text:
    SAMUEL GORDON AND WIFE ET AL. v. STEPHEN BARKELEW ET AL.
    1. A deed in the form of bargain and sale, in consideration of SI and of love and afiection, to one son, his heirs and assigns forever, to have and to hold to the use and benefit of the said son. and his wife and their heirs and assigns forever, is, unless a different intention can be made to appear, an advancement to the son.
    2. A father put one of his sons in possession of lands, which he occupied twenty years, and then sold; and the father made the deed to the purchaser, ’wd the son received the consideration money. Meld, tobe an advancement.
    3. A father put a son in possession of a house and lot, which the son occupied during the father’s life — more than twenty years — and on which, with the knowledge of the father, he made large improvements. If the value of the house and lot, without the improvements, be not equal to a share of the whole real estate to be divided, the house and lot may be set ofi^ in the division, to the son, at its value without the improvements.
    4. If the value of the house and lot, without the improvements, be greater than a share, the house and lot may be set off to him, and he be directed to pay so much as will equalize the shares.
    5. A child who has received an advancement cannot be compelled to pay anything on account of it to the other children.
    Bill for partition of the real estate late of Runyon Barkelew, deceased. It was filed by Samuel Gordon and Abigail his wifi*, John D. Servís and Elizabeth his wife, and Ann Rue — the said Abigail, Elizabeth and Ann being daughters of the said Barkelew, deceased — against Vincent Barkelew and Stephen Barkelew, sons of the said deceased, and the children of Abraham Barkelew, another son of the said decedent, who is dead.
    The bill describes the real estate of which partition is sought, consisting of several tracts, one of which is described as a house aud lot in the occupancy of the defendant, Vincent Barkelew, a son of Runyon Barkelew, deceased, and states that about, the year 1810, Runyon Barkelew, since deceased, advanced Abraham by conveying to him and his wife, jointly, in fee, a farm called the. Dunham farm, containing about 100 acres. That Abraham, wishing to make improvements on the said farm, with moneys which had come to him through Jane, his wife, and she' being unwilling that said moneys should be used for that purpose unless the said Abraham would give her some interest in the land, agreed to give his said wife an interest in the farm, and procured the deed from his father for the said farm, to be made to him and his said wife jointly. That many years ago, the said Runyon Barkelew, deceased, also gave and advanced to his said son Stephen two parcels of land, describing theta, both of which Stephen took possession of and occupied as his own, but without having any deed therefor, for upwards of twenty years, when he sold them to William Messier, for $870, which he received to his own use, Ms father, at his request making a deed therefor to the purchaser. That the said Ruayou Barkelew, deceased, also, iu his lifetime, gave and advanced to the complainant Elizabeth a lot of land, of eight acres, which was conveyed to trustees for her use during her life and after her death to her heirs. That the lands so given to Abraham, Stephen and Elizabeth were intended by the said Runyon Barkelew, deceased, and received by them as advancements. The bill then states certain facts as evidence that advancement was intended,
    Vincent Barkelew put in an answer to the bill. He admits the facts stated in the bill, except as follows: as to the allegation, in the bill, that Runyon Barkelew, deceased, in his lifetime, made a statement in writing of the amounts at which he valued the real estate given by way of advancement to his sons Abraham and Stephen, and which he, the said Runyon, intended should be deducted from their respective shares of his real estate, as in the bill is charged, this defendant says he is entirely ignorant of any such statement having been made, aud that he neither admits nor denies it. That, as to the house and lot in the bill mentioned as being in the occupancy of this defendant, he says that the said premises consist of a lot of land, with a dwelling-house and out-buildings thereon, and a wharf; and were purchased by the said Runyon Barkelew, deceased, from one Dunham, about the year 181 l,for $2250. That the said premises were, when so purchased, and had been for some time before, iu the occupancy of this defendant, who had then just come of age and commenced business for himself. That the said Runyon Barkelew, deceased, having it then iu contemplation to make advancements out of his real estate to this defendant as well as to his two other sons, Abraham and Stephen, consulted with this defendant as to the purchase of-the said property for this ■defendant; and that, it being deemed suitable for this defendant, the said Runyon Barkelew purchased it, and gave it to this defendant. That the said gift was absolute, and was intended by the said Runyon Barkelew as an advancement out of his real estate to this defendant, it being at the time deemed equivalent in value to what would be the equal share of this defendant in the real estate of the said Runyon at his decease. That at the time the said purchase was made, the said Runyon proposed to this defendant that the deed for the said property should be made to this defendant; but that, having just entered into mercantile business, he declined taking the deed in his own name, and suffered it to be made to the said Runyon, his father. That from that time to the present, a period of more than thirty years, the said property has always been possessed by this defendant, and claimed and considered as his own ; and that the said Runyon, also, in his lifetime, always treated and considered it as belonging to this defendant. That when the said property was so purchased from Dunham, the whole of the purchase money was not paid; but that a mortgage on the property was given to Dun-ham for a part thereof. That this mortgage remained unpaid several years, during which time this defendant paid to Dunham the interest theteon; and that when the mortgage was finally paid off, he, this defendant, paid a portion of it, though he is unable to specify precisely the amount he paid, having never kept any account thereof. That he made large and expensive improvements on the property, at his own expense, and, in the year 1816, built a wharf on the premises, 300 feet long and eight feet high, at a cost of $2000. That in 1822 he expended $1100 in repairing the said wharf, and that, in 1840, he expended the further sum of $200 in repairing the same. That in 1828 and 1829, he repaired the dwelling-house and built a large addition thereto, consisting of two rooms below, four rooms above and a cellar ; and that he also built a wagon-house, smokehouse and lime-house thereon, the whole of which cost $1000. That the said improvements have rendered the said properly of double the value it was when it was purchased, and were made in reliance on the gift of the property, so made to him. That the value of the said property when purchased does not exceed his equal share of the real estate of the said Runyon, on a division of the said real estate including the said property; and that tlie said property could not be divided without great detriment to the value thereof. He claims to hold the said property against any claim of the other heirs, but, if he has not a right so to hold it, he submits that in any partition of the real estate of said Runyon Barkelew, deceased, the said premises should be assigned to him; he submitting that if the original value of die premises, excluding the improvements, exceeds his equal share, he will pay the excess.
    The joint and several answer of the other defendants, except Stephen, was also put in. They admit the conveyance, in the year 1810, by Runyon Barkelew, deceased, to his son Abraham, and Jane, the wife of Abraham, as joint tenants, in fee, of the .Dunham farm, for the consideration of love and affection and of $1. They say they neither admit nor deny that the said Runyon, deceased, advanced to his son Stephen the lands in that respect mentioned in the bill, they knowing nothing on the subject, of their own knowledge; and they leave the complainants to prove, &o. That they neither admit nor deny the pretended advancement alleged to have been made to Elizabeth Lewis, or for her use, but leave the complainants to prove the same. But they deny that the conveyances and sale by Runyon Barkelew, deceased, to his sou Abraham, were intended by said Runyon as an advancement out of his real estate to his son Abraham, or were received by Abraham as such advancement.
    The defendant, Jane Barkelew, widow of Abraham, answering for herself, says that, being one of the grantees of the said 100 acre tract conveyed to Abraham and her jointly, she was consulted in all matters touching the said conveyance, and took a principal part in the matter ; and that she never heard it mentioned by any one, at the time, that the said conveyance was to be considered as an advancement to Abraham, and for which he was to account after the death of his father. That if there had been any such understanding, the said conveyance would never have buen made or received. That before, and at the time of the said conveyance, her said husband was desirous of removing from the village of Washington, where his said father resided, and had purchased property in New Brunswick, with a view of removing thither, and had made arrangements to do so. That-said Runyon urged and insisted that Abraham should not leave him, but should remain with or near him to assist him in his affairs, and voluntarily offered and proposed to give and convey the said lands to Abraham, if he would consent to live thereon, and assist him in the business and affairs of the said Runyon. That she objected to receiving the said deed and the lands thereby conveyed. That the said Runyon expressly told her, that if she and her said husband would consent to take the said lands and reside upon them, Abraham’s share in the remainder of his estate should not be any the less in consequence of the said conveyance. That the said proposition and request of Runyon were yielded to with reluctance at the time, because her said husband and she were very anxious to go elsewhere, and because the said lands were, at the time, very poor and unproductive, and scarcely worth cultivating. That when the conveyance was made, it was absolute; the consideration money was paid, and not a word was said, by any one, about its being an advancement. That, sometime previous to the death of the said Runyon, the complainant, Samuel Gordon, as these defendants understood, caused it to be told in the neighborhood that the said conveyance was intended as an advancement, and that she, the said Jane, in the presence of the defendants, Mary Barnes, Abraham Barkelew, and William Barkelew, inquired of the said Runyon if such story was true, that the said conveyance was intended as an advancement, to be afterwards accounted for by the said Abraham; and that the said Runyon then and there declared that the said representations were not true; that the said conveyance was not intended as an advancement to be afterwards accounted for; and that they need not give themselves any further trouble about the matter. And this defendant denies, so far as she knows or believes, that the said Runyon, in his lifetime, ever caused or directed the complainant, Samuel Gordon, to make a statement in writing of tlu> amounts at which he, Runyon, valued the lands alleged to have been advanced, as aforesaid, by way of manifesting his intention in regard to the said conveyance. She denies that he ever kept or made any record or memorandum touching the said conveyance to Abraham; and charges that if any such paper was found among his papers, it was the unauthorized device of the said Samuel Gordon or of some other person or persons ; and she denies, as far as she knows or believes, that Abraham was present at the time of making such written stateme.it and assented thereto and acknowledged the same to be correo*. She insists that the representatives of Abraham are entitled to their full share of the real estate of which the said Runyon died seized, without any regard to the said conveyance made to Abraham ; which, she submits, was made for the considerations aforesaid, and not as ati advancement to be accounted for by Abraham or his representatives.
    The defendant Stephen Barkelew did not answer the bill, and a decree pro oonfesso was taken against him.
    A deed from Runyon Barkelew and his wife to their son Abraham and Jane his wife, dated June 18th, 1810, of a farm of 100 acres, for the consideration of §1, and natural love and affection, io have and to hold to the said Abraham, his heirs and assigns forever, to the only proper use, benefit and behoof of him, the said Abraham, and Jane his wife, their heirs and assigns forever, was exhibited on the part of the complainants.
    It was proved that Abraham took possession of this farm.
    Henry Gordon, a witness called for the complainants, testifies, among other things, that about two years before Runyon Barkelew’s death, he saw in said Barkelew’s hand the paper marked Exhibit B on the part of the complainants. That said Barkelew, his sight being then defective, handed certain papers to the witness to read and state the contents (hereof to him, the said Barkelew. That among the said papers was the said Exhibit B, or one very similar to it.
    On his cross-examination, he says he has no doubt that the paper marked Exhibit B is the paper he saw in said Barkelew’s possession.
    The witness says he is acquainted with the property charged in Exhibit B to "Vincent, a son of Runyon Barkelew. Tie further says that, independent of the paper Exhibit B, he should have recollected that Vincent, Abraham and Stephen were charged with property on that paper.
    Henry Shults, sworn for the complainants, says he was one of the administrators of the personal estate of Runyon Barkelew,. deceased ; that he saw Exhibit B when they were taking the inventory. They found it among the papers of the said Runyon, there described. Exhibit B is a memorandum, dated October 11th, 1836, in which Vincent, Abraham and Stephen are charged as Dr. to the estate of Runyon Barkelew; Vincent Barkelew to the house and lot in the village of Washington which he “ now occupies”.......................................................... $2250 Henry Obert’s lot................................................ 1005 Abram Barkelew, to farm.................................. 1500 Stephen Barkelew, to lot of land of Robinson Thomas, $450; one lot of Forman Throckmorton, $400; cash, $300.
    No evidence was produced on the part of the representatives of Abraham, in support of the allegations of their answer, on which the said answer claims that the farm deeded to Abraham and his wife should not be considered an advancement.
    . As to the house and lot in Vincent’s possession, which the bill includes among the property a partition of which is sought, the testimony shows that Vincent has been in possession of it about 35 years, and that he expended large sums of money on it, in the lifetime and with the knowledge of Runyon Barkelew, deceased, in building out-houses on it and an addition to the dwelling-house, and in building a wharf on it at great expense; but that his father never made a deed to him for it.
    As to the two lots stated in the bill to have been advanced to Stephen, the testimony supports the charges in the bill.
    The cause was heard on the pleadings and proofs.

      Henry V. Speer, for the complainants.

      John Van Dyke, for the representatives of the deceased son Abraham.
    Cases cited for the complainants: Roberts on Fraud. Convey

      ances 74, 75, 373; Ib. 40, note 3 ; Stark. Ev. 1004; 16 John. Rep. 47 ; 7 Ves., Jr., 519 ; 1 Penn. Rep. 291; 3 Paige 546.
   The Chancellor.

There is nothing in the proofs in the cause to overcome the evidence furnished by the deed from Runyon Barkelew, since deceased, to his son Abraham, since deceased, and the wife of Abraham, that the farm conveyed by that deed was an advancement.

A deed in the form of bargain and sale, from a father, in consideration of $1, and of love and affection, to one of his sons, his heirs and assigns forever, to have and to hold to the use and benefit of the said son and his wife, and their heirs and assigns forever, is, unless a different intention can be made to appear, an advancement to the son. 2 Atk. 635.

As to Stephen’s right in the descended estate, his father put him in possession of lands, which he occupied twenty years and then sold, and the father made the deed to the purchaser and Stephen received the consideration money. I think this, also, must be held to have been an advancement to Stephen.

As to Vincent, the father put him in possession of a house and lot, thirty-five years ago, which ho has occupied ever since, and on which, with the knowledge of his father, he has made large improvements at his own expense. Whether this is to be considered an advancement or not may not be material. It will not be materia] if the value of the house and lot, without the improvements, be not equal to the value of what would be the share of Vincent in the whole real estate to be divided, including the house and lot, for the court, under the circumstances, would direct the house and lot to be assigned to Vincent, at its value without the improvements. If its value without the improvements be greater than his share as aforesaid, then it will be necessary to determine whether it was an advancement. If it was, then he could not be compelled to pay anything to the other heirs on account of it. But if it was not, the court would direct the house and lot to be assigned to him on his paying the excess of its value over a share, such excess to be so divided among the heirs as to equalize their shares.

A partition will be decreed, and to that end, and before directing a commission to make the partition, the proper reference will be ordered.

Order accordingly.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    SAMUEL LANNING v. ISAAC COLE.
    1. S. L. being seized of lauds which were encumbered by mortgage and judgments, made a will devising the same. The lands were afterwards sold under the executions issued on the judgments, and bought at the sheriff’s sale by I. 0. An agreement was afterwards made between I. 0. and S. L. that on S. L.’s paying to I. C. the amount of the purchase money, and interest thereon, in six months, I. C. would convey the premises to S. L. S. L. filed his bill, stating that he had tendered the money required by the said agreement and demanded a conveyance, but that I. 0. refused it, and praying a decree for the performance of the agreement.
    2. An opinion was pronounced in favor of the complainant, but before the decree was signed the complainant died. Leave was given to file a bill of revivor. Held, that the heirs-at-law of S. L. were the proper persons to revive or prosecute the suit; that the executor and the persons interested in the personal estate under the will of S. L. should be made parties.
    3. A, owning land, makes a will devising it. The land is afterwards sold on execution. An agreement is then made between the purchaser at the sale on execution and A, that the purchaser, on A’s paying him what he gave for the property and interest on it in six months, will convey the property to A. A afterwards died. Held, that the interest acquired by A in the land under the said agreement did not pass by the will.

      4. A will, as to land, speaks only as of the time of making it; as to personalty, it speaks as in articulo mortis.

    In July, 1840, Samuel Lanning exhibited his bill, stating that he was lately seized in fee of lands in the city of Camden, on which he had erected six three-story dwelling-houses, at a cost of ■ $12,000, independent of the value of the laud, and that the same will rent for the interest of $20,000; that he had encumbered the premises by a mortgage of $3500, and that there were other liens thereon, by judgments, exceeding $2000; that executions were issued on the judgments, to the sheriff of Gloucester, and that the said sheriff, on the 3d October, 1839, proceeded to sell the whole of said premises in one parcel, The bill states that the advertisements and adjournments of sale made by the sheriff were irregular, and insists that the whole proceedings of the sheriff were unlawful. That the whole property was struck off in one parcel, and sold to the defendant, Isaac Cole, for $3080. The bill states that Cole, on the day of the sale, circulated divers false representations as to the complainant’s title to the premises, (stating them,) thereby depreciating the-value of the premises, and discouraging persons from bidding. That so flagrant was die conduct of Cole and the sheriff, in reference to the sale, that the complainant resolved to impeach it as fraudulent, and to prevent the delivering of a deed ; and that Cole, being aware thereof, made several proposals to him, and, on the 28th November following, entered into an agreement in writing with the complainant, under his hand and seal, by which he agreed that, the complainant should have six months from the 26th October preceding to raise the amount of t he purchase money paid by Cole, and the costs and expenses incident to the sale, with interest; an;! that on the payment thereof, he, Cole, would convey the premises to the complainant, provided he, the.coinplainant, should raise the money on mortgage of the premises for the term of five years and for his sole benefit, ; the said Cole to have, from the date of the agreement, the possession of the premises, and to receive the rents thereof; and that on the re-payment of the purchase money, &c., as aforesaid, he should account for the rents, after deducting repairs, That on the delivery of the said agreement to the complainant, he permitted Cole to take possession. That on the 25th April, 1840, he tendered to Cole the amount required by the said agreement, and demanded a reconveyance, but that Cole refuses, &c.

    The bill seeks a specific performance of the agreement.
    The defendant answered the bill, and depositions were taken; .and the cause was brought to hearing on the pleadings and proofs, before Chancellor Pennington, and at the October term, 1842, the Chancellor pronounced an opinion.
    Oil the 11th July, 1844, on its being made to appear that the complainant had died after the opinion was pronounced, no decree having been signed, and on motion in behalf of Joseph Porter, administrator oum. test, annex, of Samuel Lanning, Chancellor Haines made an order granting leave; to file a bill of revivor, &c., on that day, for the purpose of reviving the suit in the name or names of some proper complainant or complainants, without prejudice to the question of the right of the complainant to file such’bill.
    On that day a bill was filed by Joseph Porter, administrator with the will annexed, stating the filing by Lanning, on the 20th July, 1840, of an original bill against Cole, and referring to that bill for the contents thereof, and the issuing of process thereon ; and that the defendant thereto answered the said bill; and that such proceedings were had iu that cause that at the October term, 1842, of this court, the Chancellor delivered an opinion in favor of the complainant therein; and that the agreement set forth in the said original bill should be specifically performed ; and that it should be referred to a master to ascertain, &e. That after the said opinion was delivered, a dratt of a decree, in conformity thereto, was prepared, (setting forth the draft.) That before the said draft was signed, and on the 10th September, 1842, Lanning died, leaving a will, of which Amos Bullock was thereby appointed executor. That Bullock renounced the executorship, and that on the 6th February, 1843, administration with the said will annexed was granted to the said Joseph Porter. This bill then states that the said Lanning, being seized of the said property at the time of the making and publishing of his said will, and up to the time of the sale thereof by the said sheriff, did, by the said will, give and devise the same to the executors therein named, in trust, until the youngest child of his son Paul shall attain 21 years, to be rented out by his executors, and the rents, after defraying the expenses of repairs, to be disposed of as follows: $50 annually to be paid to his grand-daughter, Mercy Lanning, and $50 a year to eacli of h's grand-children, Charles, Sarah, Hannah, Ann and Samuel Lanning, children of his son Paul, after they shall respectively attain 21 years, until the youngest child of his sou Paul shall attain 21 years; and the remainder of the net proceeds he directed his executors to pay, annually, to his daughter-in-law, Rachel Lanning-, for the purposes therein mentioned, and he directs the executors to «ell the property when the youngest child of Paul shall attain twenty-one years, and to divide the proceeds of the sale into eight equal parts, and to pay one part to the said Rachel, wife of liia son Paul; but if she dies before the sale and division, to pay this share to her children, except the daughter Mary; the will disposing of the other shares among the children of Paul some of whom are minors.
    The bill then states that the said original suit abated by tlw death of the said Samuel Lanning, and that the complainant, Porter, as he is advised, is, as administrator with the will of said Panning annexed, entitled to have the said suit revived against the said Cole, and to have a decree therein perfected and carried into effect, in the same manner as the complainant, Lanning, if living, might have liad.
    To this bill the defendant demurred.

      Wm. N. Jeffers, m support of the demurrer.

      Abraham Browning and William Pennington,, contra.

    They cited Story's Eq. Pl., §§ 354, 356, 626, note 5, 378, 379, 380; 1 Green's Ch. 363.
   The Chancellor.

The question involved in this case mast be decided on the principles which would be applicable to it if Samuel Lanning had never had any interest in this real estate except what Cole's agreement to convey it to him gives. The-sale of the property by the sheriff divested him of the interest he theretofore had in it. No proceeding to set aside the sale was had; and for the purposes “of the present inquiry that sale must be taken to have been valid. The interest which Lanning acquired in the lands under the agreement of Cole to convey the same to him, was a descendible and devisable interest. This interest descended to his heirs; it did not pass by the will he had made and published before he had acquired it.

A will, as to land, speaks only as of the time of making it r is to personalty, it speaks in articulo mortis, though made long before. The fact that at the time he made the will he was the owner of these lands, and devised them specifically, can make no difference in the application of this principle.

All his interest was subsequently divested. It will not be contended that the interest he then had passed by .the will. What interest, then, could he devise? Certainly, only the interest he acquired under this agreement. But that interest was acquired subsequently to the making of the will, and could not pass by it. The equitable interest, then, which Lanning acquired under the agreement, descended to his heirs-at-law; and the heirs are the persons interested in the specific performance of the agreement. The executor should be a party to the proceeding, because, if there be personal property sufficient, he will be decreed to pay the purchase money for the benefit of the heirs. And the persons entitled to the personal estate under the will should also be made parties.

In this view of the case, even if a decree had been signed by the Chancellor, the lands would not have passed by the will. T!he executor of the will, then, is not the proper person to revive or prosecute the suit.

The demurrer must be allowed.

Order accordingly.


author: The Chancellor

text:
    LEWIS McBRIDE v. THE EXECUTORS OF EBENEZER ELMER ET AL.
    1. E. E. bequeathed to “The Bridgeton Trustees for Free Schools” $1000, the interest to he applied annually for ages 'as far as may be practicable, for the tuition of poor children, without regard to denomination or color, in the elements of English literature.
    2. There was no such body as “ The Bridgeton Trustees- for Free Schools but there were in the town of Bridgeton, trustees of public schools, (usually called free schools,) as established by the statute respecting public schools.
    8. The bequest was held good as a trust to be executed; trustees were appointed by the cour..
    This is an amicable suit brought for the purpose of settling a question arising upon the will of Ebenezer Elmer, late of Bridgeton, in the county of Cumberland, deceased.
    The bequest on which the question arises, is as follows:
    “ I give to the Bridgeton trustees for free schools one thousand dollars, the interest to be applied annually for ages as far as may be practicable for the tuition of poor children, without regard to denomination or color, in the elements of English literature.”
    The ease was submitted on bill and answer and written briefs.

      Henry W. Green, for the complainant.
    The intent of the testator is obvious. It was to provide a permanent fund for the instruction of poor children in the common branches of an English education. Nor can there be any mistake as to the objects of his bounty. They are the poor children of the town of Bridgeton, where the testator resided.
    The design of the testator, doubtless, was to give the money to the trustees of common schools, (usually called free schools,) as established by the law respecting common schools, in the town of Bridgeton.
    But a difficulty arises.
    1. From the supposed inability of the trustees to take under the will.
    2. From the fact that there is more than one free school in Bridgeton.

      Admitting for the sake of the argument, that the bequest is void at common law, that the trustees are incompetent to take a legacy, shall the legacy therefore fail ?
    It is insisted on the part of the complainant that the doctrine of cy pres, applies.
    In England this question- has long been at rest, and the exercise of the power is one of the most ordinary and familiar subjects of chancery jurisdiction.
    And the subject has lately been so fully and ably discussed, and settled by so high authority, and upon so satisfactory a basis, that little else is deemed necessary than a mere reference to the authorities.
    The difficulty with the question in the courts of equity of this country has been that the statute 43 of Elizabeth, chap. 4, (the statute of charitable uses) has never been enacted here. And the idea was entertained that the doctrine of the Court of Chancery, in regard to charities and the jurisdiction of the court over them, originated in that statute.
    ' That was the doctrine adopted by the court in Baptist Association v. Hart’s Ex’rs, 4 Wheaton 1, and the decision in that case proceeded upon that idea.
    But it has since been clearly shown that that opinion is erroneous. That the Court of Chancery has jurisdiction of charities by virtue of its inherent powers. That it was derived, not from the statute of Elizabeth, but from the civil law or from the common law; and that it both held and exercised the jurisdiction long anterior to the statute of Elizabeth.
    See Vidal v. Girard’s Ex’rs, 2 Howard 127; Burr’s Ex’rs v. Smith, 7 Vermont 241; King v. Woodhull, 3 Edwards 79.
    I refer particularly to the argument of George Wood, Esq., in 7 Vermont 241; to that of Horace Binney in the Girard will case, printed in pamphlet, pp. 113 to 137. And to the opinion of Judge Baldwin in the ease of Sarah Banes, in the Circuit Court of the U. S., April term, 1833, pamphlet, pp. 41, 2, &c.
    Numerous American cases in support of the same doctrine will be, found referred to by Mr. Binney, in 2 Howard 164.
    The doctrine of charitable uses and the power of a court of equity over them, may now be considered as definitely at rest.

      It is certainly somewhat remarkable that it should not have been settled at an earlier day. It may be explained by the fact that in this country, and particularly in this state, there are but few legacies to charitable uses, and those generally very small in amount.
    The subject is daily assuming more importance. It is a highly salutary exercise of jurisdiction, and for the court to deny the power would be to divest itself of one of its most beneficial prerogatives.
    Though cases have not arisen, yet they exist, and will be brought before the court.
    A legacy is given to the trustees of an unincorporated religious society, in trust, to educate all the poor children within its limits. Would the court say that the legacy must fail, or refuse to execute; or, suppose that numerous legacies of that kind should have been given, a large fund accumulated, and (as has lately happened,) the society should be dissolved; would the court of equity suffer the fund to be squandered, or claimed by the individual in whose hand it happened to be? Would the court not appoint trustees and enforce the trust?
    In the present case we need not call to our aid the doctrine of ey pres. The trust and the objects of his bounty are sufficiently clear, and the intent may be carried into effect. It is only required that the court of equity should establish the trust and appoint suitable trustees to execute the trust.
    The object of the bequest is a charity. A gift for the support of schools, or the promotion of education, is a charity; and “ poor .children” is a sufficient designation of the objects of the bounty. Att'y-Gen. v. Williams, 4 Bro. C. C. 526; 2 Roper on Legacies 101.
    Equity will not permit a charitable bequest to fail, either for want of trustees, or because the objects of the testator’s bounty are indefinite, if the general intent is apparent, and if the will cannot be executed precisely in the mode the testator directed, the court will execute the intent as near as may be. The English eases go much further than is at all necessary to support the present claim. 2 Roper on Legacies 140, § 5.

      Lucius Q. C. Elmer, for the defendants.
    The question in the case is, whether the Chancellor, in the absence of any statute similar to the English statute of Elizabeth, can execute the bequest by means of the doctrine of cy pres.

    Without meaning to do much more than to refer to the cases within my reach, or to which I have references, it is with considerable confidence insisted that the Chancellor of New Jersey has no such power. He does not, like the English Chancellors, represent the king or government as parens patrice; but, under the constitution of this state, is simply a part of the judiciary, holding, as such, the Court of Chancery.
    That the bequest in this case is void at the common law, I presume, will not be disputed, there being no person or persons in esse capable of taking and fulfilling the trust in perpetuity 5 and there being no designation of the persons who are to be benefited, there is neither a designated trustee nor definite cestuis que trust.

    Nor is it a case where the executor can be held to be a trustee, and charged, under the authority of the court and by its aid, with the execution of it. This trust, if good at all, mu'-'fc be perpetuated. The objects or persons to be benefited are wholly indefinite, so that, to effect the object, the court must not only set up and constitute trustees and make them at least a quasi corporation, but it must, also, from time to time, regulate the mode of their procedure. The court must, of necessity, lay down rules for ascertaining who the “ poor children” are that are to be instructed, or must leave this to the unregulated direction of persons not selected by the testator. It is, in short, a case where the prerogative superintending power of government must be called in to supply defects which a court, as such, has no power to remedy. The jurisdiction to do this, even under the statute of Elizabeth, is not in the court, but in the Chancellor, personally. 2 Atk. 553.
    That a Court of Chancery may go so far as to enforce a trust, even for objects somewhat indefinite, in cases where the executor or person named, or holding the fund, was constituted by the will, trustee, or was in a situation to be treated as such by the court, may be conceded, without going the length neecssary in this case, and perhaps without departing from the general principles of a court of equity. And it is submitted that the strong weight of authority in the United States is against going any further. To this extent most of the following cases go, and no further, although some of the judges, in argument, may seem to sanction a stronger doctrine.
    7 Vermont Rep. 241; 3 Edw. R., King v. Woodhull; 7 Vesey 86; 9 Cow. 437; 17 Serg. and Rawle 88 ; 5 Harr, and John. 392; 3 Peters U. S. R. 99, 484; 4 Wheaton 1; 3 Leigh. Vir. 450; 1 Hawke N. C. 276 ; 9 Ohio 203; 6 Paige 649; and see 4 Kent Com. 507, note (5th edit.) where most of the above cases are referred to, and 2 Story Eq., §§ 1169, 1176, &c.; 1 Bad. and Dev. N. C. 276.
    Some support for going further seems to be claimed from facts, as to the ancient practice of the English Chancery, said to be disclosed by the records lately published in England, as referred to in the ease of Girard’s will. 2 Howard U. S. R. 127, 155, 164, 191, 197, &c.
    But it is submitted that, such authority, so vague and uncertain in itself, derived from such ancient times, so long disused in Great Britain, never acted on in New Jersey, is not sufficient to introduce such sweeping conclusions. The maxim that a good judge will seek to enlarge his authority, although flattering to the court, and often acted upon by good judges, is exceedingly dangerous, and is emphatically to be repudiated under a government so strictly limited, and under a system so justly jealous of power as ours. The question is, Shall such powers be now for tiie first time assumed in New Jersey, where, if necessary, the legislature may so easily apply the remedy ? That so long a time has elapsed without having done it, is, certainly, a strong reason for believing that such powers have not been thought expedient, or at least that they are not very necessary.
    The right thus to make a will for a testator, and to deprive heirs of their legal rights, has been exercised to the extent now claimed only iii cases of charity ; and this has been done because it has been supposed that there are peculiarly strong motives for upholding such bequests. But this is more than questionable. It is believed that much stronger reasons may be urged for absolutely prohibiting any disposition of land or of funds .to charities, than for fostering and encouraging them. Who .that has had only a passing knowledge of the gross abuses to which they have been subject in Great Britain, can help distrusting the policy of such a system ? As is remarked by the pious and excellent Jay, (Evg. Exercise, Aug. 22d,)—

      “ Some leave large sums when they die j they had better be their own executors, and see and enjoy the application of their own liberality. The endowments bequeathed by many of our good forefathers have operated rather injuriously than otherwise — retaining the support of error in some places of worship, and relaxing the zeal and generosity of congregations in othérs; for people have an amazing keenness in perceiving when their assistance is not wanting.”
    In regard to the question whether, if this bequest fails, the money will belong to. the remainder of the estate and be disposed of as that is, or whether it is to be considered as undisposed of, it is submitted to the court, by the parties in interest, without argument.
    The following are some of the cases applicable to this question.
    4 Ves. 732; 4 Paige 117; 16 Ves. 451 ; 3 P. Wms. 40; 2 Jac. and Walk. 404; 1 Hill Ch. R. S. C. 95 ; 2 Roper “on Legacies 341, 453—7.
    It is taken for granted that, whatever be the decree, the cost on both sides will be taken out of the fund.
   The Chancellor

delivered an opinion, orally, declaring the bequest good as a trust to be executed. That the only difficultv was a mistake in naming the trustees j and that the court would appoint trustees.

Order accordingly.


text:
    MARK HEATHCOT v. JOSEPH RAVENSCROFT.
    Bill for dissolution of a partnership and injunstion and receiver, on which a receiver was appointed.
    The bill stated, that on the 16th November, 1845, the complainant and defendant agreed, by parol, to enter into partnership in the business of manufacturing cotton; and agreed to contribute equally in money or necessary articles of machinery, towards forming a partnership stock for carrying on said business, and that the profits and losses should be shared by or fall equally on them. That in pursuance of said agreement, and for the-purpose of providing themselves with a mill and water-power to carry on their said.business, the complainant and defendant entered into a written contract with one John Cooper for the parchase of certain real estate in the county of Bergen, with a water-power and cotton mill thereon, for $1000, to be paid at a future day; and, on the same day, entered into possession of said premises, under said contract.
    That the complainant contributed, in fulfillment of his part of said agreement, and towards forming a co-partnersbip, stock, in necessary articles of machinery or in money, $562.77, and the said Ravenscroft contributed $122.85, leaving a deficiency in the contribution of the said Ravenscroft of $439.92, which deficiency the said Raveuseroft represented to the complainant that lie had means of making up, under his control, and agreed to make up the same in a short time thereafter. That notwithstanding the said deficiency, the complainant, relying on the said representations and promise of said Ravenscroft to make up the same in a short time thereafter, entered with him upon the business of manufacturing cotton yarn under the co-partnership agreement above staled.
    That the said Ravenscroft and the complainant continued to carry oil the said partnership business until September 4th, 1846¡ at which time they stopped business, though no dissolution or said co-partnership took place; and that during all that time the said Ravenscroft neglected to make, any further contribution to the said co-partnership stock, notwithstanding his said promise and undertaking and the frequent urgent requests of the complainant for him- to do so.
    That on or about November 4th, 1846, the said Ravenscroft, without the knowledge or consent of the complainant, and in violation of his said co-partnership agreement, and without, any further contribution to the said co-partnership stock, sold and transferred to Joel M. Johnson, all his interest in the lot of land, mill and water privilege herein before mentioned, together with all his interest in all the machinery, gearing and fixtures in said mill, consisting of the following goods and chattels in said writing enumerated, to wit, &c.; and did covenant and agree to and with the said Joel M. Johnson, that he was the true and lawful owner of one full undivided half of the said goods, chattels and privileges.
    That about the time of the said sale, the said Johnson entered into the said mill, and has ever since that time continued in possession of the same and of all the gearing, machinery, stock and appurtenances herein before mentioned ; claiming a right so to do as the owner of one-half thereof by virtue of the said article of sale.
    That there are in said mill, divers articles besides those enumerated in the said article of sale, appertaining to the machinery in said mill and necessary and useful in and about the business of manufacturing, amounting in the whole to the value of $175, as nearly as the complainant can estimate the same; to which the said Johnson also claims an equal right and title with the complainant, and which he also holds in possession as one-half owner thereof.
    That there were co-partnership debts contracted by the complainant and the said Ravenscroft before the 4th day of September last past, and now remaining due and unpaid, to the amount of §710.49.
    That the said Ravenscroft, since his said sale to the said Johnson, hath refused to pay any portion of the said co-partnership debts, although applied to and particularly requested so to do j and that the said Ravenscroft hath no visible or tangible property or effects out of which the proportion of said debts which ought to be paid by him could be levied and made; and that the said Ravenscroft is in insolvent circumstances.
    That the said Joel M. Johnson, although claiming to he an equal joint owner with the complainant in the said co-partnership property, refuses to pay or discharge any of the said co-partnership debts, or to make good to the complainant the excess of his contribution to the said co-partnership stock over the contribution of the said Ravenscroft; and claims to hold the undivided half of the said property free and discharged from such debts and liabilities.
    That neither the said Ravenscroft nor the said Johnson, at or before the time of the said sale and transfer between them, made known to the complainant the intention of the said Ravenscroft to sell, nor the said Johnson to purchase the interest so sold .and purchased, nor did they or either of them apply to the complainant or obtain his assent to such sale; but that said sale and transfer were made without the complainant’s knowledge and consent.
    That he hath been informed and believes, and therefore charges it to be true, that the said Johnson, before or at the time of his said purchase, and before the payment by him of any money on account thereof, knew or had good cause to believe that the said Ravenscroft had not an equal interest with the complainant in the said partnership properly, and that he knew or had good cause to believe that the said co-partners had debts at that time due and owing, for the payment of which the said co-partnership property and assets ought in law and in equity to be applied. And the bill charges that the said Ravenscroft, at the time of his agreement to make up the deficiency in his contribution as above stated, had not the means so to do under his control, and that his representations to the complainant on that subject were fraudulent and intended to mislead the complainant; and that the said sale by the said Ravenscroft to the said Johnson was fraudulent, and that the same was made with the intent to defraud the complainant in the prernises-
    That by reason of the premises the co-partnership business of the complainant and the said Ravenscroft is wholly broken up and that the co-partnership property is suffering great damage and loss ; and that the said Johnson hath set up in said mill a machine for cutting shingles, which the complainant is informed and believes he has put in operation, thereby exposing the said mill and machinery to great hazard of loss by fire; and, as the complainant is advised and believes, by increasing the risk, vitiated and avoided the insurance effected on the said mill and machinery in the name of the said Ravenscroft, and the complainant as co-partners as aforesaid.
    That the said Johnson threatens to take exclusive possession and control of the said mill and machinery and appurtenances, and to put the same in operation on his own account and for his individual benefit, and thereby wholly exclude the complainant from the same.
    That the said Johnson, though not to the knowledge or belief of the complainant insolvent, yet is possessed of slender means, and is not of sufficient responsibility to render it safe to leave the said machinery and premises in his charge and under his control; and that in case of any serious loss or damage to said property, or in case of the fraudulent removal or conversion of the same, he would, as the complainant verily believes, be unable to respond in damages to the complainant.
    The bill prays that the said sale by Ravenscroft to Johnson may be set aside, that the partnership may be dissolved, and that a receiver may be appointed to take charge of the partnership property, and collect and sell the same; and that the proceeds thereof may be applied, under the direction of the court, to payment of the partnership debts; and that so much of the surplus, if any remain, as may be necessary for that purpose, be paid to the complainant, to make good the deficiency of said Ravenscroft in his contribution to the partnership stock; and that the residue, if any, may be paid into court, to be disposed of as may be deemed equitable; and that said Ravenscroft and Johnson may be restrained from doing or suffering any damage or waste, &c.
    On filing this bill an injunction was granted, pursuant to the prayer thereof.
    Afterwards, on notice, a motion was made for the appointment of a receiver.

      Daniel Barkalow, for the motion.

      Richard R. Paulinson, contra.

   The Chancellor

said he thought it was a plain case for a receiver,

Order accordingly.


text:
    JOSEPH C. WARE, AN INFANT, BY ISAAC JOHNSON (SECOND), HIS NEXT FRIEND, v. RICHARD M. WARE.
    1. A husband had, during the life of his wife, sold -timber standing on his wife’s land, in lots, to different purchasers. They commenced cutting during the life of the wife, and her death happening soon after, continued cutting after her death. On bill filed by her infant heir-at-law, the cutting was enjoined. At the time of the service of the injunction, some trees were still standing on some of the lots, the timber on which had been sold. It was referred to a master to inquire and report how much of the timber had been cut after the wife’s death, with a view to the question whether the husband should account for it, and also to inquire and report whether the interest of the infant required that the trees still standing on the said lots should be felled.
    2. Ordinarily, account for waste done is only incidental to relief by injunction against further waste.
    3. If timber on land of an infant reversioner is in danger of decay, the court may direct it to be cut.
    On the 4th of June, 1844, Joseph C. Ware, an infant of ten months’ old, by Isaac Johnson second, his next friend, exhibited his bill, stating that he is the grandson of Marmaduke Cook, late of Salem county, deceased, and the son of Mary Louisa, the daughter of his said deceased grandfather; that his grandfather died intestate, October 10th, 1817, seized and possessed of a large real estate in the counties of Salem and Gloucester, leaving two children, Joseph Cook and Mary Louisa Cook, the mother of the complainant, his heirs-at-law; that on the 4th of June, 1842, the said Mary Louisa intermax*ried with Riehard M. Ware, the defendanfc, the complainant’s father; that on the 4th of March, 1844, the said Mary Louisa died, leaving the complainant her only child and heir-at-law.
    The bill then states that in August, 1843, on the application of the defendant to the surrogate-general, commissioners were appointed to divide the real estate of the said Marmaduke Cook between the said Joseph and Mary Louisa, and that seven several lots and tracts were thereupon set off by metes and bounds to the said Mary Louisa. The boundaries of the tracts are set out in the bill. One is situated in Salem, containing thirty acres; another in Salem, containing 18 acres. The other five tracts are situated in Gloucester; one containing 118 acres; another 268 acres; another 45 acres; another 5 10-100th acres ; and another 68 acres. That the report of the commissioners was confirmed January 8th, 1844.
    The bill states that the defendant, immediately after the said division was approved, commenced the commission of waste, spoil and destruction of the premises assigned to the complainant’s mother; that the said premises are, for the most part, woodland, and that the value thereof consists, principally, in the wood and timber thereon; that the defendant hath cut down and destroyed large quantities of timber and wood, and continues to commit waste, spoil and destruction thereon, to the injury of the complainant’s inheritance; that he had made a vendue of the timber standing on the premises, and had sold to divers persons large quantities of the said timber, and among others, to certain persons, naming eighteen persons who are made defendants, who have cut down large quantities of the wood and timber, and carried the same away, and threaten to continue to do so; that the said defendants have cut a large quantity of the wood and timber and hauled it to and upon adjoining lands, and that a large quantity of wood and timber cut by the defendants now lies upon the premises where it was cut; that the acts and doings of the defendants will, if continued, result in the total destruction of the estate of the complainant.
    The bill prays an injunction against further waste, and against removing any wood or timber cut down and being on the premises, or any wood or timber which has been taken off the premises and is now on adjoining lands.

      An injunction was granted according to the prayer of the bill.
    The joint and several answers of the defendants, except one purchaser named in the bill, has been put in. The defendants admit that the premises came into the possession of the defendant Richard M. Ware by marriage with his late wife, and are now held by him as tenant by the courtesy, his said wife having died leaving issue, the complainant.
    They state that, when the said Richard came into possession of the premises, there was standing thereon a considerable quantity of old timber; much that was decayed and decaying and checking the growth of the younger treces; much that was injured and ruined by the worms, particularly the pine; and much exposed to destruction by fire, which frequently happens in the coaling regions. That a just and proper regard to the estate required that all that has been cut should be cut, sold and removed. That the defendant Richard was so advised by persons well acquainted with the premises, and, among others, by the said Isaac Johnson second, the next friend of the complainant in this suit. That the said Richard accordingly made sale of part of the timber growing on said tracts, and that said sales were made with a special regard to the benefit of the estate. That all the sales were made in the lifetime of the wife of the said Richard. That since her decease no timber lias been sold. That it was important for the preservation of the timber cut that it should be removed and used. That there is considerable bark on some of the lots, which, if suffered to lie on the ground, will soon be worthless. That such is the situation of the lots which have been sold, some of them having but few trees standing, and these more or less injured by the fall of the surrounding timber, dial a just regard to the interests of the estate and of the party legally entitled, requires that the timber sold should be cut, and the timber cut used.
    The answer submits, that the defendant Ware, as tenant by the courtesy, under such circumstances, is entitled to the proceeds of the said sales; but that if it should be otherwise decreed, he is guardian of the complainant, and is willing and ready to account for the same as such guardian, under the direction of this court; and that he is farther ready and willing to stipulate that no more sales shall be made. That the continuing the injunction will be detrimental to all parties.
    In October, 1845, on motion of counsel for the defendants, and with the consent of the counsel for the complainant, the injunction was so modified as to permit the wood and timber that had been cut to be removed by the purchasers, the same being first appraised and valued by Joseph Nelson, Esq., of the county of Salem, the said appraisement to be filed in this cause, and the defendant Ware to account for the amount of it, if the court, on the hearing, shall be of opinion that he is liable to account.
    The case was heard on the bill and answer.

      William, N. Jeffers, for the complainant.

      Peter D. Vroom, for the defendants.
   The Chancellor.

The commissioners’ report of the division was confirmed January 8th, 1844. The complainant’s mother died March 4th, 1844. The bill was filed June 4th, 1844, and states that, immediately after the division was approved, the defendant Ware commenced cutting, and that he has cut down large quantities of timber and wood, and continues to commit waste, to the injury of the complainant’s inheritance. That he made a vendue of the standing timber, and sold it, in lots, to different persons, who had cut down large quantities of the wood and timber, and carried the same away, and threaten to continue to do so. That the defendants have hauled a large quantity of the timber cut to and upon adjoining lands, and that a large quantity of the timber cut now lies on the premises where it was cut. The bill does not state when the vendue was made, nor whether the,wood and timber now lying on the premises was cut before the mother died, or has been cut since.

The answer states that all the sales were made in the lifetime of the wife of the defendant Ware; and that such is the situation of the lots which have been sold, some of them having but few trees standing, and those more or less injured by the fall of the surrounding timber. That the interests of the estate, and of the party legally entitled, require that the timber sold be cut

It would seem, from the bill and answer, that the defendants commenced cutting before the wife of the defendant Ware died, and continued to cut after her death.

Ii is clear that the complainant, in the lifetime of his mother, who held the fee, could not have restrained his father from cutting. Is he, then, entitled to an account for what was cut in his mother’s lifetime? Possibly a case might arise iu which it would be just and equitable to direct such an account; but, ordinarily, account for waste done is only incidental to relief by injunction against further waste. 3 Atk. 262; 3 Paige 259; 1 Story’s Eq. Jur., § 518.

As to the timber that was cut after the death of the wife, it may be that an account will be ordered. As to the trees standing on lots that were sold, it may be to the interest of the infant’s estate in the lands that they be felled ; they may, from the causes stated in the answer, be going to decay. If from such, or any other cause, timber on an infant’s land is in danger of decay, the court may direct it to be cut. It will be referred to a master, to ascertain and report how much of the timber now lying on the premises or adjoining lands was cut after the death of the wife, and whether the interest of the estate requires that the trees standing on the lots, the timber on which was sold, should be felled.

The consideration of all further equity is reserved till the coming in of the report.

Order accordingly.