motion was made are stated in the opinions delivered by the judges.

      Francis B. Cutting, for the defendants.
   Hubxbut, J.

It is suggested by the petition of the respondent, that the decision of this court by which the judgment of the superior court in his favor was reversed and a new trial ordered in this case, was entered through inadvertence, and he prays that both the judgment of this court and the remittitur may be vacated, and that the appeal may be reargued. This application is based on several grounds, the most important of i which is, that the appeal was argued before seven members of . the court, one of whom, Judge Strong, was related to the appellants Aspinwall within the seventh degree, and was therefore disqualified to sit as a judge and to take part in the decision of this cause. That two members of the court voted to affirm the judgment of the court below, and five, including Judge Strong, voted for reversal; and that without the vote of the latter the judgment would not have been reversed.

It appears that upon the appeal being moved for argument, Judge Strong informed the counsel for both parties of his relation to the Messrs. Aspinwall, the appellants, and that because of it he should decline to sit in the case ; but that the counsel consented that he should sit, and that he was particularly urged to it by the counsel for the respondent; that he finally consented to hear the cause upon its being suggested, that the appellants Aspinwall were, not parties in interest, and would not suffer by the judgment, as they were indemnified by a Mr. Baker, who had the real interest in the matter in litigation. Under these circumstances the judge retained his seat—but his opinion and vote were adverse to the party whose counsel was mainly instrumental in inducing him to serve, and hence this motion, which is made by the same counsel, who now alledges that he was not authorized by his client to consent in the premises, and that if he were, such consent is not an answer to the present motion.

It is difficult, under the circumstances, to regard this application with favor, since the position in which the court is placed in respect to this cause has been brought about mainly by the officious intermeddling of the counsel for the moving party, with the scruples of a judge who,.with a proper sense of duty, promptly declined,to sit in the cause. But the unfavorable aspect of the motion in this point of view, must not cause-us to overlook the principles upon which it is founded, which are of too great importance in the administration of justice ever to be lost sight of.

The appellants Aspinwall were defendants in the judgment from which this appeal was taken—they were personally liable to pay it, as between them and the respondent, and execution to enforce it might have gone against their property. They may have been indemnified—but that did not exempt them from primary liability on the judgment, and hence did not divest them entirely of interest in the case. They were then parties to the suit, and having such an interest as to give rise to the objection now taken to Judge Strong’s participation in the decision of the cause, because of consanguinity to them; and the question is, what effect had such participation upon the judgment pronounced by this court?

The first idea in the administration of justice is that a judge must necessarily be free from all bias and partiality. He can not be both judge and party, arbiter and advocate in the same cause. Mankind are so agreed in this principle, that any departure from it shocks their common sense and sentiment of justice. It was long ago reported, on the authority of Holt, that the mayor of Hertford was laid by the heels for sitting in judgment in a cause when he himself was lessor of the plaintiff in ejectment, although he, by the charter, was sole judge of the court. (1 Salk. 396.) No information has reached us at this day tending to show that the treatment which the mayor received on this occasion was deemed too severe by his cotemporaries, although his apology, to wit—that he was sole judge of the court—has been held by some modern judges to excuse them for determining upon matters and causes in which their relations were parties or were interested. But it seems to me far better, that causes as to which the sole judge of a court is presumed to be biased in favor of one of the parties should remain undetermined until the legislature should provide an appropriate tribunal for their decision, than that the principle which demands complete impartiality in a judge should ever be violated. The urgency of a particular case is not so much to be regarded as the elevation and honor of courts of justice, whose dignity and purity constitute a main pillar of the state.'

Partiality and bias are presumed from the relationship or consanguinity of a judge to the party. This presumption is conclusive and disqualifies the judge. A justice of the peace who was a son-in-law of the plaintiff, insisted on retaining jurisdiction of a cause, notwithstanding it was objected against by the defendant; and the supreme court held that this was of itself evidence that the trial was not fair and impartial, and reversed the judgment-. (Bellows, &c. v. Pearson, 19 John. R 172.) In the case of The Washington Ins. Co. v. Price et al. (1 Hopkins’ Ch. R. 1,) Chancellor Sanford declared that it is a maxim of every code in every country that no man should be a judge in his own cause; that it is not left to his discretion or to his sense of decency whether he shall act or not; that when his own rights are in question he has no authority to de-' termine the cause; that so well was this principle understood that in every court consisting of more judges than one, the judge who is a party in a suit takes no part in the proceedings or decision of the cause, and that he knew of no example of the contrary conduct in this country.

The provisions of our revised statutes on this subject profess to be merely declaratory of universal principles of law, which make no distinction between the case of interest and' that of relationship, both operating equally to disqualify a judge. Hence the statute declares, fhat “ no judge of any court can sit as such in any cause to whbh he is a party or in which he is interested, or in which he would be disqualified from being a juror by reason of consanguinity or affinity to either of the parties.” (2 R. S. 275 § 2; Revisers’ Notes, 3 R. S. 694.)

After so plain a prohibition, can any thing more be necessary to prevent a judge from retaining his seat in the cases specified 1 He is first excluded by the moral sense of all mankind ; the common law next denies him the right to sit, and then the revisers of our law declared that they intended to embody this universal sentiment in the form of a statutory prohibition, and so they placed this explicit provision before the legislature, who adopted it without alteration and enacted it as the law. The exclusion wrought by it is as complete as is in the nature of the case possible. The judge is removed from the cause and from the bench ; or if he will occupy the latter, it must be only as an idle spectator and not as a judge. He can not sit as such. The spirit and language of the law are against it. Having disqualified him from sitting as a judge, the statute further declares that he can neither decide nor take part in the decision of the cause, as to which he is divested of the judicial function. Nor ought he to wait to be put in mind of his disability, but should himself suggest it and withdraw, as the judge with great propriety attempted to do in the present case. He can not sit, says the statute. It is a legal impossibility, and so the courts have held it. (Edwards v. Russell, 21 Wend. 63; Foot v. Morgan, 1 Hill, 654.)

The law applies as well to the members of this court as to any other; or if there be any difference it is rather in favor of its more stringent application to the judges of a court of last resort, as well, because of its greater dignity and importance as a tribunal of justice, as that there is no mode of redress appointed for the injuries which its biased decisions may occasion. The law and the reasons which uphold it apply to the judges of every court in the state, from the lowest to the highest.

It was however urged at the bar, that although the judge were wanting in authority to sit and take part in the decision of this cause, yet that having done so at the solicitation of the respondent’s counsel, such consent warranted the judge in acting, and is an answer to this motion.

But where no jurisdiction exists by law it can not be conferred by consent—especially against the prohibitions of a law, which was not designed merely for the protection of the party to a suit, but for the general interests of justice. (Low v. Rice, 8 John. 409; Clayton v. Per Dun, 13 id. 218; Edwards v. Russell, 21 Wend. 63; 21 Pick. 101.) It is the design of the law to maintain the purity and impartiality of the courts, and to ensure for their decisions the respect and confidence of the community. Their judgments become precedents which control the determination of subsequent cases; and it is important, in that respect, that their decisions should be free from all bias. After securing wisdom and impartiality in their judgments, it is of great importance that the courts should be free from reproach or the suspicion of unfairness. The party may be interested only that his particular suit should be justly determined; but the state, the community is concerned not only for that, but that the judiciary shall enjoy an elevated rank in the estimation of mankind.

The party who desired it might be permitted to take the hazard of a biased decision, if he alone were to suffer for his folly—but the state can not endure the scandal and reproach which would be visited upon its judiciary in consequence. Although the party consent, he will invariably murmur if he do not gain his cause; and the very man who induced the judge to act, when he should have forborne, will be the first to arraign his decision as biased and unjust. If we needed an illustration of this, the attitude which the counsel for the moving party in this case assumed toward the court, the strain of argument which he addressed to it, and the impression which it was calculated to make upon an audience, are enough to show, that whatever a party may consent to do, the state cannot afford to yield up its judiciary to such attack'and criticism as will inevitably follow upon their decisions made in disregard of the prohibitions of the law under consideration.

The constitution of 1846 has been referred to, but so far as I can perceive it is silent on this subject. It declares that there shall be a court of appeals composed of eight judges, but does not define its jurisdiction nor enter into the details of its organization ; and in the absence of an express declaration to that effect, it is not to be intended that the framers of the constitution designed to abrogate the great and salutary rule which disqualifies a judge from acting in the cases referred to. There is so much reason and fitness in the rule, that nothing short of a solemn and express declaration of the sovereign will ought to be deemed sufficient to abrogate it. In the absence of such an expression in the constitution, it seems proper to hold that the jurisdiction conferred on the judges of this court in general terms, is subject to an implied exception in favor of the operation of the rule by which they would be excluded from sitting in cases where they may be interested or related to the parties. Such an exception is implied under the most comprehensive grant of jurisdiction by statute; (5 Coke’s R. 118 b; Wingale’s Maxims, 170 ;) and I perceive no reason why it should not be, under a constitutional grant of power.

The views expressed by Judge Bronson in Pearce v. Delamater, (1 Comst. 1,) in reference to the right of a judge of this court to sit in the review of cases, where he has taken part in the decisions in the court below, do not, I think, necessarily conflict with the doctrine I have endeavored to maintain, as there may be reason to believe that the framers of the new constitution designed to change the law on that subject; and as was said m that case, “ there was nothing in the nature of the thing which made it improper for a judge to sit in review upon his own judgments.” But the present case is different; the disqualification under consideration exists at common law, and is necessary in order to preserve the moral dignity of courts and the due administration of justice; and since it was not embraced in the former constitution of this state, the silence of the new constitution on the subject can not be urged to show that it was the design to abrogate it.

But it may be said that this court consists of eight judges; that a less number can not constitute it, and therefore from necessity its members must sit in all cases.

The constitution declares that it shall be “ composed of eight judges,” and omits to provide that a less number may constitute the court. The absence of such customary provision has led some to suppose that the framers of the constitution designed to fix the number of judges inflexibly at eight, although it would be extremely difficult to assign any reason for their having done so. 1 think it is rather to be presumed that the design was to create an efficient court, one capable in view of the accidents of life, of assembling and conducting business with reasonable facility, and that no unnecessary obstacle was designedly presented in its very constitution, to the convenient discharge of its duties. It is, I think, safe to conclude, that the omission to declare that a less number than eight might constitute the court, was either accidental, or it was designed that the legislature should determine what number should make a quorum. I incline to adopt the latter view, which seems to derive support from section 25 of article 6 of the constitution, which directed that the legislature at its first session after the adoption of the constitution should provide for- the organization of the court. The constitution did not prepare the court, for service. It declared that such a tribunal should exist, provided from what number and class of judges it should be constituted, enjoined upon the legislature the duty of organizing it, and left its jurisdiction and course of procedure to be defined by law.

Legislative action was necessary before the court could be said to exist for any practical purpose. Without this it could not have assembled and given audience to suitors ; and it owes its being not more to the constitution than to the act of 1847, and subsequent statutes which fashioned it and endowed it with form and legal vitality. The constitution called for the court, and presented the materials of which it might be formed, and the legislature, under the express authority of the constitution, organized it. The authority to organize implied a right to ordain whatever was necessary or fit in order to form the court and give it efficient action, without going counter to the constitution, which is silent on the subject of a quorum. The legislature then having before them the material for composing the court, and rejecting none of it, were at liberty, I think, to dispense with the attendance of so many of the judges as in their wisdom might be deemed expedient in order to guard against accident, render the court capable of efficient action, and to avoid the necessity of any judge’s sitting when interested or related to a party to a suit. This was the first step to be taken in the act of organization, and most necessary to its success ; and I am inclined to concede to the legislature complete authority over this subject to the extent assumed by the statutes referred to.

It being provided by law that six members of the court shall constitute a quorum, a judge who is interested or related to a party to a suit, can not be required to act from necessity, unless when at least three of the judges may be so circumstanced—a case not likely to occur.

It appearing then that Judge Strong could neither lawfully hear nor take part in the decision of this cause—but that he did both—I am of the opinion that no proper determination has been made upon this appeal—that the judgment thus inadvertently entered, and the remittitur, ought to be vacated, and that the cause ought to be reargued.

Bronson, Ch. J.

This case came before us by appeal from the superior court of the city of New-York, where Oakley as plaintiff had recovered judgment for a large amount against the defendants.-as sureties for one Baker. The cause was argued in September, 1849, and at the following December term the judgment was reversed and a new trial ordered, all of the judges being present, and no one dissenting at the time, from the judgment which was rendered. At the last March term, Mr. Hastings as counsel for the plaintiff, on affidavits and papers which had been served on the attorney for the defendants, made a motion that the entry of judgment be vacated, and that the case either be reargued or a judgment of affirmance be entered. The objection to the judgment rests on the allegation, that there was a division of opinion among the judges, either in their consultation room or somewhere else, out of court—five only concurring in the opinion that the judgment should be reversed; and that one of the five, who is not now a member of the court, was not competent to sit in judgment for two reasons ; first, that he was out of court some part of the time while the cause was under argument; and second, he was related in the sixth degree to the defendants John L. and William H. Aspinwall. (2 R. S. 275, § 2 ; Code, § 14.) On these grounds it is insisted that the judgment of reversal was irregular and void.

It is difficult to determine how much or how little ought to be said about this most extraordinary motion; but as it has acquired some importance by holding the papers over the term, it may be proper to notice several things involved in the application.

And in the first place, the motion contains an impeachment of one of the judges who sat in this court the last year; and we are asked, though indirectly, to pass a judgment of condemnation upon him. That I am not prepared to do. This is neither the court which the people have ordained for the trial of impeachments ; nor has the accused party had an opportunity to be heard in his defence. I shall be slow to pronounce a judicial censure upon any of my associates, past or present, until I take my seat in another forum, and all the forms for securing a just judgment have been duly observed.

There is also involved in the motion a censure upon all who were members of the court the last year. The papers show, about as well as they show any thing, that the facts which are supposed to have disqualified one of the judges were known to all the others; and if they pronounced a judgment of reversal without the concurrence of five competent judges, they acted contrary to law. I have already declined passing a judicial censure upon others; and it will not, perhaps, be thought unreasonable that I should now decline giving judgment against myself.

But without laying any stress upon these considerations, it is a radical objection to the motion, that the plaintiff seeks to overthrow a judgment rendered by a full court of eight judges, by going behind the public act of the court, and inquiring what took place among the judges when they were in conference in relation to the proper decision. Such a motion suggests many reflections. How is it to be known what the judges said or thought when they were conferring together in private ; and how is it to be ascertained that they remained of the same opinion at the time the judgment was publicly pronounced ? Must they deliberate in presence of witnesses, and be impeached if they give their impressions one way and afterwards act the other way ? Or may the judges be interrogated as to what they said or thought in the conference room, and whether their real sentiments were expressed in the subsequent public act ? When the chief justice declares the judgment of the court in any case, can the counsel poll the judges to ascertain how many concur in the judgment? Or is it to be presumed, in the absence of any dissent, that all are agreed that the proper judgment has been declared ? Many other thoughts are suggested: but I forbear. The motion is wholly without precedent; and no one can fail to see that its tendency is to degrade the judges, and bring them into public contempt. I am in no way responsible for the present judicial system ; but while I sit here I am bound to maintain and defend the honor and dignity of the judiciary; and I shall not knowingly yield to any influence, whatever it may be, which tends in the opposite direction.

The “point has been several times decided by the court of errors that a rehearing would not, and could not, be legally granted after a cause had been decided on the merits. (The People v. The Mayor of New York, 25 Wend. 252; and the cases of Wadsworth v. Morris, and Van Kleeck v. The Reformed Dutch Church, there cited.) Chancellor Walworth, who delivered the opinion of the court in the principal case, thought such a precedent would lead to great abuse in a court where the members were often changed. That remark applies much more strongly to this court, than it did to the court of errors ; for here one half of the members, at the least, are changed annually, while in the court of errors the change was not more than one fourth annually. In this very case only one half of the judges who are now sitting upon this motion were members of the court when the case was decided ; and only three of the present judges heard the argument and took part in the decision. It will be seen that the court of errors, in the cases which have been cited, went beyond the question of expediency, and denied the legal power to grant such a motion. It is true that those cases are not directly in point; and it must be admitted that no such case can be found; but it is for the reason that this is the first time that any one has ever attempted to go behind the public act of the court, and impeach its judgment by inquiring what was said or done among the judges out .of court.

Should it, however, be granted that such a thing may be done, the next answer to the motion is, that the alledged facts on which it is founded have not been proved. No legal evidence has been furnished that there was any difference of opinion among the judges, either in or out of court'; nor is there any legal proof that the impeached judge took part in making • the decision. The plaintiff says he has been informed and believes that only five judges voted for the reversal, and that the disqualified judge was one of the number. And the counsel tells us, in his affidavit, that he was “ busy for near a month in finding out who had voted, and on what grounds;”, that he went to Albany, and there learned, from an entry in a small book kept by the presiding judge, [meaning, I presume, the chief justice,] the names of those who had voted to reverse the judgment;” whose names, five in number, are then given : and he was informed of certain other things, which he believes to be true, all tending to show that only five judges concurred in the reversal—the disqualified judge being one of the number. It is a sufficient answer to this, that mere information and belief is not legal evidence: it proves nothing. How the counsel came by the “ small book” is not stated, nor is it important to inquire; for what he learned from the book is no better than the hearsay evidence.

..Although, as a general rule, information and belief is not legal evidence, it may under certain circumstances furnish sufficient ground for granting a motion. If, for example, the moving papers state upon information and belief the existence of a fact, the truth or falsity of which lies in the knowledge of the party who is to answer, and he gives no answer, there is then reasonable ground for presuming the existence of the fact.. But that rule can have no application in this case, for the obvious reason that neither the defendants nor their attorney, on whom the papers for the motion were served, can be supposed to know what took place among the judges when they were advising by themselves, out of court, concerning the judgment which should be rendered. We have no right to presume that they laid their ears to the key hole, or attempted in any other way to pry into the minds of the judges when they were in conference upon the case. And it will not, I suppose, be expected that the judges will leave the bench, and make affidavits in answer to the information and belief of the plaintiff or his counsel. When they consent to do such an act, they will merit the contempt which they will be sure to receive.

I repeat, therefore, there is no legal evidence on the points which have been mentioned; and I shall make no presumption for the purpose of impeaching either the judge or the judgment.

Enough has been said to dispose of the motion; but it is due to the judge whose acts have been called in question, if not to the counsel who made the motion, that I should go a little further. And now I will assume, what has not been proved, that the judge .did take part in the decision of the cause, and that there would not have been five voices for the reversal without him.

The first ground of impeachment is, that the judge did not hear the whole of the argument—having been out of court the whole or the greater part of one of the three sittings which were occupied with the discussions at the bar. For the purpose of making out this allegation the counsel has not only given his own recollection and belief, but he has got a letter from the deputy clerk, who knows nothing about the matter, and affidavits from two or three gentlemen who were attending the court at the time, tending to show that the judge was out of court during the forenoon sitting of Saturday. It seems also that the judge has been applied to on this subject, and that he has written a letter to the plaintiff’s counsel, saying, in substance, that he was out of court for a brief period, or a small part of the forenoon sitting on the second day of the argument [Saturday] in consequence of illness; and, as he learned from one of his associates, nothing material was said in his absence, except in reference to a supposed defect in the record, of which the court took no notice in giving judgment. The affidavit of the counsel for the defendants goes to show, that the judge was out of court for only a small part of the forenoon sitting on Saturday. But whether it was half an hour or half a day, it was for the judge to consider whether he had heard enough of the argument to make it proper for him to take part in the decision; and no one else has the right to meddle with that question. I can not but feel abased at finding it necessary to state that such a matter has been brought before the court. If any countenance should be given to this experiment, we may expect to have spies set over us to watch our going out and coming in; and the judiciary will soon be too deeply degraded to be any longer a useful branch of the government. When the judges cease to be respected, there will be an end to the successful administration of justice.

The remaining ground of impeachment is, that the judge was second cousin to the Messrs. Aspinwall. If we stop here, the judge could not properly sit in the cause. But I am not prepared to admit that the judgment would therefore be void. We have been referred to several cases where the judgments and proceedings of inferior courts and officers, exercising special and limited powers, have been held void on account of the interest of the judge or officer in the subject of the suit, or his relationship to one of the parties. But no authority has been produced, nor have I met with any, which holds that doctrine in relation to a court of superior and general jurisdiction. It is well known that one whose name and memory we all venerate sat in our court of chancery when his relative within the forbidden degrees was a party to the suit; and the same thing was done by the late chancellor; (see 2 Barb. Ch. R. 39;) and yet no one ever thought that the decrees which they made were void. Those are much stronger cases than this ; for there the chancellor sat alone; while here, the judge was only one among eight members of a court, which clearly had jurisdiction. I do not pretend to be wiser or more virtuous than those who have gone before me; and until an authority can be produced for holding the judgment of a court of superior jurisdiction void because one of the several judges was under a personal disqualification, I shall hold such a judgment valid.

But I shall not leave the judge open to the censure which might possibly fall upon him from the partial statement which has thus far been made of the facts. Although the Messrs. Aspinwall were related to the judge in the sixth degree, they were sued as sureties for one Baker; and they were fully indemnified, by the deposit of money and securities, against all loss or damage in the premises, and had no personal interest whatever in the suit. The objection to the competency of the judge to sit, if it had the least possible force—which I very much doubt —was one of mere form, without one particle of substance in it.

That is not all. If there was the slightest ground for excepting to the competency of the judge, the objection was expressly waived by both parties before the argument came on. The judge was assured that his relatives, though parties to the record, had no interest in the suit; and the counsel on both sides united in requesting him to sit before he would consent to do so—the request on the part of the plaintiff coming from the very counsellor who has appeared here with affidavits and arguments to impeach the conduct of the judge for yielding to his request. If the counsel was not estopped by the law of the land from making such a motion, he must allow me to say, that the laws of honor and decency forbid it. But he was estopped by the law of the land. He was not at liberty first to invite a judge to sit—especially one to whom there was no substantial objection—and after taking the chances of having an opinion in his favor, turn round, when he found the opinion to be the other way, and repudiate his own act. The common law loves honásty and fair dealing, and never approves a different course of conduct. In all my experience—and there is no vanity in saying it has not been very smalF—I have never known a motion granted which had its foundation in a breach of the obligations of good faith.

I’hardly need say that the party is concluded by the acts of his counsel.

But we are told that consent will not confer jurisdiction: and that is true when applied to subject matter, or.to the case of a party who can not sue or be sued in an inferior court. But nothing is more common than that jurisdiction over the person is acquired by consent, instead of regular process, even in inferior courts. And besides, this is not a question of jurisdiction. That did not belong to any one judge, but to all of them collectively—in other words, to the court; and although one judge may have been subject to exception, it is not denied that the court had jurisdiction. The question then was not one of jurisdiction ; but whether the judge was not subject to a personal disqualification to sit in that particular case. Most clearly such an objection might be waived by the parties. Nothing is more common than for the parties to waive an objection, on the ground of interest or relationship, to a juror, or to agree, when one of the panel becomes sick or js absent, that eleven jurors may render a verdict. No one would think of calling the verdict void in such a case. And if that may be done in relation to a juror, it can not be doubted that it may be done in relation to one of the judges. Whether it is expedient for a judge to sit in such a case is a question for himself; and there will be no just ground for censure whichever way he may decide. For myself, I have deemed it prudent to refuse to sit where I either had any inter est, or was related to one of the parties, although both united in requesting me to act. But I never doubted that I might lawfully act, and pronounce a valid judgment in such a case—even when I was sitting alone, as a judge of the supreme court.

We are referred to the case of Coffin, executor, v. Tracy, (3 Caines, 129,) where a judgment confessed before a justice of the peace was held void. But it was on the ground that an executor could neither sue nor be sued in a justice’s court; (see Way v. Cary, 1 Caines, 191;) and not on account of any disqualification in the magistrate. It has been held in Vermont that a judgment confessed before a justice of the peace was void, where the justice owned the demand, and was himself the plaintiff in interest; (Bates v. Thompson, 2 Chip. 96;) and also that a judgment confessed was void where the justice was related to the plaintiff. (Hill v. Wait, 5 Verm. 124.) Now, whether these cases were decided right or not, they are plainly distinguishable from this. They were judgments before inferior magistrates, having only special and limited powers. The jurisdiction, moreover, belonged to a single magistrate, and not to a court of which he was a component part. And finally, there was nothing in either case but the confession of judgment from which to infer a waiver of the objection to the magistrate ; and the confession furnished no just ground for inferring a waiver, because there was no proof that the defendant knew of the disqualification of the magistrate at the time of the confession. Here, we have the case of a judge of a superior court; the court itself having unquestioned jurisdiction, and the objection to the judge being expressly waived. There is no color for the argument that the judgment is void ; and no right minded man can fail to see, that the judge is entirely free from all just ground of censure.

I have said that there was no precedent for this motion ; and that was true when my opinion was prepared. But since that time a motion having some of the same features has been made and denied; (Mason v. Jones, ante, p. 375;) all of the judges concurring in the decision.

It may be proper to add, that the views which I entertain of the motion have been fully submitted to the consideration of my associates. Whether those views have been, or can be, successfully answered, will be judged of by others.

Judges Jewett and Harris concurred in opinion that the motion should be denied. Judge Taylor, not having heard the argument, gave no opinion.

Judges Ruggles, Gardiner and Pratt concurred in the opinion delivered by Judge Hurlbut in favor of granting the motion.'

In this stage of the case a question arose whether four judges against three could grant a motion. This involved an inquiry whether the court could be held by less than eight judges. The Chief Justice and Judge Jewett dissented also on that question, the former delivering his opinion as follows:

Bronson, Ch. J.

A question has arisen whether this court can be held by less than eight judges. The people have, I think, settled that question too plainly to leave any room for mistake. The words of the constitution are—“ There shall be a court of appeals composed of eight judges, of whom four shall he elected by the electors of the state for eight years, and four selected from the class of justices of the supreme court having the shortest time- to serve.” (Art. 6, § 2.) The court—-the only court of appeals for which the constitution provides—is by the express terms of the instrument to be composed of eight judges and this number is in effect repeated, by specifying two classes of four judges each of which the eight shall be composed. There is no such provision, as is usual in such cases, that a smaller number shall constitute a quorum ; and the language is too plain and explicit to leave any thing for construction. If any one affirms that the court may be composed of one, two, six or seven judges, the constitution answers, that it shall be composed of eight.

It is not necessary, however, to lay any stress on the mere form of words; for wherever a power or authority is delegated to several persons, without any provision that'it may be exercised by a smaller number, they must all join. It is not necessary to add any thing to make the power joint: it is so in its very nature. But it is not several as well as joint, unless made so by express words. The rule that all must join is, however, subject to this qualification: when the thing to be done is matter of public concern, as the holding of a court, if all meet and consult, a majority may decide. But where the thing to be done is for a private purpose, as the making of an award, all must not only meet, but all must concur in the decision. (Green v. Miller, 6 John. 39; Ex parte Rogers, 7 Cowen, 526, and note, p. 530; McCoy v. Curtice, 9 Wend. 17; Downing v. Rugar, 21 id. 178; Crocker v. Crane, id. 211; Woolsey v. Tompkins, 23 id. 324 ; 7 Cowen, 410, note ; 2 R. S. 554, § 26.) It is never sufficient for a majority to meet, although the thing to be doné be of a public nature, unless it be so provided in the delegation of authority.

The inconvenience which might follow, and the possible failure of the end to be accomplished if all should be required to attend, has generally led to a provision that the authority, if of a public nature, might be exercised by a majority of the body, or some other number less than the whole. I have examined nearly all of our constitutions, state and national, and in every one which has been examined there is a provision that the majority of the several legislative bodies, or some other number less than the whole, shall be a quorum for doing business. And with the exception now under consideration, whenever provision is made for a court to be composed of a specified number of judges, it is also provided that a majority, or some other number less than the whole, may hold the court. Under the ordinances of 1699 and 1704 establishing our supreme court, any • one of the judges might hold the court. And no change was made by the constitution of 1777. It was not until 1821 that the constitution specified the number of judges of which the supreme court should consist} and it was then declared that any one of the three might hold the court. And when the constitution of 1846 provided for a supreme court of thirty-two judges, it was added, that three judges might hold the court for certain purposes, and one judge for certain other purposes. There is also a provision in the present constitution that a less number than the whole may hold the court for the trial of impeachments ; and there was a similar provision in relation to that court, and the court for the correction of errors, in the constitutions of 1787 and 1821. These provisions show very plainly the sense of those who have gone before us. Every convention which has ever assembled in this country to form a constitution, including our own convention of 1846, has, I believe, plainly affirmed the principle, that where a power or authority was conferred on a legislative or judicial body composed of a specified number of members, it was necessary to provide that the power might be exercised by a less number, if such was the intention: and if there is any authority for saying that a majority, or any number less than the whole, may act without an express declaration to that effect, it has not fallen under my observation.

The federal constitution provides that the judicial power of the United States shall be vested in one supreme court; but does not specify the number of judges of which the court shall be composed. Of course that matter was left to the decision of congress; and when congress determined by the judiciary act of 1789, that the supreme court should consist of six judges, it was added, that any four of them should be a quorum. (1 Story's Laws U, S. 53.) Here we have another recognition of the principle that it is necessary to provide for a quorum in the delegation of judicial power—principle which has been many times asserted by the wise men of the nation; and which has, I think, never been denied down to the present day.

It has been suggested, and for aught I know such may be the fact, that the convention which framed the present state constitution forgot to make the usual provision in such cases for a quorum of the court of appeals. But what then 1 If it could be proved that the omission was an oversight on the part of the convention, it would not help the matter. The fact would still remain that the people adopted the instrument as it is; and whatever may be its defects, it is still the fundamental law, which no power but the people themselves has the right tc amend or alter.

If the framers of the constitution forgot to provide for a quorum of the court of appeals, it is quite clear that neither the legislature nor the court has power to supply the defect: and if the framers of the instrument considered the question and did not provide for a quorum, it is equally clear that they intended all should sit«

The legislature has said that six judges of the court of appeals shall be necessary to constitute a quorum; (Stat. 1847, p. 321, § 6;) but it has been very careful not to say how many more are necessary, or that six shall constitute a quorum. And so long as six are not eight, it is not probable that the legislature ever will say that six judges may compose a court which the constitution declares shall be composed of eight. But should such a law be passed, it will be a palpable violation of the constitution, and the judges will be bound by their oaths of office to declare it void.

We are referred to the 25th section of the article relating to the judiciary, which declares, that the legislature, at its first session after the adoption of this constitution, shall provide for the organization of the court of appeals,” and for bringing causes into it from other courts. This is not a power to form or organize a court of appeals, but a power to organize “ the court of appeals,” meaning beyond all room for doubt or question, the “ court of appeals composed of eight judges,” which had been instituted by the second section, and which is the only court of appeals mentioned in the constitution. The action of the legislature was necessary to set the court in motion. Its terms, place of sitting, and mode of exercising jurisdiction, were to be provided for by law. And it was further necessary to determine which four of the eight justices of the supreme court having the shortest time to serve, should compose part of the court of appeals in each particular year. The power to organize has matter enough to feed upon, without making it nullify the second section, with which it does not conflict in the slightest degree. A power to organize a court, which those who delegated the power have declared shall be composed of eight judges, does not, upon any just rule of interpretation, include an authority to restrict or limit the number of judges. It is a power to do the necessary things to set the court of eight judges in motion ; and nothing more.

If the power to organize includes an authority to reduce the number of judges, then, as the power is without any restriction, the legislature can provide that one judge may. hold the court. There is no escape from this conclusion. The people of this state would, I think, be astonished to learn, that they have au-. thorized the legislature to organize a court of last resort composed of one judge.

It is highly probable that inconveniences will result from following the constitution as it is written. But that consideration can have no weight with me. It is not for us, but for those who made, .the instrument to supply its defects. If the legislature or the courts may take that office upon "themselves ; or if under color of construction, or upon any other specious ground, they may depart from that which is plainly declared, the people may well despair of ever being able to set a boundary to the powers of the government. Written constitutions, will be worse than useless.

. Believing, as I do, that the success of free institutions depends on a rigid adherence to the fundamental law, I have never yielded to considerations of expediency in expounding it. There is always some plausiblé reason for the latitudinarian constructions which are resorted to for the purpose of acquiring power—' some evil to be avoided, or some good to be attained by pushing the powers of. the government beyond, their legitimate boundary. It is by yielding to such influences that constitutions are gradually undermined, and finally overthrown. . My rule has ever been to follow the fundamental law as it is writ-, ten, regardless of consequences. If the law does not, work well, the people can amend it; and inconveniences can be borne long enough to await' that process.. But, if the legislature, or the courts undertake to cure defects by forced and unnatural constructions, they inflict a wound upon the constitution which nothing can heal. One step taken by the legislature or the judiciary in enlarging the powers of the government opens the door for another, which will be sure to follow; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.

I am of opinion that the court of appeals must be, as it now is in fact, composed of eight judges—that no smaller number can hold the court; and consequently that it requires the concurrence of more than four judges to grant this or any other motion; and in this opinion my'brother Jewett concurs. .

But the other judges, including Judge Taylor, were of opinion that the court might be held by less than eight judges; and consequently that a majority of the seven who heard this motion might grant it.

The six judges declined passing upon the question whether the legislature could authorize one judge; or any other number less than a majority, to hold the court.

They also declined passing upon the question whether the meaning, or just force of the constitution.is, that the court may be held by a majority of the eight judges. The Chief Judge said it was necessary to decide that question; for if the meaning of the constitution is, that a majority of the judges may hold the court, the legislature can not say that a greater number shall be necessary to constitute a quorum; nor can they say that a majority of a legal quorum shall not decide. Then, after setting aside the disqualified judge, there were still six judges—a legal quorum—who heard the argument in the principal case, and four—a majority of the quorum—concurred in the judgment of reversal. In this view of the case the judgment stands wholly unimpeached, and the motion should be denied.

But the six judges said' it was not necessary to decide that question; and it was thereupon

Ordered, That the judgment of reversal rendered in this cause in December last be vacated, and that the cause be re-argued.