author: The Chancellor held.

text:
    Isaac Van Wagenen, Executor of James Baldwin, deceased, v. Isaac Baldwin and Wife, Thomas Rowland, and others.
    Testator directed the executor of his will to pay the interest of a bond and mortgage he held against P. A. to his wife, for her life, and then to J., his son, for his life, and then to pay the principal to J.’s children. It was held to be a specific legacy.
    The will gave to T. B. what might be realized and received on a certain bond and mortgage, describing it, which the testator, at the time of making the will, held against H. B. After the making of the will, the testator, in his lifetime, received a deed for the mortgaged premises in full satisfaction of the bond and mortgage. Held, that the will operated as a devise in fee of the mortgaged premises.
    A bequest to the trustees of the Bethel Church in Newark is a good bequest to a church the corporate name of which is “ The Bethel Church in Newark.”
    A devise of a lot of land to A., in trust, as the site for a building for a free school for the benefit of all poor children within a certain district in a city, and a lecture-room for religious worship, and of another lot of land as a site for a dwelling-house, to be occupied by the minister that may from time to time officiate in the said room, the said lecture-room to be for the use of the denomination of Christians called Methodist Episcopal, and a bequest of $1,200 toward the said building, are good.
    James Baldwin died in the summer of 1841, leaving a will dated February 10,1840. The will is as follows : — First, ho directed his debts to be paid ; Second, gave his wife such furniture and cow as she should choose, and John Trumpore’s bond and mortgage for $1,000; Third, gave his dwelling-house and three-acre lot where it stands to his executor, in trust for his wife for her life, then for his son Isaac for life, and then to go to Isaac’s children; Fourth, directed the executor to pay the interest of a bond and mortgage ho held against Pruden Ailing, for $6,000, to his wife for her life, and then to Isaac for his life, and then to pay the principal to Isaac’s children; Fifth, gave to the executor an eleven-acre lot and house, and a six-acre lot, in trust for Isaac for life, and then to go in fee to his children; Sixth, gave to Julia A. B. Rowland $1,500, to be paid in fifteen years — in the meantime the interest to be applied to her maintenance and education, the executor to invest it; Seventh, gave his farm at Middlevillc, of fifteen acres, to his mother for her life, and after her death to Thomas Rowland; and also, gave to Thomas Rowland what might he realized and received on a bond and mortgage for $900, dated October 19,1835, given by Harris M. Baldwin to Daniel Pierson, and assigned to and then held by him; Eighth, gave to his executor lots Nos. 74,75, 76 and 26, designated on a certain map, in trust — the first three as the site of a building for a free school for the benefit of all poor children living between Ferry street and the river, and a lecture-room for religious worship; and lot No. 26 as the site for a dwelling-house to be occupied by the minister that may from time to time officiate in the said room, the said lecture-room to be for the use of the denomination of Chistians called the Methodist Episcopal, the executor to lease the said lots until the said building is erected, and appropriate the income towards the said building; and also gave the bond and mortgage he held against David' Smith, for $1,200, towards the said building; Ninth, gave to-Isaac lots Nos. 65, 66 and 67, designated on the said map ; Tenth, gave to the executor $4,000, in trust for Isaac for life, and then to his children; Eleventh, gave to the trustees of the Bethel Church in Newark $100 a year, to be appropriated by his executor for the use of the minister who may from time to time officiate in the said church and have charge of the same as pastor ; Twelfth, in case Isaac should die without issue, he gave $2,000 of the money directed to be paid to Isaac to Sarah B. Sims ; Thirteenth, if Isaac die without issue and leaving a widow, the widow to have certain personal estate for life, and on her death the same to go to the children of Peter Van Wagenen, &c.; Fourteenth, if Julia A. B. Rowland should die before receiving the $1,500, and without issue, the bequest to her to go to her parents ; Fifteenth, the provision for his wife to be in lieu of dower.
    After the will was made, and before the death of the testator, Harris M. Baldwin became embarrassed in his circumstances, and conveyed the property covered by the said mortgage for $900, given by him and held by the testator in his lifetime, to Samuel Baldwin, the father of the said Harris M. Baldwin, and the said Samuel Baldwin conveyed the said mortgaged premises to the testator in his lifetime, in full discharge of the said bond to secure which the mortgage was given; and the testator ac - cepted the said conveyance in full discharge of the said bond.
    Isaac Baldwin was the only child of the testator, and the testator had adopted Julia A. B. Rowland as his daughter.
    The .estate was insufficient to pay all the legacies.
    The corporate name of the church mentioned in the eleventh item of the will is a The Bethel Church in Newark.”

      The executor filed a bill to obtain a construction of the will.
    Answers were put in, and the case was heard on the bill and answers.

      F. T. Frelinghuysen for the Executor.

      B. Williamson for the defendant Isaac Baldwin.

      W. Pennington for the defendant Thomas Rowland.
    He cited Roper on Leg. 33 to 41; 1 P. Wms. 779; 2 Vesey, Jun. 640; 4 Ib. 150.

   The Chancellor held.

That the bequest in the fourth item of the will, of the Ailing bond and mortgage for $6,000, was a specific legacy.

That the bequest, in the seventh item of the will, to Thomas Rowland, of what might be realized and received on the bond and mortgage given by Harris M. Baldwin for $900, held by the testator when the will was made, and in payment and satisfaction of which the testator afterwards received a deed for the lands covered by the said mortgage, was an efiectual devise to the said Thomas Rowland, in fee, of the said mortgaged premises ; and that Rowland was entitled to receive from the executor the rents and profits which the executor had received from the said premises since the death of the testator.

That the devise in the eighth item of the will, of the lots therein mentioned, is a good devise to the executor, in trust, for the purposes therein mentioned. And that the bequest, in this section, of the bond and mortgage given by David Smith for $1,200, is a good bequest to the executor for the purposes therein mentioned, and is to be received by tbe executor as a specific legacy.

And that the bequest of $1,500 by the sixth item of the will, and of $4,000 by the tenth item of the will, and to the trustees of the Bethel Church by the eleventh item of the will, are general pecuniary legacies, which must abate proportionably if the estate shall not be sufficient, after paying the debts and specific devises and legacies, to pay them in full.


source: Caselaw Access Project

author: The Ordinary.

license: Public Domain

text:
    In the matter of the will of Isaac Lawrence.
    J. L., a resident in New York, died there insolvent in July, 3841, leaving a writing purporting to be a will, but which was refused probate as such (under a statute of New York, which provides that the cancelling of a subsequent will shall not revive a prior one which had been retained uncancelled) on the ground that the said writing had boon revoked by a subsequent will; which subsequent will had been can-celled. Administration of the estate of J. L. was granted in New York to J. L. L., who was named in the said writing as one of the executors thereof. There being lands in New Jersey which the decedent in his lifetime owned, a creditor of the decedent, residing in New Jersey, obtained letters of administration in this State, and obtained an order for the sale of the said lands. W. B. L., with the approbation of J. L. L., obtained an act of the Legislature of New York, authorizing the Surrogate of the City of New York to deliver the said writing to him. W. B. L. obtained the said writing from the Surrogate of New York, and it was admitted to probate in New Jersey, by the Ordinary, on the 7lh of April, 1848. On the petition of J. A. P., a person interested in the estate, presented to the Ordinary April L8, 1848, the probate was vacated on the ground that the notice of application for probate, required by statute, had not been given. The question of the validity of the writing as a will, s in New Jersey, was not decided.
    On the 7th April, 1848, probate of the mil of Isaac Lawrence was granted by the Ordinary.
    On the 18th April, 1848, the petition of John A. Pool was presented to the Ordinary, stating that Isaac Lawrence died in July, 1841, leaving a widow and several children, his heirs at law, him surviving. That at the time of his death, and for many years previous thereto, he was a resident of the State of NewYort That on his death an application was made to the Surrogate of the City of New York to obtain probate of a certain alleged will of the said Isaac Lawrence, and that probate thereof was refused on the ground that the said will had been revoked by a subsequent will; which subsequent will had also been revoked by cancellation or otherwise, as the petitioner has been informed and therefore admits. That letters of administration were thereupon issued by the said Surrogate of the City of New York to John L. Lawrence, then and still of that city, who is named as one of the executors in the said alleged will, and who proceeded to settle the said estate by due course of administration; and that such estate proved largely insolvent.
    That the petitioner presented, for allowance and settlement, claims against the estate to the amount of $14,000 or thereabouts ; that the said amount was, upon due investigation, allowed him; and he has received about $4,000 thereof, leaving due to him $10,000, with interest.
    That Isaac Lawrence died seized of real estate in the county of Somerset, in this State ; and the said John L. Lawrence having neglected for several years to apply such real estate in this State to the purposes of such administration, an application was made by P. Z. Elmendorf, a creditor of the said estate to the amount of $1,500, for letters of administration in this State; and that such letters were granted by the Surrogate of Somerset County in this State to Fred. Frelinghuysen, who proceeded to apply such real estate to the purposes of said administration, and received and audited such claims as were presented; and among others, this petitioner made a claim for this said unpaid balance, which was allowed.
    That by a decree of the Orphans’ Court of Somerset County the said lands were sold, by the said administrator, F. F., for the payment of such debts as were audited as aforesaid, to Peter Connover, at public sale, which sale was confirmed by the said court, and a conveyance of the said land to the said purchaser was ordered by said Orphans’ Court.
    That the petitioner, being informed that it was designed to present, in this State, such rejected will for probate, gave notice of his interest in the said estate to the Surrogates of Somerset and Middlesex, and of his intention to contest the probate of the said mil, if the same should be presented for probate.
    That, within a few days last past, the petitioner has learned that the said alleged will has been presented to the Ordinary and Surrogate General of this State for probate, and proved, as the petitioner avers, with a knowledge on the part of the applicant for such probate that sucV administration had been granted in this State, and such sale decreed and made.
    That the petitioner intermarried, in the lifetime of said Isaac Lawrence, with Harriet, one of his daughters and heirs at law ; and that application for such probate was made without any previous notice to him or his said wife.
    The petition prays that thejprobate granted by the Ordinary may be vacated and annulled; and that, in the meantime, all proceedings under such probate be suspended until the further order of the Ordinary in the premises.
    On this petition an order was made by the Ordinary, on motion of Wm. H. Leupp, of counsel for the petitioner, that Wm. B. Lawrence, to whom letters testamentary were granted by the Ordinary, shew cause, on the 8th of May, 1848, at the Chambers of the Ordinary, in Newark, why the order admitting the said alleged will to probate should not be vacated ; and that all further proceedings on such probate be stayed until the further order of the Ordinary; and that a copy of the said petition, and of the said order, be served within ten days on the said William B. Lawrence.
    On the hearing, the affidavit of Wm. B. Lawrence, Jun., was read in opposition to the motion, stating that the estate of the deceased is indebted to him in $250,000 for the balance due him on a decree obtained in his favor against the said estate in the • Surrogate’s Court of the County of New York for $408,759 76, and that he is also attorney for Prime, Ward & King, whose claim was adjudged at $29,138 87.
    That he has good reason to believe, and does believe, that at the death of the said I. Lawrence, July 12, 1841, John A. Pool was indebted to him, and is now indebted to his estate, in $30,-000, or thereabouts, in addition to the sums of money actually paid by the said decedent for the support of the said Pool and his; family for several years previous to the death of the said Lawrence«jJ^
    That h&álg learned that Pool denied his indebtedness to the said estate, and claimed to be a creditor, and that he had, in the absence .of any opposing interest, established a claim against the said estate, before the Surrogate of the City of New York, for $14,275 61, this deponent, on the 11th December, 1847, filed his bill as a creditor of the said estate against the said Pool, in the Supreme Court of New York, in Equity, praying, among other things, for an injunction restraining Pool from collecting such alleged debt, or any part of it, which injunction was granted and is still in full force; and that no attempt has been made to dissolve the same.
    That about the time of filing his said bill, he accidentally discovered that the said Pool, and one P. Z. Elmendorf, had procured one F. Frelinghuysen, of Somerset, New Jersey, to take out letters of administration upon the estate of the said decedent as in case of intestacy; and that the said Pool and Elmendorf claimed to have sold the real estate of the said decedent under proceedings in the Orphans1 Court of Somerset County, for their own exclusive benefit, to tbe exclusion of this deponent and other creditors of the said decedent. He states that all the said proceedings were carried on without any notice having been giyen to him, and without his having any knowledge thereof till after the said pretended sale.
    He says he is advised by his counsel and believes, that the said proceedings are irregular and void; and says that the same were undertaken and carried on, as he believes, with a design on the part of Pool to defraud him and the other creditors ; and that he is informed and believes that the said pretended sale has never been completed.
    He says • that he is not only willing, but desirous that the said will should be admitted to probate, and that the probate already granted should be confirmed; and that, as the principal creditor of the estate, he consents thereto.
    The affidavit of Cornelia B. Lawrence, widow of the decedent, vs^as' also read in opposition, stating that she is an executrix named in the will which has been admitted to probate by the Ordinary. That the probate was applied for at her request; that she was well acquainted with the intentions of her late husband as to his testamentary dispositions; that during his last illness he repeatedly assured her that he had left in full force a will bequeathing and devising to her all his estate, real and personal, referring, as she then understood and now believes, to the will so admitted to probate; and that he never intimated to her any desire or intention to make any change in the said will, except to substitute the name of Cornelia L. Hillhouse as executrix for that of Thos. L. Wells, executor.
    Wm. B. Lawrence, by an affidavit read in opposition, says that he, with John L. Lawrence, also an executor of the will, propounded the same for probate to the Surrogate of New York; that the due execution of the said will was fully proved, and that probate would have been granted thereon by the said Surrogate, as was then declared by him, had it not been for a late statute in New York providing that the cancelling of a subsequent will shall not revive a prior one which had been retained by the testator uncancelled. That in consequence of his being advised that the said will was valid in New Jersey, the said J. L. Lawrence, to wThom letters of administration were granted in New York, has always, as the deponent is informed and believes, declined to apply for letters of administration in New Jersey.
    The deponent says, that having been advised that no effectual title could be made to the real estate in New Jersey, either for the benefit of the devisee or of the creditors, except under the4 will, he, at the request of Cornelia B. Lawrence, the universal devisee, who was also an executrix named in the will, and of Wm. B. Lawrence, Jun., who represented, in his own right and as agent or attorney for others, 95-100ths of all the valid and subsisting debts due from the estate of the said decedent, applied to the Legislature of the State of New York for an act authorizing the Surrogate of the State of New York to deliver to the persons who had offered the same for probate, or either of them, the said will, for the purpose, as stated in this deponent’s petition, of having the same established in New Jersey; and that, accordingly, a law was enacted, with the knowledge and. approbation of the said John L. Lawrence, who was a senator of said State, and effectually contributed to its passage, by virtue of which the said Surrogate delivered the said will to this deponent," and he offered it to the Ordinary and Surrogate General of New Jersey for probate.
    He says that in his last interview with the decedent, which took place a few days before his death, the testator exhibited to this deponent the said will, which he declared to be his last will, further saying that he contemplated no change therein, except to substitute the name of his daughter, Cornelia L. Hillhouse as executrix for that of his son-in-law, Thos. L. Wells. ‘That, so far from the said decedent’s having any intention to die intestate, he at all times, during the last year of his life, declared to this"deponent that he deemed it all important to his family that, in the event of his death, the disposition made by his will should take effect, so that eyery thing might be carried on in the same way as if he were living, and the sacrifices of his real estate from compulsory sales be avoided.
    He says that the existence of the said will was known to Pool and Elmendorf when the attempts were made by them, in fraud of the devisee and of the rest of the creditors, to cause letters of administration to be granted by the Surrogate of Somerset, and to sell the real estate as in case of insolvency. That no notice was given- to him or to said Cornelia B. Lawrence, or, as far as his knowledge extends, to any other person interested in the estate, with reference to any intention to apply for the said letters of administration, or the sale of said real estate ; and that "he was ignorant of all the said proceedings until about the time he applied to the Legislature of New York for the act aforesaid.
    He says that both Pool and Elemendorf had applied to and received from the administrator in New York, and from the Surrogate of the County of New York, previously to the said proceedings in New Jersey, the sainé dividends as the other creditors who had established their claims in New York, and whom they have fraudulently attempted, by the said pretended proceedings, to exclude from all participation in the proceeds of the real estate in New Jersey. That Elmendorf has subsequently received dividends from the said Surrogate; and that dividends have keen adjudged to the said Pool, which he has been restrained from receiving by an injunction issued out of the Supreme Court of New York, in Equity, in a suit instituted for the purpose of setting aside, on the ground of fraud, the decree rendered in his favor in the Surrogate’s Court aforesaid, and which injunction is still in force.
    That as soon as he was aware of the said pretended letters of administration granted in New Jersey, he caused the said Frelinghuysen to be apprised of the said will, and of his intention to present the same for probate; and that in consequence thereof, as he has been informed and believes, the said Frelinghuysen has refused, and still refuses, to complete the said pretended sale made by him of the said real estate.
    That until he was served with the order made in this matter, and the petition on which it was founded, he was never apprised of any intention on the part of the said Pool, or of any other person, to contest the probate of the said will; or of the said Pool, or any other person, having given notice to the Surrogates of Somerset and Middlesex, or either of them, to that effect.
    The will gives and devises all his estate, real and personal, whatsoever and wheresoever, to his wife, Cornelia B. Lawrence, her heirs, executors, administrators and assigns, after the payment of his debts and testamentary charges.
    The reading of the foregoing affidavits was objected to, and they were read subject to the decision of the Ordinary as to the propriety of receiving them.

      Wm. H. Leupp for the Motion.

      J. J. Chetwood, contra.
    He cited Toller on Ex’rs., 17; 1 Cowp. 87, 92.
   The Ordinary.

1 am unwilling to let this probate stand. The second section of the act respecting the Prerogative Court, (Rev. Slat. 203,) provides that probate of any will shall not be granted by the Ordinary until proof be made, to his satisfaction, that no caveat against proving such will hath been filed in the office of the Surrogate of the county where the testator resided at the time of his death, or that notice hath been given to all persons concerned of the application to the Ordinary for such probate. The last clause, requiring notice, is in general terms, and cannot be confined to wills of testators who resided in this State at the time of their death. What the notice should be of an application to the Ordinary for probate of a foreign will I need not now say; it may be that the Ordinary would consider notice by publication in one or more newspapers sufficient; if so, the Ordinary should be first applied to for an order directing such publication. But in this case no notice of any kind was given to persons in this State interested in the estate of the decedent.

Again, whether a writing made by one residing in New York, and who afterwards died there, which is not a will in New York, can be a will in reference to property in New Jersey owned by the decedent at the time of his death, is a question which the Ordinary would not be willing to decide without proper notice to all parties, giving an opportunity for solemn argument.

Probate vacated.


author: The Chancellor.

text:
    William Grant v. Robert Chambers.
    M. conveyed land to 0., and O. gave a defeazance providing for reconveyance to M. on his paying &c. M. filed a bill to redeem; and after answer and replication and some proofs in the case, died. G. filed a bill, stating the proceedings on M.’s bill; and that M., in his life-time, conveyed all his interest in the premises to him, G.; and that administration of the personal estate of M. had been granted to him, G. ; and praying that the said suit of M. might stand revived &c.; without saying in what character G. sought to revive. * C. pleaded that H. was the true administrator of the personal estate of M., and not G. Plea sustained.
    What kind of a bill should G. file, as assignee of M. after M.’s bill was filed, in order to get the benefit of the proceedings in the suit brought by M., if such benefit could be obtained in the case.

      Semble, that it should be an original bill in the nature of a bill of revisor and supplemental bill.
    The case appears sufficiently in the opinion delivered by the Court.

      W. Halsted in support of the plea.

      S. R. Hamilton contra.
   The Chancellor.

In Feb. 1827, James Mountier, for $200, conveyed a house and lot to Robert Chambers; and at the same time Chambers executed to Mountier a deed of defeazance, by which it was provided, that Mountier was to continue in possession if he paid the interest, taxes &c. and kept the premises in repair, and to have five years to pay the principal; on the payment of which, with the interest, &c., Chambers was to reconvey the premises to Mountier. And if Mountier neglected to pay the interest and keep the'premises in repair, Chambers was to enter and take the rents and^profits for the purpose of defraying the interest, &c.

After a year or more,[Chambers went into possession and received the rents and profits.

In May,'1829, Mountier filed his bill to redeem, stating that he had tendered to Chambers the principal, interest, &c.

In May, 1830, Chambers put in an answer to that bill.

A replication was filed June 19,1830.

On the 2d of July, 1830, two .witnesses were examined on the part of the complainant, Mountier.

On the 20th of July, 1830, Mountier died, intestate.

On the 26th of March, 1847, a bill was filed by Wm. Grant, stating that Mountier, in 1829, exhibited his bill against Chambers stating as therein stated, and praying as therein prayed ; that a subpena was issued on that bill and served ; that Chambers put in his answer to that bill; that after that cause was at issue and testimony had been taken on the part of the complainant M., the said complainant died intestate, on or about July 20, 1830, whereby the said suit became and was abated; that Mountier, in his life time, sold and conveyed to him, Grant, all his title and interest in the said premises, for the redemption and recovery of which the said bill was filed; and that, by reason thereof, he, Grant, being in equity the owner of the premises, is entitled to the benefit of the said suit, and to have the said suit and proceedings revived and put in the same plight and condition as the same were in at the time of such abatement. And, to the end that the said suit and proceedings may stand revived and be in the same plight and condition as, &c., or that Chambers may show cause to the contrary, praying a subpena to revive, to be directed to Chambers, commanding him to appear and show cause why the said suit should not be revived, and stand in the same plight, &e. There is in this bill a clause introduced in a parenthesis, after the statement of the death of Mountier, stating that letters of administration of the personal estate of Mountier were subsequently granted to him, Grant.

But there is no express language in the bill indicating in what character Grant seeks to revive; whether as administrator or in his own right as the alienee of the equity of redemption.

It is not said expressly in the bill when the equity of redemption was conveyed to Gr&nt; whether before or after Mountier filed his bill; but, taking the whole sentence respecting the transfer of the equity of redemption together, I presume it is intended to say that the transfer of the equity of redemption to Grant was subsequent to the filing of Mountier’s bill to redeem.

To this bill filed by Grant, Chambers has pleaded that, after the death of Mountier, and on the 27th of January, 1881, administration of the personal estate of Mountier was granted to Thos. N. Hamilton, and that the bill should have been filed in his name as administrator, and not in the name of Grant.

The plea, no doubt, was put in under the idea that Grant’s bill intended to pray a revivor in his character of administrator ; in which case the plea that another was the true administrator, and not Grant, would be good.

Considering the uncertainty of the bill in this respect, perhaps a plea was the only safe course for the defendant; for he could not in a demurrer allege the fact of administration having been granted to Hamilton.

If it had been certain from Grant’s bill that he intended to ask a revivor in his own right, as alienee after Mountier had filed his bill, a demurrer might have been the course the defendant would have adopted.

Grant’s bill being a simple bill of revivor, it may be that the defendant might have demurred to it on the ground that, if it intended to ask revivor in the character of administrator, the administrator is not the proper person to revive; and if it intends to ask revivor in Grant’s own right as assignee of the equity of redemption after Mountier’s bill was filed, a simple bill of revivor would not be sufficient. But another course was preferred, It seems, by the defendant’s counsel. And I think that, from the shape of the bill, he was at liberty to suppose its object to be to revive as administrator; and in that view he might say that, if an administrator can revive in such a case, Hamilton was the administrator. And the only way he could get advantage of that would be by plea.

I do not- see that, as the bill stands, the plea can be overruled.

The only thing the court can do is to allow the complainant, Grant, to amend his bill so far as to say in what character he seeks to revive ; whether as administrator or as alienee after Mountier’s bill was filed.

But there is another question beyond that which had better be considered by the counsel for Grant, before he proceeds further.

• His object, no doubt, is to get the benefit of the former suit and proceedings in the name of Mountier.

He should consider, then — 1st. Whether Grant should ask to revive as administrator or as alienee.

2d. If he determines to proceed as alienee after Mountier’s suit was commenced, what kind of a bill is necessary ; and whether this bill is sufficient, or whether, if the benefit of the former proceedings can be obtained, it would not be necessary to file an original bill in the nature of a bill of revivor and supplemental bill*

It would not be right for me to anticipate and decide these questions.

Plea sustained.