author: Chancellor.

text:
    John Endicott vs. Eli Mathis et al.
    1. Where an injunction has been allowed by a master, and the material matters in the affidavit inducing the making of the order were contradicted by the records of this court, the Chancellor, on motion, dissolved' the injunction.
    2. Where an injunction has been obtained on a misrepresentation of facts, it does not alter the case whether that misrepresentation was through inadvertence, misinformation, or otherwise.
    3. Where the Chancellor had dissolved an injunction to stay the proceedings of an action of ejectment on the ground that the equity of the bill was fully answered, and subsequently a bill similar in every substantial matter was filed, in which another assumed the position of the complainant in the first bill, for the mere purpose of obviating the difficulty which the proceeding in the other suit interposed to the aid of the court being again obtained, and it was apparent that the suit was got up by the former complainant, and that he was as much interested in it as if he were a party to the record; and no reason appearing upon the face of the papers for instituting another suit—
    4. Held that “ To countenance these proceedings would encourage litigation and the multiplication of suits. It would be to exercise the injunction powers of the court — to embarrass and retard, instead of promoting justice.”
    5. While a party is in contempt for disobedience to an injunction, he-cannot properly have a hearing on a motion for its dissolution, but when the nature and extent of the punishment to be inflicted for such contempt depend on the determination of the question whether the injunction shall be continued or not, the hearing may be allowed.
    6. The court will not allow its process to be disregarded or evaded on mere technical grounds.
    7. So where H. M. and wife were the lessors of the plaintiff in the action of ejectment, to stay proceedings in which the order was granted, and in the writ of injunction served, the suit restrained is described as one in which H. M. alone is the lessor of the plaintiff, there being no other suit pending in which E. M. was the lessor of the plaintiff, and no allegation that there was any doubt as to the suit intended. It was held no sufficient reason to disregard the injunction.
    This cause was heard before the Chancellor at February Term, 1852, on motion to dissolve the injunction which had been allowed by a master. The grounds relied upon in support of the motion sufficiently appear by the Chancellor’s opinion.

      Mr. Browning, for the motion.

      Mr. W. Halsted, contra, cited Evans v. Van Hall, Clark’s Ch. Rep. 22; John et al. v. Pinny et al., 1 Paige Ch. Rep. 646; Rogers v. Pattison, 4 Paige Ch. Rep. 450; 1 Russel and Mylne 193; 1 Hoffman Ch. Prac. 450.
   Chancellor.

The bill in this cause was filed on the 8th day of December last.

In aid of the relief sought, an injunction is prayed for, to stay the proceedings of an action of ejectment brought by the said Eli Mathis against the said John Endicott in the Supreme Court. The ejectment is for lands in the county of Atlantic, and it was noticed for trial at the Atlantic Circuit on the 9th day of December last, the day after the filing of the bill. The application for the injunction was made to James Ewing, Esq., an injunction master, at the city of Trenton, and was allowed.

The motion now is to dissolve this injunction. The grounds relied upon in support of the motion are—

First. That the injunction was obtained by the misrepresentations made to the master. And the records of this court, in connection with the affidavit annexed to the bill, are relied upon in support of the allegation.

Second. That the answer of the defendant, Eli Mathis, fully meets the equity of the bill.

There were other reasons assigned and argued, but I deem it unnecessary to notice them in deciding the case.

Upon the threshold of this investigation, the complainant interposes an objection, which, he insists, should preclude the defendant from being heard upon his motion at this time.

The complainant’s counsel reads an affidavit made by the counsel himself, dated the day of the hearing of this motion. It sets out that the injunction issued in this cause was served on the attorney of the plaintiff in the action of ejectment before the opening of the court the day on which the cause was noticed for trial; that notwithstanding such service, when the cause was called, the attorney, after stating to the court the fact of the service of the injunction, and reading the same to the court, moved the cause, and proceeded with the trial.

It is clear from authority, and there seems great propriety in the rule, that a party in contempt is not entitled to a favor from the court until he has made satisfaction for such contempt. It is said in one of the cases cited on the argument, (Evans v. Van Hall, Clark’s Ch. Rep. 22,) that “it does not seem quite clear at what particular point of the proceeding a party shall be deemed in contempt.” But as this is a matter so entirely in the discretion of .the court — where the court is- simply vindicating its own dignity — it would seem that each case as it arises, must depend very much upon its own peculiar circumstances.

While a party is in contempt for disobedience to an injunction, he cannot properly have a hearing on a motion for its dissolution ; but where the nature and extent of the punishment to be inflicted for such contempt depend on the determination of the question whether the injunction shall be continued or not, the hearing may be allowed.

Williamson v. Caman, 1 Gill and Johns. R. 184.

In the case before us, did the affidavit stand alone in reference to this point, and the facts not denied or explained, the court ought not to permit a disregard of its process, apparently so flagrant, and allow a party to proceed with a motion, which if successful, will secure to him the fruits of his disobedience to the mandates of the court. If such was the question now propounded, I should, without hesitation, answer it in the negative.

But the attorney of the plaintiff in the ejectment suit, and who appears as solicitor and counsel on this motion, has placed on file and read his own affidavit in- reply to that which charges the breach of this injunction. He admits the cause was tried, but a variety of circumstances are set out as an excuse for the course pursued. Before moving the cause; he made a statement to the justice of the Supreme Court who held the circuit, and appealed to him whether under all. the circumstances it could be construed into disrespect towards the court for him to proceed with the trial of the cause. The justice declined giving any advice, but at the same time did not in any way discourage his doing so. He also consulted a counselor-at-law, then present, who gave it as his opinion that his proceeding in this trial would be no violation of the injunction. The attorney further states in his affidavit, that “ had he supposed the trial of the said cause could be considered as a violation of said injunction, he would most cheerfully have refrained from doing so, and so stated to the court upon moving said trial.”

Upon the case as presented by the affidavits, I would, if there were no peculiar circumstances which induce me to think that justice to the defendant demands a different course, require him, before considering the motion for dissolution, to place the opposite party, as near as might be, in the same position at law as the injunction found him at the circuit.

But it may be proper for me here to notice one reason assigned as inducing the attorney to disregard the injunction, lest it might be supposed as influencing me in this decision, and the position taken be regarded as having received the sanction of this court.

In the ejectment suit, Eli Mathis and wife are the lessors of the plaintiff. In the writ of injunction served, the suit restrained is described as one in which Eli Mathis alone is the lessor of the plaintiff It is argued by counsel, that on account of this discrepancy, it was no contempt to disregard the injunction. Had there been another action of ejectment depending, in which Eli Mathis was the lessor of the plaintiff, or if by this discrepancy there was anything which could lead to the supposition that this was not the action intended by the writ to be restrained, and such was the honest belief of the party, the court could not consider the proceeding with the trial a contempt of its process and authority. But here it is not alleged that there was any doubt as to the suit upon which the writ was intended to operate. If the court should allow its process to be disregarded or evaded, on mere technical grounds, its powers Would be enfeebled and its usefulness impaired. With the view of maintaining the authority of the court and giving vigor to its jurisdiction, Courts of Chancery have decided that a party is in contempt who knows an injunction has issued, or is about to issue against him, and yet commits the act prohibited before the injunction can be formally issued and served upon him. Hull v. Thomas, Head and another, 3 Edward’s Ch. Rep. 236, and cases there cited.

From the facts and circumstances already alluded to, in connection with the conduct of the complainant and Joseph E. West, in procuring this injunction, and to which I will presently refer, I do not feel called upon to vindicate the dignity of this court, by refusing the defendant an opportunity of being heard on his motion.

Let us now examine the ground upon which the defendant rests his application for dissolving the injunction.

Was the order procured upon misrepresentations made by the complainant or his agent?

The ejectment was commenced in February Term, 1843, of the Supreme Court. The trial was postponed from time to time, on account of negotiations for settlement between the parties, until it was noticed at the term of September, 1850, of the Atlantic Circuit. On the 9th day of September, 1850, Joseph E. West exhibited his bill of complaint in this court, and obtained an injunction against Eli Mathis, this defendant, restraining further proceedings in the action of ejectment. A special affidavit accompanied the ordinary affidavit to the bill, as required by the rule, assigning the reasons why the injunction had not been applied for until within twenty days of the day of trial. The usual, order was made, requiring the complainant to pay the costs incident to bringing the suit at law to trial. The injunction was served and it was obeyed, although the costs were not paid as ordered, and have not been paid up to this time.

The equity of West’s bill may be stated in a few words. It is contained in the following allegations: That West had entered into a written agreement with Eli Mathis and others, for the purchase of the land in question; that he had paid the consideration money; that Eli Mathis had not executed a deed, as stipulated by the said agreement; that after the agreement West entered into the possession, and then sold and conveyed the land by warranty deed to John Endicott, the present complainant, and that the said Mathis had commenced the suit in ejectment, to turn the said Endicott out of the possession of these lands. The prayer is for injunction, and that Eli Mathis be decreed to perform his said contract, or to pay back the consideration money.

Eli Mathis promptly answered this bill of West. The bill was filed on the 9th of September, 1850, and the answer on the 18th of the same month.

A motion to dissolve was argued before Chancellor Halsted. On the 6th day of December, 1850, the Chancellor made an order dissolving the injunction, upon the ground that the equity of the bill was answered.

The ejectment was then noticed for trial, as before stated, in December Term last of the Atlantic Circuit. And now this bill is filed, and an injunction prayed in the name of the defendant in the ejectment suit, John Endicott. It is the same bill, in every substantial matter, as that exhibited by Joseph E. West. The greater part of it is a copy, word for word, from that bill. It is impossible for one not to see, unless willfully blind, that Endicott assumed the position of West, as complainant, for the mere purpose of obviating the difficulty which the proceedings in the other suit interposed to the aid of the court being again obtained on the application of West. The affidavit annexed to this last bill is in the haudwriting of Joseph E. West. The special affidavit accompanying the bill, and which I suppose was required by the master, is West’s own affidavit, sworn to at Trenton at the time the order was made. The papers all show that this suit was got up by West; that he is the active man in its prosecution, and is as much interested in it as if he was the party on the record.

But how was it that the master ordered this injunction in the face of the former proceedings? In the special affidavit referred to, West, after giving an excuse why the costs required in the order for the first injunction were not paid, swears that he understood that injunction was dissolved, on the ground of the non-payment of these costs. When he made this affidavit, the order of the Chancellor, dissolving the injunction, on the ground that the equity of the bill was fully answered, was on file in the office, not three hundred yards distant, and to which he ought to have resorted for certainty in a matter of so much importance.

But it was insisted upon the argument, that the allegation of Joseph E. West in his affidavit, “ that the injunction was dissolved, on the ground of the non-payment of costs,” was true, and that the Chancellor did not dissolve the injunction for the reason of the equity of the bill being denied by the answer.

But there is the order signed by the Chancellor, bearing date the 26th day of December, 1850, and filed two days afterwards. It sets out that the cause was regularly argued upon notice to dissolve the injunction upon the bill of the complainant, and the answer of Eli Mathis, one of the defendants, in the presence of William Halsted, solicitor and counsel of the complainant, and Abraham Browning, solicitor and counsel of the said defendant, Eli Mathis, and the Chancellor having duly considered the same, and being of opinion that the equity .of the said bill is fully answered, and that the said injunction ought to be dissolved. It is therefore,” &c._ This order cannot be disregarded and treated as a nullity, upon the mere affidavit of a party interested, that he understood the injunction was dissolved for other causes than those stated in the order of the Chancellor. It is hardly worth while to stop for the purpose of criticising this affidavit. And yet it may be observed that while it states the affiant had understood the injunction had been dissolved upon the ground set forth in the affidavit, he neither alleges that he believes this information correct, nor that he understood the non-payment of costs was the only ground of the dissolution.

But suppose the allegation true. Is there anything contained in the affidavit to show that even if such were the case, the complainant in that suit, was entitled to have the injunction revived ? Or the propriety of using the name of the present complainant, and by a new suit accomplish the same end ? The costs at law have not to this day been paid, nor have the costs of the dissolution of the injunction.

Joseph E. West states further, in his affidavit, that he supposed the ejectment would not again be moved until the matter was settled in chancery. He was the complainant. The defendant’s answer was filed on the 18th of December, 1850, and from that period to the filing of this bill, the 8th December, 1851, nearly a year, he had not taken a step to advance his cause. On what was his supposition founded ?

This injunction was allowed upon Joseph E. West’s affidavit. The material matters in it, inducing the making of the order, are contradicted by the records of this court. This injunction was obtained on a misrepresentation of facts, and it does not alter the ease whether that misrepresentation was through inadvertence, misinformation, or otherwise. I do not think the master would have made the order with all the facts before him.

But if it was true that the first injunction was dissolved on the ground stated in the affidavit, to wit, the' non-payment of the costs, even then, I can see no occasion for this last bill. This present suit was not instituted because of the unwillingness Or inability of Joseph E. West to afford Endieott all the protection he was entitled to in the suit then already depending-in West’s own name. There was no necessity to change the complainant in the suit. Endicott sets up no equity, and is entitled to no relief which could not as well have been obtained in the first suit as in this one. There is no reason assigned why the decision of the court should be disregarded, except the one referred to as stated in West’s affidavit. If John Endieott was entitled to an injunction upon his bill, as the case is now presented to the court, Joseph E. "West was entitled to an injunction on a proper petition in his suit then depending. A case might have arisen to have rendered it necessary for Endicott to come into this court in his own name. But no such case is now made. No reason appears upon the face of the papers,, nor was any suggested at the argument, for instituting another suit.

To countenance these proceedings would encourage litigation and the multiplication of suits. It would be to exercise the injunction powers of the court to embarrass and retard, instead of promoting justice.

I think this injunction should be dissolved, on the ground that it was procured under circumstances and in a manner which ought not ,to receive the sanction of this court.

The same answer has been filed to this as to the first bill, with some immaterial variations, to accommodate it to the substitution of names, and to some other matters which do not touch the equity of the case.

I think the equity of the bill is answered.

Let the injunction be dissolved, with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Joseph E. West, Ex. of George West, dec’d, v. Thomas Page et al.
    The court will not interfere to stay waste in cutting timber, where the complainant, by his own showing, has promoted suits against some of the defendants to the bill for cutting timber on the land where the court are asked to stay waste, and has never been able to succeed in obtaining the verdict of a jury or a judgment of the court, and has himself been prosecuted by some of the defendants for a trespass on the lands, and a verdict of §2000 rendered against him, the complainant not alleging that any of the defendants are insolvent or unable to respond to any amount of damages he may have sustained.
    This cause was heard on motion to dissolve the injunction on bill and answer.

      A. Browning, for the motion.

      Wm. Halsted, Jr., and Wm. Halsted, contra.

   The Chancellor.

The complainant, as the executor of George West, deceased, claims title to twenty tracts of timber land in the county of Burlington, containing, as is estimated, upwards of four hundred and forty-six acres.

Without expressing any opinion as to whether the question should be considered as settled in this state — that the court will not interfere to stay waste in cutting wood and timber, where the cutting is extensive, the defendants unable to respond in damages, and the property valuable ’ mainly on account of the timber j I do not think the complainant makes by his bill a case in which the court ought to interfere. By his own showing, he has prosecuted several suits against some of these defendants for cutting timber on this land, and has never been i?ible to succeed in obtaining the verdict of a jury or a judgment of the court. He has himself been prosecuted by some of these defendants for a trespass on the lands, and a verdict of $2000 was rendered against him.

He does not allege that any of these defendants are insolvent, or unable to respond to any amount of damages he may have sustained.

' The answer sets out very fully the title and the history of the different tracts. To some of the surveys the defendants set up no claim of title, and deny all knowledge of any cutting upon them. To others they claim title, and set out particularly their chain-title.

There is nothing in the case calling for the interference of the court, and the injunction must be dissolved, with costs.


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    Anthony E. Rainier et al. vs. William C. Howell et al., trustees.
    1. Where the whole equity of a bill rested upon the fact that the defendants were the trustees of a church, and as such were violating their trust; and there was no distinct allegation in the bill that the defendants were sueh trustees, or that there existed any such. corporate body, nor any statement of the manner in which the trust they were charged with violating was committed to them —
    2. Held that the informalities and omissions in the bill were of sueh a character as could not be cured or waived by the pleadings or by consent.
    3. The Court of Chancery will go a great way in protecting trust property, even to examining into the creeds and doctrines of religious societies, if the nature of the trust depends upon them.
    4. But it must appear in the bill that the trustees are perverting the property entrusted to them to uses and purposes inconsistent with that trust, and that the matters complained of were not such as had been committed to their discretion ; and for this purpose the court must be able to ascertain the limits of their authority over the property under their charge.
    This case was argued before the Chancellor, February Term, 1852. The defendants having answered, now move to dissolve the injunction, which had been allowed by a master.

      Mercer Beasley, for the motion.

      E. W. Scudder, contra.

   The Chancellor.

The complainants are members of “ The Methodist Episcopal Church of the City of Trenton,” and have exhibited this bill on behalf of themselves and others, members of the said church, against the defendants, who are the trustees of the same.

The complaint is that the defendants, as trustees, have resolved to pew the church edifice in which the congregation worship, and to sell and rent the pews, or both, and are preparing and intend to carry the resolution into effect, and that they are painting, papering and repairing the said edifice at an expense beyond the means of the congregation.

On application to the master, an order was made for an injunction, which was issued, restraining the said defendants from employing or permitting any person or persons to pew the said church, and from selling or renting, or both selling and renting, the pews of the said church, or sittings therein, and from imposing the expenses of painting, papering and repairing the said church, beyond the present means of the church, and in such way as to embarrass and increase the present indebtedness.”

The defendants have answered the bill, and now move to dissolve the injunction.

I am much embarrassed in deciding this motion, on account of informalities and omissions in the bill. They were not noticed on the argument, and as no advantage is taken of them by the answer, I should have been willing to overlook them, were .they of a character to be cured or waived by the pleadings or by consent.

The whole equity of this bill rests upon the fact that the defendants are the trustees of “ The Methodist Episcopal Church of the City of Trenton,” and that as such are violating their trust. And yet there are no distinct allegations in the bill that the defendants are such trustees, or that there exists any such corporate body as The Methodist Episcopal Church of the City of Trenton,” nor any statement of the manner in which the trust they are charged with violating was committed to them. And whether these trustees are incorporated under the statute to incorporate the trustees of religious societies, or by a special law, or whether they are incorporated at all, are all left to conjecture.

It is true, taking the bill and answer together, we may draw inferences which probably are correct, but it is very unsatisfactory to be driven to this necessity, and will not answer where the material and substantial matters of the bill are involved, and in a case exciting so much interest and so important as the one before the court.

Again. The very essence of the complainants’ case consists in this, that “ The Methodist Episcopal Church of the City of Trenton” is connected, and is in ecclesiastical union with the Methodist Episcopal Church of the United States, and governed by its rules, discipline and usages. This is the foundation upon which the complainants build ; and yet, what that ecclesiastical body is, of whom composed, what called, how organized, or how the Trenton church, as a branch, is connected with it, we are not informed.

I do not mention these matters from a disposition to make any unnecessary criticism upon the bill. They are real embarrassments in the complainants’ way, and together with others to which I shall refer, render it impossible for me to decide, upon these pleadings, the important question which was intended to have been submitted for the decision of the court.

The Methodist church of which the defendants are the trustees, was organized in the city of Trenton as early as the year 1772. It was established, and has been since conducted, as the answer admits, according to the regulations, discipline and usages of the Methodist Episcopal Church of the United States.

In the year 1837, the then church edifice of this society being too small to accommodate the increased numbers of the congregation, the present building was erected. The lot upon which it stands was conveyed by deed to “ The Trustees of the Methodist Episcopal Church of the City of Trenton,” their successors and assigns. The subscription book in which the names of subscribers were recorded, was headed as follows : “ Whereas, the house in which the Methodist Episcopal Church in Trenton has for years past worshiped, is too small, and otherwise inconvenient; and whereas, the society, at a meeting held on the 23d instant, unanimously resolved to build a new one suited in size and structure to accommodate the congregation, we, whose names are undersigned, do promise to pay to the trustees of the Methodist Episcopal Church of the city of Trenton, the sums by us respectively subscribed, in four quarterly payments.” The bill alleges “ that the subscriptions were made with the express understanding that the said church was to be erected, and in all respects managed and conducted according to the known and established regulations, discipline and usages of the Methodist Episcopal Church.” This the answer admits.

The bill further alleges that it was the understanding of the subscribers, that the church was to be, and continue, a free-seated church, and no pews were to be sold or rented. It is insisted the said trustees hold the property subject to this trust, and that to sell or to rent the pews is a violation of it. This charge and the inference are denied by the answer.

The subscription was in writing. No such condition is annexed to it as that the church was to be and continue a free-seated church, and no pews sold or rented. The subscriptions were made to build a Methodist Episcopal Church. They were payable to “ The Trustees of the Methodist Episcopal Church of the City of Trenton,” to be devoted to that object.

No one or more of the subscribers can come forward now and ask the interference of the court, on the ground that they subscribed upon some understanding which the trustees are about to violate. Various representations might have been made, wholly unauthorized, to different individuals, t® induce them to subscribe. But the violation of every promise made to the subscribers would not justify an interference with this religious society in the management or disposition of its property.

Nor has the court a right to interfere, upon the grounds alleged in the bill — that a majority of the members of the congregation are opposed to the proposed action of the trustees — or that the trustees are making additions to or alterations in the property, which are extravagant, and at a cost beyond the means of the congregation.

A Court of Chancery will go a great way in protecting trust property. There is nothing which it undertakes with greater reluctance than that of examining into the creeds and doctrines of religious societies, and yet it will not shrink from the discharge of this duty, however delicate or embarrassing, if the nature of the trust depends upon them.

In this ease, although the trust is not expressed in the deed to the trustees, yet the corporate name in which the conveyance is made to them, and by which they hold the property, and the contemporaneous acts of the corporators, sufficiently and clearly indicate the nature of the trust. Miller v. Gable, 2 Denio’s Rep. 518. But the defendants admit the trust, and there is no difficulty as to this part of the case.

Are the defendants violating that trust? They are charged with so doing, in that they have resolved to pew the church edifice, and to sell or rent the pews. As I have already suggested, because a majority of the members of the congregation are opposed to the measure — or because of its unnecessary extravagance — or because it will involve the congregation in a debt which it will be embarrassing fo*r them to pay — any or all of these matters, and upon which the bill lays so much stress, are no violation of any trust which this court can protect.

These defendants may betray the confidence which has been reposed in them — they may exercise their authority so as to disturb the harmony and destroy the usefulness of the religious body they represent — they may disregard the remonstrances of their brethren and spiritual teachers, and yet such actions be beyond the control of the court. For such moral delinquencies they must answer before another tribunal. I do not mean to insinuate that these defendants are guilty of any misconduct. The charges were made very boldly on the argument and promptly denied. I refer to them simply to define the jurisdiction of the court, and to deny its authority to interfere on any such grounds.

The question is, are the defendants perverting the property entrusted to them, to uses and purposes inconsistent with and subversive of that trust ?

It is evident the case intended to be made by the bill is this: that the converting of a free-seated church into one- in which the pews are rented or sold, is subversive of the discipline and usages, and in direct violation of the prescribed rules of some ecclesiastical body in that church, which, according to the church government of the Methodist Episcopal Church controls the trustees, leaving with them no discretion in the matter. Such was the question discussed upon the argument. But it is not presented by the pleadings.

The power to regulate the sittings in the church must be lodged somewhere. Prima facie, this power is with the trustees, and unless some prescribed rules are shown depriving them of its exercise, it is committed to the trustees.

The bill alleges that the trustees do not possess the power. But why? Who does possess it? What are the rules, and by whom prescribed, which control their action ? No answers to these questions are to be found in the bill; and yet it is manifest, unless the court is informed as to these particulars, it cannot interfere with the trustees in the exercise of the -power." How can the court decide that the trustees are violating their trust, unless it can ascertain the limits of their authority over the property- in their charge ?

The bill does indeed allege that the trustees are acting “in direct violation of the- discipline and usages of the Methodist Episcopal Church.” The answer denies this, and affirms thát the regulations of the pews, and the appropriation of them as free-sittings or otherwise, is a matter in no wise affected or controlled by the discipline, usages or prescribed rulés of any ecclesiastical authority in the church* but is submitted entirely to the discretion of the trustees.

But in violation of the discipline and usages of what church? Is “the Methodist Episcopal Church of the City of Trenton,” or “ the Methodist Episcopal Church of the United States” referred to?

The facts are, that there is an association of ministers, or preachers of the gospel, called and known by the name of “ The -Methodist Episcopal Church in the United States” — that the government of the said church is vested in one delegated general conference, a limited number of annual conferences, and an indefinite number of quarterly conferences. The general conference is the legislative council for the whole church, and the several societies and churches of which the Trenton church is one, are united as parts of one common church, and are subject to the government, and are regulated and controlled by the laws of the general conference. The power to prescribe or change the government and discipline of the Methodist Episcopal Church is vested in the general conference, and the several organizations of the church are regulated and governed by the rules it prescribes.

It follows, then, that these trustees are subject to this church government; and if the general conference have prescribed any rules or regulations touching the appropriation of the pews, the trustees must conform to them and act within the limits prescribed. Whether this matter is left to the discretion of the trustees or not, must depend upon the action of the general conference in the premises. There is no other ecclesiastical body that controls the trustees. The trust reposed in them is to manage the temporalities of the church committed to their superintendence, in a manner conformable to the rules, discipline and usages of “The Methodist Episcopal Church of the United States.”

But, although these are matters which may be ascertained by inquiry, no facts can avail the complainants, unless they are incorporated in their case.

All information must be derived from the bill and answer. The court must decide on the case as the complainants make it in their pleading.

Looking at the bill alone, it is very doubtful whether the weight of evidence derived from the facts and circumstances therein stated, is not that the matter complained of is one of discretion committed to the defendants.

In support of the allegation that the actings and doings of the defendants are in violation of their trust, it is stated that shortly after it was made known that the trustees intended to “pew” the church, the members of the church held a meeting, at which they remonstrated against the proposed measure. And yet the bill does not allege they made any objection on the ground that any rules, discipline or usages of the church would be thereby violated, but, on the contrary, shows that they viewed it simply as a matter of expediency, and passed the following resolution : “ That in the opinion of this meeting, there is no necessity for pewing the church, on account of the difficulty in collecting funds to pay the just debts of our church, believing, as we do fully, that the membership has always been, and still are willing, to pay those expenses, if the proper application had been made to them for that purpose."

And subsequently to this meeting of the congregation, at a meeting of the quarterly conference, composed of all the traveling and local preachers, exhorters, stewards and the presiding elder, to whom the board of trustees are responsible, as the bill alleges, and to whom they are required to present a report of their acts during the year, the subject of this controversy was taken under consideration and advisement. The following preamble and resolutions were passed : “Whereas, The trustees have announced through tire pulpit that they have appointed a committee to ‘ pew ’ this church immediately; and whereas, it is the opinion of this quarterly conference that there is no necessity for such measure, and that it would be very prejudicial to the interest of the church; therefore, it is resolved, first, that this quarterly meeting conference is opposed to this measure, and respectfully requests the trustées to re-consider their resolution, and not proceed with the work.

“ Second. Resolved, That a copy of this preamble and resolutions be furnished to the board of trustees at their next meeting by the recording steward.”

How is it, that a body, composed as this, of men familiar with their church government, its regulations, discipline and usages, after having this subject under deliberation, and coming to the determination to express in a formal manner, and in- writing, their opposition to it, should place their objection on the ground of expediency merely, and without' intimating that they considered it a violation of the rules, discipline or usages of their church ? They may have had good reasons for confining the expression of their opinion simply to the expediency of the matter.

I only refer to the circumstance, in connection with others I have mentioned, in order to point out the error into which the complainants seem to have fallen, in supposing that this court could interfere with the action of these defendants, according to the judgment of the individual who presides here, of the expediency of the proposed measure.

Whether these defendants, as trustees, have any right to “ pew ” the church edifice and to sell or rent the pews, I cannot decide upon the pleadings before me. If there are rules prescribed by the general conference which forbid it, and the Trenton church is in community with the general conference, it would clearly be a breach of trust, calling for the action of this court, if the defendants attempted to make a disposition of the property confided to their care, in violation of those rules, and in a manner subversive of the discipline of the church.

Sincerely hoping that the unfortunate differences existing between the parties may be amicably arranged, and no further appeal to this court be necessary, I must order the injunction dissolved.


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    Charles Stokes, Ex., vs. Rebecca Tilly.
    1. The intention of the testator is the law of wills, and when that intention can he ascertained, if not in violation of the rules of law, it will prevail over technical rules, and words in their technical or even ordinary meaning. The word “ children” has a technical meaning in legal instruments. It is a word of purchase, and yet if it appears to have been the intention to use it in a different sense, as a word of limitation, it will be so construed, in order to effectuate that intention.
    2. A residuary clause in a will was in the following words: “ I bequeath all the rest, residue and remainder of my estate, real and personal estate wheresoever, after the above legacies and money are taken out, then the remainder to be equally (divided) between the child or children of my nephew, Acquila S. Ridgwav, and my sister, Rebecca Tilly, each one to have an equal share thereof, and his children, or if but one child he should leave, to have its or their share with my sister, with the interest arising on each one's share paid them when and as they arrive at lawful age, whether then their father is deceased or living, and for all my nieces and nephew, Wallace Lippincott, the children of my deceased nephew, Stacy Lippincott, to take their equal share therein with my sister Rebecca and the children of Acquila S. Ridgway.”
    3. Held — that the children of Stacy Lippincott, deceased, take per capita.

    This case was argued at February Term, 1852.
    The only question involved was, whether the children of Stacy Lippincott took “ per capita” under the residuary clause of Hope Haines’ will.
    The phraseology upon which the question of construction depended is set out in full in the opinion of the Chancellor.

      Peter D. Vroom, for the complainant.

      William L. Dayton, for two of the defendants.

      A. Browning, for other defendants.
   The Chancellor.

The question in controversy arises upon the residuary clause in the will of Hope Haines, deceased, which is in the following words:

“I bequeath all the rest, residue, and remainder of my estate, real and personal estate wheresoever, after the above legaci/s and money are taken out, then the remainder to be equally between the child or children of my nephew, Acquila S. Ridgway and my sister, Rebecca Tilly, each one to have an equal share thereof, and his children, or if but one child he should leave, to have its or their share with my sister, with the interest arising on each one’s share paid them when and as they arrive at lawful age, wether their their father is deceased or living, and for all my nieces and nephew, Wallace Lippincott, the children of my deceased nephew, Stacy Lippincott, to take their equal share therein with my sister Rebecea, and the children of Aquila S. Ridgway.”

The residuary estate amounts to the sum of $8056.81f-.

Charles Stokes, the surviving executor of this will, exhibits his bill for the purpose of obtaining a judicial construction of this clause, to direct the proper distribution of the residuary estate.

The testatrix left, at her decease, a sister Rebecca Tilly, an infant child of her nephew, Acquila S. Ridgway, Mary L. Haines, a widow, and Sarah Ann Pancoast, wife of Israel Pancoast, daughters of Wallace Lippincott, deceased, her nieces; Wallace Lippincott, her nephew, and son of Wallace Lippincott, deceased; Sarah Stokes, wife of Benjamin R. Stokes; Hope Deacon, wife of William II. Deacon, daughters of her sister, Rebecca Tilly; Sarah Ann Roberts, wife of Isaac Roberts, Nathaniel Lippincott, and Hope Lippincott, which Sarah Ann, Nathaniel and Hope, are children of Stacy Lippincott, the deceased nephew of the testatrix.

Sarah Ann Roberts, the daughter of the testatrix’s deceased nephew, Stacy Lippincott, and her husband, Isaac Roberts, by their joint and several answer, insist that, under the residuary clause of this will, the children of Stacy Lippincott, deceased, take “per capita.” If this is so, Sarah Ann Roberts is entitled to the one-tenth of the residuary estate.

Wallace Lippincott, Mary L. Haines, Israel Pancoast, and Sarah Ann, his wife, by their joint and several answer, insist that the children of Stacy Lippincott, deceased, take “per stirpes.” If this latter construction is the correct one, then the said Wallace, Mary/and Sarah Ann Pancoast take each one-eighth of the residuary estate, and Sarah Ann Roberts, who, with her sister, Hope Lippincott, and her brother, Nathaniel Lippincott, represent théir father, Stacy Lippincott, deceased, takes, instead of one-tenth, as she insists, only one-twenty-fourth part.

What was the intention of the testatrix? Did she intend the children of her deceased nephew, Stacy Lippincott, to take each one equal share with her nieces and' nephew, or did she intend they should take “per stirpes” as the representatives of their deceased parent ?

“ The intention of the testator is the law of wills,” and when that intention can be ascertained, if not in violation of the rules of law, it will prevail over technical rules, and words in their technical, or even ordinary meaning. The word “ children,” and which is the word used in the clause of the will we are considering, has a technical meaning in legal instruments. It is a word of purchase, and yet, if it appears to have been the intention of the testatrix to use it in a different sense, as a word of limitation, it will be so construed, in order to effectuate that intention.

Upon reading this residuary clause, the first impression, I think, made upon the mind is, that the testatrix intended an equal division “per capita,” among all the objects’ of her bounty therein referred to. A critical examination confirms the correctness of the impression.

Let us examine its language:

“ I bequeath all the rest, residue, and remainder of my estate, real and personal estate wheresoever, after the above legaci/s and moneys are taken out, then the remainder to be equally between the child or children of my nephew, Acquila S. Ridgway, and my sister, Rebecca Tilly, each one to have an equal share thereof, and his children, or if but one child he should leave, to have its or their equal share with my sister.”

There can be no doubt but that the children of Acquila S. Eidgway take “per capita.” Eebecca Tilly, the sister of the testatrix, was to have one share, but the child or children of Acquila S. Eidgway and Eebecca Tilly were “ each one to have an equal share thereof:”

Then comes the provision in question, “and for all my nieces and nephew, Wallace Lippincott, the children of my deceased nephew, Stacy Lippincott, to take their equal share therein with my sister Eebecca and the children of Acquila S. Eidgway.”

But the children of Acquila S. Eidgway were “ each one to have an equal share thereof.” If, then, the children of Stacy Lippincott are to have an equal share with the children of Acquila S. Eidgway, then they are each one to have an equal share thereof.”

The testatrix speaks of the “ children ” of Stacy Lippincott and the “ children ” of Acquila S. Eidgway. Did she mean a different interpretation to be put upon the same word repeated in the same sentence and within three lines? When she speaks of the children ” of Stacy Lippincott does she mean it a word of limitation ? and when she speaks of the “children of Acquila S. Eidgway, as a word of designation ?

We have seen she has put her own interpretation on the word “ children ” as connected with Acquila S. Eidgway, and as a “ descriptio personarum,” and that each child of Acqnila S. Eidgway was to have an equal share with Eebecca Tilly.

But again. The “ children ” of Stacy Lippincott are to have an equal share with Eebecca Tilly. But the “ children ” of Acquila S. Eidgway are “ each one of them ” to have an equal share with Eebecca Tilly. So, then, must the children of Stacy Lippincott, “ each one of them,” have an equal share with Eebecca Tilly, or the children of Stacy Lippincott cannot have an equal share with the children of Acquila S. Eidgway.

Here are three children of Stacy Lippincott, deceased. If at the death of the testatrix, there had been three children of Acquila S. Eidgway living, they would have taken “per capita ” and have been entitled to three shares of this residuary estate. The three children of Stacy Lippincott take a like interest.

It was argued that this construction gives to those related in the second degree to the testatrix, only equal shares with those who are one degree more remote; that if the construction of the will be secure and doubtful, the rule is to resolve the doubt in favor of that construction which best corresponds with our natural affections, and with the law of distribution.

It is apparent the testatrix had no allusion to the statute ’ of distribution. Nor did she intend to conform to our general notions of an equitable division of property among her kindred. She makes an arbitrary disposal of all her estate, both in this and in other parts of her will.

In the clause in question, she gives to her sister, Rebecca Tilly, one share, and she gives likewise to Rebecca’s two daughters each a share equal to her mother. Rebecca and her family get three shares, while her brother, Wallace Lippincott’s family get four shares, upon the most unfavorable construction of the will. Another branch of the family, represented by Acquila S. Ridgway, the son of a deceased sister, receives one share only, there being but one child of his living at the death of the testatrix. This inequality is not reduced by other parts of the will.

Other clauses of the will, and the seventh particularly, were referred to by the counsel on both sides, in the argument, as a key to the intention of the testatrix in reference to this particular clause. There is room to draw arguments in favor of both views presented.

It is plain, the testatrix did not use the word “ children ” with any reference to its technical legal signification. Wherever she uses it, it is with explanations, or with the addition of some significant word to indicate her own meaning of the term.

In the seventh, in bequeathing the principal sum of four thousand dollars to the children of her nieces, Sarah Stokes and Hope Tilly, after securing to their parents the interest of the same during their lives, she gives the principal to the children “per stirpes.” It is evident from her language that she was laboring to keep this idea prominent, and to have no misapprehension about her intention. And yet, in this same clause, when she comes to dispose of the two thousand dollars, upon the happening of certain contingencies, it is in this language — “to go to my nieces, Mary Haines children and Sarah Ann Pancoast children, and the children of my deceased nephew, Stacy Lippincott, equally divided and paid between them all.” The single word all here being added to signify her intention.

In the fifth clause of the will, in disposing of other two thousand dollars, upon the contingency of the death of her nephew, Wallace Lippincott, it is in these words — “at his death, equally between his sisters, Mary Haines and Sarah Ann Pancoast, and the children of his deceased brother, J(Stacy Lippincott,” which is very nearly the identical phraseology of the will in the case of Butler v. Strattan, in 3 Brown’s Rep. 367, and where it was decided the devise was per capita.” And yet the testatrix expressly declares this is not her meaning, for she adds, “ that is, for his children take the one-third of said two thousand dollars equally - tween them, being the share thereof their father would been entitled to if living.”

I have examined all the authorities referred to in the argument, but it is manifest they can be of very little assistance upon a construction depending, as this does, so much upon mere phraseology, and where there is no room for the application of technical rules or definitions.

The counsel who contended for the construction “per stirpes,” relied upon the case of Roome et al. v. Counter, 1 Hal. 111, as an authority of our own tribunals, which should govern the court in the decision of this case. He contends that it condemns the case of Blackler v. Webb et al., 2 P. Wms. 383, and therefore the court should not consider the latter ease as authority. In the case in B. Wms. the will was a very different one in phraseology and technical terms from that decided upon in Roome et al. v. Counter, and so ifc is remarked by the court in their opinion in the latter case. There is, it appears to me, no resemblance between the case in 1 Hal. and the present one. The Chief Justice, certainly, did not mean to say that there is no different meaning attached to the word “ heirs” and the word “children,” or that the word “children,” in its technical signification, is not a word of purchase. And if he did not so decide, I cannot see in the case anything which I ought to consider as authority to govern me in this decision.

My opinion is, that the children of Stacy Lippincott, deceased, take, under the residuary clause of this will, “per capita.”

Let a decree be made accordingly.

Cited in Provost’s Ex'rs v. Provost. 12 C. E. Gr. 297.


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    John S. Greenin vs. Peter Hoey and James Moore.
    1. In making an exception to the general rule that the court will dissolve an injunction when the equity of the bill has been fully answered, the court will be governed in some degree by the consequences to follow upon the dissolution, and by the conduct of the complainant in prosecuting his suit.
    2. There should be some good reason for making an exception to the rule. Where the complainant has not prosecuted his suit with diligence, and no insuperable mischief can be done to the party by dissolving the injunction, the court will not deny the defendant the benefit of his answer.
    This case was heard at Newark, April 26th, 1852, on a motion to dissolve the injunction on bill and answer. The facts of the case sufficiently appear in the opinion of the Chancellor.

      Mr. G. Vroom, for complainant.

      Mr. Schenck, for defendants.
   The Chancellor.

The complainant on filing his bill

obtained an injunction against the defendants, to prevent them from selling, leasing or encumbering certain real estate in the county of Middlesex, the'subject matter of this controversy. The defendants have filed their answers, severally, to the bill. The motion is made to dissolve the injunction for the reasons — Eirst. That the equity of the bill is answered and fully denied; and Secondly. That the complainant has not prosecuted his suit with diligence.

The complainant was the owner of a farm in the county of Middlesex, consisting of about one hundred and ninety-six acres; and the defendant, Peter Hoey, owned five lots in the village of Williamsburgh, in the State of New York, upon which were five brick dwellings. The complainant bargained with the defendant Moore, who acted as Hoey’s agent, for the exchange of the farm for the dwelling-houses and lots. The agreement was reduced to writing, and mutual conveyances were afterwards made. The bill admits that there was a verbal agreement between the parties respecting the adjustment of the interest due upon the encumbrances mentioned in the written agreement. In the deed from Hoey to the complainant, he covenants against all encumbrances against the property, except mortgages to the amount of six thousand dollars, and the expenses due thereon. The complainant’s allegation is, that the defendants deceived him in reference to the amount of interest due on the mortgages, and as to the expenses, which were expenses of foreclosure, amounting to about seventy dollars. The amount in dispute is perhaps three hundred dollars.

The answers fully meet the equity of the bill, and the allegations are all answered in their letter and spirit. This was admitted by the complainant’s counsel, but he insisted it was a case where the injunction should be retained, although the equity may be answered. There are certainly exceptions to the general rule, but in making those exceptions, the court will be governed in some degree by the consequences to follow upon the dissolution, and by the conduct of the complainant in prosecuting his suit. There should be some good reason for making an exception to the rule. If no irreparable mischief can ensue, nor any serious injury to the party, the court ought to have grave doubts as to the propriety of dissolving the injunction before they will deny to the defendant the benefit of his answer. I am unable to perceive any reason why, in the case before me, I should deny the motion. A notice of the pendency of this suit, it is admitted, has been filed with the clerk of the county where the lands lie, which will protect the complainant against any subsequent purchaser or mortgagee.

The complainant has not prosecuted his suit with that diligence which entitles him to further favor from the court. The bill was filed on the 23d April, 1851, and the answers on the 8th of July, following. The defendants, at least twice before have given notice of motions for dissolution. At one time the then Chancellor was engaged, and could not hear the motion; and the second time he declined, for satisfactory-reasons given to the respective counsel. And yet, notwithstanding this evidence of a determination on the part of the defendants to prosecute any advantages they might have, the complainant has allowed his cause to sleep. For nine months he has not taken a single step to bring the suit to a hearing, by taking evidence, or otherwise.

The motion is allowed, with costs.

Cited in Stotesbury v. Vail, 2 Beas, 394; Hoagland v. Titus, 1 McCar. 82; Irick v. Black, 2 C. E. Gr. 200


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    George Turner, John Allison and Joseph W. Allison v. James L. Dickerson.
    1. In a bill for discovery merely, it will be sufficient for the court to see that the discovery is material to the defence at law of the party seeking the discovery, and how and in what manner it is material.
    2. But where it is asked that a suit at law should be delayed, or the bill prays relief as well as discovery, the complainant should aver that the discovery sought for is necessary to his defence, and that the plaintiff is unable to prove such facts by other testimony.
    This case was heard before the Chancellor, April 26th, 1852, at Newark, on motion to dissolve the injunction on bill and answer. The contents of the bill are set out in the opinion of the Chancellor, so far as necessary to a clear Understanding in the case.

      Mr. F. Frelinyhuysen, for motion.

      Mr. Chandler, contra.

   The Chancellor.

James L. Dickerson commenced an action in a plea of trespass on the case upon promises, in the Circuit Court of the county of Morris, against the complainants, George Turner, John Allison and Joseph W. Allison. Issue was joined in the said suit upon the plea of payment. This bill was filed on the second day of August, 1850. It seeks relief upon the ground that the promissory note upon which the-action at law was brought, was a joint and seyeral promissory note of the complainants; that John Turner and John Allison were, in fact, only sureties, and that when the note became due and payable, John Allison aided Joseph in raising seventy dollars towards the payment of the note, and that Joseph paid the amount due on the note to Dickerson, at maturity.

On filing the bill, an injunction issued to stay the proceedings at law.

The defendant has answered the bill, and upon his answer mow moves for a dissolution of the injunction.

The bill should have been demurred to, for it is difficult to perceive upon what ground it can be maintained. It is endorsed as a,bill for discovery and relief, and yet it is no more a bill of discovery than every bill filed in the court may be considered as such.

There is the general allegation in the bill that the complainants are without adequate remedy in the premises by the strict rules of the common law. But there is not an allegation in the bill that the aid of this court is required for the purpose of discovery, or that the plea of payment cannot be sustained by proof within the reach of the parties by the process of the court of law.

There is no case made by this bill to give the court jurisdiction for the purpose of relief, and the only way by which the court could get possession of the cause, and hold it for such purpose, would be in consequence of its being technically a bill for discovery, as well as relief, and possessing those essentials which distinguish it as a bill of discovery.

In this case, relief is prayed for, and the aid of the court interfering with the proceedings of a court of law.

There is an essential difference between a bill purely for discovery, and a bill seeking a relief also, or an interference with the proceedings of another court, as well as discovery.

In a bill for discovery merely, it will be sufficient for the court to see that the discovery is material to the defence at law of the party seeking the discovery, and how, and in what manner, it is material. Story’s Eq. Ju. 324. But where it is asked that a suit at law should be delayed, or the bill prays for relief as well as discovery, a very different rule prevails. Chancellor Kent, in Gilston v. Hoyt, 1 Johns. Ch. R. 547, which was a bill for discovery, and to enjoin proceedings in a suit at law, says: “Unless, therefore, the bill states affirmatively, that the discovery is really wanted for the defence at law, and also shows that the discovery might be material to that defence, it does not appear to be reasonable and just that the suit at law should be delayed.”

If the complainant in a bill for discovery wishes to obtain an injunction to stay the defendant’s proceedings at law until the putting in of an answer to such bill, he must aver that the discovery sought for is necessary to his defence, and such averment must be verified by his oath. March v. Davison, 9 Paige 580.

There is no averment in this bill that the complainants need any discovery from the defendant to aid them in the defence of the suit at law, nor are there any facts stated in the bill from which it can fairly be inferred that the complainants really require the aid of this court for any such purpose.

In the case of Appleyard v. Seton, 16 Vesey 223, it was ruled that an injunction to stay a trial at law must be founded on affidavit, stating the belief of the party that the answer will furnish discovery material to his defence.

But this bill does not simply ask the interference of the court to delay the proceedings at law until, by their answer, the defendants may have made the discovery — but it seeks to transfer the jurisdiction of the suit at law to this court, and to have the whole case finally decided here upon its merits.

This bill, for such a purpose, is altogether defective. The essentials of such a bill, as laid down in Story’s Eq. Ju., § 74, are sustained by numerous cases, and may be considered as well settled. To maintain the jurisdiction for relief, as consequent on discovery, it is necessary, in the first place, to allege in the bill that the facts are material to the plaintiff’s case, and that the discovery of them, by the defendant, is indispensable as proof. The bill must allege (and, if required, the fact must be established,) that the plaintiff is unable to prove such facts by other testimony.

The defendant has seen proper to waive these objections to the bill, so far as to give to the complainants the benefit of his answer. Whatever that may amount to, I cannot deprive the complainants of any advantage it may afford them. They are entitled to use it in the suit at law.

I do not deem it necessary to express any opinion as to the question discussed on the argument of the motion to dissolve, viz.: Whether the answer meets satisfactorily the case made by the bill.

Let an order be made dissolving the injunction, with costs.


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    Henry C. Stimson v. John E. Bacon et al.
    1. The Chancellor endorsed on a bill the usual order for an injunction to issue on filing the bill, and the bill was not filed for four months after the order was made. A sheriff’s sale had been delayed by the proceedings, although no injunction had actually been issued.
    2. Held, that the proceedings were altogether- irregular, and the bill must be dismissed, with costs.
    S. That the bill should- have been filed, whether the injunction was made use of or not.
    On motion to dissolve injunction.

      Mr. Woodruff, for the motion.

      Mr. Canfield, contra.

   The Chancellor.

The bill was sworn to on the seventh day of July, 1851. In aid of the relief sought, an injunction was prayed for to enjoin a sale by the sheriff of the county of Passaic, upon a judgment and execution at law.

On the bill being presented to the Chancellor, he endorsed upon it the usual order for an injunction to issue on filing the bill. There is no date to the order. But the sale enjoined was advertised for the seventh day of July, the day the bill was sworn to, so that the order must have been made on that day.

The bill was not filed until the twelfth day of November last, more than four months after the order was made. It appears by the certificate of the clerk that no injunction was issued from the office, and yet, it is admitted that by the proceedings referred to, the sale has been in some way delayed until this time.

This proceeding was altogether irregular, and cannot be sanctioned by the court. The bill should have been filed without delay. The reason given on the argument why it was not filed was, because the complainant had hopes of making some arrangement with the defendants to render it unnecessary for him to use the injunction.

The bill should have been filed, whether the injunction was made use of or not. I feel it my duty not to dissolve the injunction merely, but to declare the proceedings irregular, and order the bill dismissed, with costs.


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    Robert Chambers, executor of James Hamilton, deceased, complainant, and Paul Tulane, defendant.
    1. It is well settled that a court will not compel a party to pay his money and take a doubtful title, or an encumbered property, unless the party has bargained for such. Although a complainant acted in good faith, and supposed he could give a good title to real estate he had agreed to convey, the defendant will not be compelled to a specific performance where he must take his title subject to any encumbrance not agreed upon.
    2. A testator devised as follows: “ It is my will and desire that all and every part and parcel of my real and personal estate hereinbefore not devised or bequeathed, after my son H. arrives at the age of twenty-one years, in case his mother hath then departed this life, shall be sold at the discretion of my executors.”

    3. Held, that land which had been devised by will, but which, by the terms of the will, had returned and become part of the testator’s estate, was not embraced in the power of sale.
    4. That thepower to sell is given to the executors by implication. It is a personal confidence confined to them. It is not transmitted to the executor of an executor.
    The bill in this cause was filed to compel a specific performance of an agreement in writing, executed between the complainant, as the executor of the last will of James Hamilton the younger, deceased, and the defendant, Paul Tulane. The agreement is for a house and lot of land in Princeton, which the complainant agrees to convey to the defendant, and the defendant agrees to purchase at a price specified.
    The defendants, by their answer, resisted a specific performance, on the ground that the property was a part of the real estate of which James Hamilton the elder died seized; that it was disposed of by his will, and James Hamilton the younger took only an interest with several other children of his father; that no power was given to the executor of the said will to sell the land; that if any such power was given, it was not transmitted by operation of law or otherwise to the complainant, as the executor of James ITamilton the younger.

      James S. Green, for defendant.
    The bill sets out the wills of the two Hamiltons, 1st and 2d, and also the articles of agreement between Robert Chambers, executor of James Hamilton 2d, and the defendant.
    The answer admits the agreement, but insists that he should not be compelled to fulfill the agreement on his part by the payment of the money, as the complainant, as executor of Hamilton 2d, cannot make a good title. The answer also sets out who are the heirs of Hamilton 1st, and also that a part of the property agreed for is leased to Robert E. Hornor.
    Abraham Vanduyn, the surveyor and scrivener, and William P. Sherman, who has the custody of the Hornor lease, were examined as witnesses.
    There is no dispute that the property agreed to be conveyed belonged to James Plamilton the 1st, and is the same with that which is devised, a part in the fifth clause of his will, (set out in the bill,) to James Hamilton 2d, and a part to Henry K. Hamilton.
    On a bill for specific performance a want of good title is a good defence. A decree for a specific performance is peculiarly within the discretion of the court. Saxton’s Ch. R. 281; 1 Green’s Ch. R. 366.

      The complainant seeks the purchase money, $7150, and ought to give a good title. 1 Green’s Ch. R. 524-526; Sugden on Vendors, page 410, in chapter 7, treating of the title which a purchaser may require.
    And this does not depend upon the terms used in the articles of agreement, but the right to a good title is given by law. Sugden on Vendors, page 402.
    2. As, then, the want of a good title is a good defence, let us next inquire:
    1. Can Chambers make a good title?
    2. Has he made or tendered a good title ?
    1. Can he make a good title? He acts as executor of James Hamilton the 2d, who was the surviving executor of James Hamilton 1st. We are to examine the will of James Hamilton the 1st. Under that will this property is devised to James and Henry in fee simple — see 5th and 6th clauses. There is no power of sale given to the executor, the whole direction is to the devisee, and is as to the valuation.
    The 8th clause in the will applies to the residue of the estate and expressly excludes what is previously given or devised.
    Henry died without issue, and his interest in the real estate devised to him under the 6th clause, vested not alone in James, but his sisters with him — if it is to be controlled by the 8th clause, then as James died without issue, this and the residue of the real estate of James Hamilton the 1st vested in his surviving sisters.
    2. Has he. tendered a good title ? He has, as executor of James Hamilton 2d, executed a deed or deeds to defendants.
    While the general principle is not denied, that the executor of a deceased executor may execute the will of the first testator, yet this'power does not extend to sales of real estate, unless in very clear cases.

      James Hamilton 2d as executor of his father, James Hamilton 1st, had no power to sell what was devised to Henry under the 6th clause, and could not give such a power to Chambers.
    3. As the object of Tulane in the purchase was to obtain immediate possession, that object is defeated by the existence of the lease to Robert E. Horn or

      Wm. Halsted, for the complainant
    The power of the executor of James Hamilton the 2d to sell all the estate devised or which he cook under the will of his father is complete, by the power given to sell under his will. This covers the dwelling-house and half-acre of land devised to James Hamilton 2d by the will of James Hamilton the 1st.
    Then there was also sold another half-acre by the executor, and included in his deed to the defendant, which half-acre is the land devised by James Hamilton, Sr., to his son, Henry K. Hamilton. As to this part, Henry never took it under the will; he died before he arrived of age, and his mother survived him, and the condition of his paying his sisters never was performed ; consequently that devise never taking effect was precisely the same as if it never had been made; the property remained as a part of the estate of James Hamilton, Sr., to be sold by his executor according to the directions of the will. The power of sale, therefore, under the will of James Hamilton, Sr., covers this part of the estate sold.
    The will of James Hamilton, Sr., evidently intends that the whole of his estate shall be sold and the money divided in the mode indicated. Eor it says : “The amount of sales arising from the above real and personal estate,” &c. Again it says that if Henry dies without issue, the laud devised to him “ to be returned and become a part of the testator’s estate.” Henry died without issue, and even under this clause the property devised to him, if it ever vested in him, returned to the estate of James Hamilton, Sr., and was a part of the estate described as “his above real estatewhich was directed to be sold; so that in either event it was to be sold, and was therefore properly sold by the executor- of his executor.
    As to this property being in lease, that don’t affect the title; besides, tbe agreement was verbally, that Tulane was to take all the tenants and collect the rents.
   The Chancellor.

The complainant seeks to enforce the performance of an agreement in writing, made and executed between himself, as the executor of the last will of James Hamilton, the younger, deceased, and the defendant, Paul Tulane.

The agreement is for a house and lot of land in the borough of Princeton, which the complainant agrees to convey to the defendant, and the defendant agrees to purchase at a price of seven thousand one hundred and fifty dollars.

The defendant, by his answer, resists a specific performance, on the ground that the property in question is part of the real estate of which James Hamilton the elder died seized, and which was disposed of by his will; that James Hamilton the younger is not the sole devisee of the land mentioned in the agreement, but takes only an interest with several other children of his father; that no power is given to the executors by the said will to sell this land, and that if any such power is given, it is not transmitted, by operation of law, or otherwise, to the complainant, as the executor of James Hamilton the younger.

Looking at the bill alone, I cannot ascertain what the question in controversy is between the parties, nor can I see that it makes any case calling for the court’s interference. It is true, with the aid of the answer, and of the briefs of counsel, I can see that there are questions which may arise of very considerable importance, but they never can arise upon any facts stated in the bill.

The agreement set oat by the complainant, is one executed between himself, as the executor of James Hamilton the younger, and the defendant. First, the will of James Hamilton the younger, is set out at length. The bill then alleges that James Hamilton, the younger, was, at the time of his death, the executor of his father’s will. Then the will of the father is introduced at length; then follows the agreement in question, and then the allegation that the complainant tendered the deed in pursuance of the agreement, and that the defendant refused to receive it. And this is the whole case made by the bill. What eonneetion the will or estate of James Hamilton, Sr., has with this agreement, or how, in an agreement between James Hamilton, Jr.’s, executor and the defendant, a controversy can arise, involving the question mainly discussed on the argument- — whether the executor of an executor can execute a power conferred on the former by the testator, to sell lands, in no manner appears; nor is there an allusion to any facts or circumstances by which it could be conjectured that any controversy as to these matters could possibly arise.

The bill does not state, nor intimate, whose lands these were, that the complainants agreed to convey to the defendant; whether they were lands of which James Hamilton, Sr., died seized, and if so, how the right to sell them devolved upon the complainant; or whether they were part of the real estate of the complainant’s testator; or whether they were the complainant’s own lands. The complainant shows no right, title, or interest in any way, to the land embraced in the agreemen t; and if, in this case, I decree a specific performance, I must compel the defendant to pay upwards of seven thousand dollars, without the complainant’s showing, or even alleging that he has any right whatever to execute the conveyance for which this consideration is paid.

But it appears by the answer — and the arguments of counsel on both sides were based upon the assumption — that the land which has given rise to this suit, was land which belonged to the real estate of which James Hamilton the elder died seized, and part of which, the complainant alleges, James Hamilton, Jr., as executor, was empowered, by his testator’s will, to sell, and which power, by his death, was transmitted by law to his executor, who is the complainant, and the other part of which James took, as devisee under his father’s will.

As the questions arising upon such a state of facts have been fully discussed, and the complainant may amend his bill to correspond with the facts as they exist; and as both parties desire a settlement of the questions involving their respective rights, I will consider the bill amended in the particulars referred to.

But there is another defect in this bill, which must be removed before the questions alluded to can be properly presented for determination to the court.

James Hamilton, Sr., left his wife Sarah executrix, and his two sons, James and Henry, executors of his will. Whatever power of sale was conferred by the will, was to be exercised after the decease of his wife Sarah, and after Henry arrived at the age of twenty-one years.

Admitting that, by the will, the power of sale of the land in question was conferred on the' executors, there can be no pretence that the complainant, in the capacity of executor to the will of James, can have any right to interfere with the execution of the will of James Hamilton, Sr., if Henry, the other executor, is living. The bill does not show that Henry is dead, or that he has renounced, or by what right this complainant can supersede him. The answer alleges that Henry is dead. But how is the fact? Must the court take the case as made by the bill, or by the answer ? Though the fact is stated in the answer, the complainant may or may not be willing to take it as a part of his case. But I suppose the fact to be that Henry is dead — that he died before James Hamilton, Jr., and that the complainant is the executor of the surviving executor of the will of James Hamilton the' elder.

Upon this assumption, let us examine whether the complainant can fulfill his part of the agreement, and can give to the defendant a good title to the land embraced in it. It is admitted that if he cannot, the defendant ought not to be held to a specific performance.

In examining this question, I must draw my facts from the briefs of counsel. As there stated, they are admitted to be correct, and the pleadings must be amended to correspond.

It is admitted that part of the land in controversy is embraced in the devise in the fifth clause of the will; and the residue in the devise contained in the sixth clause.

As to the portion embraced in the fifth clause, the complainant insists it was devised to James Hamilton the younger, in fee simple; and that as there is no dispute but that ample power is given to the complainant by the last will of James Hamilton the younger, to sell all the real estate of which he died seized, the complainant can make a good title for that part of the land covered by this agreement. And as to the residue, namely, that embraced in the sixth clause, the complainant insists he has the right to sell and convey it, by virtue of a power of sale contained in the will of James Hamilton the elder.

To the devise made to his son James, in the fifth clause of the will, as well as to the devise to Henry, in the sixth clause, the testator annexes this condition, “ and it is my will that after those two events, (these two events were the death of his widow and his son Henry’s arriving at lawful age,) mentioned in the above fifth and sixth sections, shall have taken place, the two lots aforesaid shall be valued by discreet and indifferent persons chosen by the parties, and that they, my two sons, shall pay to each of their surviving sisters, or to their lawful representatives, each one equal share, they, my said sons, reserving to themselves each two equal shares therein.”

There is no pretence that this valuation has ever been made, or that these sisters have released their interest in the lands. If I compel this defendant to a specific performance, he must take his title subject to this encumbrance, whatever it may be. In decreeing a specific performance, the court must exercise its discretion — not an arbitrary discretion— but a discretion regulated and governed by established principles. As a general principle, it is well settled that the court will not compel a parLy to pay his money and take a doubtful title or an encumbered property, unless the party has bargained for such. There is no pretence that such was the case here. The complainant acted in good faith. He supposed he could give a good title to the land, and such was the understanding of both parties in entering into the agreement. If there was no difficulty except the one referred to, I should not be willing to decree a performance of the agreement.

But with regard to the property embraced in the sixth clause of the will, there is an additional difficulty.

The testator gives and devises to his son, Henry K. Hamilton, a lot of land situated in Princeton, together with the shop and appurtenances thereunto belonging, after he arrives at •full age, and after the decease of his mother. In a subsequent part of the will is this devise : “And should any of my aforesaid sons or daughters die without leaving lawful issue, it is my will that the legacies of such herein devised or bequeathed, shall return and become part of my estate, and be divided among the survivors of them, according to former divisions, sons each two shares, and daughters each one share.” ,,

Henry died without leaving lawful issue, and according to the will, the land devised to him returned and became part of the testator’s estate.

But is the power to sell this land given by the will to James Hamilton, the surviving executor ? If no such power is given to him, the complainant cannot possess it, even admitting that by law the power of sale given in this will is transmitted to the executor of the surviving executor.

The only power of sale given to the executors is to be found in the eighth clause of the will.,

“It is my will and desire that all and every part and parcel of my real and personal estate hereinbefore not devised or bequeathed, after my said son, Henry K. Hamilton, arrives at the age of twenty-one years, in case his mother hath then departed this life, shall be sold at the discretion of my executors,” &c.

This power to sell, then, extends only to the real and personal estate not in his will before devised or bequeathed by the testator ; and as the land in question had been previously devised to Henry, the power of sale did not reach it.

It was argued by the complainant’s counsel, that Henry having died without leaving lawful issue, and by the terms of the will the land so devised having returned and become part of the testator’s estate, it was embraced in the power of sale. But not only was the power to sell confined to the real estate “ not devised or bequeathed,” but a disposition of this land devised to Henry was, in the event which has happened, actually disposed of, independent of the power of sale. It was to be divided among the surviving devisees named in the will “ according to former divisions, sons each two shares, and daughters each one share.” I am of opinion, therefore, that the complainant can give no title to that part of the land included in the agreement which James Hamilton devised to his son Henry.

As to the other question argued : Whether the power of ■sale given by the will to the executors, is by law transmitted to the complainant — I am of opinion that it is not.

The principle involved in this question has undergone a most elaborate and able investigation by Mr. Justice Cowen, in the ease of Conklin v. Egerton’s Administrator, 21 Wendell 432; 25 Wendell 224; and the results he arrives at commend themselves to my judgment.

It must depend, like all other questions arising upon the will, on the intention of the testator. If the power is given to individuals, indicating a personal confidence in them, it must be confined to those upon whom it is specifically conferred.

It was held at a very early period, that if a man declare in his will that B and C, his executors, shall sell his land, and die, and B dies and C makes D his executor, and dies, and D sells, this is void, for the trust is strict. In the absence of a clear intention, the representative of an executor could not exercise a power vested in the executor. See Sugden on Powers 145.

In the ease of Cole v. Wade, 16 Ves. 44, the master of the rolls, Sir William Grant, says, I conceive that wherever a power is of a kind that indicates a personal confidence, it must prima facie be understood to be confined to the individual to whom it is given; and will not, except by express words, pass to others, to whom by legal transmission the same character may happen to belong.”

He cites a case from Moore, where one of the judges doubted whether a power, implying personal confidence, would, even by express words, pass to executors of an executor. That the executor of an executor has full power and authority by law, to execute the will of the original testator, there can be no doubt; but this power and authority, conferred by law, extends only to the duties properly appertaining to the office of executor. It is the duty of an executor, which the law imposes on him to pay the debts, distribute the fund, and settle the personal estate of the testator; and these duties are, by law, transmitted to his executor. But it is no part of an executor’s duty to sell the real estate; and he cannot meddle with it, unless by authority of the statute in particular cases, or by the express directions of the testator. If it is transmittedeto his executor, it can be only by the direction of the person by whom the power was conferred — it must be by the intention of the original testator, and not simply because the duties of the executorship devolve upon him.

If, then, the complainant can sell the land in question, he derives the power from the will conferring the trust, and not because it is a duty transmitted to him by law, and appertaining to him virtute officii.

In this case, the testator reposes a special confidence in his executors, by express words, and in an emphatic manner; a confidence which' they cannot delegate, and which the law will not transmit in any way to others. The testator’s language is, “ shall be sold at the discretion of my executors.”

The power of sale is given to the executors by implication» The testator does not direct by whom the designated lands shall be sold, and the power is implied from the fact that they are to be sold at the discretion of the executors.

How this distinction has been drawn, that where the power is an implied one, a surviving executor may execute it, and his executor also, but not where it is given by express words. Sugden on Powers 138, and authorities cited by Justice Cowen in 21 Wendell 436, 437.

But it will be seen, on an examination of the cases, that this distinction exists where the implication arises from the fact that some duty is to be performed by the executor which appertains to him in the discharge of his duty, by virtue of his office, as paying of legacies and debts, or the distribution of the fund. A testator having ordered his lands sold for the payment of his debts — the payment of his debts devolving upon his executor — by implication the power o-f sale is in him to discharge the duty imposed upon him ; and as the executor of the executor executes the will as the personal representative of the original testator, it may well be argued that he may exercise the power of sale by the intention of the testator — the power being conferred upon the individual upon whom the duty devolved of paying the debts.

But the power of sale conferred by this will is not implied from any duty to be discharged by the executors as the personal representatives of the testator, but from a special confidence which, by express words, he reposed in them. If the power was implied from the fact that they were to pay the debts of the testator, or to distribute the fund, the duty to pay these debts, or distribute this fund, devolving upon this complainant, the power might, perhaps, be properly considered to exist with the duty- — the power originating from the duty ; they e^st together.

But, surely,*®tefe the power is implied, as in this case, from the fact That the testator reposed confidence in the discretion of his executors, it cannot be argued that he could have had any intention of confiding in the discretion of some, to him, unknown person, whom his surviving executor might appoint. If the complainant can sell the original testator’s lands, it is because the testator directed them to be sold at the discretion of his sons. They will be soldj not in compliance with the testator’s wishes and directions, but in violation of both, and by a person whom he never contemplated. There is no office or duty to be discharged by this complainant, as the personal representative of the original testator, from which a power of sale can be implied.

In addition to the objections already referred to, to the exercise of the power of sale by. this complainant, I very much doubt whether it is a power which can be exercised, except by the executors to the original will, jointly. If it cannot, there can be no pretence 'that it can be exercised by the complainant. A mere naked power does not survive. Such a power cannot be exercised by a surviving executor, by the common law. By' our statute, (R. S., pages 356, 357, sections 19 and 20,) a surviving executor, or an administrator with the will annexed, may sell land pursuant to any power or direction in the will, unless it shall be otherwise expressed in said will. But no such authority is conferred by the statute upon an executor of an executor. Is the power of sale in this will anything more than a naked power ? It is true the executors have an interest in the land with other devisees in the will named. But this is not what is meant by a power coupled with an interest. These lands are not devised. The title descended to the heirs-at-law. No interest is devised to the executors, and they have no control over the land as executors, until the happening of certain events, and then the only power conferred is to sell.

I am of opinion that this complainant has no power to sell the land in question.

For the reasons given, the prayer of the bill is denied, and the bill ordered to be dismissed. I think the defendant should take his decree, without costs. The complainant, in the whole transaction, acted in good faith. The authority, 'by which he claimed the right to sell was known to the defendant, and both parties acted under an impression that it was a valid authority. The complainant had the written opinion of counsel that he could give a good title. If I put the burthen of the costs of the suit upon the complainant, it is doubtful whether he will not be personally liable for them, and whether he can take them out of the estate of his testator.

Cited in Whitehead v. Gibbons, 2 Stock. 236.