author: The Chancellob.

text:
    CHARLES M. ARMSTRONG, WILLIAM L. SALTER AND WIFE ET AL., v. WILLIAM KENT, ANDREW C. ARMSTRONG ET AL.
    1. M. A. devised and bequeathed all the rest and residue of her estate, real personal, or mixed, to E. R. A., to be by her possessed, enjoyed, and occupied to her and her heirs forever ; but if she should die without heirs, and intestate, then that all the estate above devised to her shall vest in her brother, Charles M. Armstrong, and sister, Margaret Salter, and their heirs, to be equally divided between them, share and share alike.
    2. Held, that E. R. A. took an estate in fee simple in the lands, and an absolute property in the personal estate; that the words, “ without heirs and intestate,” imply a power of disposition, and are inconsistent with, and avoid the limitation over. By the Supreme Court.
    The bill, filed July 14th, 1841, states that Mrs„ Margaret Armstrong, late of Elizabethtown, being possessed, as her sole and separate property, free from the control of her husband, Col. William Armstrong, of a certain house, lot and garden in Elizabethtown, which she had purchased of one Andrew Wood-ruff, and which had been conveyed to Peter Kean, since deceased, in trust for her and her heirs, and also possessed of considerable personal estate, consisting of household goods and furniture, stocks in banks and insurance companies, money, and securities for money, and other effects, and of other real and personal estate, and havirg lull power to dispose of the same by will, duly made and published her will, dated September 16th, 1827, executed and attested in such manner as to pass real estate; and thereby, after giving her plate to be equally divided among her four children, gave and devised as follows: “ Item, I give and bequeath the house and lot which I purchased from Andrew Woodruff, situate in Elizabethtown, and which was conveyed by said Woodruff to Peter Kean in trust for me and my heirs, to my beloved husband, William Armstrong, for and during the full and complete term of his natural life, to be used and occupied by him as a residence, together with the use of all the household furniture (plate excepted) now therein contained ; but if my said husband should marry, remove to foreign parts, or elect to break np housekeeping, then my will is that the above devise to him shall become null and void, and that the said house and lot, together with all and singular the household furniture therein, shall become the absolute property of my beloved daughter Eliza Rosetta Armstrong, to be taken and held by her under the like restrictions, limitations and conditions as the property hereinafter bequeathed to her. Item, I give and bequeath to my husband, William Armstrong, to my sons Edward Armstrong and Charles Armstrong, and to my daughter Margaret Salter, a gold ring, to be set with my hair, which rings shall be procured by my executor and executrix hereinafter named, as a slight token of my sincere and lasting affection ; and, while I invoke the blessing of Almighty God upon my aforesaid husband and children, I beg the last to believe that it is a subject of most deep-felt regret to a parent that has ever loved them and watched over them with the fondest affection, that she has it not in her power to provide more amply for them. But, as it has pleased God to place two of them, that is to say, my son Edward and my daughter Margaret, in easy circumstances, and as my beloved son Charles has both the disposition and the ability to provide a decent and respectable maintenance for himself, in his profession, I trust they will all cheerfully acquiesce in this, my last will. Item, I give and bequeath all the rest and residue of my estate in the State of New York and New Jersey, or wherever else situate, whether real, personal, or mixed, together with the reversion and remainder of the house and lot, together with my household furniture heretofore bequeathed to my husband, William Armstrong, during his natural life, or so long as he shall remain unmarried and elect to occupy the same as a residence, to my beloved daughter Eliza Rosetta Armstrong, to be by her possessed, enjoyed, and occupied, to her and her heirs forever, provided, nevertheless, that she shall and do, out of the rents, issues, and profits of the said estate, provide a decent and comfortable maintenance for my faithful and affectionate domestic, Catharine Small, whose long and affectionate services merit and receive my warmest gratitude. But if my said daughter Eliza Rosetta should die without heirs and intestate, then my will is, that all my estate herein above devised to her, shall vest in my son Charles M. Armstrong and my daughter Margaret Salter and their heirs, to be divided between them, share and share alike.” And that the said testatrix thereby nominated and appointed her said son Edward Armstrong and her daughter Eliza Rosetta Armstrong, executor and executrix of her said will.
    That said testatrix died on the 25th of September, 1827, leaving her said husband and her said four children therein named, surviving her. And that the said Edward and Rosetta, or one of them, proved the said will, and assumed the burden of the execution thereof.
    That, after the death of the said testatrix, her said husband continued to reside in the said dwelling-house, and to use and occupy the said house and lot, with all the household furniture, except plate, until his death, which occurred on the 26th of Jan-nary, 1830. That the said Eliza, after the death of the testatrix, continued to reside in the said house with her said father, until his death, and, immediately after his death, she took possession of the said house and lot, and all the household furniture therein, by virtue of her said mother’s will and the said devise and bequest to her therein, and received the rents, issues, and profits thereof; and that the said Eliza sold and disposed of the said household furniture and other personal property of said testatrix, and converted the same, or the most of it, into money, and placed out the moneys arising therefrom, at interest, or purchased stocks therewith, or otherwise invested the same.
    That, after the death of her father, the said Eliza, under the erroneous impression, as the complainants believe, that the said Eliza was indefeasibly seized, in fee simple, of the said house and lot, and had full power and authority so to do, undertook to sell and convey the said house and lot to her said brother, Edward Armstrong, as the complainants have been informed and believe, for about the consideration of $-, and which said sum was placed out at interest, or stocks purchased therewith, and has been kept out at interest, or otherwise invested, ever since that time, by her, or by her trustee hereinafter named.
    That, shortly after the execution of the conveyance by the said Eliza, for the said house and lot, a marriage being intended to be had and solemnized between Andrew G. Armstrong, Esq., of Sew Orleans, and the said Eliza, a certain. indenture or marriage contract or settlement was duly made and executed, dated November 5th, 1838, between the said Eliza, party of the first part; the said Andrew C. Armstrong, of the second part, and William Kent, Esq., of the city of New York, of the third part, reciting that the said Eliza was possessed of and entitled to certain personal estate, viz., a certain bond of Samuel Bo Ruggies, for $2000, with an accompanying mortgage, said bond bearing date November 1st, 1836, and a bond of Thomas A. Emmett, dated December 1st, 1835, secured by a mortgage, for $1400; also to five shares of the capital stock of the Manhattan Co.; also to twelve shares of the capital stock of the president, directors, and company of the State Bank at Elizabeth ; also two shares of the capital stock of the New York Insurance Co; and that a marriage was intended, &e.; and that it was agreed that all the personal property of the said Eliza should be settled as therein provided, by which said indenture, the said Eliza, for the consideration therein mentioned, and with the approbation of the said Andrew, testified by his being a party thereto, granted, bargained, sold, assigned, &c., unto the said William Kent, all and singular the property before mentioned, and all other personal property of the said Eliza, of eveiy kind and description, in trust for the said Eliza, until the said marriage, and from and after the solemnization thereof, to collect and re-invest the same at his discretion, and to vary and transpose the securities therefor as he might think expedient, and, during the joint lives of the said Eliza and Andrew, to hold, convey, and transfer the said property,and pay and apply the interest,dividends,-and income thereof to such person and persons, and for such purposes as the said Eliza should, from time to time, notwithstanding her coverture, by any writing under her hand, direct or appoint, and, in default of such appointment, to apply and pay such interest, dividends, and income into the hands of the said Eliza, for her sole and separate use and benefit, independent of her said intended husband, and without being subject to his debts or control, and, from and after the death of the said Andrew, if the said Eliza should survive him, to convey said property and pay all the interest and income thereof to the said Eliza, absolutely, and free from all trusts. But if the said Eliza should die before the said Andrew, then to convey such property to such person or persons as the said 'Eliza should, by her will or deed, executed in the presence of two or more witnesses, direct and appoint; and in default of such appointment, in trust for the said Andrew, during his natural life, and on his death to hold the said property for, or to convey the same to, such person or persons as, at the time of the death of the said Eliza, should be, according to the laws of the State of New York, her next of kin.
    That the property so conveyed by the said Eliza to the said Win. Kent, Esq., in trust as aforesaid, is the same property, or the avails thereof, which was so given and devised by the testatrix to the said Eliza, and to the complainants Charles and Margaret, if the said Eliza should die without issue and intestate, including the proceeds of the sale of the said personal property, and of the said house and lot,.
    That the marriage between the said Andrew and the said Eliza was solemnized and had soon after the execution of the said marriage settlement; and that the said William Kent took, or received into his possession, all and singular the said trust property ho conveyed to him in trust as aforesaid, and has ever since received the interest, profits and income thereof.
    That the said Eliza died November 27th, 1839, without heirs of her body, or issue, intestate ; and that, thereupon, the limitation over to the complainants Citarles and Margaret, in the will of their said mother, took effect, and they became entitled, as tenants in common, to all the estate and property in and by the said will devised and given to the said Eliza, as aforesaid, as the same, in and by the said will, is giveji and devised to the said complainants and their heirs, to be equally divided between them in the event which has happened, the said Eliza having died without heirs of her body, and intestate.
    That the said Edward Armstrong, after the said conveyance of the said house and premises by the said Eliza to him, but at which particular time the complainants know not, sold and conveyed the same to one James Nuttman, who is now in possession thereof under his said pretended purchase.
    That the said Peter Kean, to whom and to whose heirs the said house and lot were conveyed as aforesaid, died in the year 1828, leaving John Kean, Julia Kean, now the wife of Hamilton Fish, and Christine, his children and heirs-at-law; and that, on the death of the said Peter Kean, the legal estate in the said house and lot, so held by him in trust as aforesaid, descended to the said John, Julia and Christine, as his heirs-at-law, who thereby became trustees of the said premises for the said Margaret Armstrong, during her life, and after her death, in trust for the complainants Charles and Margaret; and that the legal title to the said premises is now vested in the said John, Julia and Christine, for the complainants Charles and Margaret. That the said Christine is a minor, and therefore cannot join the other heirs-at-law in conveying the legal title of the said house and lot to the complainants Charles and Margaret, without the direction of a court of equity j and that the said John, Kean, Hamilton Fish, and Julia, his wife, and Christine Kean, decline to act in the said trust, and refuse to assert the rights of the complainants Charles and Margaret to the said house and lot, by bringing an action of trespass and ejectment to recover the possession thereof, or to join the complainants in this suit.
    That by a marriage contract made by and between the complainant Margaret and the complainant William L. Salter, before their intermarriage, dated July 26th, 1824, all the property therein mentioned as belonging to the complainant Margaret was conveyed to the said Peter Kean, in trust for the complainant Margaret, as therein mentioned ; and all the property which she might or should acquire was thereby secured to her for her sole and separate use; and by the said marriage contract it was further agreed and provided that, in case the said Peter Kean should die during the said coverture, the said Margaret might choose any other person as trustee, to manage the said trust property according to the terms of the said trust, free from any control of the complainant William L. Salter. And that, after the death of the said Peter Kean, to wit, on or about November 29th, 1830, the complainant Margaret did, by a writing under her hand and seal, of that date, choose and appoint the complainant George Elliott as her trustee, in the place of the said Peter Kean, deceased.
    The bill prays that the equitable rights of the complainants Charles and Margaret under the will of their said mother may be ascertained and finally decided, and that the rights of the said complainants to the said house and lot may be established, and the sale and conveyance thereof by the said Eliza set aside or declared null and void, and that the said John Kean, Hamilton Fish, and Julia, his wife, and Christine Keen, may be decreed to convey the legal title to the said house and premises to the complainants Charles and Margaret, and that the possession of the said house and premises may be delivered to them, and that an account may be decreed and directed to be taken of the rents and profits thereof since the death of the said Eliza, to be paid to the complainants Charles and Margaret, by the defendants, or some or one of them ; and that an account may be taken by and under the decree and direction of the court, of all the rest and residue of the estate of the said testatrix, except the plate and specific legacies, which is given to the complainants Charles and Margaret, in the event, which has happened, of the death of the said Eliza without heirs of her body, and intestate, and of the sales and investments thereof, and of the part or amount thereof granted, assigned, and transferred to the said William Kent, in trust as aforesaid, by the said marriage agreement, and of the investments made thereof by him, and of what he has received for the interest, dividends, and income thereof since the death of the said Eliza, and that he may be decreed to pay or deliver the same to the complainant Charles, and the complainant Margaret, or her said trustee; and for further relief.
    William Kent put in his several answer.
    He admits the will. He says that on or about the 1st of April, 1830, Eliza sold and conveyed the house and lot to one Andrew Thompson, in fee simple, for $2500. That the same was afterwards sold and conveyed to Edward Armstrong, by auditors appointed by the Court of Common Pleas of the borough of Elizabeth under an attachment issued out of that court against the said Thompson as a non-resident debtor. That lie has no knowledge, information, or belief that the said Eliza ever undertook to sell and convey the said house and lot to the said Edward Armstrong. That it may be true that the said Eliza also sold and disposed of the household furniture and other personal property given to her by the said will, and placed at interest or invested in stocks, the moneys arising therefrom and from the sale of the said real estate, but that he has no such knowledge or information thereof as will enable him explicitly to admit or deny the same.
    He admits the ante-nuptial contract between Eliza and Andrew C. Armstrong and himself, as trustee, and that he took or received into his possession or control all the property therein mentioned and thereby conveyed to him in trust; and that he has ever since received the interest, dividends, and profits thereof, and paid and applied the same, and every part thereof which accrued during the life of the said Eliza, to such persons and for such purposes as she, by writing under her hand, directed aud appointed, or into her hands for her sole and separate use; and since the death of the said Eliza has paid over the same, or the greater part thereof, to the said Andrew C. Armstrong, her surviving husband, as by the said marriage contract he was directed and required to do. That it may be true thát the said property so conveyed, assigned, and transferred to him by the said marriage contract, in trust aforesaid, is the same property, or the avails thereof, which was given and devised by the said Margaret Armstrong to the said Eliza, by her said will, including the proceeds of the sale of the said personal property and of the said house and lot, but- that he has no such knowledge, information or belief thereof as will enable -him more explicitly or positively to confess or deny the same.
    He admits the death of Eliza, on the 29th of November, 1839, without heirs of her body, and intestate, and that her husband, the said Andrew, survived, and still survives her, but whether, on her death and during the life of said Andrew, the said Charles M. Armstrong and Margeret Salter, under the will of the said Margaret Armstrong, became entitled to the property and estate assigned, transferred, and conveyed to him as aforesaid; or whether, inasmuch as the said Eliza did not make any will or deed directing or appointing to whom this defendant should convey the said property, this defendant is’ bound, by virtue of the said marriage contract, to hold the said property to and for the -use of the said Andrew during his life, is a question of law which lie submits to the decision of the court, declaring himself to be ready and willing to perform such order and decree in the premises as the court shall adjudge to be equitable and just.
    He admits the sale and conveyance of the house and lot by Edward Armstrong to James Nuttman, and that Hartman is ia possession.
    He admits the death of Peter Kean, leaving the children and heirs-at-law mentioned in the bill, one of whom, Christine, is a minor.
    He says that after the decease of the testatrix, Margaret Armstrong, and in August, 1828, the said Margaret Balter and Charles M. Armstrong, and Edward Armstrong, their brother, executed, under their hands and seals, and delivered to the said Eliza B>. Armstrong, a deed poll, which was prepared and designed to be executed also by the said William Armstrong, Sarah, the wife of the said Edward Armstrong, and the said William L. Salter, neither of whom, in fact, ever signed or sealed the same, in and by which said deed the said Margaret Salter, Charles and Edward Armstrong, after reciting, among other things, that the said Margaret Armstrong, the testatrix, made her will, by which, after certain legacies and bequests to persons therein named, and a devise to William Armstrong, during his natural life, of a certain house and lot therein named, on certain conditions, the rest and residue of said estate is given, be° queathcd and devised to the said Eliza JR,. Armstrong, absolutely and to iier heirs forever, as by reference to said will would appear, did, jointly and each of them individually, confirm, establish, ratify and make good the said will and all the provisions thereof; and did also, in consideration of the premises therein recited, and of $1 to them and each of them paid by the said Eliza, assign, transfer, quit claim and set over to the said Eliza, her heirs, executors, administrators and assigns, absolutely and forever, all their right, title, interest, property, estate, claim and demand of, in, to or concerning the estate, real and personal, in possession, reversion, remainder or expectancy, of which the said Margaret Armstrong, during her life, was at any time seized or possessed, interested in or entitled to, (excepting always such property as in and by the will of the said Margaret Armstrong, they or either of them by any legacy or devise were entitled to,) to have and to hold the same unto her the said Eliza, her heirs, executors, administrators and assigns, absolutely and forever.
    He admits that Andrew C. Armstrong claims to be entitled, by virtue of the said marriage agreement, to the interest, dividends and income of all the said trust property, during his natural life; and that he, this defendant, in conformity to the trusts upon which the said property was assigned and conveyed to him, and in the honest belief that he was, both in law and in good conscience, authorized and bound so to do, in October, 1840, paid over to the said Andrew, of the interest, dividends and income which have accrued from the said trust property since the death of the said Eliza, the sum of $306.40.
    Evidence was taken on the part of the complainants, by which it appeared that Eliza R. Armstrong had no property, except what she derived from her mother’s will.

      I. W. Scudder, for the complainants.
    He cited 4 Kent’s Com. 533; 7 Bac. Ab. 341; 1 Harr. N. J. Rep. 26 ; Pow. on Dev. 373; 4 Term Rep. 294; 2 Wm. Bl. 1010, 889 ; 2 Halst. Rep, 379; 6 Cruise’s Dig. 148, 404, 5; 2 Bl. Com. 172, 3; Cro. Jac. 590; 4 Wend. 278 ; 11 Johns. Rep. 338 ; 1 Ib. 444, 9; 10 Ib. 382; 20 Ib. 483; 2 Cowen 333; 6 Ib. 180; 6 Johns. Rep. 185; 5 East 501; 7 Cranch 456; 3 Halst. Rep. 29; 2 Mass. Rep. 57; Saxton 315; 11 Pick. 503; Doug. 759; 8 Term Rep. 54, 65 ; Cowper 657; 2 Atk. 241; 8 Cow. 277; 15 Serg. and Rawle 190; 5 Johns. Ch. 346; 1 Gallison 458.

      W. Pennington, contra.

    He cited 4 Kent’s Com. 264, 275 ; Fitzherb. 314; 1 Jac. and Walk. 154; 5 Mass. Rep. 500 ; 10 Johns. Rep. 19 ; 15 Ib. 169 ; 16 Ib. 537; 7 Term Rep. 276; 4 Ib. 605; 2 Bl. Com. 398; Lovel. on Wills 256; Ward on Leg. 236; Fearn. Ex. Dev. 167; 3 Meriv. 176; 5 John. Rep. 346; 2 Green’s Rep. 174.
   The Chancellob.

Mrs. Margaret Armstrong, being possessed as her sole and separate property, free from the control of her husband, Col. William Armstrong, of a house and lot in Elizabethtown which she had purchased, and which had been conveyed to Peter Kean, since deceased, in trust for her and her heirs, and being also possessed of considerable personal estate, and of other rea! estate, and having full power to dispose of the same by will, made her will, dated September 16th, 1827, and thereby, after giving her plate to be equally divided among her four children, gave and devised as follows : “ Item, I give and bequeath the house and lot in Elizabethtown, which I purchased, &c., and which was conveyed to Peter Kean in trust for me and iny heirs, to my beloved husband, William Armstrong, during the full end and term of his natural life, to be used and occupied by him as a residence, together with the use of all the household furniture, (plate excepted,) now therein contained | but if my said husband should marry, remove to foreign parts, or elect to break up housekeeping, then my will is that the above devise to him shall become null and void, and that the said house and lot, to* gather with all and singular the household furniture therein, shall become the absolute property of my beloved daughter, Eliza Rosetta Armstrong, to be taken and held by her under the like restrictions, limitations and conditions as the property hereinafter bequeathed to junto She then gives to her husband, and to her sous Edward and Charles, and to her married daughter, Margaret Salter, gold rings, to be procured by her executor -and executrix. She then expresses her regret that she has it not in her power to provide more amply for her children, but says that it has pleased God to place two of them, Edward and Margaret, in easy circumstances, and as her beloved son Charles has both the disposition and the ability to provide a decent and respectáble maintenance for himself, in his profession, she trusts they will all cheerfully acquiesce in her will. The will then proceeds as follows: Item, I give and bequeath all the rest and residue of my estate in the Slates of New York and New Jersey, or wherever else situate, whether real, personal or mixed, together with the reversion and remainder of the house and lot, together with my household furniture heretofore bequeathed to my husband during his natural life, or so long as he shall remain unmarried and elect to oecupy the same as a residence, to my beloved daughter Eliza Rosetta Armstrong, to be by her possessed, enjoyed and occupied, ,to her and her heirs forever, provided, nevertheless, that she shall and do, out of the rents, issues and profits of the said estate, provide a comfortable maintenance for my faithful domestic, Catharine Small. But if my said daughter Eliza should die without heirs and intestate, then my will is that all my estate herein above devised to her shall vest in my son, Charles M. Armstrong, and my daughter, Margaret Salter, and their heirs, to be divided between them, share and share alike.” The will then appoints her son Edward and her daughter Eliza executor and executrix thereof.

The testatrix died September 25th, 1827, leaving her said husband and said four children surviving her. The husband continued to reside in the said dwelling-house, and to use and occupy the said house and lot, and the household furniture, (except the plate.) Eliza continued to live with her father until his death, on the 26th January, 1830. Immediately after his death, Eliza took possession of the house and lot and the household furniture. She sold the household furniture and other personal property of the testatrix, and converted it, or the most of it, into money, and placed the moneys arising therefrom at interest, or purchased stocks therewith, or otherwise invested the same, and conveyed the said house and lot for the consideration of $ — ;—, which sum was placed at interest, or invested in stocks, or otherwise, and has been kept at interest or otherwise invested ever since by-her trustee hereinafter named.

Shortly after the execution of the conveyance by thefsaid Eliza of the said house and lot, an ante-nuptial contract was made between the said Eliza and her intended husband, Andrew C. Armstrong, and William Kent, party thereto of the third part, reciting that the said Eliza was possessed of and entitled to certain personal estate, viz., a bond and mortgage for $2000, (describing them,)dated November 1st, 1836; abond'and mortgage for $1400, (describing them,) dated December 1st, 1835, and 17 shares of bank stock, (describing them,) and two shares of insurance stock, (describing them,) and that a marriage was intended, &g., and that it was agreed that all the personal property of the said Eliza should be settled as therein provided; and conveying the said personal property mentioned in the said marriage articles, and all other personal property of the said Eliza, to William Kent, in trust for the said Eliza until the said marriage, and after the marriage to collect and re-in vest the same; and during the joint lives of the said Eliza and Andrew to hold, convey, and transfer the said property, and pay and apply the interest, dividends, and income thereof to such persons and for such purposes as the said Eliza should, from time to time, notwithstanding her coverture, by any writing under her hand direct or appoint; and, in default of such appointment, to apply and pay such interest, dividends, and income into the hands of the said Eliza, for her sole and separate use and benefit, independent of her said intended husband, and without being subject to his debts or control; and, from and after the death of the said Andrew, if the said Eliza should survive him, to convey said property, and pay all the interest and income thereof to the said Eliza, absolutely, and free from all trusts. But if the said Eliza should die before the said Andrew, then to convey such property to such person or persons as she should by will or deed, executed in the presence of two or more witnesses, direct and appoint; and in default of such appointment, in trust for the said Andrew, during his natural life, and on his death to hold the said property for, or to convey the same to such person or persons as, at the time of the death of the said Eliza, should be, according to the laws of the State of New York, the next of kin.

The marriage took place, and the trustee, William Kent, received the property mentioned in the marriage settlement.

Eliza R. Armstrong died November 27th, 1839, without issue, and intestate.

The bill prays that the equitable rights of the complainants Charles M. Armstrong and Margaret Salter, under the will of their said mother, be ascertained and finally settled; that the rights of the said complainants to the said house and lot may beestablislied, and that the sale thereof by the said Eliza may be set aside or declared void; and that the heirs of Peter Kean, deceased, (made parties defendants,) may convey the legal title to the said house and lot to the complainants Charles and Margaret, and that the possession of the said house and premises be delivered to them ; and that an account may be directed to be taken of the rents and profits thereof since the death of the said Eliza, and that they may be paid to the complainants Charles and Margaret, and that an account may be decreed to be taken of all the rest and residue of the estate of the said testatrix, which is given by the said will to the complainants Charles and Margaret, in the event of the death of the said Eliza without heirs and intestate,” and of the sales and investments thereof, and of the part or amount thereof transferred to the said William Kent, in trust as aforesaid, by the said marriage articles, and of the investments made thereof by him, and of what he has received for the interest, dividends and income thereof, since the death of the said Eliza, and that he may be decreed to pay. or deliver the same to the complainants Charles and Margaret.

Andrew C. Armstrong, William Kent, James Nutman, (who claims the house and lot by mesne conveyance thereof from Eliza’s grantee thereof,) and the heirs of Peter Kean, deceased, are made defendants.

Assuming that the bonds and mortgages, stocks, and personal property conveyed by the said marriage settlement to W. Kent, in trust, as therein stated, are the proceeds of the property devised and bequeathed by the will of Margaret Armstrong to Eliza R. Armstrong, in the manner in the said will provided, with the limitation over as also therein provided, the questions presented for consideration are the same as would be presented to a court of law under a will made by one having the legal estate in this real and personal property devising and bequeathing to Eliza R. Armstrong in the manner provided by this will, with the limitation over therein provided.

It is a devise of all the rest and residue of the estate, real, personal, or mixed, to Eliza R. Armstrong, to be by her possessed, enjoyed, and occupied, to her and her heirs forever ; but if she should die without heirs and intestate, then that all the estate above devised to her shall vest in her brother Charles M. Armstrong and sister Margaret Salter and their heirs, to be divided between them, share and share alike.

The questions presented are—

1st. Whether these clauses, taken together, and by force of the words and intestate,” do or do not give to Eliza a fee simple in the lands, and an absolute property in the personal estate, or if not a fee simple in the lands, an absolute property in the personal estate.

2d. If, by force of the words “ and intestate,” neither a fee simple in the lands, nor an absolute property in the personal estate is given, what estate is given to Eliza in the lands ? Is it a fee tail in Eliza, with a contingent remainder over to Charles and Margaret, or is the limitation over to Charles and Margaret an executory devise ? In other words, are the words “ without heirs,” or the words without heirs and intestate,” to be construed to mean an indefinite failure of issue, or only a failure of issue at the time of Eliza’s death ?

3d. If the will be construed to give Eliza an estate tail in the lands, what estate or interest had she.in the personal property ?

4th. If the limitation over be construed to be an executory devise, is (such) a limitation over of personal property on one’s dying without heirs and intestate within the rules of law?

5th. W hat was the effect, in law of the deed from Margaret Salter, Charles M. Armstrong and Edward Armstrong, to Eliza Rosetta Armstrong, referred to in the pleadings, and how does it affect, the trust, to William Kent?

These I conceive to be questions involving rulesof property that should be settled by the law courts, and I shall accordingly direct a case to be made for the opinion of the Supreme Court thereon.

The case was argued before the Supreme Court, and the following is a copy of the opinion certified by the Supreme Court to the Chancellor:

NEW JERSEY SUPREME COURT.

OCTOBER. TERM, 1848.

Between

Charles M. Armstrong, William D.

Salter, and Margaret, his wife, and Geo. T. Elliott, complainants, and

Andrew C. Armstrong, Wm. Kent,

James Nutman, John Kean, Hamilton Fish, and Julia, his wife, and Christine Kean, defendants.

On a ease submit« ted by the Chancellor to the Supreme Court.

I, Henry W. Green, Chief Justice of the Supreme Court, do-certify to his Honor, Oliver S. Halsted, Chancellor of the State of New Jersey, that the questions submitted in the above cause-came on to be heard before the justices of the'Supreme Court, at the July Term of said court, in the presence of the Chief Justice and Justices Nevius and Carpenter, and were then debated by the counsel of the respective parties, and the court took time to consider the same until the present October Term of said court, and I report, as the unanimous opinion of the said court, that Margaret Armstrong, by the will in the said case mentiqned, in the residuary clause thereof, devised to her daughter, Eliza-Rosetta Armstrong, an estate in fee simple in the lands, and bequeathed to her an absolute property in the personal estate therein devised and bequeathed to her ; that the words “ without heirs and intestate,”'in that clause, imply a power of disposition, and is inconsistent with and avoids the limitation overj that so far as the said lands and personal estate were embraced in the property conveyed to William Kent, the same passed under the trusts expressed in the marriage article referred to in the said case. And I further report, as the opinion of the said court, that the deed referred to did not, in the view taken of the case by the court, affect the trust in William Kent.

Dated 10th February, 1849.

HENRY W. GREEN.

The opinion of the Supreme Court will be found at length m Zabriskie’s Sep. 518.

A decree was signed by the Chancellor accordingly.

Reversed, 2 Sal. Ch. 637.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    JOSEPH H. VAN MATER, JR., v. DANIEL HOLMES.
    1. The bill stated that in January, 1842, H. V. and J. V., in consideration of $10,000, conveyed to the complainant a farm; that the agreement for the sale had been concluded some days prior to the execution of the deed ; that the deed was recorded a few days after its delivery. That at the delivery of the deed the complainant, was ignorant of the existence of a judgment in favor of the defendant in the bill against the said H. V. and J. V., or that the defendant held a judgment bond against them. That the object of H. V. and J. V. in selling said farm, was to raise money to pay their creditors, of whom the defendant was one, and that the said money was duly applied in the payment of their debts. Thar, during the negotiation for the said purchase by the complainant, the defendant was acquainted with the whole matter, and was told by H. V. of the intended sale to the complainant, and advised the making thereof, and knew that, the complainant was buying the property supposing it to be clear of any judgment in his favor, but that the defendant, after said agreement of purchase and sale had been made, and on the 19th of January, 1842, had a judgment entered up on a judgment bond he held against said H. V. and J. V. That the said H. V. and J. V. had ample real estate remaining in them after the said sale to satisfy the defendant’s judgment, but that he released the same, or large portions thereof, from the lien of .said judgment. That the defendant, before the said sale, held two judgments against the said H. V. and J. V., which had been assigned to him, and that on the 7th December, 1842, they transferred to him a draft for $6000, drawn upon and accepted by certain persons in Kentucky, as collateral security for the payment of his said two last-mentioned judgments, amounting to about $5000, the defendant agreeing, under hand and seal, to apply what he should receive on the said draft, first,, to the payment of his said two last-mentioned judgments, and to account for the surplus. That the defendant received on said draft $5287.52, and did not apply the same on his said two judgments, but raised the amount of said judgments by sales on execution, and now insists on appropriating said money to judgments entered since the said deed to the compiaamnt, and which the defendant holds against the said H. V. and J. V., leaving older judgments unpaid, and thereby charging the complainant’s farm with the amount thereof. And that the defendant has caused an execution issued on his said judgment of January 19th, 1842, to be levied upon the complainant’s said farm. The bill prayed relief, and an injunction restraining sale on the last-mentioned execution. The injunction was allowed.
    2. An answer was put in, and a motion thereupon made to dissolve the injunction. The injunction was retained until the hearing.
    On the 10th of April, 1845, Joseph IT. Van Mater, Jr., exhibited his bill, stating that in January, 1842, Holmes Van Mater, his father, and Joseph H. Van Mater, his uncle, in consideration of $10,000, sold and conveyed to him a valuable farm in Middletown, Monmouth county. That the agreement for sale had been concluded some days prior to the execution and delivery of the deed. That very shortly after the delivery of the deed, to wit, on the 22d of January, 1842, it was recorded in the clerk’s office of Monmouth. That at the time of the negotiation for the purchase of said farm, as well as at the time of the delivery of the deed therefor, he was ignorant of the existence of the judgment in favor of the defendant, Daniel Holmes, for $19,427.36, to secure the sum of $-, or of any other judgment of like character, and he was likewise ignorant that he held a judgment bond therefor. That he was confident ■the estate of the said Joseph H. and Holmes Yan Mater was amply sufficient to pay all judgments then had aud entered against them. That thereupon he purchased said farm at a full and fair price, and accepted a deed therefor, with warranty against all encumbrances. That, the object of the sale of said farm was to raise money for the creditors o'f the said Joseph H. and Holmes Yan Mater, of whom the defendant was one, and the complainant charges that the said money was duly applied in payment of debts of the said Joseph H. and Holmes Yan Mater.
    The bill states that during the time of the negotiation for the purchase of the said property by the complainant, the defendant was acquainted with the whole matter; that the defendant is the brother-in-law of the said Joseph H. and Holmes Yan Mater, and the uncle of the complainant; that he lived near the complainant, frequently saw and talked with him, and had every opportunity of informing the complainant of his judgment, or of his intention to obtain a judgment, before the delivery of the deed to the complainant. That the defendant was told by the said Holmes Yan Mater, the complainant’s father, of the intended sale to the complainant, the price, &c., and advised and counseled the sale being made. That he well knew the complainant was buying said property clear, as complainant supposed, of any such judgment as he now claims against it. That, notwithstanding all this, after the agreement to purchase had been made, and he knew it, as complainant charges, and nothing remained but the execution and delivery of the deed, the defendant, as the complainant believes, went to New Brunswick and had a judgment signed, on the 19th of January, 1842, before a justice- of the Supreme Court, for $19,429.36 debt, and $4 costs, and forthwith sent the record to the clerk’s office of the Supreme Court at Trenton, where it was filed, on the 20th of the same month; and the complainant submits that, under these circumstances, the said judgment is not a lien prior to the complainant’s deed ; that the defendant was bound, in equity, to apprise the complainant of his intended action on his judgment bond, the same bearing date August 31s!, 1841, or of the judgment itself, after the same was signed ; and that his failure to do so — - his standing by, advising the sale, and seeing the complainant purchase without notifying him of any claim or encumbrance, and knowing, too, the embarrassments of the said Joseph H„ and Holmes Van Mater, and the little security their covenants would give to the purchaser — -was a fraud in equity which avoids his judgment as against the complainant.
    That, subsequent to the said conveyance to the complainant, the said Joseph H. and Holmes Van Mater were yet the owners of a very large and valuable real estate in said county; that the defendant’s said judgment was a lien on the said remaining real estate — all which, in equity, must have been first sold to pay said judgment, before the defendant could fall back on the farm, which had been before sold to the complainant.
    The bill charges that there was ample real estate remaining, after the sale to the complainant, to have satisfied the said judgment, but that the defendant, without the assent of the complainant, released and discharged said real estate, or large portions thereof, and, more particularly, he released and discharged from his said judgment, a farm situate in said county, sold and conveyed to one —. Cook, for $13,000, or thereabouts; and the complainant submits that the defendant cannot thus interfere with and destroy the rights and equities of the complainant, and that, by his act aforesaid, he has released and discharged the farm of die complainant from his said judgment, if the same ever was a lien thereon.
    That the defendant held two judgments against the said Joseph H. and Holmes Van Mater, which had been assigned to him, one in favor of Elisha Laird, for $-, or thereabouts, and one in favor of —. Hendrickson, for $-, or thereabouts.
    That on the 7th of December, 1842, a draft drawn by Joseph H. Van Mater, endorsed by Holmes Van Mater, upon certain persons in Kentucky, and by them accepted, for $6000, was assigned to the defendant, as collateral security, to pay him the two judgments last mentioned, amounting, together, to about $5000; and the defendant, at the time of the assignment and accompanying the same, promised and agreed, by writing under his hand and seal, that he would, on the receipt of the balance due on said bill of exchange or draft, apply the proceeds, in the first place, to the payment of the said Laird judgment, and, secondly, to the payment of the said Hendrickson judgment, and, if more than enough for those purposes, he was to account for the surplus. That the defendant received on said draft, $5287.52, as the complainant is informed and believes, and has neglected and refused to apply the said money on the said two judgments, but raised the amount of said judgments by sales on execution, and now, as the complainant is informed, insists on his right to appropriate said money to judgments entered since the said deed to the complainants, and which he holds against the said Joseph H. and Holmes Van Mater, leaving an older judgment, or older judgments, unpaid, and thereby reaching back of the complainant’s said deed, and charging his said farm with the amount thereof.
    The bill states that the complainant is informed and believes, that divers other large sums of money — more particularly $700, or thereabouts — received on a note, given by one —. Cook to said Joseph H. and Holmes Van Mater, and placed in the hands of the defendant’for collection, have never been accounted for by the defendant, nor specifically appropriated by any one to the payment of any particular debt — which said sums, the complainant insists, the law will now apply to the said oldest judgment, in favor of the defendant, and thereby relieve the complainant’s farm of that amount of burden, if the said judgment be. an encumbrance at all thereon.
    That at the time of the said sale to the complainant, the said Joseph H. and Holmes Van Mater were much embarrassed, and that .they have been since sold out at sheriff’s sales, by virtue of sundry executions in favor of the defendant and others; and that they are now wholly without means to respond to the complainant on their said covenants of warranty in their said deed to him ; and that if the farm in question be sold under execution, the complainant will bo entirely without remedy.
    That the defendant has had an execution issued on his judgment of January 19th, 1842, and levied on the complainant’s farm.
    The bill prays that the said judgment may be declared not to be a lien or encumbrance on the said farm of the complainant, or if the court shall think it is an encumbrance, then that an account be taken of all moneys received by the defendant, as before mentioned, and that the same may be credited on the judgments first entered ; or if the court shall think this cannot be now done, they having been paid and satisfied, then that the credit be put upon the oldest unsatisfied judgment; and that the complainant may have the benefit of the doctrine of substitution in those'cases where the defendant has had the option of two funds ; and that a general account may be taken of all moneys which the defendant has received, or might-have received but for his default apon his said judgment, and the complainant’s farm held liable for the balance only; and that in the meantime, the defendant and the sheriff be restrained by injunction from proceeding to sell the said farm of the complainant on the said execution.
    An injunction was granted according to the prayer of the bill.
    The defendant put in his answer on the 7th of April, 1847. He says he has understood, and believes it to be true, that on t he 21st or 22d of January, 1842, Joseph H. and Holmes Van Mater, in consideration of $10,000, sold and conveyed to the conplainant the farm in the bill mentioned, and that the deed therefor was recorded on the 22d of January, 1842; but says he is ignorant whether the said deed was actually delivered on the 21st or 22d of January, 1842.
    He says he is ignorant whether or not the agreement, or any agreement for said farm had been concluded some days, or any other time, prior to the execution and delivery of said deed; but if there was any such agreement concluded prior to the execution and delivery of said deed, he says he was entirely ignorant that any such agreement had been concluded, except that he was told by Aaron Longstreet, a few days before he entered up his judgment, that Holmes Van Mater had agreed to let the complainant have said farm, but that Joseph Van Mater was not willing to enter into such agreement.
    He says he does not know, of his own knowledge, whether or not the complainant, either at the time of the alleged negotiation for the purchase of said farm, or at the time of the delivery of the deed therefor, was entirely ignorant of this defendant’s judgment for $19,427.36; but he says that his judgment bond, upon which said judgment is entered, is dated and was delivered on the 31st of August, 1841; and that he left home on his way to Trenton, on the 17th or 18th of January, 1842, for the purpose of entering up said judgment; and he states that he believes and charges the truth to be, that the complainant, when this defendant so left home, well knew of the existence of the said judgment bond, and that this defendant left home on his way to Trenton for the express purpose of entering up said judgment bond; and he further charges the truth to be, that the complainant, at and before he received his said deed, well knew that this defendant had gone for the purpose of entering up his said judgment bond, or that the complainant had been informed, or had reason to suspect that this defendant had gone to Trenton to enter judgment on his said bond and actually had done so.
    He denies that the complainant, either at the time of the alleged negotiation, or at the time of the delivery of the deed, was ignorant that this defendant held the said judgment bond ; but ou the contrary, he says that at and prior to the date of the said judgment bond, the complainant was indebted to this defendant between $1500 and $1800, for goods and .merchandise previously sold ‘by this defendant to the complainant, for which this defendant held the joint note of the complainant and Holmes Van Mater, and which said debt of the complainant was, at the time of the giving of said judgment bond, at the urgent solicitation of the said Holmes Van Mater, incorporated in and made part of the consideration of the said judgment bond and said note of complainant and Holmes Van Mater, delivered up to said Holmes Van Mater and considered in the arrangement then made as so much cash; all which was done, as this defendant expressly charges, with the knowledge and consent of the complainant; and of all which, this defendant expressly charges and believes, the complainant had full knowledge from the time of the execution of said judgment bond until the actual entry of said judgment.
    He says he is ignorant whether or not the complainant was, either at the time of the alleged negotiation or at the time of delivery of said deed, confident that the estate of said J. H. and H. Van Máter was amply sufficient to pay all judgments then held against them, or purchased said farm upon any such confidence! but he admits the complainant gave a full, fair price for said farm, with full warranty against all encumbrances j but he does not know that the price the complainant gave for it was beyond its actual value.
    He says lie is ignorant whether or not the object of said sale was to raise money for the creditors of said Joseph H. and Holmes Van Mater, but admits that he was and is one of their creditors, and denies that he ever, as one of said creditors, received any of the proceeds of said sale, and says he does not know, and does not believe, that said money was duly applied in payment of debts of said Joseph H. and Holmes Van Mater,
    He denies that, during the time of said alleged negotiation, he was acquainted with the whole matter, further than what is stated in this answer; bat admits he is the brother-in-law of the said Joseph H. and Holmes Van Mater, and the uncle of complainant, and that he lived near the complainant, and frequently saw and talked with him ; but he denies that he had every or any opportunity of informing the complainant of the said judgment, previous to the delivery of the complainant’s deed. On the contrary, he states that he did not return from Trenton, at the time of entering up said judgment, until the 22d or 23d of January, 1842, and which was after the delivery of the complainant’s deed.
    He admits that, from the date of his said judgment bond until he left home for Trenton, as aforesaid, to enter it up, he had every opportunity of informing the complainant of his intent to obtain judgment on his said bond, but he denies that he had any opportunity after he left home as aforesaid, before the delivery of the complainant’s deed; but he says that he made use of no means to conceal his intentions of entering up judgment on his said bond from the complainant; but, on the contrary, he states and charges the truth to be, that the complainant well knew of his said judgment bond from its date, and had no reason to expect or believe that this defendant would delay entering judgment as long as he did.
    He further states that several judgments had been obtained against the said Joseph H. and Holmes Van Mater since the date of his said bond, and others were prosecuting their claims to judgment; and that he had expressly told Holmes Van Mater, several weeks before, that he intended to wait no longer, and meant to enter up his said judgment.
    He states that at, and for a long time previous to, the 17th of January, 1842, the said Joseph H. and Holmes Van Mater were seized of several large tracts of land in Monmouth, (stating them,) and that the following mortgages had been put upon the same, and were then liens upon the same, viz. (stating them); that, besides said mortgages, there were legacies which were prior liens on three of said farms, (naming them,) due Mary Lloyd, of about $4000. That besides said encumbrances, there were, at the same time, the following judgments against Joseph H. and Holmes Van Mater, (stating them,) which were liens on all their real estate. That John Crawford obtained judgment against Holmes Van Mater, in the Monmouth Circuit Court, on the 19th of October, 1841, for about $270, and Garret Smock a judgment against said Holmes Van Mater, in the same court, on the same day, for about $155; and that, on the 17th of January, 1842, there were several suits pending against the said Joseph H. and Holmes Van Mater, which would be ripe for judgment at the next terms of the Monmouth courts, which came on the 4th Tuesday of January and July, and in which judgments were in fact entered, in said terms, one in favor of Frederick Kingston, for about $310, and one in favor of Elisha Laird, for about $2000.
    That on the 6th of April, 1842, he entered up, in the Court of Common Pleas of Monmouth, a judgment by confession, on another judgment bond given by said Joseph H. and Holmes Van Mater to him, for $8106, real debt, $4053, on a judgment bond dated April 5th, 184.2, for other debts owing him.
    That said Joseph H. and Holmes Van Mater gave a judgment bond on the 25th of January, 1842, to one Daniel Van Mater, and judgment was entered in the Monmouth Pleas on the same, on the 3d of February, 1842, for a real debt of $2000, or thereabouts. That executions were issued on the above judgments which had been entered previous to this defendant’s, and were in the hands of the sheriff to be executed ; and that the said Joseph H. and Holmes Van Mater were in the habit of advising with him as to their business j and his advice to them was, generally, to sell their real estate as fast as they could to advantage, to clear off said encumbrances.
    That the farm in the bill mentioned as having been sold to the complainant, at and prior to said 17th of January, 1842, belonged to one Aaron Longstreet, and that said Longstreet, on the said 17th of January, 1842, sold it to Joseph H. and Holmes Van Mater, for $10,000, the deed for which was recorded on the 18th of January, 1842; and that the said Joseph II. and Holmes Van Mater paid for said farm by selling to said Longstreet, Garret Hiers, and Haddock Whitlock the said Middletown Point property at $12,000, and the payments were arranged by paying the said Van Maters $2000 in cash, and by transferring the said Crawford mortgage of $4500 from the said Middletown Point property to the farm so sold by Longstreet to the said Van Maters.
    He says he does not recollect that he was told by said Holmes Van Mater of the intended sale to the complainant, the price, &c.; but he admits that he was aware of the said intended exchange with Longstreet, and which this defendant assented to on the express condition only that the said $2000 should be appropriated to the then existing encumbrances j and he thinks it possible that said Holmes Van Mater may have told him that, in case such exchange was effected, he intended to sell said farm to the complainant.
    He says he has no recollection that he advised and counseled said sale to the complainant, but says that if he did so it was apon the express condition that the purchase money should be appropriated towards paying off the then existing encumbrances.
    He says he never had any communication with the complainant with respect to said sale, and never advised or counseled him to buy it; and he charges the truth to be that the $5500, the balance of the purchase money of said sale to complainant, after taking out the said Crawford mortgage, was never in any way appropriated to pay off said prior judgments and encumbrances.
    He denies that he well knew, or that he had any suspicion that the complainant was buying said property, as he supposed, clear of this defendant’s judgment; on the contrary, he believes and charges the truth to be, that the complainant, at the time he took his said deed, well knew that the defendant had left home for the purpose of entering up his said judgment bond, and that none of the purchase money was, in fact, paid at the delivery of the deed, and that the said Holmes Van Mater and the complainant hurried through the execution, delivery, and recording said deed, for the express purpose, if possible, of getting ahead of the judgment which they well knew this defendant was in the aet of entering up, and that no. part of the purchase money was paid until some time after this defendant’s execution was put into the sheriff’s hands, and was then paid, if it ever has in fact been paid, with the full knowledge of this defendant’s judgment and execution, and was then paid, not because the complainant did not think this defendant’s judgment was a lien as against him, but under the expectation that the balance of said property of Joseph H. and Holmes Van Mater would pay oft’ all prior encumbrances, including this defendant’s judgment.
    He says he was ignorant, at the time he entered up his said judgment, that any agreement had been made by the complainant to purchase, and that nothing remained to be done but the execution and delivery of the deed to consummate the contract, except as hereinbefore stated ; but he admits and charges that, becoming uneasy about his said debt, both on account of the manner in which the said Joseph H. and Holmes Van Mater were acting, and the pressing of other claims to judgment, after having given the said Holmes Van Mater notice that he should enter up his judgment on his said bond, he left home on the 17th or 18th of January, 1842, for Trenton, for the purpose of entering up his judgment in the Supreme Court, to bind all the lands of the said Joseph H. and Holmes Van Mater in this state, and met, at Trenton, his counsel, James S. Green, who having drawn up the necessary papers, this defendant went to New Brunswick to find a Justice of the Supreme Court, where the said judgment was signed by Justice Nevius, with which this defendant returned to Trenton, and caused the same to be filed on the 19th or 20th of January, 1842, and then sent the execution to the sheriff, who received it on the 22d of said month ; and that, having other business at Trenton, lie did not return until the 22d or 23d of said January.
    Tie charges the truth to be that the complainant well knew of liis said judgment bond from the time of its date, and also well knew, when he took his d'eed, that this defendant had gone to Trenton to have it entered up; and that the complainant knew or suspected that the judgment had been actually entered when lie took his deed, and also knew that the execution was in the hands of the sheriff long before he paid a cent of the purchase money ; and he submits he was not bound in equity to apprise the complainant more than he was anybody else, of his intended action on hi.r said bond ; and he denies that he stood by and advised the said sale to the complainant, and that he saw the complainant purchase without in the slightest degree, (this is the language of the bill,) notifying him of any claim or encumbrance.
    He admits that, subsequent to the conveyance to the complainant, the said Joseph 11. and Holmes Van Mater were yet the owners of a very large and valuable real estate in said county, and that l»is judgment was a lien on said remaining real estate as well as upon said farm bought by the complainant; but he submits that, under the circumstances, he was not bound in equity to sell the said remaining real estate first before he could fall back on the farm sold to the complainant; but whether he was so bound or not, he charges the truth to be that all the said remaining real estate, except as hereinafter stated, has been first sold under this defendant’s and other prior executions, leaving a balance on this defendant’s execution, on the 21st of March, 1844. of $3098.44, for the payment of which the said farm sold to the complainant is the only security.
    He denies that, according to the best of his judgment and belief, there was ample real estate of said Joseph H. and Holmes Van Mater remaining, after the said sale to the complainant, to have satisfied this defendant’s said judgment; but he admits that he did, together with the other previous judgment ereditoi’s, release the following portions of real estate, under the circumstances and agreements hereinafter stated, that is to say, he released the said Van Brunt farm, which was sold by said Joseph H. and Holmes Van Mater to one John Cook, on or about the 1st of April, 1842, for about $13,000; but the said farm had, as aforesaid, a previous mortgage encumbrance of $9000, which, with the interest, left about $3500 to be paid by said Cook; and he released as aforesaid, upon the express condition that the whole of the balance of the said purchase money, after paying off said mortgage, except $700, should be paid upon judgments which were prior liens to this defendant’s said judgment, and were also liens upon the complainant’s said farm and the said Middletown Point property ; and he charges the truth to be that all of said balance of said purchase money, except the $700 aforesaid, was paid upon said prior encumbrances; and he states that he was induced to grant said release upon the request of the said Joseph H. and Holmes Van Mater, which request was made, as he believes and charges, with the knowledge and assent of the complainant; and the said release was granted upon the further belief of this defendant that said sale to Cook was a very advantageous one, both for said Joseph H. and Holmes Van Mater and also to said complainant and the other creditors, being, as this defendant believes, for a much larger amount than it would have brought at a forced sale, and as has in fact turned out to be the case, the said Cook, on or about the 23d of October, 1843, having given up the said property to the mortgagees for the amount of their mortgage, and thus losing the whole $3500 which he had paid on the same, over and above the said mortgage ; and this defendant has no doubt that if said sale to Cook had not been made, but said farm had been sold at sheriff’s sale with the balance of the property, it would not have brought any thing over the mortgage, and this would have increased the encumbrances ahead of this defendant’s judgment, and which .would have also been a lien on the complainant’s farm of from $2500 to $3000.
    He admits that he released, with the other judgment and mortgage creditors, his lien on the Bruer farm, to one John Croes, on or about the 1st of April, 1842, which he did at the request of the said Joseph H. and Holmes Van Mater, which, as he believes and charges, was done with the knowledge and assent of the complainant ; and he states that he was induced to grant said release because he thought it would be for the best interest, not only of the said Joseph H. and Holmes Van Mater, but also, of the complainant and the prior judgment and mortgage creditors, as well as all the other creditors of said Joseph IT. and Holmes Van Mater; that the price agreed to be given by Croes was about $5000, which was about $3000 more than the value of said Joseph H. aud Holmes Van Mater’s right in said property, as this defendant believes; and that this large amount was agreed to be given by Croes under the following circumstances — the said Joseph H. and Holmes Van Mater claimed title to said Joseph Van Mater’s farm, the Van Brunt farm, and the Bruer farm, under the will of Joseph Van Mater, deceased, in which will, legacies to the amount of $25,000 or $30,000 were left, among which was one of about $3500 to said Croes’ wife; but it was disputed whether such legacies were or were not a lieu upon the said last-mentioned farms, and there was also a dispute about the title of said Joseph H. and Holmes Van Mater to said Vais Brunt farm, and, by way of compromise, the said Joseph H. and Holmes Van Mater sold said Croes the said Bruer farm for the said sum of $5000, out of which was to be deducted $3000, which was, as this defendant believed then, and still believes, $3000 more than the real value of their interest; but this defendant joined in said release upon the express understanding that all the balance of $2000 should be paid upon the encumbrances prior to his judgment; and he believes and charges that the whole of said $2000 was appropriated towards satisfying said prior encumbrances, and reduced the liens on the farm of the complainant prior to that of this defendant, if the said legacy was a Hen on said real estate, to the whole amount of the purchase money, and if said legacy was not a Hen, then to the amount of said $2000, the amount of cash actually paid by Croes.
    He says he believes and charges that the right and title of said Joseph H. and Holmes Van Mater, in said last-mentioned farm, if sold at sheriff’s sale, would not have brought more than said sum of $2000.
    He submits that he has not, by any act of his, released the complainant’s said farm from the Hen of his judgment.
    He says that, on or about the 7th of December, 1842, the sheriff had advertised to be sold, the property of said Joseph H. and Holmes Van Mater, on the said judgments of Hendrickson and Laird, and that this defendant, as an act of friendship to said Van Maters, advanced to Laird the amount of his judgment, and took an assignment thereof, and that this defendant, Thomas G. Haight, and Hendrick Longstreet, with like motives, also advanced the amount of said Hendrickson judgment, and took an assignment thereof.
    He admits that, on the 7th of December, 1842, a draft drawn by Joseph H. Van Mater, and endorsed by Holmes Van Mater, upon certain persons in Kentucky, and by them accepted, for $6000, was assigned to him as collateral security for said Hendrickson and Laird judgments.
    He states that said draft had fallen due about the 1st of February, 1842, and had been protested for non-payment, and was then in litigation in Kentucky, and it was very doubtful if anything would be realized therefrom.
    He admits that, at the time of the .said assignment of said draft, he executed a writing, under hand and seal, and delivered it to Joseph H. and Holmes Van Mater. He refers to the writing itself, for its contents.
    He says that the plaintiffs in said Hendrickson and Laird judgments were urging the sale, and that, to induce this defendant to delay the sale, for the benefit of said Joseph H. and Holmes Van Mater, they proposed to assign him the said draft, as it was very doubtful if anything could be got by a sale on said Laird judgment, and that the object of the paper this*defendant signed, was merely to show the fact that he had the assignment of the draft; and that as an inducement for him to make the arrangement, he had the privilege of paying off the Hendrickson judgment out of the proceeds of the draft, if he got it before it was collected by sale.
    He admits he has received on said draft $5287.52, but states that he received it in the following sums and at the following times:
    February 23d, 1843.......... ......... .................... $1,600 00
    April 29th, 1843........................... ............... 2,350 00
    October 31st, 1843......................... ............... 1,287 52
    Out of which ought to be deducted $17.06 for his expenses in obtaining it.
    He denies that he wholly neglected and refused to apply the money on the two judgments aforesaid, but states that the first money he received on said draft he appropriated towards paying off the Laird judgment, as far as it would go, and that no sale was ever made under that judgment; but that this defendant, on the receipt of sufficient to pay off the same, considered and treated the same as satisfied; and he denies that he raised the whole or any part of the Hendrickson and Laird judgments, or either of them, by sales of any part of the property of said Joseph H. and Holmes Van Mater.
    He says that other judgment creditors of said Joseph H. and Holmes Van Mater, among others, he believes the Bank of Middletown Point, becoming impatient, forced a sale of the personal property of said Joseph H. and Holmes Van Mater, on the 6th of March, 1843; but the sale was not on the motion of this defendant and those who held the Hendrickson judgment, but was forced on by other judgment creditors without the power of this defendant to prevent it, and the whole amount of the said Hendrickson's judgment paid out of the said personal property, except 157.21.
    He states that on the said 6th of March, 1843, only $1650 had been received by him on said draft, which was not enough to pay off the said Laird judgment, and there was yet great doubt whether anything more would be received on said draft, and that by this means the said Hendrickson judgment was paid, except as aforesaid, without the power of this defendant to pay the same from the proceeds of said draft.
    He says that the said Joseph H. and Holmes Van Mater, on the 7th of January, 1843, drew a draft on him in favor of one Hendrick Longstreet, for $440.67, to be paid out of said first-mentioned draft, which this defendant accepted, on condition that he should receive on said draft enough for the purpose, after paying off said judgment of Laird and Hendrickson ; and that on the 30th of December, 1844, at the request of Joseph H. Van Mater, he paid D. B. Ryall $10 out of the proceeds of said draft.
    That on the 31st of May, 1843, out of the proceeds of said second payment on said $6000 draft, he paid to the sheriff of Monmouth $57.21, the balance remaining due on said Hendrickson judgment.
    That the said sum of $1287.52, received by him on said draft on the 31st of October, 1843, and so much of the sum of $2350, received April 29‘th, 1843, as remained after satisfying said Laird judgment and costs, and the balance of said Hendrickson judgment, and the said draft in favor of Longstreet, and the balance of the note on which this defendant was security to Hendrick Hendrickson, to wit, $1155.30, this defendant received and appropriated, respectively, as and for a part payment and credit on his said last judgment of $8106, and which still leaves a balance on his second judgment of $2258.72 due him; and which sums of $1155.30, April 29th, 1843, and $1287.52, October 31st, 1843, he has credited on his said last-mentioned judgment ; and he insists he had a right to make such appropriation.
    He denies that divers other large sums of money, or any other sums of money, or $700 or thereabouts, received on a certain note given by one Cook to said Joseph H. and Holmes Van Mater, and placed in his hands for collection, has never been in any way accounted for by him, or specifically appropriated by any one to the payment of any particular debt.
    He says that the said Joseph H. and Holmes Van Mater, on the 1st of April, 1837, were indebted to one Hendrick Hendrickson in $850, and gave their sealed bill therefor with this defendant as their security, the interest on which the said Joseph H. and H. Van Mater paid up to April 1st, 1842; that about the 1st of January, 1843, the said Holmes Van Mater assigned to him a note of one John Cook, on which was then due $700 or thereabouts, as collateral security for, and to indemnify him for being security as aforesaid, to said Hendrickson ; which note of $700 this defendant collected from said Cook, and took the same and paid it on the said Hendrickson’s note, and the balance of said note this defendant has paid out of the moneys he has received on said Kentucky draft; and he submits that the $700 note and the said part of the said draft money has been so properly and legally appropriated ; and he denies that the said Cook note was left with him merely for collection, but says it was assigned to him for the purposes aforesaid.
    He admits that, subsequent to the said conveyance to the complainant, the said Joseph H. and Holmes Van Mater were the owners of a very large and valuable real estate, but subject to large encumbrances, as aforesaid; and he denies that there was enough left besides the complainant’s said farm to pay his said judgment; and states that the whole of it has been sold by the sheriff, except as aforesaid, to pay said prior executions; and that there still remains due him, on his said first judgment, $3098.44, April 14th, 1846 ; and he denies that he released any real estate of said Joseph H. and Holmes Van Mater without the assent of the complainant; but he charges that the complainant was well aware of and consented to all the proceedings had in relation to said farms sold as aforesaid to Croes and Cook; and he submits he has not thereby released the farm sold to complainant.
    He admits that he had one judgment against said Joseph H. and Holmes Van Mater assigned to him, viz., the one in favor of Laird ; but says that the other, viz., the one in favor of C. and G. Hendrickson, was assigned to him, Haight and Longstreet.
    He admits that the Van Maters have been sold out, so far as regards the rest of their real and personal estate, by sundry executions in the sheriff’s hands.
    He admits the execution on his said judgment, and that the sheriff, under his orders, intends to sell said farm under his said execution.
    He says he thinks he had heard, before he went to Trenton to center up his said judgment, from A. Longstreet, that in case said exchange with A. Longstreet was effected, it was the intention of the said Joseph H. and Holmes Van Mater to sell said farm to complainant; but he did not know and had not heard of any specific negotiation for the purchase of said property, except as aforesaid.
    He says he did not know or believe, nor does he now know or believe, that.the complainant bought said property free, as he supposed, of this defendant's judgment, unless so far as that the complainant, knowing of this defendant's joint bond, and of his errand to Trenton, the complainant might have hurried the delivery of the deed without paying the purchase money, with the view of getting ahead of this defendant’s judgment. And he denies that he advised selling the property on the terms stated in the bill.
    He says he preferred entering up his judgment at Trenton, because other large creditors had done so, and for greater security, on account of its large amount, and to cover real estate which Joseph H. and Holmes Van Mater owned in other counties ; and he denies that all their real estate was situated in Monmouth.
    On this answer, a motion was made to dissolve the injunction.
    P. Vredenburgh, in support of the motion.

      W. L. Dayton, eontra.

   The Chancellor.

The questions to be decided on the final hearing of this cause will be — 1st. Whether the judgment by virtue of which an execution has been issued and levied on the farm of the complainant, ever was a lien thereon; 2d. If it ever was a lien, whether the plaintiff in that judgment, by releasing other lands of the defendants therein, relieved the complainant’s farm from the lien of the judgment; and, 3d. Whether certain moneys received by the plaintiff in the judgment, on a draft on third persons given by the defendants in the judgment to the plaintiff therein, as collateral security for prior judgments he held by assignment, should not be applied towards satisfaction of the judgment and execution on which the complainant’s farm was advertised to be sold ¡ the amount of the judgments for which said draft was given as collateral having been made by sheriff’s sale out of other property of the defendants in the judgments, and the money due on the draft being subsequently received by the assignee of said judgments.

.The facts stated in the bill present these questions. To dissolve the injunction and permit the complainant’s farm to be sold under this judgment, at sheriff’s sale, to the highest bidder, while a serious question is pending here whether it can be sold at all under the judgment, would be indiscreet.

The injunction will be retained until the hearing.

The motion to dissolve the injunction is denied.

Costs to abide the event. '

Order accordingly.'


text:
    MARY HENDRICKSON, SURVIVING EXECUTRIX OF BENJAMIN HENDRICKSON, JR., DECEASED, v. JOSEPH B. ANDERSON AND MATILDA, HIS WIFE.
    B. H., by his will, directed that when his youngest daughter should attain-18, the executors should sell a certain farm, and place the proceeds at interest, to be equally divided among his daughters, and be paid to them when they respectively attained 18, provided that it should be in the discretion of his executors, or the survivor of them, to place the same in the hands of trustees for the use of his daughters, or either of them, to be paid to them, or the interest paid to them, free from the debts or control of any husband. J. B. A. married a daughter, who died, leaving a daughter by him. Afterwards the executors sold the farm, and J. B. A. received from them 81000 of the proceeds, and gave his bond and mortgage to the executors. Afterwards J. B. A. married another daughter, and also obtained letters of guardianship of thé estate of his daughter by his first wife. On bill to foreclose the mortgage, the court refused to allow the shares of J. B. A.’s daughter and wife of the proceeds of the farm to be set off against the mortgage.
    Bill filed May 28th, 1846, to foreclose a mortgage dated April 15th, 1837, given by the defendant Joseph B. Anderson to Mary Hendrickson and Joseph S. Mcllvaine, executors of the will of Benjamin Hendrickson, Jr., deceased, to secure a bond of the same date, given by the said defendant to the said executors, conditioned for the payment of $1000 on the 15th of April, 1838, with interest. Anderson, since the giving of the mortgage, has married his present wife, Matilda, and she is made a party defendant.
    The bill states that Anderson has paid the interest on the mortgage up to April 15th, 1843. The executor Mcllvaine is dead.
    The defendants answered the bill. The answer states that Benjamin Hendrickson, Jr., the testator in the bill named, was the husband of the complainant; that he died, leaving one .son, Benjamin, and seven daughters, to wit, Sarah, Matilda, Cornelia, Elizabeth, Charity, Maria and Julia Ann, who were all unmarried at the time of his death, which occurred on the 28th of January, 1829.
    That the said testator, by his will, after making certain bequests to his said wife, the complainant, in lieu of dower, and in trust to bring up, maintain, and educate, in a proper manner, his said children, did, among other things, direct that, whenever his youngest surviving daughter should attain the age of 18 years, his executors should sell and dispose of his farm called the Reed farm, in such manner as they should deem most for the benefit of his estate, and, in case they should consider it more for the interest of his estate to sell the same sooner, they might do so, and that, whenever said real estate should be sold, the proceeds should bo placed at interest, on good lauded security, and be equally divided among his said daughters, and be paid to them when they, respectively, attained 18, provided that it should be in the discretion of his executors, or the survivor of them, to place the same in the hands of trustees, by a proper conveyance,, for the use of his said daughters, or either of thorn, and be paid to them, or the interest paid to them, severally, as they might deem proper, free from the debts, control, or disposal of any husband, and that if any of his daughters should die leaving-issue, the said issue should stand in the place of their parent.
    That on the 2d of May, 1833, the defendant Joseph B. Anderson married Sarah, the eldest daughter of the said testator» That said Sarah had attained 18 on the 8th of January, 1830,, and was entitled, under the said will, to one-seventh of the proceeds of the sale of the said Reed farm, whenever it should be sold by the said executors.
    That the executors of said will, in the exercise of the discretion thereby vested in them, sold the said Reed farm on the 11th of April, 1837, for $3000.
    The defendant Anderson, answering for himself, says that, immediately on the said sale being made, he applied to the said executors to pay over to him and his said wife Sarah, the oneseventli of the proceeds of said sale, being $428.57, or to secure the same to the said Sarah in the manner prescribed by the said will, if, in their discretion, they were disposed so to do; but this the said executors declined to do, alleging that, by the terms of said will, distribution of the said proceeds was not to be made until Julia, the youngest daughter, attained 18, whioh would be on the 7th of December, 1842, a construction which this dofendant and his said wife were advised was erroneous, and to which they refused to assent. But, in order to avoid litigation, and in the hope that the matter would be amicably settled, it was agreed, by and between the said executors and this defendant and his said then wife, that this defendant should take $1000 of the proceeds of the sale, and give therefor his bond and mortgage, and, accordingly, on the 15th of April, 1837, four days after the said sale, the said executors paid over to this defendant $1000, part of said proceeds, and he thereupon gave the bond and mortgage mentioned in the bill.
    The defendant Anderson further says that his said wife Sarah died January 2d, 1836, leaving a daughter, Ann Eliza, an infant of tender years, and that, on the 6th of June, 1846, he was, by the Orphans' Court of Mercer, admitted as guardian of the estate of the said Ann Eliza, and, as such guardian, he claims to be entitled to the one-seventh of the said $3000, being $428.57, with interest thereon from the said 11th of April, 1837, to be allowed to him out of the sum so secured by the said mortgage, and which, he insists, was loaned to him to secure the payment of such distributive share and interest.
    The defendant Matilda R. Anderson, answering for herself, says that she is the second daughter of the said testator; that she attained 18 on the 4th.of December, 1831; that she lived at home with her mother, the complainant, and earned her livelihood, as she believes, from the time she came of age until she married, and that she never, during that time, or at any time before, demanded or received any part, either of the principal or interest, of her seventh of the proceeds of said sale, but suffered the same to remain in the hands of the said executors, and the interest thereon to accumulate.
    The defendants further say that, on the 7th of June, 1839, they intermarried; that after their marriage, they called on the said executors to pay over to them the distributive share to which she, the said Matilda, was entitled, as aforesaid, with interest thereon from the said 11th of April, 1837, but that the said executors refused to do so, still insisting that the said distributive shares were not payable until the youngest daughter attained 18 years, and further represented that, as this defendant Joseph B. Anderson had in his hands $1000 of the proceeds of sale, these defendants were perfectly secure of the final payment of the legacy bequeathed to the said Matilda, as well as that bequeathed to the said Sarah, and now belonging to the said daughter of the defendant Joseph B. Anderson.
    The defendants further say that, in the term of September, 1844, of the Orphans’ Court of Mercer county, the complainant, as executor as aforesaid, presented an account for settle-men!, in which she only charges herself with interest on the said $3000 from the 27th of December, 1842, the day when the youngest daughter of said testator came of age ; to which account these defendants and others excepted, claiming that interest ought to be charged on each daughter’s share of said sum from the time of the sale of the said farm ; which exception was disallowed by the said court; whereupon the exceptants appealed ■ to the Prerogative Court, and in the term of June, 1845, the said decree of the said Orphans’ Court was reversed, and a decree made that said account should be re-stated by the register of said coart, charging the accountant with interest from the 11th of April, 1837, said interest to commence running, as to each daughter’s share, as she was or became 18 at or after the said 11th of April | and that the said account was so re-stated.
    That, by said account, it appears that the principal and interest of the share of the said Ann Eliza Anderson, the daughter and ward of the defendant Joseph B. Anderson, remaining in the hands of the complainant on the 26th of June, 1845, after deducting all charges for expenses and commissions allowed to the complainant, was $554.14 j and the principal and interest of the share of this defendant Matilda remaining in the hands of the complainant on the said day, after deducting all charges as aforesaid, was also $554.14 • and that the said two sums amounted to within about $25 of the whole amount of principal and interest due on the bond and mortgage given by the defendant Joseph 3B. Anderson to the said executors as aforesaid.
    The defendant Anderson, answering for himself, says that he has repeatedly, since the said account has been settled in the Prerogative Court, called on the complainant and offered to pay her the principal and interest of the said bond and mortgage, if she would pay over to him or satisfactorily secure the distributive shares so as aforesaid due to his said daughter and his wife; but that she has refused to do so.
    The defendants further say, that the complainant is upwards of 60 years old, and very infirm, and not capable, as they believe, to transact business with safety or satisfaction to herself or others; that she has never given any security for the estate in her hands; that this defendant Anderson, on the 5th of December, 1843, with his brother-in-law, J. E. Rose, became security for her on a note given by her to one Theophilus Hart or order, for $560.25, whiel} is still unpaid ; which note was given to secure an individual debt of her own, incurred for labor done for her on the homestead farm while she had the use of it under the will; and that these defendants are under serious apprehension, and believe that if the complainant should get the money due on the said bond and mortgage into her hands, it would be misappropriated, and not applied to the payment of the said distributive shares, and that the same would be thereby lost.
    The defendants admit that, inasmuch as the money for which the said bond and mortgage were given was a part of the proceeds of the sale of the said Reed farm, and was placed and continued in the hands of the defendant Anderson as a security for the payment of the said distributive shares, the said shares ought to be charged as an equitable lien on the fund secured by the said mortgage; and that the said fund should be applied to the payment and satisfaction of the said sums so due to these defendants, according to their several rights under the will of the said testator.
    The cause was heard on the pleadings and evidence.
    C. S. Green and P. D. Vroom, for the complainant,
    cited 3 Green’s Ch. 212; 1 Smith’s Ch. Pr. 459.

      S. G. Potts and W. Halsted, for the defendants.
    They cited 1 Halst. Ch. Rep. 112; Saxton’s Ch. 413, 424; 2 Story’s Eq. Jur., § 1435, 6, 7; 7 Porter’s Alab. Pep. 549 ; 7 Marshall 37 ; 2 Green’s Ch. 376; 4 Johns. Ch. 616; 1 Hoph. Ch. 239; 9 Ves. 563; 1 Green’s Ch. 467.
   The Chancellor.

There is no proof of the agreement set up in the answer between the executors and Anderson at the time the money was received by him for which he gave the mortgage. ifor is there any proof of insolvency of the complainant. These special grounds on which the application to make the set-off is made, therefore, fail.

The question, then, is, can the distributive share due Anderson’s daughter, of whose estate he is guardian, and the share due his present wife under this will, containing a provision giving tiie executors, or, the survivor of them, the discretion to convey her share to a trustee for her separate use, be set off against the amount due from Anderson to the complainant, on the mortgage given by him to the executors, or can either of these shares be so set off.

In reference to the share of Anderson’s present wife, the discretion given by the will to the surviving executrix to vest it in a trustee for her separate use, is a sufficient reason for refusing to allow the set-off

As to the share due Anderson’s ward, Anderson is not here as guardian — i. e., the bill does not bring him here as such, nor is the ward a party to the suit. And I do not see any peculiar circumstances to justify or call for the equitable interference of the court.

Decree for complainant.