text:
    Mary E. Henry v. John F. Brown.
    On a judgment in favor of the guardian of an infant against A., execution was levied on a "house and lot, the house, as alleged by the bill, having been built by A., with trust moneys of the infant in his hands, on a lot of A. At the sheriff’s sab B, gave out that he intended to buy the property for the infant and convey it to her, to save her from Í03S by A.’s inability to pay her claim against him, and represented that the house and lot were subject to a mortgage of $7,000. Under these representations the house and lot, valued at $5,000, were struck off to B. for $7. There was a mortgage on record for $7,000, given by A. and B., on the said house and lot and lands of B.; but, previous io the sheriff’s sab, an arrangement and written agreement had boon made between A. and B., by which B. was bound to pay off and discharge the mortgage; and it was actually paid off by B. and cancelled of record slior Jy after the said sheriff’s sale.

      JLcH; That the proper relief would be to set aside the sheriff’s sale; and the complainant, the infant that was, was permitted to amend her bill so that such relief could bo given.
    B. having mortgaged the house and lot after he received the sheriff’s deed therefor, h was held that the mortgagee should have been made a defendant; and leave was given to amend the bill in this respect also.
    The hill, filed March 23, 1847, states, that John Henry, the father of the complainant, on the 19th of November, 1825, made his will, whereby he gave and devised to the complainant, his only child, as follows: “ As to the residue of my estate, of whatever description, SC1 give the same to my executors, in trust, first, that the sum of $7,000 be set apart by my executors and appropriated to the maintenance and education of my infant daughter (the complainant) in the following manner, that is to say: that the full interest of the said sum be paid, annually, to my beloved wife, as the natural guardian of my said daughter, until she attain the age of six years. After which timo, it is my desire that my said executors retain the said interest in their hands, and appropriate the same, or so much as may be necessary, to the maintenance and education of my said daughter until she attain the ago of twenty-one; at which time I order and direct the said sum of $7,000, together with the unexpended interest, to bo paid to her for her own use and benefit forever.”
    That Peter I. Stryker, the grandfather of the complainant, and Peter D. Vroom were appointed executors of the said will. That the will was proved on the 28th of December, 1825, by the said executors. That the said Stryker received into his hands the said $7,000, and had the particular care and management thereof.
    That the said Stryker, being the owner of a building lot on the main street of the village of Somerville, which cost about $200, some time about the year 1836, "having the said legacy to the complainant in his hands, with a part of her said money erected on the said lot a two story brick dwelling house, and. put other improvements thereon, at a cost of about $5,000; the said Stryker giving out and stating, at the time, that the said house and improvements were put on the said lot with the money of the complainant.
    That, about March, 1837, the said Stryker still having in his hands, of principal and interest of the said legacy, $3,000 or thereabouts, John F. Brown, professing to be the particular friend of said Stryker and of the complainant, and well knowing that the said Stryker, as executor and trustee as aforesaid, had money in his hands belonging to the complainant, applied to the said Stryker to assist him in fulfilling a contract which he had made with William Van Hook and John S. Blauvelt, trustees to sell real estate late of Robert Morris, deceased, for the purchase of about 392 acres of land in the township of Bernard’s, Somerset county, for the sum of $10,500; the said Brown representing, at the time, that said purchase would be very profitable to him; that with some ready cash furnished by said Stryker, which would be perfectly safe, he would be able to obtain a title for the said lands.
    That said Stryker, putting confidence in the representations of said Brown, afterwards, on or about April 1, 1837, advanced, of the said funds of the complainant in his hands, to the said Brown, $3,000, in cash, in order to enable him to comply with his contract with said Van Hook and Blauvelt. That said Brown paid or secured to be paid to said Van Hook and Blauvelt the further sum of $500; leaving $7,000 due them, which it was- proposed should be secured on real estate other than said 392 acres. Whereupon the said Brown and wife and Stryker and wife united in a joint mortgage on certain real estate owned by said Brown and on the said brick house and lot, to secure to the said Van Hook and Blauveli the said sum of §7,000; which mortgage was recorded &c.
    That said mortgage was duly canceled of record on the 23d of October 1840.
    That, on the 25th of April, 1837, the said Brown conveyed two third parts of the said 892 acres to the said Stryker. That, on the 2d of August thereafter, it was agreed by and between, said Brown and Stryker, under their hands and seals, among other’ things, that the said Stryker having on that day, by deed duly executed, reconveyod to the said Brown the said two thirds of the said 892 acres, he the said Brown would pay to the said V an Hook and Blauvelt the said §7,000, and release the property of the said Stryker from the said incumbrance.
    That one Thomas Talmage, having been, by the Orphans3 Court of Somerset, appointed guardian of the complainant, some time in January, 1840, made a settlement with said Stryker, by which there was found to be in the hands of said Stryker, as executor and trustee as aforesaid, and belonging to the complainant, the sum of $10,000; for which sum the said Talmage, guardian as aforesaid, afterwards on the 20th of January, 1840, obtained a judgment in the Court of Common Pleas of the county of Somerset; on which judgment a ft-fa- de bonis el terris was issued, and delivered to the then sheriff of the said county, who, by virtue thereof, advertised the said brick house and premises to be sold on the 29th of June then next. That after the said advertisement and before the said day of sale, the said Brown went to the said Stryker and Talmage, and stated to them, or one of them, and also to other persons, that he knew that the said lot had been purchased and the said brick house and other improvements put thereon, by said Stryker, with the money of the complainant; that the complainant should not be injured in any way, but be benefitted by the contemplated sale; that it was his intention to hid off the same for her, as it would bring but a mere trifle with said $7,000 mortgage upon it, and which he was bound to pay off and discharge; that, after getting the sheriff’s deed, he would convey the said house and lot to the complainant whenever he should be required to do so. That said Stryker and Talmage, believing said Brown to be sincere, and putting full confidence in his declarations and integrity, assented to his said proposal.
    That, at the time and place of said sale, on said 29th of June, 1840, several able and responsible persons attended, and. were present for the purpose of bidding upon and purchasing the said property, which was then worth upwards of $5,000. That said Brown attended the said sale and considered himself the friend of the complainant; represented her as an orphan, and in danger of losing her property; and that it was his intention to purchase the said property for her. That in consequence of these declarations persons present desisted from bidding; and the said brick house and lot and premises were struck off and sold by the said sheriff to the said Brown for the nominal sum of $7, there being no other incumbrance thereon but the said mortgage to Van Hook and Blauvelt for $7,000.
    That the said sheriff, afterwards, on the 20th of August, 1840, executed and delivered to the said Brown a deed for the said property, which was duly recorded.
    That the said sheriff, in 1840, by virtue of two executions against said Stryker, one in favor of C. J. Tunison, and the other in favor of said Talmage, guardian as aforesaid, sold the whole of the real and personal property of said Stryker, except the said brick house and lot; from which sales the said guardian realized for the complainant about $2,000.
    That some time before said sales the said Stryker became and was, and still continues to be greatly embarrassed in his circumstances. That he was then, and the complainant believes still is unable to pay, as well the complainant her said claim, as also other large sums of money which he then and still owes. That said brick house and lot are principally relied- upon by the complainant to obtain the balance of her said claim from the said Stryker; and she has good reason to believe, that unless the said Brown conveys to her the said house and lot she will lose nearly or quite $7,000 of her said claim.
    That, ever since the said hrick house was built, the said Stryker has lived in the same; the complainant, since the death of her mother, August 4th, 1832, having lived with her grandfather, the said Stryker.
    That the complainant attained twenty-one on the 10th of November, 1846. That since that day the said Brown has been frequently requested to convey to the complainant the said brick house and premises; hut he refuses so to do, and claims the same as his own; and has incumbered the same by mortgage for §900; and has, by advertisements in writing, advertised the same to he sold at public vendue, at &e., on the 3d day of April next.
    The bill prays, that Brown may bo decreed to execute, by himself and wife, to the complainant a good and sufficient deed for the said house and lot, and to satisfy and to pay all incumbrances which he has placed, or caused or permitted to be placed thereon. And that he may he restrained by injunction from selling or incumbering the same. Process is prayed against Brown alone.
    An injunction pursuant to the prayer of the bill was allowed.
    An answer was put in; and a replication filed; and depositions taken. And the cause was brought to hearing on the pleadings and evidence.

      T. A. Hartwell and P. D. Vroom for the complainant.
    W. Halsted for the defendant.
    He cited 10 Peters, 178; 1 Gill & John. 65; Gresl. Eq. Ev. 161; 9 Blackf.Rep. 265; 2 Iredell, 132; 1 Dev. & Bat. 410; 9 Alab. Rep. 973; 3 Dana, 229; Cox N. J. Rep. 39; 1 U. S. Dig. 376; 3 Green's Ch. 310; 3 Watts & Serg. 314; 6 Har. & John. 252.
   The Chancellor.

The proper relief will be to set aside the sheriff's sale.

The complainant will he permitted to amend her hill so that such relief can he given.

The hill is, also, defective as to parties. The persons to whom Brown has mortgaged the house and lot, since he received the sheriffs deed therefor, should he made defendants. The hill may he amended in this respect also.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    In the matter of the will of Nancy Maxwell; George Maxwell, caveator.
    When a will is signed and published with the proper solemnities and in the usual manner, the testator declaring that he published the same as his last will and testament, the presumption is that he knew its contents. What circumstances not sufficient to overcome this presumption.
    This was an appeal from a decree of the Orphans’ Court of Essex county, made February 4,1849, establishing the will of Nancy Maxwell, and admitting the same to probate.
    The substance of the testimony on which the decree of the Orphans’ Court was made is as follows :

      Sidney Jl. Lyon.

    The paper purporting to be the will, dated June 9, 184T, being shown to Mm, he says : he is one of the witnesses to the will; saw Nancy Maxwell sign the will; the other witnesses whose names are subscribed to the will were present with Mm when the will was signed by the testatrix : it was done at the office of James W. Wade, Esq., in Union, who, with Daniel Burnet, were the other subscribing witnesses. They signed their names as witnesses at the same time with him, and were present in the room with the testatrix at the time of their signing as witnesses and at the time she signed it.
    On cross-examination, he says ; He was called upon by Elias Crane to go to Esq. Wade’s store for the purpose. Witness’s shop is within 100 yards of Esq. Wade’s store. Mr. Crane was alone when he called on witness. He lives about half a mile from witness’s. He told me, at the time, he wished me to witness the will of Nancy Maxwell. When I got to Esq. Wade’s store, I found Mr. Crane there. The will was executed there. When I went into the store I found there Nancy Maxwell, Daniel Burnet and James W. Wade3 Esq. Nancy Maxwell was standing by the counter near Mr. Wade. I was asked to sign my name as a witness, I believe by Mr. Wade. I don’t remember any conversation after I went into the- store before I was asked to sign the will; I think there was none. There was no conversation between the time I was asked to sign the will and the execution of it. When Mr. Wade asked me to sign the will it was on the counter before them. I saw Nancy Maxwell sign the will Mr. Wade first signed the will as a witness. Daniel Burnet then put his name on the will. I signed it last as a witness. After the will was signed as aforesaid nothing was said but that Mr. Wade should keep it in his hands: Mr. Crane said that; but nothing further to my recollection. I believe Mr. Wade did not make any reply. Mr. Crane brought Nancy Maxwell there I believe 3 I saw his carriage there, which leads me to believe so. I should think Nancy Maxwell, from her appearance, was at the time about TO : I know nothing about her age. She appeared to he well at that time. After the will was signed Miss Maxwell had no conversation with me or any other person. It was about 10 o’clock in the morning when the will was executed.

      In chief. I left Nancy Maxwell in the store. She took the will with her, or said she would take it; and afterwards said she would take care of it. She took the will in her hands : it was in her hands the last I saw of it when I left the the store.

      Cross-examined. It was in reply to the remark of Mr. Crane that Mr. Wade could take care of the will? that she paid she could take care of it.

      James W. Wade.

    I reside in Union ; was acquainted with Nancy Maxwell for 40 years; she resided about two miles from my store. I drew the will. (He proves the execution of the will.) Elias Crane came to my store, on the day the will was executed, with the testatrix. I think Mr. Crane and the testatrix came into the store together; and Mr. Crane said, as I think, “Aunt Nancy has come over to have that writing executed.” It appears to him Daniel Burnet was there when they came in. I told Mr. Crane it was necessary to have three witnesses : I told him so in the hearing of the testatrix : and Mr. Crane went after Sidney A. Lyon. As soon as Mr. Lyon came in, I think I said, Miss Maxwell, or Nancy Maxwell wanted them to witness her will: this I said in her immediate presence or in her hearing. I think the will was open, and I showed her where to put her name, and gave her a pen and ink. She then signed her name to the will. I then said to her, “ You publish and declare that to be your last will and testamentand she said “yes.” The subscribing witnesses then signed their names. I then folded the will up, and asked her what she would have done with it, and put it in an envelope and sealed it with two seals. While I was doing this, Mr. Crane said, perhaps you had better leave it with Mr. Wade as it was sometimes done. I then wrote on the outside of the envelope “ Miss Nancy Maxwell’s will.” About the time I had written on the envelope she said she believed, or guessed, she could take care of it herself, or something like that. I handed the will to her, and she took it; and I saw nothing more of it after that. I think she put the will in a work-bag or something of that kind, but will not be certain. After the will was executed she got some few little things out of the store. She had been in the habit of occasionally trading at my store. She did not often come herself, but Mr. Crane’s son, who lived in the house with her, frequently got things for her. I think she did not at that time keep a horse or conveyance of her own.

      Cross-examined. Mr. Crane and testatrix came, when the will was executed, in a light carriage of Mr. Crane’s. When Mr. Crane made the remark ec Aunt Nancy has come to have that writing executed,” I don’t know where the will was; it was not in my possession. Before that time I don’t know that I had seen the testatrix in three months ; never had any talk with her about making her will. The will is all in my hand-writing. I don’t think the said will had been written but a few days before its date. To the question “ Who dictated that will to you 1” the witness answers, I don’t know that I can tell. Elias Crane asked me to draw the will: I think it was in my store he asked me. I guess there was no one with him, and if there was any one there, Mr. Crane spoke to me privately, so nobody else could hear. I did not know anything at the time about the situation of the property of the testatrix. I got the information to enable me to draw the will from Elias Crane : he gave it to me in writing, something in the shape of a will; it was headed in the shape of a will. I don’t know but I could tell Elias Crane’s hand-writing. I can’t say whose hand-writing the paper headed as a will was, and that is the reason why I can’t tell-who dictated the will. I did not take much notice of the writing. From my recollection I cannot say whether the said paper resembled Mr. Crane’s hand-writing. I don’t believe said paper was in my possession over twenty-four hours. I don’t know but I might have said the said paper was in Mr. Crane’s handwriting, or I thought it was in his hand-writing. The caveator, George Maxwell, is the person who talked to me about the said paper, and the information I then gave him was according to the truth as I then understood it. I gave the said paper to Elias Crane again after the will was written; I gave both together to him. I told Mr. Crane the will was written, and he called and got it. I never talked with the testatrix about the contents of the will. Mr. Crane lived about a mile from the testatrix. The wife of Elias Crane is named Esther, and is a sister of the testatrix. I don’t know what the homestead farm of the testatrix was worth. The farm formerly belonging to John Maxwell, deceased, (which was the homestead of the testatrix,) was worth, some of it $100 an acre, some of it perhaps more, and some not more than $25 an acre. I was one of the appraisers, and appraised the personal estate of the testatrix at $6,532.43. There was about $350 of the notes we considered doubtful. I can’t recollect who produced the will at the time they came to get it executed, whether the testatrix or Elias Crane. At the time the will was signed by the testatrix in my store I can’t tell and don’t know whether she knew the contents of it. She paid me for drawing the will before she left the store, when she paid me for the things she got in the store. When Mr. Crane handed me the paper above mentioned to draw the will by, he asked me if I didn’t think that was pretty well done, or, was a very good will for a female, or something like that. I don’t think he asked my opinion about the leaving the property. I guess nobody lived with the testatrix that I know of. John Crane lived in the house adjoining hers : I mean, by adjoining, the building put close up to the other as it can be and connected. I have understood it was not on the land and part of the homestead; of testatrix, but that John Crane had bought the land and built upon it. I don’t know but the land on which John Crane’s house stood belonged to the wife of Elias Crane as her part of David Maxwell’s estate. John Crane is the same John Crane named in the will as son of Esther Crane ; and is the son also of Elias Crane. John Crane’s building communicated by a door with the house of testatrix, and John occupied part of the main house of testatrix. John Crane has a wife and three or four children. I think John Crane lived on the farm of testatrix seven or eight years ; believe he worked her farm, but don’t know on what terms. When I looked at said paper handed me by Elias Crane to draw the will by, I told him I thought it was necessary to have the names of the nephews and nieces, instead of the general terms nephews and nieces. He said he did not know all their names, but would get them; which he did, and brought them to me on a piece of paper, in the course of a day or two. I only changed the form of the paper in the will, without changing the meaning. Elias Crane seemed to want it done: I don’t know that he showed much anxiety about it. He asked me once after if the will was done. I told him it was, and he called in a day or two, or may be in twenty-four hours, and got it. None of his family called for it or asked about it.

      In chief. Elias Crane called on me and said, “ Aunt Nancy is getting old and she thought she had better make a will, and wanted to know if I would go and write a will for herbut nothing was said where I was to go. I told him I could not leave home j but if she would send me the heads of it, I would write it, and if it was n’t written right at first, I would re-write it. In a. few days Elias Crane brought the above mentioned paper as a guide for me to draw the will by. I then read the paper and mentioned, as above, about the names of the nieces. It was shortly after our above conversation that Elias Crane brought1 the said paper; and the next day, I think, I drew the will. I rather think the names of Elias Crane’s children were mentioned in the said paper, but don’t know. Elias Crane, in the conversation above alluded to, said he did not know the names of the nephews and'nieces of the other members of the family except his wife. I don’t know of Elias Crane transacting other business for the testatrix than calling at the store to get things for her, except, upon being reminded, that the said Elias put out to the County, for testatrix, money, and I paid the interest to him for her. He brought the bond which was payable to the testatrix, and the interest was endorsed on the bond, which was for |600.

      Cross-examined. I cannot say that she placed more or particular confidence in Elias Crane. Sometimes she used to show the same .confidence in George Maxwell. I don’t know that the testatrix had any difficulty with the children of Abm. Maxwell, or of her sister Susan Foster, or of her sister Mary Meeker. I thought she was on good terms with all of them. I have understood that some of the nephews and nieces, of testatrix lived at a great distance from her. Elias M. Crane and Amzi A. Crane live with their father Eliaá Crane. George Maxwell has also collected interest of me for the testatrix, on notes payable to her : he brought the notes with him.

      Daniel Burnet

    testifies, that, on the day the will was executed, Elias Crane called on him to go to Esq. Wade’s and witness an instrument of writing. He lives a quarter of a mile, may he a little more, from Esq. Wade’s. That on their way down Mr. Crane told him that Aunt Nancy was about having her will executed. When they arrived at the store he found tho testatrix there and Esq. W~ade, and nobody else that he recollects. Sidney A. Lyon came there afterwards. He don’t recollect that there was anything said about its being a will by anybody in the presence of the testatrix before it was executed. (He proves tlie due execution of the will.) Esq. Wade said, when the witnesses were all there, that they had come to sign the will as witnesses for Miss Maxwell, and it was all ready; and he handed it to her and gave her the pen he held in his hand, and, he believes, pointed to the place where she was to sign her name. After the will was executed it was done up in an envelope and the testatrix took it. There was something said about leaving the will with Esq. Wade, I think by Elias Crane, and she said she could take care of it herself.

      David Wade,

    for the caveator. Was acquainted with testatrix in the latter part of her life; lived about half a mile from her. She died at the place on which she had always lived. Was acquainted with the John Maxwell farm; should think it was worth, at testatrix’s death, fié,000. Was acquainted with Abner Maxwell, the brother of testatrix. He left, at his death, eight children, viz., John A., Jane, William, David W., George, Mary, James and Hannah; of whom John A., Jane (and Hannah died after their father, and before testatrix. John A. left one son, who is still living. Jane and Hannah died without children. The son of John A. is not far from 16 years old I think ; his name is John A., and he lived in New York at the time of the death of testatrix, and lives there yet. Ho lives with his mother, who keeps a boarding house as I understand. Ho was in the habit of coming out to Union frequently the last five or six years in the summer season. Ho has some little acquaintance with one of the children of Susan Foster, sister of testatrix, and knows some others by sight, but don’t know how many there are. Susan Foster is dead. Was not acquainted with Mary Meeker, another sister of testatrix. Has understood she is dead, but don’t know how many children she left. Is acquainted with Phebe Miller, niece of testatrix; she is married, and her husband is living. She is daughter of Elias Crane, the executor named in the will. She has two daughters. Is acquainted with Esther, wife of Elias Crane; she has three sons, John, Elias and Amzi. John has children, but can’t say how many; I believe six. He has a son married, John M. Crane. Elias and Amzi are single men. Mary Ann Winans, Phebe Miller and Susan F. Williams are children of Elias Crane. Elias Crane and witness had some little conversation about the disposition of the property of testatrix, at the time said Elias was going to sell the moveable property. Mr. Crane then said he thought the Maxwell family had had their share of the property. He said the family had been helped a good deal by John Maxwell. He said there was some difficulty about the will, and that he didn’t know but it would be better to break it, for then he would get a share of the property, and now the testatrix had not left him any thing.

      Cross-examined. In the conversation Mr. Crane did not say that Nancy Maxwell said the Maxwell family had been helped by John Maxwell; the name of Nancy Maxwell was not mentioned. Thinks the caveator, George Maxwell, owns about forty acres of the John Maxwell farm; I have heard that a certain portion of said farm was set off to EliaslCrane; about 17 acres of the homestead and a detached piece of woodland. In my valuation above, I included only what belonged to the testatrix at her death.

      Stephen Foster,
    for the caveator, says: Susan Foster, mentioned in the will, was the wife of witness. He has three sons and a daughter living; another daughter died in May, 1815, being then nine years old. Susan Foster was sister of testatrix. Mary Meeker, another sister of testatrix, died before the date of the will. Witness’s wife died in July, 1846. David, Josiah, Marcus, Edward and Lewis, sons of Mary Meeker, are living, and Nancy M. De Camp and Henrietta Meeker, daughters of Mary Meeker, who are dead, left no children. Phebe Miller, neice of testatrix, is a daughter of Elias Crane. He valued the farm, including Elias Crane’s fifth in it, at $4,500; this was a low valuation. He considered it worth that 16 years ago, when it was settled.

      Cross-examined. I never offered Mr. Elias Crane to give or take $500 for one-fifth of the farm ; but offered to give him $500 for one-fifth. I sold to testatrix at that rate I believe in 1830 or 1831. I asked Mr. Crane if he would sell me the fifth at that rate. He said no. He said if I would give at the rate of $4,000 for the whole, he would take it. I think my own children ought to have more than they got by the will, but am not very anxious that they should get more. I feel anxious that they should have their rights, as any parent would. I think my children ought to have more, because they need it. I mean they need it because they are poor. I never would have signed off for $500 if I had thought that Elias Crane would not sign off. Elias Crane did not always say he wouldn’t sign off, but he said he would sign off to the testatrix, for $500, if the rest would. I signed off because I thought it was as much as she was able to pay, and that when she died, it would go back to all alike; and it never passed in my mind that there would be any difference among all.

      In chief. My wife inherited her one-fifth of the property from her brother, David Maxwell. The testatrix also inherited one-fifth ; the children of Abner Maxwell one-fifth; the children of Mary Meeker one-fifth; and Esther Crane, wife of Elias Crane, the other fifth. My wife and I conveyed our fifth to testatrix for $500. The children of Abner, also, through my influence, conveyed their fifth; and Mary Meeker and her husband, also, conveyed to the testatrix one fifth, for $500, through my influence. All the heirs of David Maxwell, Elias Crane and all agreed to convey their shares for §500 a share, to the testatrix, before any one signed off. It was understood among us all, that testatrix was to remain on the place, as she had always lived, there, and that we would sign off to her for $500 a share; but to nobody else. After this understanding, and the others had all signed off in pursuance of it, Elias Crane and his wife refused to sign off. I believe John Crane, son of Elias, went to live with testatrix before he was married, but can’t say how long after wo signed off. John lived in the kitchen built by the said Elias, adjoining the old house, before the share of Elias was set off, and occupied that and two rooms of the old house. I lived four and a half miles from the testatrix. The said kitchen was built by Elias Crane on the David Maxwell property. They made a door of a window in the old house, and made a communication directly with the old house, and occupied two rooms of the old house.

      Cross-examined. I believe the testatrix knew how to read and write. I can tell her handwriting from any other person in the world. I have done a great deal of business for her. She was pretty good at computing interest. I have. collected a good deal of money for her, and she would always look to see if it was right. When I paid her money she did not give me receipts. She put confidence in me, and I took the notes and drew the receipts and she signed them. She may have drawn some receipts, but generally I did. The last time I collected money for her was last summer, and paid it over to her, and she signed a receipt on the obligation. He has heard the will read, and is acquainted with the lands of John Maxwell mentioned in the will. I understand that Abner’s son George has bought out the other heirs of Abner. He lives in the house, and I was always impressed with the idea he had bought it. As I understand it, David had the most acres, but Abner had the old homestead of the father of John Maxwell. Abner Maxwell died a long time before his father, John Maxwell. David died after John Maxwell.

      In chief. After the death of David Maxwell, the testatrix asked me and my wife to come and buy half of the property, and come and live there. Elias Crane objected, and I would not consent, as I wanted to live in peace and friendship with him.
    The will of John Maxwell, deceased, dated March 1, 1822, and proved December 12, 1828, was put in evidence in support of the will.
    The inventory of the personal estate of David Maxwell, amounting to $6,592.64, was put in evidence on the part of the caveator.

      Jdbraham C. Miller,
    for the caveator. J am acquainted with John Crane, son of Elias; I lived last summer within three hundred yards of him, adjoining his farm. I lived there about six months. John Crane worked the farm of testatrix. She had no oxen or horses I believe, while I lived there. There were oxen and horses used on the farm, and I suppose they belonged to John Crane. They were kept on the farm.

      Cross-examined. I believe John Crane had hut one horse there last summer. He had a pair before, but one last summer. He had about five cows thero last summer, and one pair of oxen. I suppose John owned five of the cows; and the widow had one cow.

      Samuel S. Doty,

    for the caveator. I heard Esther Crane, wife of Elias Crane, say, in the presence of her husband, that the Maxwell family had been helped by her father considerably when the children were young. I think Elias was present when his wife said so, but will not bo certain. I have been in Elias Crane’s house almost every clay. I ana his nearest neighbor.

      Cross-examined was trouble at cut the difficulty. This conversation was since I hoard there 10 viiL Elias Crane regretted very much

      Jinn M. Maxwell,

    for the caveator. I am the widow of John, A. Maxwell, deceased, and mother of John A. Maxwell his son,, who was fifteen years last December. John A. Maxwell, my husband, has been dead fifteen years last month. My son and I were in the habit of visiting the testatrix frequently; my son oftener than myself. We were both on good terms with testatrix, and never had any difficulty with her; and she rather made a pet of my son. I was out at her funeral, with my son. I was present when the will was produced and opened at her house, in her room, and right away after the funeral. Elias Crane, and I think all his sons and daughters, his wife, Stephen Foster, his son Job, and his daughter Mary, George Maxwell, and pretty much all the family that were interested were present. Mrs. Elias Crane brought the will from the adjoining room, which was the bedroom of testatrix. I did not see the place in the room from which the will was taken. I don’t know of any one being invited to go and search for a will; I think Elias Crane came out behind his wife when she brought out the will. She placed the will in the hands of George Maxwell. The will was in an envelope, sealed with three seals, one of which was broken. The envelope, with the will produced here, appears to be the same. Mr. Paige opened the envelope and took out the will. I think George Maxwell handed it to him. Mr. Paige read the will. George Maxwell did not read it because it was said it must be read by some indifferent person.

      Cross-examined. I recollect that Mrs. Crane came in and out of the room several times; but can’t say whether she spoke to her husband about another key, or that she spoke to him. I was not in the bedroom from which the will was brought, that day. I think the last time I was in that bedroom of the testatrix was in September before she died. She had a cupboard or chest of drawers in that room I think when I was last in it. I did not see the testatrix use a key to open a drawer there. I observed it for three years that the testatrix appeared very childish. She was very eccentric. When I heard the will read, and that nothing was given to my son, I didn’t feel disappointed. If there was a will made I didn’t expect my son to get any thing; from the circumstances, I expected it would go as it did, I knew my son would he henofitted hy law if she died without a will, hut not if she loft a will, as I didn’t expect she would make her will herself.

      In chief. The reason why I thought my son would not get any thing hy her will, I knew she appeared to he influenced hy the Cranes. The testatrix never gave anything to my son, or made any presents, hut once, when he came from the country ho said she had given him two shillings. I mean hy her petting him, that she called him in and gave him cakes.

      B. Williamson, for the caveator.
    This paper disposes of |11,000, real and personal estate. The whole of this property, except an acre of turf meadow and about $1500, goes into the family of Elias Crane.
    We do not cavil about the execution of the will. But we deny the factum of the will — that is, we say she did not know the contents.
    When, as here, a paper is executed with the proper solemnities, the presumption is, that the person executing it knew its contents. But this presumption may be overcome. We submit that the circumstances under which Nancy Maxwell signed this paper are such as to overcome this presumption. She was a maiden lady, upwards of 70; under the influence of Elias Crane’s family; visiting no one except his family. The paper was prepared through an agent. It will hardly be pretended she could write it; true, she might dictate it. The whole bulk of the estate is thrown into the hands of the children of this agent. A mere pittance is given to others equally near. This agent was one in whom she had confidence. She lived in a small apartment put up by him close to his house ; his son living there on the farm with the old lady. It was natural that Mr. Crane should have acquired her confidence; and the law says, that such an one, so selected, stands in a different situation from an ordinary agent. Williams on Executors, 58. Suspicion is greatly increased if the will is in favor of such an agent; and, therefore, if in favor of his children. Under such circumstances Courts will require strong proof that the person executing the paper knew its contents. In a late case in New York, Brady, an attorney at law, drew a will, and it gave all the property to his brothers and sisters; it was set aside. In a case like this, the Court will require strong proof that it was her will, and not a writing prepared by Crane himself for his own purposes. The testimony shows, he submits, that she never had the opportunity of knowing the contents. Crane went to Esquire Wade, and told him Miss Crane wanted to make a will; and in a few days after went again with a writing in the form of a will. It will not he pretended that Miss Maxwell wrote that writing. Submits, from the testimony, that she was wholly incapable of drawing a writing like that. If she did write it it was easy to prove the fact. He submits it is clear that Mr. Crane wrote that paper. Esquire Wade was pressed on this point; and says he did not take sufficient notice of that writing; and yet he drew the will frojn it. And Wade admits he had said he thought it was Crane’s writing. Again, Wade told Crane that the names of the nephews and nieces should he mentioned. Crane told him he did not know the names. This is evidence that Crane wrote that paper. Would not Miss Maxwell, if she had dictated that paper, have named the nephews and nieces 1 And where is that paper 1 If it had been written by her, giving nearly all to his family, would not Crane have kept it, to show &c. 'I Has he lost it; or has he destroyed it % It is clear, he thinks, that that paper was in Crane’s writing. And there is no proof that Miss Maxwell ever saw it or knew its contents.
    Next, Was any opportunity ever afforded to Miss Maxwell to read the paper offered for probate as a will ? It is proved that this paper, after being drawn by Wade, was delivered by him to Crane. It will be presumed to have remained in his possession unless proved otherwise ; and it is not shown from whom Wade received it on the day it was executed. ■ Crane came with Miss Maxwell and said, ccAunf. Nancy has como to have popes* executed.” It was executed without being read to her. She learnt nothing there of its contents. No doubt she intended to make a will; and she may have thought it was no matter about her knowing the contents then, for that she would have it in her possession, and if it did not suit her, she could &c. Crane’s interposition by saying let Mr. Wade keep it has significance. It was sealed up, and delivered to her; and remained so, though in her possession; so that we show she had no opportunity of reading it. I submit that we overcome the presumption arising from the bare production of the will that she knew its contents. If it had been delivered to her not sealed, I admit she would be presumed to know its contents; or if it had been proved that she had declared her intention to make just such a will; and such proof was easy if she had ever intimated such intention. But there are many circumstances going to show she never intended to make such a disposition of her property. Wade told Crane he wanted the names of nephews and nieces. Crane said he didn’t know, or had forgotten the names. Could Miss Maxwell have forgotten the young man John A. Maxwell, a son of a nephew, and who often visited her, and whose mother was a widow. His name was dear to Miss Maxwell; and yet ho is the only individual of all this family and its branches that is entirely cut off. Again, the real estate came from her brother, David Maxwell; a fifth to her, and the other fifths &c., (as shown by the testimony.) An arrangement was made by the owners of four of the fifth parts to sell out cheap to Miss Maxwell; and it was done under the idea that it would all come back to all. All did it except Crane, who, after agreeing, refused. Now, would Miss Maxwell give all to the man who had treated her thus, or to his family; and against the others, who had complied and conveyed to her I
    Miss Maxwell wanted Mr. Foster to come and live with her; and Elias Crane interfered and prevented; and on a certain occasion Crane remarked that the Maxwells had had enough,1’showing that this was his view; his wife, on another occasion made a similar remark, Alíese are all circumstances worthy of consideration.

      Susan Foster, a sister of Miss Maxwell, died leaving four chil dren, and but $125 apiece is left to them; and they are poor. Mrs. Meeker, another sister, died, leaving eight children ; they get.but $62 a piece. And the niece Phebe Miller gets an acre of turf meadow. Wearing apparel is given to seven nieces and all the rest of the real estate to Elias Crane’s wife, and after her death to
    three of whom are the children of Elias Crane. No reason appears why such a will should be made. This has weight only as it shows the agency and influence of Elias Crane. And one-of his sons lived on the farm. 2 Green’s Ch. 550, 8, 5, 7.

      J. Chetwood and F. B. Chetwood for the will.
    They cited 1 Green’s Ch. 82; 1 South. Rep. 458; 2 Ib. 670.

      J. J. Chetwood in reply.
   The Chancellor.

The will was signed and published with the proper solemnities and in the usual manner, the testatrix declaring that she published the same as her last will and testament. From such signing and publication the presumption arises that she knew the contents of the will. The circumstances relied upon to overcome this presumption, and to throw upon the party supporting the will, the burden of proving that the testatrix knew its contents, are not sufficient for that purpose.

The decree of the Orphans’ Court will be affirmed.

Order accordingly.


text:
    Abijah Titus, The Executors of Christiana Vail, Theodore S. Vermule and Jeptha Clawson, Complainants, and Hiram C. Bennet, Cornelius Boice, and the Sheriff of Somerset, Defendants.

      A., by deed dated October 15, 1880, conveyed two acres of land to O.; and C. entered into and remained in possession thereof. On the 17th of January, 1885, A., by deed of that date, conveyed to T. a tract of land adjoining the two acres so conveyed to C.; and T. entered into and remained in possession. The deed to T. was prepared by B., an attorney at law, and was acknowledged before him as a Master in Chancery; and was recorded May 15,1818. On the 12th of January, 1817, T., under the advice of B., mortgaged the tract so conveyed to him to Y., since deceased; the mortgage being prepared by B. and acknowledged before him; B. acting as counsel for V. This mortgage was recorded February 28,1819. T., by deed dated February 10,1818, conveyed to W., subject to the said mortgage; which last mentioned deed was also prepared by B., and acknowledged before him. B., as an attorney at law, prosecuted a claim which D. held against A., and, on the 25th of May, 1817, recovered judgment in the Circuit Court of Essex county, which was docketed in the Supreme Court after the date of the deed to W., and caused an execution to be issued thereon out of the Supreme Court, and to be levied on all the said lands; the said B. and D. having full knowledge, before the recovery of the said judgment, that A. had conveyed the said lands as aforesaid. T., and the executors of Y., and W. and C. joined in a bill stating the above facts, and making B., and D., and the sheriff defendants, praying a perpetual injunction against the sale of the said lands by virtue of the said execution.
    On demurrer, it was held that C. was improperly joined as a complainant; but that W. and the executors of Y. were proper parties complainants.
    The bill states that James B. Ayres, of Essex county, for the consideration of 11200, sold and conveyed to the complainant Abijali Titus, in fee, by deed dated January 17, 1885, three tracts of land, (describing them,) situated in Somerset county. That the deed for said lands was written and prepared by the defendant Boice, and was, on said 17th of January, 1835, acknowledged by said Ayres before said Boice as a Master in Chancery. That said deed was, on the same day, delivered by the said Ayres to the complainant Titus; and that Titus thereupon entered into possession of said lands, and has remained in the quiet possession thereof to this time. That his said possession has been open, notorious and peaceable, from said year 1835 to this time, without dispute or question by any one. That said deed was recorded May 15, 1348.
    That by a mortgage, dated January 12, 1847, the said Titus mortgaged, under the advice of said Boice, to Christiana Vail, since deceased, said Boice being the counsel and attorney of said Christiana Vail, the same lands so conveyed by the said Ayres to the said Titus, to secure a bond for $500, given on same day by said Titus to said Christiana; which bond and mortgage were prepared and written by said Boice, and the mortgage acknowledged before him as a Master as aforesaid; which mortgage was recorded in the Clerk’s office of Somerset, on the 23d of February, 1847-
    That said Christiana Vail afterwards died, leaving a will, of which the complainants Nathan Vail and Frazee Coles are the executors; and the executors aver that the said $500, secured by said mortgage, is due and payable to them as such executors, and that they have no security for the payment thereof other than the said mortgaged premises.
    The bill states that Boice, having full knowledge that said lands belonged to said Titus, in fee, and that he was in possession thereof, entered into a negotiation for the purchase thereof, some time in 1843; but, owing to some circumstances other than a want of title in said complainant Titus, did not purchase the same.
    That Titus and the complainant Vermule entered into a contract for the sale and purchase of said lands, by which the complainant Titus, with his wife, by deed dated February 10, 1848, for the consideration of $1625, made out a conveyance to said Vermulc for the said lands, reciting that it was the same land conveyed to Titus in three lots described in a deed from said Ayres and wife to said Titus, dated January 17, 1835, except about half an acre sold off by said Titus and belonging t-C' said Boice, and conveying said premises to said Vermule, subject to the mortgage so given by Titus to Christiana Vail. Thai this last mentioned deed was prepared by and is in the handwriting of said Boice, and was acknowledged before him by said Titus and his wife. That by reason of the judgment and execution hereinafter mentioned the said deed from Titus to Vermulc remains an escrow.
    Tho bill then states that said Ayres, by deed dated October 15, 1830, for the consideration of $30, sold and conveyed to die complainant Jeptha Clawson 2 acres 7-100 adjoining the premises above described, of which said Clawson immediately took possession, and of which he has held the peacable and undisputed possession ever since.
    That Boice, being in full possession of all the facts before stated, was employed as the attorney of one Hiram C. Bennet, of New York, (said Boice being an attorney and counsellor at law of this State,) to prosecute a claim which said Bennet held against said Ayres; and that said Boice, as the attorney and agent of said Bennet, presented said claim in favor of said Bennet, against said Ayres, in the Circuit Court of Essex county, and that, on tho 25th of May, 1847, judgment was rendered on the said claim, in the said Court, for $2,238.90, with costs. That execution was thereupon issued, returnable to August term, 184-7, of said Court. That, the money not being made on said execution, the said Boice, attorney as aforesaid, caused the said judgment to be certified &c., and docketed in tho Supremo Court, and that an execution was issued on said judgment out of the Supreme Court to the sheriff of Somerset, returnable to July term, 1848, of that Court. That said sheriff' was directed by said Boice, attorney as aforesaid, and by said Bennet, or one of them, (with a full knowledge that said Ayres had, long before the entry of said judgment, sold and conveyed the said land above described, and that said Ayres, from that time, never pretended to claim the same,) to levy upon the said land and premises, and advertise and sell the same; and said sheriff, in obedience to said orders, did levy upon and advertise said land and premises, and has adjourned the sale thereof until August 21st next (1848).
    The complainants the executors of Vail say, That, if the above described land and premises should be sold under said execution, the money so due to them will be wholly lost, as said Titus is wholly unable to pay the same or any part thereof.
    The bill prays a perpetual injunction, and an injunction in the mean time restraining the sale; and subpena against Boice, Bennet and the sheriff.
    Bennet and Boice put in a special demurrer to the bill; and for cause of demurrer say, that said bill is exhibited by the complainants for several and distinct matters and causes, depending upon different and distinct principles and facts, and not necessarily or properly connected with each other; and that the said complainants have separate and distinct interests; and that said bill is multifarious, and joins distinct and separate matters together.
    P. B. Vroom in support of the demurrer.

      W. Halsted contra.
    He cited Halst. Dig. 223; 1 Bro. Ch. 200; 2 Atk. 282; 1 Ib. 13; Mitf. Pl. 147; 4 John. Ch. 199 ; 2 Ib. 284; 4 Mad. Ch. Rep. 138, 146, 144, note.
   The Chancellor.

I see no ground stated in the bill on which Clawson can be joined as a complainant with the other complainants. He received from Ayres, in 1830, a deed for certain lands. Titus received from Ayres, in 1836, a deed for certain other lands. The two transactions are entirely distinct, and have no connection with each other. The fact that the defendant Bennet, or his attorney or agent, has caused both those tracts of land so conveyed, separately, by Ayres, to be levied upon under a judgment obtained against Ayres, does not, that I can perceive, raise any such common question or common interest in Titus and Clawson as that they can join in a bill to prevent the sale of their respective lands under such judgment.

It may also be said} that the facts stated in the bill in behalf ■of Clawson show no reason whatever for the interposition of this Court in his behalf.

His course will be to file a bill himself, if he can state other facts sufficient to make a case for the interposition of this Court in his behalf.

As to the other complainants, I see no reason why they should not bo permitted to join as complainants. Their rights all depend on the one conveyance from Ayres to Titus, or upon Titus’s title or right to hold or convey the lands unaffected by the judgment on which the sale is threatened.

The demurrer must be sustained. Leave will be given to amend the bill by striking out the name of Clawson as a complainant, and all the allegations made therein in his behalf.

Order accordingly.


author: The Chancelloh.

text:
    A. S. Pennington, Executor of Abm. Van Houten, Jr., deceased, and Rachel Van Houten v. The Executors of Abm. Van Houten, Sen., deceased, and trustees of Abm. Van Houten, Jr., deceased.
    A., by will, gave to his widow the use of his farm and dwelling house, and farming utensils and stock on the farm, and his family of colored people, and his household and kitchen furniture, until his son, A., (an only child of three years old), should arrive at the age of twenty-one years; and gave his widow $800 a year, out of his-estate, during her natural life; all which was in lieu of her dower. He next gave certain pecuniary legacies. And then gave all the rest and residue of his estate, real and personal, to his son A., to him, his heirs and assigns forever; and directed his executors to rent out his houses and lots in Paterson, and to put out the proceeds thereof, together with his;moneys and securities for money, to interest, for the benefit of his son, until he should arrive at the age of twenty-one years; and to give his said son, out of his estate, a college education, and a decent support until he should arrive at the age of twenty-one years. And then provided as follows; “ But if my said son, A., should die having no children, then my will is, and I do dispose of my property in the following manner;” (giving the said residue of his real and personal estate, so devised and bequeathed to his said son, to other persons). The son, A.,, attained twenty-one, and afterwards died without having had a child.

      Held, That on A.’s attaining twenty-one, his estate was absolute and unqualified; the clause giving the property over being held to mean the death of A. under twenty-one having no children.
    If the intention of the testator can be satisfactorily gathered from the frame and provisions of the will and the language and connection of the particular clause, it is the duty of the Court to declare that intention.
    Cross hill filed September 25th, 1849.
    Abraham Van Houten, the elder, by his will, first gives to-his wife, Rachel, if she survive him, the use of his farm and dwelling house where he then lived; all his farming utensils- and all his stock of said farm ; also his family of colored people,, together with his household and kitchen furniture which is notthereinafter disposed of otherwise, together with every article belonging to the same, as be the testator then occupied and enjoyed the same, until his son, Abraham Van Houten (his only-child) should arrive at the age of twenty-one years; and gives to his wife, Rachel, $800 a year out of his estate, during her natural life; all which he gives in lieu of dower. Pie then gives certain pecuniary legacies. He then gives, devises and bequeaths to his son, Abraham Van Houten, all the rest and residue of his estate, both real and personal, whatsoever, and wheresoever lying and being, of whatsoever description the same may be, excepting what is therein otherwise disposed of, to him and his heirs and assigns forever; and directs that his executors shall rent out all his property lying in Paterson and Hackensack, and all his houses and lots, at their discretion, for the benefit of bis son Abraham; and the proceeds arising therefrom, after deducting all necessary expenses and charges, together with his personal estate, consisting of money, bonds, notes, and mortgages bequeathed to his said son Abraham, to be put out to interest for the benefit of his son, by his executors, until he shall arrive at the age of twenty-ono years; and that his executors give unto his said son, Abraham Van Houten, out of his estate, a good college education, and a decent support until he shall arrive at the age of twenty-one years. Then follows this clause: ££but if my said son, Abraham Van Houten, should die, having no children, then my will is, and I do dispose of my property in the following manner, viz: I give unto the grand-children of my sister Elizabeth Van Riper, wife of Richard Van Riper, deceased, $1000, to be divided equally among them, share and share alike, to them and their heirs and assigns forever. Item, I give unto the children of my sister Caty Post, wifq of Adrian Post, $1000, to be equally divided among them, share and share alike, to them their heirs and assigns forever. Then I give unto the children of my sister Jane, wife of Henry Post, $1000, to be equally divided among them, share and share alike, to them their heirs and assigns forever. All the rest and residue of my estate, both real and personal, wheresoever and whatsoever description the same may be, I do give, devise and bequeath, one equal third part thereof unto my beloved wife Rachel, to her and to her heirs and assigns forever. Then I give, devise and bequeath one other equal third part thereof unto Leah, wife of Jacob Garretson, to her and her heirs and assigns forever. Item, I give, devise, and bequeath one other equal third part thereof unto the children of Caspar Wessels, deceased, to be-equally divided among them, share and share alike, to them', their heirs and assigns forever.
    The son attained twenty-one, and afterwards died without having had a child.
    The question was, whether the bequest and devise to the son did not become absolute and unqualified on his attaining twenty-one.

      A. S. Pennington and P. D. Vroom for the representative of the son.
    They cited 2 Bl. Com. 398; 2 Kent’s Com. 285, 352; 2 Russ. & Myln. 390: 5 Bevan’s Rep. 558; Sugden on Prop. 356; 10 John. Rep. 12; 3 Meriv. 116; 19 Ves. 579; 2 Pow. on Dev. 631; 2 Vern. 324; 17 Ves. 418; 3 Merv. 83; Lewis on Perpetuities, 177, in 42 Law Lib. 146, 157; 1 Ves. Sen. 196; 1 Harr. Rep. 185; 1 Pow. on Dev. 371, 4, in 11 Law Lib. 218; 13 Ves. 476; 1 P. W. 234, 5; 2 Burr, 767; 5 Ib. 2707; 2 P. W. 194; 6 East. 486; Yarman on Wills, 427, 437; 3 Halst. Rep. 45; 3 Harr. Rep. 27; 1 Spencer’s Rep. 151; 16 John. Rep. 418; 2 Mass. Rep. 68; Cowper, 234; 2 Penn. Rep. 882; Lewis on Perpetuities, 326, in 42 Law Lib. 232; 1 P. W. 663; 2 Pow. on Dev. 584, in 12 Law Lib. 303, 311; 9 Ves. 198.

      W. Pennington and Zabriskie contra.
    They cited 11 Law Lib. 211; 1 Pow. on Dev. 359.
   The Chancelloh.

Cases and artificial rules will be of very little aid in the reading of this will; and will embarrass rather than enlighten us as to the intention of the testator.

If the intention can be satisfactorily gathered from the frame and provisions of the will and the language and connection of the particular clause, it is the duty of the Court to declare that intention.

I think the intention of the testator in this will can be so gathered.

The particular cluase on which the question argued has been raised is, “ but if my said son should die, having no children, then &c.”

The general frame and provisions of the will are these : He gives his wife, Rachel, the farm and dwelling house where he lived, the farming utensils, and all the stock of said farm, and his family of colored people, with the household and kitchen furniture, together with every article belonging to the same as he then occupied and enjoyed the same, until his son, Abraham Van Houten, should arrive at the age of twenty-one years, and gives his said wife $300 a year out of his estate during her natural life; all which he gives her in lieu of dower. He then gives certain pecuniary legacies. He then gives, devises and bequeaths to his son Abraham all the rest and residue of his estate, both real and personal, whatsoever and wheresoever lying and being, of whatsoever description the same may bo, to him, his heirs and assigns forever. His son was but about three years old. The testator then, (and therefore), proceeds to provide, that his executors shall rent out the lands and houses for the benefit of his son; the proceeds arising therefrom, together with his personal estate, consisting of money, bonds and mortgages bequeathed to his son, to be put out to interest, by his executors, for the benefit of his son, until he shall arrive at the age of twenty-one years; and orders his executors to give his son a good college education, and a decent support until he shall arrive at the age of twenty-one years ; but if my said son should die having no children, then my will is, and I dispose of my property in the following manner, viz. :” giving three legacies of $1000 each, and giving, devising and bequeathing the rest and residue of his estate, real and personal, one-third to his said wife, Rachel, in foe; one-third to Leah Garretson, in fee; and the remaining third to the children of Caspar Wessels, deceased, in fee.

In view of the frame and general provisions of the will, and the connection of the particular clause, if the particular clause had been, “ but if my son should die,” then &c., could there be a doubt that the meaning would be, die under twenty-one ? I think not. At this point of the will the thought occurred to the testator, that the son might have children though he should die under twenty-one, and therefore the words c< having no children” were added. The adding of these -words, it seems to me, makes no difference in the reading of the will. The main idea of the clause is, “ if he should die,” which means, as before said, under age. The idea expressed by the words “having no children” was a secondary idea, guarding against a remote contingency of his having children before he was twenty-one and dying before twenty-one.

There is nothing in the frame and provisions of the will, or in the particular clause ina its connection, to show that the testator contemplated or intended to put any limitation or qualification on the estate which should continue after the son attained full age.

It would hardly be contended that the testator intended that the son should not have a full and absolute property in the personal estate when he came of age. Can it be believed that he intended to subject the stock on the farm to any limitation or qualification to continue after the son should come of age, and for his whole life. If such was not his intention in reference to the personal estate, it follows necessarily, that it was not his intention in reference to the real estate. Ho could not, in this one and the same clause, intend one thing in reference to the personal estate and another in reference to the real estate.

Again, the fact that, in the event contemplated, he gives a third of the property, real and personal, to his widow, the mother of this infant son, shows that the death of the son contemplated was his death under twenty-one, and not the remote contingency which is contended for on the part of the defendants.

Being clearly satisfied what was the intention of the testator, I see nothing in any rule of law to prevent its being carried out in this case.

Decree for complainants.