text:
    STEPHEN R. PARKHURST v. ISRAEL KINSMAN AND WILLIAM CUNDLE.
    1. P., owning two-thirds of a patent right, filed a bill against K., to whom he had sold the other third, to compel the performance of an alleged agreement between them by which K. bound himself to discontinue the manufacturing under the patent, when he should have made enough out of the profits of the business to reimburse him certain advances* he had made for commencing the manufacture, the hill alleging that he had made enough to reimburse his advances. The bill prayed that K. might be decreed to discontinue, and prayed an injunction restraining K. from manufacturing. K., by answer, read as an affidavit on the application for an injunction, denied that he had yet reimbursed himself, and also denied that he was manufacturing under the patent, and claimed that the article he was manufacturing was not within the patent, but a different article.
    2. The injunction was denied.
    In July, 1846, Stephen R. Parkhurst exhibited his bill, stating that on the 1st of May, 1845, he, being the original inventor of a certain machine, (described in the bill,) obtained letters patent, under the seal of the patent office of the United States, granting to him, his heirs, administrators, or assigns, for 14 years from that day, the exclusive right of constructing, using, and vending certain new improvements in the construction, arrangement, and combination of mechanical means for picking, ginning, and carding wool, hemp, or cotton, so as to separate the fibres of those articles from seeds and foreign substances, either acting separately, or in combination with the common carding machine.
    That on the 22d of May, 1845, he entered into an agreement with Israel Kinsman, a merchant of New York, reciting that he had invented a machine for picking, &c., which he claims as his own invention, and has taken out letters patent for, and providing that he, in consideration of $1, and of the covenants and agreements therein contained, doth sell'and transfer to Kinsman, his heirs and assigns, the undivided 3d part of his right, title, and interest in said machine and of all improvements which ,he, Parkhurst, might thereafter make thereon; also an undivided third part of a drying machine, lately patented by him, Parkhurst; and that Kinsman, in consideration thereof, covenanted and agrees to pay Parkhurst $2000, in cash down, and his note at sixty days for $1000; also to loan the concern the necessary amount of money, not to exceed $1000, to purchase machinery, stock, &c., to manufacture machines, which sum shall be repaid to Kinsman out of the first profits realized from sales; also agrees to give his personal attention, so far as necessary, to the business of the concern; ail expenses for labor, materials, manufacturing, &o., consequent upon a vigorous prosecution of the business, to be first paid out of the proceeds of sales, and the balance, over and above what is necessary for capital to prosecute the business to advantage, to be paid over, from time to time, to the parties aforesaid, one-third to Kinsman and two-thirds to Parkhurst.
    That the complainant went into business under the said articles of agreement, and continued to manufacture said machines, at No. 60 Vesey street, New York, until it became necessary for him to go to England, when he executed to Kinsman a power of attorney to carry on the business of said manufactory for the mutual benefit of said Kinsman and the complainant, according to the provisions of the said agreement; which power of attorney Kinsman received and acted under, for a few months, when •the complainant returned from England, and Kinsman then surrendered to him the said power of attorney.
    That it became necessary for him again to go to England ; and he then, to wit, on the 4th of November, 1845, gave a power of attorney to one Warren Holt, of Bloomfield, New Jersey, to carry on the said manufactory in the same manner in which it was then conducted; and on the 6th of November, 1845, the complainant left for England.
    That Kinsman then went on making said machines, using the complainant’s tools and implements for that purpose; and that Kinsman, when he was acting under the power of attorney so given him by the complainant as aforesaid, made and sold a number of said machines, and secured the whole of the proceeds of said sales, and received for machines made by him, between November 6th, 1845, and the month of February, 1846, more than $1400.

      That the manufacture and sale of said machines is a profitable business, and that Kinsman retained all the proceeds and profits of the sales so made by him; and though often requested by said Holt, the attorney in fact of the complainant, to pay over to him, for the complainant, the portion of said profits belonging to complainant by force of the said letters'patent, and of said agreement, and which was due the complainant, the said Kinsman refused to pay the same either to the complainant or his said attorney; and although he repeatedly promised said Holt that he would render an account of the sales and the profits in said business, yet he always neglected so to do, and when applied to by Holt, would make excuses and postpone the giving of such statement of said accounts.
    That Kinsman had made some advances and been to some expenditure in carrying on said business, but the complainant is ignorant of the amount so advanced and expended by him; but avers that Kinsman, on or about February 9th, 1846, told Holt, the attorney of the complainant as aforesaid, that he would in a few weeks realize enough from said business to pay all the debts arising therefrom, and to cancel all his demands; and Holt, for the purpose of being relieved from any further difficulty with Kinsman, in the name of the complainant, made and executed an agreement with Kinsman as follows: (setting out the agreement.) It is executed February 9th, 1846, between Kinsman, of New York, of the first part, and Parkhurst, of same place, of the second part. It recites that Kinsman has advanced moneys and become responsible for various sums which had been expended in getting up machinery, tools, stock, &c., for the manufacture of burring and carding machines invented by Parkhurst, one-third of which he sold and assigned to Kinsman; and then provides that Kinsman, in consideration of $1 to him paid by Parkhurst, contracts and agrees that as soon' as the profits which have accrued, and which might thereafter arise from the manufacture and sale of said machines so made and sold by Kinsman, shall be sufficient to pay all legal demands for the purchase of machines, tools, &c., and the expenses incurred by Kinsman, that then Kinsman shall and will discontinue the manufacture and sale of ¿aid machines ; and that all the machines he shall manufactura and sell after that date shall not be sold for a less profit than $100 each; and that he will be accountable for $100 profit on each machine made and sold from that date, unless he has the written consent of Parkhurst to sell for less. And Parkhurst, in consideration of $1 to him paid by Kinsman, and of the agreements aforesaid, covenants and agrees with Kinsman that he will go on and manufacture said machines, as soon as Kinsman discontinues the same, and that he will not sell any machine for a less profit than $100, without the written consent of Kinsman, and that he will pay over to Kinsman one-third of said profits on all machines he makes and sells thereafter; and that for any machines he may make or have made before-the discontinuance of the building the same by Kinsman, he shall be subject to the same restrictions of selling for at least $100 profit on each, one-third of which shall be paid to Kinsman. Signed and sealed by Kinsman, and for Parkhurst “by Holt, by power of attorney.”
    That on the day on which said agreement was executed and delivered, Kinsman had, without the knowledge and consent of Holt, and while the complainant was absent in England, sold all the tools and implements procured for the purpose of making said machines, and which were then in the shop No. 60 Vesey street, New York, to William Cundle, of Paterson, New Jersey, for which tools Cundle gave his no(e, payable to Kinsman, in a sum unknown to complainant.
    That Cundle removed said tools to Paterson ; and that he and Kinsman have ever since been employed in making and selling said machines, and have realized large profits therefrom.
    That Kinsman stated to Holt, attorney as aforesaid, in November, 1845, that all the debts of the concern did not exceed $1600.
    That Kinsman sold machines, during November and December, to the amount of $1400, and continued making machines up to the 9th of February last; and that since that time Kinsman and Cundle have sold at least from 30 to 40 of said machines, and by the agreement last aforesaid they were not to be sold for a less profit than $100 each, without the written consent of complainant or his said attorney.
    That the note for $1000, given by Kinsman to complainant for one-third part of the patent right, as stated in the first-mentioned agreement, has never been paid, either in whole or in part, which note would constitute a just and equitable set-off against any claim Kinsman might have had by reason of any expenditures or advances. And the complainant avers that Kinsman is largely indebted to him by reason of his neglecting and refusing to pay over to complainant the portion of the profits which, by the agreement first set forth, belong to him; that Kinsman, up to this time, neglects and refuses to render any account to complainant, of his said attorney, of the proceeds and profits of the business, or to surrender up the manufacturing of said machines to the complainant, according to the provisions of said last agreement; but is now, in connection with Cundle, manufacturing on their own account, and to the injury and damage of complainant.
    That Kinsman and Cundle, with a view of still further injuring the. complainant, have sent and still send out and sell said machines, without making or stamping them as the patent of the complainant.
    That the complainant is ready, and has made arrangements and is desirous to carry on the manufacture of said machines, according to the terms of the agreement secondly set forth, as soon as Kinsman shall surrender up the said manufacture, as by the said agreement he ought to do.
    The bill charges that Kinsman and Cundle refuse to render an account to the complainant of the business connected with the making of said machines, or of the amount received from the sales thereof, and refuse to pay to the complainant, or said Holt, the two-thirds of the profits, or to account for the same; and that, although said Kinsman has been much more than remunerated for any advance or expenditure by him made, yet the said defendants refuse to surrender up the business to the complainant, or to Holt, his attorney ; but the defendants pretend, among other things, that the machines made by Kinsman and Cundle since February 9th, 1846, are hot like the machines patented by the complainant, but are an invention and improvement of their own ; whereas the complainant charges that they are, in all material respects, the same.
    The bill prays that the defendants may be decreed to account for all money received from the sale of the machines from the said 1st of May, 1845, and to pay over to the complainant two-thirds of the profits ; and that the defendants may be decreed to surrender up the business of manufacturing said machines, according to the provisions of the last-mentioned agreement; and that the defendants may be enjoined from further manufacturing or selling said machines, or any machine which in any manner is included in the said patent.
    An application was made, on the filing of the bill, for an injunction according to the prayer thereof, and notice of the application was directed to be given ; and, after argument, the injunction prayed was denied.
    The application was renewed, and the parties were again heard. On the second application, Kinsman’s answer was read as an affidavit.
    He admits the patent to the complainant; but says he cannot admit that the complainant is the original inventor; but sayé that the merit of the invention belongs to Charles G. Sargeant, of Lowell, Massachusetts.
    He admits he entered into the agreement of May 22d, 1845, and says that he paid the $2000 therein named, in cash, and gave his note for $1000, which has not been taken up; but he says he has charges against the complainant as offsets, for more than sufficient to balance the note.
    He admits he went on making machines under said agreement, at No. 60 Yesey street, New York, and that when the complainant went to England, he did, at the suggestion of this defendant, to avoid all question as to this defendant’s power and control over said business, execute to him a power of attorney to conduct the business on his account during his absence, and which power ceased on the return of the complainant to the United States.
    He admits that on the complainant’s leaving this country a second time for England, he gave a power of attorney to said Holt, to conduct said business in his behalf ; but he has no remembrance of the extent of the powers conferred by that instrument on Holt, who is the son-in-law of complainant, and he therefore asks that the said power of attorney may be produced and proven.
    He denies that, by said power, or any other, the complainant authorized Holt to enter into the agreement of February 9th, 1846, so as to bind the complainant thereby.
    He admits that, after entering into the agreement of May, 1845, he laid out, from time to time, large sums in machinery, stock and tools, to conduct the business, a particular account of which is contained in Schedule A, annexed ; and that he sold a ¿umber of machines made under said agreement, of which Schedule B, annexed, contains a true account; that he has subjoined, in Schedule C, annexed, a general statement showing the balance due him on the account for work done and sold, and expenses incurred under said agreement, and which he believes to be correct; and he says he has no recollection, beyond what these accounts show, of the amount due him, at any particular time or times, nor that he stated to Holt, in November, 1845, that all the debts of the concern did not exceed $1600 ; that if any sum was named it must have been merely conjectural, for the accounts were not made up, and he did not know either the amount of moneys expended by him for the concern, or the amount received from sales.
    He denies that he did, to his recollection, say to Holt, in or about February, 1846, that he would, in a few weeks, realize enough from the business to pay all the debts.
    He admits that, on the 9th of February, 1846, he entered into the agreement with Holt in behalf of complainant. He says that, prior to entering into this agreement, he had heard from Ziba Parkhurst, brother of complainant, that said Sargeant claimed- to be the inventor; but that, to the time of signing said last agreement, he believed that the complainant was the inventor, and that Sargeant was an impostor, and so expressed himself.
    He says he believes the accounts annexed contain a full account of all the machines made or made and sold by this defendant under said agreement or the said patent. That he found the machines made according to the patent, whether complainant was the inventor or not, would not answer the purpose, and ho accordingly gave up making machines according to it, and made an arrangement with Cundle, of Paterson, New Jersey, for constructing machines on a new plan, and which, he admits, they have been engaged in making, and have made and sold to a considerable extent; and he denies that the said machines so made by him, and of which he has rendered no account in the schedule annexed, were made under the complainant’s patent, or ^nder any agreement stated in the bill, or in violation of the terms of the agreement of February 9th, 1846.
    He admits he sold the tools in the shop in New York to Cundle, and he supposes he liad a perfect right to do so; that the sale was made in good faith, and the concern credited with the proceeds ; and he denies, if such is intended to be intimated by the bill, that the said tools were ever designed to go into the possession of Holt.
    He admits that Cundle took said tools to Paterson, and that ho worked there for and on account of this defendant, and that Cundle has no interest in this suit beyond that of this defendant, nor in the manufacture and sale of said machines.
    He denies he owes the complainant, but insists that the complainant is largely indebted to him; and that he would have a perfect right to go on and manufacture machines to a very considerable extent beyond those already made, and sell them, to discharge the indebtedness of the said concern to him, and for advances made by him.
    He admits that, on the machines now making by him, he does not stamp the patent of complainant, and for the reason that they are not made under said patent.
    He says he is willing and desirous to settle his accounts with the complainant, and has always been willing and desirous to do so.

      F. T. Frelinghuysen and Mr. Staples, of New York, for the motion.

      W. Pennington, contra.

   The Chancellor.

The complainant owns two-thirds of the patent, and the defendant one-third. The bill is filed to compel the performance of an agreement by which, it is alleged, the defendant bound himself to discontinue manufacturing the machines when he should have made enough out of the profits of the business to re-imburse him certain advances he had made for putting the manufacture of the machines in operation. The bill alleges that the defendant has made enough to re-imburse him the said advances; and asks that he be compelled to discontinue, in fulfillment of his agreement, and that he be enjoined, in limine, from further manufacturing.

The answer, which was read as an affidavit, denies that the defendant has yet re-imbursed himself by manufacturing under the patent.

Whether the court will decree the specific performance of such an agreement, will be the question on the final hearing.

If it were palpable that the defendant had, by manufacturing under the patent, made enough to re-imburse him, it would not follow, necessarily, that the court would oblige him to discontinue, in fulfillment of his agreement. He owns a third of the patent, and has, therefore, a right to manufacture under it. The complainant, being the owner of the other two-thirds, has also a right to manufacture under the patent. Each would be accountable to the other for his proportion of the profits. It being, at least, uncertain whether a decree for the specific performance of such an agreement would be made, a preliminary injunction, which would compel an initiative performance of it, cannot be allowed.

It is evident that the difficulty between these parties lies beyond this. An injunction would probably not have been asked on the foregoing view of the case.

The real difficulty is, that the defendant denies that he is manufacturing under the patent, and claims that the article he is manufacturing is not within the patent, but is a different article.

ít is really, therefore, a question of infringement of a patent right.

Of such questions state courts have no jurisdiction,

Injunction denied.


source: Caselaw Access Project

author: Carpenter, Justice,

license: Public Domain

text:
    ELIAS W. CONOVER, APPELLANT, v. SUSAN WRIGHT, RESPONDENT.
    1. The statute of limitation of New Jersey, {Rev. L. 411, 2 10; Rev. Slat. 95, § 11,) applies to the action of dower, and may be pleaded in equity as well as at law.
    2. When the bill does not state any circumstances to take the case out of the statute, the plea may be a pure plea.
    3. It is not required to be accompanied by an answer when the bill simply contains the formal allegation in regard to title papers, usual in bills for dower, in order to bring them within the jurisdiction of a court of equity.
    This case is reported ante p. 482.
    Appeal from the decree of the Chancellor. The respondent filed, July, 1846, her bill of complaint against the appellant, in which she sought to recover dower in certain lands in his possession. The bill stated the seizure in fee of her former husband, Barzillai Wright; a sale by the sheriff to the appellant; that her husband died 1st March, 1836, leaving the complainant him surviving, entitled to dower in the said freehold premises, &c.
    The defendant pleaded in bar that the said Barzillai Wright died above twenty years before the filing of the said bill or service of process, and that the right or title and cause of action (if any,) of the complainant accrued above twenty years before the filing of the said bill, &c., and therefore that the said defend - ant pleaded the statute of New Jersey entitled, &e.
    The cause was heard before the Chancellor under an agreement that if the plea should be allowed by the court, it should be considered as proved, and a final decree made thereon.
    The Chancellor, after argument, overruled the plea, with costs, and from this order the defendant appealed.
    The case was heard by Justices Whitehead, Carpenter and Randolph, and Judges Porter, Spencer, Schengk, Speer, Sinnickson and McCarter; the Chief Justice and Justice Netius not sitting.

      C. S. Green and P. D. Vroom, for appellant.
    This is the case of an ordinary bill for dower, and the statute of limitations pleaded thereto. The plea was overruled below on the ground that the statute, (Rev. L. 411, § 10,) does not apply to dower. The decision of the Chancellor conflicts with the previous decision of the Supreme Court, and the question is now definitely to be settled in this court.
    The cause of action accrued on the death of the husband, when it became the duty of the tenant to assign dower. 4 Kent 30; lb. 66. The non-performance of this duty was wrongful and amounted to a deforcement. 3 B. C. 172. The statute expressly bars all actions for land unless brought within twenty-years after the cause of action accrued. Rev. Laws 411, § 10; Berrien v. Conover, 1 Bar. 107; Tuttle v. Wilson, 10 Ohio 24; Jones v. Powell, 6 Johns. Ch. Rep. 194; Ramsay v. Dosier, 1 Const. (S. C.) Rep. 112.
    The statute applies equally in courts of equity and in courts of law. Angell on Limitations 24 (Ed. 1846); Wanmaker v. Van Buskirk, Saxton 691; Peacoek v. Newbold, in this court, October Term, 1845, 1 Halst. Ch. Rep. 553.

      W. Halsted, contra.

      The statute does not apply to dower. The statute in regard to dower, (Rev. L. 398,) declares what shall bar dower, but does not mention lapse of time as a bar. There has been no adverse holding against the widow, and therefore the statute does not run against her. Parker v. Obear, 7 Metc. 24; Barnard v. Edwards, 4 New Hamp. R. 109; Spencer v. Weston, 1 Dev. and Bat. 213; Guthrie v. Owen, 10 Yerg. 339; Park on Dower 311.
    The widow has no right of entry until dower has been assigned. 1 Cruise 159, tit. “Dower,” ch. 4, § 1; Litt., § 43; 4 Mass. 388; 7 John. Rep. 247. Not even after judgment. 16 Mass. 193.
    The widow’s right of dower is no title to land, but a mere chose in action ; an inchoate right to an unascertained part. 17 John. 168; 20 Ib. 411; 4 Kent. 68 ; Watkins on Descents 101; Gilbert on Tenures 26; Salk. 422 ; 3 Barr (Pa.) Rep. 71.
    But if at law, the statute is no bar in equity. At any rate the plea should have been accompanied by an answer denying fraud. Beame’s Pleas 175; Ib. 168; 1 Story Eq. Jur., § 628, note 640; Curtis v. Curtis, 2 Bro. C. C. 620; 4 Kent 69.
   Carpenter, Justice,

delivered the opinion of the court.

Whether courts of equity act in obedience or in mere analogy to the statute of limitations, it has become a settled case that they will apply them, in similar cases within the sphere of their jurisdiction, equally with courts of law. They have always felt themselves bound by the spirit and meaning of these statutes, and ordinarily act in conformity to them. In cases concurrent with a remedy at law they always allow them to be pleaded, and a party is not permitted to evade their effect by resorting to another forum. Angell on Limitations, ch. 3, p. 24; Saxton 691.

The objection, it would seem, may be taken by demurrer to the bill, if so framed that it appears on its face and no attendant circumstances are stated which will obviate it. If the objection does not appear on the face of the bill,'as in the present instance, it may be taken by way of plea, or by way of answer. When the objection is taken by way of plea to a bill which does not state any circumstances to take the case out of the statute* such as fraud, &c., the plea may be a pure plea, though otherwise if the bill should charge a fraud which had not been discovered within the period named in the statute. In such case the plea should be accompanied by an answer, answering and denying the circumstances of fraud alleged, in order to avoid the bar. Story Eq. Pl., § 503; Ib., §§ 751, 754.

The bill in this case is in the ordinary form of a bill for dower. The death of the husband is alleged within the period mentioned in the statute. No unusual circumstances of equity jurisdiction are set forth. It alleges no matter of concealment in order to avoid the operations of the statute; no ignorance of her rights is pretended by the complainant. The bill contains nothing beyond the formal allegations in regard to title papers always found in such bills, for the purpose of bringing what is ordinarily a mere legal right within the jurisdiction of a court of equity. If the statute applies to dower the defence seems to have been properly raised by the defendant’s plea.

But it was but urged upon the part of the respondent that the 10th section of our statute of limitations (11th in the revision) does not apply to the action of dower, and consequently cannot be pleaded either at law or in equity; and such is the view taken by the Chancellor. One section of our act, copied from the English statute of 21 Jac. 1, ch. 16, § 1, bars the right of entry into any lands, &o., unless made within twenty years after such right or title shall accrue. The widow has no right of entry until dower assigned, and the statute of 21 Jac. 1, in England, and similar statutes in this country, have therefore been construed not to apply to the action of dower. It (21 Jac. 1,) applies only to a right of entry, and therefore by its terms is inapplicable to the action of dower, which is founded, not on the right of entry, but on an inchoate right to have the one-third part of any lands of which the husband had been seized during coverture, set off and assigned to her.

But the next section of our act, (Rev. L. 411, § 10,) goes further, and enacts that every real, possessory, ancestral, mixed, or other action, for any lands, &c., shall be brought or instituted within twenty years next after the right or title thereto shall acerue, and not afterwith a saving clause in favor of infants, feme eoverts and insane. It in very terms applies to all actions for the recovery of lands, tenements and hereditaments, and it is difficult to see how it can fail to apply to the action of dower. It bars, not the right of entry merely, but any action brought for the; recovery of land, &c. Land is sought to be recovered in this action, and the widow’s title becomes absolute on the death of the husband. By the statute of Magna Gharta, the heir had forty days within which to assign dower; a provision incorporated into the third section of our aot in relation to dower. If not assigned within that period, the tenant becomes guilty of deforcement, and liable in an action of dower. The widow’s title, and her cause of action, then accrue, the possession of the tenant as against her then becomes adverse, and the statute begins to ran.

It is true, lapse of time is not enumerated in the statute relative io dower as a bar to the action, and obviously because i4 naturally falls within another classification. Parker v. Obear, 7 Mete. 24, is a decision upon a statute very similar to the 10th section of our act, which the court then held did not bar the writ of dower. But that decision may well be sustained upon the ground that, in the State of Massachusetts, the widow’s cause of action does not accrue at the death of her husband, but only from the time of demand made. Here a demand is not necessary in order to support the action, although it may be important as affecting the amount of damages. Taking a different view than the Chancellor of the policy of the statute, and holding the action of dower to be not only within the letter, but the meaning and intent of the statute, we are unanimously of the opinion that his decree must be reversed.

The decree is reversed, with instructions to enter a decree for costs in the court below.

Per tot. cur. Decree reversed.


author: Green, Chief Justice,

text:
    JOHN I. RYERSON AND ABRAHAM DEMAREST, PETER H. PULIS AND PETER H. WINTER, EXECUTORS OF ABRAHAM H. GARRISON, DECEASED, APPELLANTS, v. FREDERICK ADAMS, EXECUTOR OF JOHN I. TUERS, DECEASED, AND IN HIS OWN RIGHT, WILLIAM DEALING, AND CHARITY, HIS WIFE, JACOB FREDERICKS AND JACOB KING, RESPONDENTS.
    1. In 1823, T., an habitual drunkard, requested R., at whose store T., was in the habit of buying liquor, to accept a deed for his farm and pay his debts. R. did not consent. Afterwards T., without the knowledge of R., procured a deed from him to R., to be drawn, and executed and acknowledged it, and took it to R. and delivered it to him, and requested him to put it on record, and left it in his hands. R. did not put it on record, but it remained in his hands. On the 20th August, 1831, an instrument was executed by R., by which he, in consideration that T. pay yearly, during his natural life, to R., $18, granted, bargained, remised, released and confirmed unto T., during his life, the said farm in T.’s possession. After this R. caused the deed to be recorded. T. never saw or heard read the writing of August 20th, 1831. The person who drew this writing testified that, before it was drawn, T. had consented that such a writing should be made, and requested him to keep it in his possession.
    2. The deed was declared void. Semble, a deed without consideration, from one whose mind has been greatly impaired by excessive and long-continued intemperance, to another from whom he had been in the habit of buying liquor, and who knew of his excess in the use of it, will be set aside.
    3. The decree must conform to the bill, and be warranted by it, both in the relief and in the grounds of relief. Relief not embraced in the prayer of the bill cannot be decreed, nor can the relief asked for be granted upon grounds not disclosed by the bill. It is, however, no objection that the case established by the proof is broader and stronger than that stated in the bill, or that grounds of relief not contained in the bill are established in evidence, provided the decree is warranted by the charges and the prayer of the bill, and the bill is sustained by the evidence.
    This case, and the decision of the Chancellor thereupon, is reported ante p. 328.

      A. S. Pennington, for the appellants.

      A. O. Zabriskie, for the respondents.
   Green, Chief Justice,

delivered the opinion of the court.

The first ground of objection to the decree in this cause is, that the case established by the evidence is not disclosed by the pleadings, and that the relief is granted upon a ground not charged by the bill. It is undoubtedly a well-settled rule in equity that the decree must conform to the bill, and be warranted by it, both in the relief and in the grounds of relief. Relief not embraced in the prayer of the bill cannot be decreed, nor can the relief asked for be granted upon grounds not disclosed by the bill. It is, however, no objection that the case established by the proof is broader and stronger than that stated in the bill, or that grounds of relief not contained in the bill are established in evidence, provided the decree is warranted by the charges and prayers of the bill, and the bill sustained by the evidence.

The bill charges that Tuers, having become very intemperate and being exasperated with his wife, and being desirous of securing his estate for the benefit of his own relations, and for the purpose of preventing his wife from inheriting, made a deed of bargain and sale to Ryerson, for his own use. That the deed did not convey the lands to Ryerson, but that the use resulted to Tuers and his heirs. That Ryerson, for a fraudulent purpose, procured the deed to be recorded. That subsequently, knowing that the deed was without consideration and worthless, with the view of rendering it valid and having the lands appropriated to his own use, he conveyed to Garrison.

The bill further charges that the lease from Ryerson to Tuers, jf any such existed, was obtained by fraud, and was contrived and designed by Ryerson, to procure a recognition of his title, to be used after Tuers’ death.

The bill prays that the deed may be declared void and of no effect; that it may also be declared that the use of the land under the deed resulted to Tuers, and that he be decreed to recover.

The gravamen of the charge is, that the deed was without consideration and not designed to convey the title, and that the recording of the deed, the execution of the lease and the setting up of title to the lands by Ryerson was fraudulent.

There is no charge in the bill that the deed was obtained by fraud or undue influence or improper means, nor can the decree, in my judgment, whatever may be the weight of the evidence, be sustained upon either of these grounds.

It remains to inquire whether the deed is sustained by the evidence, upon the grounds charged in the bill.

The answer admits that at the date of the deed, and at the time of its delivery, no consideration whatever was paid, or secured or agreed to be paid. It was a voluntary conveyance, executed, acknowledged and delivered by the grantor without the assent or concurrence of the grantee. The defendant explains the transaction by stating that Tuers wished him to accept the deed and pay his debts, but that he did not at first agree to do so; that he received the deed and retained it in his possession from May 1st, 1823, to August 20th, 1831, more than eight years, without claiming title under it; that a new contract was then made, the deed accepted and recorded, a lease given and the title perfected in the defendant. Now this is certainly a very unusual transaction and calls for the closest scrutiny at the hands of the court. Tuers, it is alleged, executes, acknowledges and delivers to Ryerson a deed for his farm for the alleged consideration of $3000, but without the payment of $1. The deed is left in Ryerson’s custody and under his control. Tuers lies entirely at Ryerson’s mercy, exposed at any moment to be turned out of possession, without the least evidence to show what the truth really was, although, as is admitted by the answer, the title was wholly in Tuers. During this period, as appears by the testimony of numerous witnesses, it was reputed in the neighborhood that Ryerson had title to the place, and Ryerson himself repeatedly declared that he had a deed — as good a deed as any man’s.

It is clear, from this evidence, that after the delivery of the original deed, and before 1831, which, as the defendant now alleges, he had no title whatever, it was reputed that he had the title, and that he himself claimed to have the title. It is evident, also, that he then had the same title and the same evidence of title that he now has, except so far as that title may be strengthened by the transactions of 1831.

It is worthy of remark, that during this period of eight years, although Ryerson claimed title, and held in his hands a deed of conveyance from Tuers, that Tuers, both by his acts and words, denied the validity of that deed, and treated the land as his own. On the 8th of February, 1825, four years after the date of the deed to Ryerson, he conveyed more than twenty-one acres— nearly one-fifth of the farm- — for a valuable consideration, to Abraham Lake, with covenants of general warranty. In March, 1831, he leased seven or eight acres to John S. Forshoo, for fifty years. He told Chester Abby, in the presence of Margaret Lake, that the deed to Ryerson was good for nothing. These acts and declarations of Tuers, occurring during the period when Ryererson, by his answer, admits title in Tuers, are clearly competent evidence. They show that Tuers — notwithstanding the deed lick! by Ryerson, and his claiming the property — regarded himself as the owner, in fee, of the land, with power to dispose of it at his pleasure, thus giving strong countenance to the charge in the bill that the deed was never designed to pass title.

The deed, then, as originally delivered, was clearly inoperative and void. It so continued until the 20ih of August, 1831. Was efficacy given to it by the transactions which then took place between the parties ? These transactions, the bill charges, were fraudulent, and I think it is abundantly evident, both from the defendant’s answer and the evidence in the cause, that the whole transaction of August, 1831, was colorable, merely, and designed to give support to a deed which, otherwise, was confessedly without consideration, fraudulent, and void. There is no evidence of the circumstances under which this deed was resuscitated, save the defendant’s answer. And, upon the statement in the answer, it is obvious that Tuers received nothing whatever as a consideration of the conveyance. The alleged consideration was a promise, by the grantee, to pay the grantor’s debts. Now, as against the creditors, the deed, being voluntary, would have been fraudulent and void. It was necessary, therefore, that the debts should be paid, in order to legalize the deed. These debts would have been a virtual encumbrance on the land in the hands of Ryerson. He must have paid them, in order to save his title. It was, therefore, a simple conveyance by Tuers to Ryerson, of his whole farm, subject to the payment of. his debts, without one dollar of consideration for the conveyance. Nor is it pretended ihat Ryerson paid the debts at the time of the conveyance, or entered into any binding engagement to pay them, or procured a release to Tuers from them. There is no clause in the deed showing that Ryerson held the land in trust to pay the debts, nor is it pretended that any written engagement to that effect, was given either to Tuers or to the creditors. There appears to have been no witness to the transaction. Tuers, therefore, could not have enforced the contract, nor could the contract have been enforced by the creditors, because, being a promise to pay the debts of a third person, and not in writing, it was void by the statute of frauds and perjuries. The pretended consideration, therefore, was entirely illusory. Ryerson promised nothing — did nothing which, independent of his contract, he was not bound to perform. Tuers received nothing but a nugatory promise. But, admitting that the promise to pay the debts of the grantor when executed, formed a valid consideration for the conveyance, still, the averment of the answer that such promise to pay formed the consideration of the conveyance, is not responsive to the bill, is contradictory of the deed itself, and is entirely unsupported by the evidence. On the contrary, the whole transaction relative to the procurement and execution of the release — or, as it is termed in the answer, the lease — from Ryerson to Tuers, as detailed by Van Dien, the scrivener who drew the paper, and the principal witness for the defence, is utterly irreconcilable with the defendant’s answer.

The fact that the recording of the deed and the giving of the release were calculated to confirm the title of Ryerson; that the pretended consideration was neither paid nor secured to be paid at the time of recording the deed; that the release to Tuers was not placed upon record and that he had no guaranty for his pro» tection but the integrity of Van Bien, who was paid by Ryerson ; that Tuers never saw the lease nor heard it read; that Ryerson never exercised, in Tuers’ presence or under his notice, the privilege reserved by the lease of cutting timber upon the farm ; that from the alleged delivery of the title, until Tuers’ death, a period of more than eleven years, Ryerson did not act within Tuers’ knowledge manifesting his title; that Tuers did no act aod made no declaration admitting the title, are strongly corroborative of the charges in the bill that the deed was not only without consideration, but that it was never designed to convey title, that it enured to the use of Tuers, and that the claim of title by Ryerson is fraudulent.

Nor ought it to escape notice that this deed was originally given by a man of very intemperate habits to the person who furnished him with the means of vicious indulgence; that the grantee had no claim of blood or kindred upon the grantor; that the only alleged consideration was the payment of the grantor’s debts; that there is no evidence of importunity on the part of the creditors; that the only debts ever paid were paid to Ryerson’s own son; that those debts were contracted years after the original deed was executed, and that they were utterly inadequate to the value of the land.

Upon the evidence in the cause it is appaient that Garrison took his deed from Ryerson with knowledge of the fraud, at least sufficient to put him upon inquiry. He can stand in no better situation than Ryerson himself. He does not, moreover, occupy in equity the position of a bona fide purchaser, having parted with no valuable consideration to obtain the title.

It is further objected to the decree that it authorizes an account to be taken against Ryerson of the proceeds of the sale of Tuers’ personal property at auction, when it appears by the evidence that after that sale there was a settlement between the parties. It is, perhaps, not certain from the evidence that the settlement was a general one, or that it included the proceeds of the auction sales, and if it be so, it can hardly be presumed at this stage of the cause, that the Chancellor will finally decree an account against the appellant for matters which by the evidence appear to be settled, or barred by lapse .of time. I think there ought not to be a reversal upon this ground.

In my opinion, the decree should be affirmed, with costs.

The court, (Nevtcs, Justice, and McCarter, Judge, dissenting,) concurred in this opinion.

Decree affirmed.


text:
    THE BRIDGEWATER COPPER MINING COMPANY, APPELLANTS, and GOOLD HOYT, RESPONDENT.
    1. A bond and mortgage given in fulfillment of a prior written agreement for the sale and purchase of property, at a price stipulated, to be paid in a stipulated manner, with interest, the interest to be paid half yearly, in advance — held not to be usurious,
    2. A new bond and mortgage were substituted for the first, dispensing with, the payment Of interest in advance. Semble, that if the first could be held usurious, the contract might, by subsequent agreement of the parties, be freed from the vice.
    8. Acts of a subsequent board of directors of a corporation, which were held to be a recognition and sanction of a mortgage given by a former board.
    This case is reported ante p. 253.
    P. D. Vroom, for the appellants.

      B. Williamson, for the respondent.
   The decree of the Chancellor was unanimously affirmed.

Decree affirmed.


text:
    JOHN HENRY AND RICHARD HENRY, APPELLANTS, and ADAM KINNAMAN, RESPONDENT.
    In May, 1817, J. purchased land of K. and paid part of the consideration money and gave K. a mortgage on the land for the residue. J. sold parts of the land, and K. released those parts from the mortgage. In August, 1821, judgments were recovered, in favor of other persons, against J., on which executions were issued and levied on that part of the mortgaged premises still held by J., “subject to prior encumbrances.” In October, 1822, pending a suit in chancery by K. against J. for the foreclosure of the mortgage,. J. and his wife re-conveyed that part of the mortgaged premises which he still held, and which had been levied on as aforesaid, to K., in payment and discharge of the mortgage, and K. took possession of the land; the registry of the mortgage, however, was left uncanceled. Afterwards the sheriff sold, under the said levy, and H. became the purchaser; H. when he so bought, having knowledge of the foregoing facts. Held, that H. was entitled to the land free from the mortgage debt.
    This case is reported ante p. 90.
    P. D. Vroom, for the appellants.

      W. Halsted, for the respondent
   The decree of the Chancellor was reversed.

Nevius, Justice, dissented.

Decree reversed


text:
    HENRY COLE, APPELLANT, and LEWIS E. DAVENPORT AND CORNELIUS CRAWFORD, JR., ADMINISTRATORS, &c., OF CALVIN COOK, DECEASED, RESPONDENTS.
    An improvident agreement, made for a consideration grossly inadequate, jby one of great imbecility of mind, with another whose position in relation to Mm conferred undue influence and control over him, will be set aside.
    This case is reported ante p. 522.
    Mo Gifford and JB. Williamson, for the appellant.

      A. Whitehead and Samuel Sherwood, for the respondents.
   The decree of the Chancellor was affirmed.

McCarter, Judge, dissented.

Decree affirmed.


author: Randolph, Justice,

text:
    DANIEL BRAY, APPELLANT, and MARY ANN BRAY, RESPONDENT.
    Sufficient evidence of adultery on bill for divorce.
    This case, and the decision of the Chancellor thereupon, is reported ante p. 506.
    P. D. Vroom, for the appellant.
    No couusel appeared for the respondent.
   Randolph, Justice,

delivered the opinion of the court.

The complainant asks to be divorced from his wife, on the ground of adultery, stated in the bill to have been committed in his own house, at a particular time, and with an individual named-. It is proved by two witnesses, old Mrs. Bray and her sister, that-, the individual named, came to the complainant’s house, in his absence, and remained there all night; that, during evening, some familiarity took place, which elicited reproof from the mother, that defendant retired to bed before the rest of the family, declining to have the company of one of the children,' and that -, having formerly worked for the complainant, and being familiar with the house, was permitted to remain up until after the others retired to bed, when he also went up stairs to bed; his room adjoined that of defendant, and their doors were near each other. That sometime in the night Mrs. Burdett, (the sister,) being up with the toothache, and hearing a strange and improper noise in defendant’s room overhead, she went up to see the cause; it was bright moonlight, and the win dews without shutters or curtains, and neither door entirely dosed ; passing by that of-, she saw that he was not in the room, but on looking through defendant’s door she saw him in bed with defendant, she being or appearing to be asleep. The witness immediately withdrew to her own bed, remarking to her sister that she had seen a sight. No response being given thereto, the sister being asleep when witness left, and we may also infer when she returned, the occurrence was never related until some weeks after, and not until after defendant had left the abode of her husband. If the witness speaks truly and relates what actually took place, complainant is entitled to a divorce, unless the occurrence took place at his instance, or by his procurement, or the whole matter was got up to bring about a divorce. Complainant was gone to New York, and remained all night, according to his usual custom, to dispose of the produce of his farm, and there is no evidence or circumstance going to show that he knew - — —— was coming to his house, or that he was there, or that the circumstance itself took place, until weeks after the occurrence. According to the evidence, then he could have been no party to the conspiracy, and if it was got up by others without his participation, it cannot affect his complaint; but there were no others to get it up, except two old women. = — -—— came to the house in the evening, on an errand, to return a borrowed wagon; he presumed on his acquaintanceship, and remained without other evidence of being invited than being informed where he was to sleep. There is no evidence that he was even invited or in any way induced to eome, or that his coming was previously known by either party, or any of the family, or that even the defendant was aware of his coming, or that she had premeditated a plan to create a forfeiture of her dower, without any stipulation agreed on between her and her husband, then there is no evidence that this meeting was brought about by conspiracy or pre-arrangement for any purpose whatever, and if so, there is nothing to defeat the prayer of the bill, unless we disbelieve the evidence of the fact. The character of Mrs. Burdett stands before us unimpeached by any witness; her story is confirmed by Mrs. Bray, who testifies that-bed was not slept in that night, and by the loose character of the defendant herself. She had married complainant when pregnant by another man, and did not hesitate to tell him and his family that the child born within three months after the marriage was not his; it is also strongly confirmed by the fact that although the bill charges the crime to have been committed with-, and specifies time and place, all of which is specifically denied by the answer, yet being proved by Mrs. Burdett and Mrs. Bray, defendant neither calls-to disprove the charge, or accounts for the absence of his testimony, although she has witnesses sworn to prove much less important matters. We have no right to believe Mrs. Burdett has perjured herself, for there is no evidence to'warrant it; she could not have been mistaken, for it was bright moonlight, and her own wakefulness, and the situation of the rooms and the beds, enabled her to speak very positively that in one he was not, in the other he was. True, she did not relate the circumstance immediately, not that night, because it is presumed her companion was asleep, for she does not even testify that she heard her say she had seen a sight, not until after defendant had left the bed and board of her husband, because she thought he would overlook it, as he had defendant’s previous conduct, and she did not wish to make difficulty between them. There is nothing unreasonable or imprudent in this; when her information would be beneficial and not injurious, she related it, and not until then. The circumstance neither impeaches her veracity nor proves her mistaken. I think the evidence requires a decree for divorce, and that the decision of the Chancellor should be reversed.

The court, (Nevius and Ogden, Justices, and Schenck, Judge, dissenting,) concurred in this opinion.

Decree reversed.


text:
    NATHANIEL J. CRANE, APPELLANT, and FRANCIS HEWITT AND WIFE, RESPONDENTS.
    A father devised his estate to a son and two daughters; the son made an ogreement with the daughters for a different settlement and disposition of the estate among them, without apprising them.of the value of the estate, which was known to him, but not to them •, the agreement was, notwithstanding, .sustained as a family settlement.
    This ease is reported ante p. 159.

      li. Van Arsdale and P. D. Vroom, for the appellant.

      A. Whitehead, for the respondents.
   The decree was reversed, unanimously»

Per tot. tmr.

Bearee reversed.


author: Ogden, Justice,

text:
    PETER C. ONDERDONK, APPELLANT, and HIRAM HUTCHINSON, RESPONDENT.
    R. had, during the continuance of a partnership between H. and O., loaned money, from time to time, to the firm, for which he charged and received the interest; and had also, from time to time, endorsed notes for the firm, which were paid by the firm. On the dissolution of the partnership, the settlement of its affairs devolved on O., arid in an account subsequently presented by him to H., he claimed an allowance of $500 for R., for endorsing for the firm, and claimed that he and H. had agreed to make the said allowance to R. The court made the allowance.
    This ease is reported ante p. 277.

      J. Vandyke, for the appellant. .
    P. D. Vroom, for the respondent.
   Ogden, Justice,

delivered the opinion of the court.

The parties in this suit entered into a co-partnership in the city of New Brunswick, about the 15th of December, 1835, in the india rubber manufacturing business. On the 18th of June, 1840, an agreement for dissolution was executed by them, and a dissolution actually effected on the 24th of December in that year.

On the 30th of June, 1842, Hutchinson filed a bill against Onderdonk, in the Court of Chancery, praying, among other things, for an account and for a settlement of their partnership transactions,

Upon the coming in of the answer, a general replication was filed, and, by consent of the parties, a reference was made, on the 6th of April, 1843, to Joseph F. Randolph, Esq., a master of tho court, to take the account, with directions, in so doing, to make the parties all just allowances.

The master commenced his duties thereon, upon the 17th of the same month, and, after a laborious examination of their books and of the papers exhibited to him, and of the testimony of witnesses produced by them, he made a report, on the 81st of May, 1843, showing a balance due to Hutchinson, on that day, for principal and interest, of $113.01.

Both parties excepted to this report, and, in settling those exceptions, the Chancellor, on the 21st of March, 1848, directed that the report should be corrected on both sides; that the sum of $183.09 should be allowed to Onderdonk for commissions, ” by way of compensation for his services in settling the business of the said firm,” which claim had been refused by the master, and that $21.50 of $43, reported by the master to have been paid by Onderdonk to Hutchinson, and the further sum of $515, reported by the master to have been paid by Onderdonk to one Peier P. Runyon, as a debt of the firm, should be disallowed, and that the report should be corrected, by adding these sums, less the commissions allowed by him, as above stated, to the amount ascertained by the master to be due to Hutchinson, thereby changing the principal sum to be paid by Onderdonk, from $118.01 to $481.42, and decreed that the same should have interest from the third Tuesday of December, 1845.

Onderdonk has appealed to this court, from that decree, and hath set forth, in his petition, that the decree is erroneous, in that it disallowed the sum of $21.50, as a payment by him to Hutchinson, and also in that it disallowed the sum of $515, paid by him, on account of the firm, to Peter P. Runyon.

The correctness of the Chancellor's conclusion respecting the allowance, by the master, of $43, depends entirely upon the manner in which, in taking the accounts, the master charged the appellant.

It appears, by the bill and answer, that at or about the time ■of the dissolution of the firm, “an inventory was made out of the claims and demands.of the co-partnership,” &c., intended to e'm-brace all their claims, demands, and choses in action, and that a copy thereof was set out in a schedule marked A, annexed to the bill of complainant. That such inventory, and the claims and demands and assets, were taken, by the appellant, for the joint use .and benefit of the parties. After this arrangement was made, the respondent received, from one or more debtors of the late firm, the sum of $43, which moneys the master charged to him as so much cash paid by the appellant. If the master charged the •appellant only with the moneys which he actually received, the ■Chancellor is right in the-correction, but if he charged him with ■the inventory, the Chancellor has erred.

By reference to the report, we read that the master found that the appellant, subsequent to the dissolution, received of the debts and effects due and belonging to the late firm, the sum of $5603.13, as per Schedule I more fully appears. “That the said sum embraces all the moneys and effects of the partnership, which came to the hands of the defendant, and all the moneys and effects of the firm for which he should be made accountable. That the Schedule No. I embraces a list of all the accounts and notes specified in the bill, answer, and schedule thereto annexed in the charge filed with the master, and in Exhibit B on the part of the complainant, being a receipt of the defendant for the amount of the notes of the firm taken by him to collect, and also of the moneys of the firm not specified in said schedules and receipts that have been collected by the defendant, as admitted by him or proved by the evidence, except such notes,” &o., which exceptions do not touch or affect the question under consideration in this court.

It is evident, from the above explanation by the master of the character of his schedule, that it embraces all the claims due to the firm not specially excepted in the report, ánd hence, as the appellant was charged with them in reaching the balance reported against him, he was entitled to receive the benefit of them. The respondent, having collected $43 of these claims, should, under the circumstances of the dissolution, either have handed the money to the appellant, or have given him credit for the full amount thereof.

Upon this point we are of opinion that the master was correct in considering the $43 as so much money paid by the appellant to the respondent, and that the Chancellor erred in disturbing that part of the report.

Again. Was the payment claimed by the appellant to have been made by him to Peter P. Runyon rightly allowed to him by the master?

Mr. Runyon was the father-in-law of the appellant, and had been a fast friend of both parties during their connection in business. He had largely endorsed for them, and loaned them moneys, and had otherwise aided in carrying them through the troubles of those difficult times.

Mr. Runyon was examined as a witness by the appellant before the master, and upon his cross-examination he testified, among other things, that he expected some remuneration for his risk, independent of his interest money, if the experiment was successful.

Upon his re-examination-in-chief, he said $500 was paid to him for his risk by the agreement of both parties; and upon further cross-examination he stated that at first no specific sum was agreed on for his risk; that the $500 was agreed on some time during the progress of the dissolution ; that he offered to take a portion of the profits, or a specified sum, and that the complainant (who is this respondent) said it had better be a specific sum : that witness proposed this amount, and it was agreed to; that they agreed to it cheerfully, and particularly the complainant.

With the pleadings in the cause and this testimony before him, the master allowed the appellant a credit of $500, as due to Mr. Ruoyon on the 1st of July, 1840, and computed interest upon it to the 1st of January, 1841, to which date Mr. Runyon’s account with the firm was made up.

This transaction does not appear to the court in the same light it was viewed by the Chancellor. A competent, intelligent and animpeached witness has testified that the parties appreciated the services which he had rendered them; that between June 1st, and December 24th, 1840, they both agreed that he should have a compensation for those services; that after propositions had passed between them, he named the sum of $500 j that both cheerfully agreed to it, and particularly the respondent, and further that the money had been paid to him by the appellant.

We are clearly of opinion that this allowance was rightly made by the master, and that the report in that particular also was erroneously corrected.

The opinion of. the court is, that so much of the Chancellor’s decree as directs that the sums of $21.50 and $515, making together the sum of $536.50, be added to the amount ascertained by the master to be due to the complainant, be reversed, and that the master’s report upon these items be confirmed; and that so much of the said decree as fixes the amount due to the respondent at $546.40, be also reversed, without costs.

Let the cause be remitted to the court below, to be proceeded in there according to law and the rules of that court.

Per Int. our.

Decree reversed.


text:
    WILLIAM KENT, ANDREW C. ARMSTRONG ET AL., APPELLANTS, v. CHARLES M. ARMSTRONG, WILLIAM L. SALTER AND WIFE, ET AL., RESPONDENTS.
    A devise to E. B. of all the residue of testatrix’s estate, real, personal, and mixed, “ to be by her possessed, enjoyed, and occupied, to her, her heirs and assigns, forever,” with the proviso “if my said daughter E. R. should die without heirs and intestate,” then ail the devised estate to vest in her son C. and daughter M., and their heirs, creates a life estate only in E. R., in both real and personal estate, with power of disposal by will and not by deed.
    This case is reported ante p. 559.
    It was argued on the appeal by

      L W. Seudder and I’, D. Vroom, for the appellants, and

      A. S. Pennington and Wm, Pennington, for the respondents.
   Randolph, Justice,

delivered the opinion of the court.

Margaret Armstrong made aud duly executed her last will and testament, by which, after disposing of her plate to her four children, giving her husband a life estate in her house and lot in Elizabethtown, if he remained unmarried and occupied the same as a residence, but at his death, or when he should cease to comply with the conditions of the will, his devise was to become null and. void, and the house and lot and all the furniture therein except the plate, is to become the absolute property of her daughter Eliza Rosetta, “ to be taken and held under the like restrictions, limitations, and conditions as the property hereinafter be-- ’ queathed, to her.”

The testatrix then gives rings to each of her children as tokens of affection, and regretting her inability to provide more amply for them, but consoling herself that Edward and Margaret are in easy circumstances, and that Charles has the disposition and ability to provide for himself, she gives and bequeaths all the rest and residue of her estates, real, personal, and mixed, (subject to her husband’s life interest in some part thereof,) to her daughter Eliza Rosetta, “to be by her possessed, enjoyed, and occupied, to her, her heirs and assigns forever,” with the proviso, “ but if my said daughter Eliza should die without heirs and intestate, then my will is that all the 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 question for our consideration under this will is, what interest or estate did Eliza Rosetta take in the real and personal property of her mother ?

In the construction of wills, the primary and important inquiry is to ascertain the intention of the testator; indeed, pretty much all the rules for construing wills and devises are based upon what is the apparent or the presumed intention of the testator, and if that appears to be clear and not in violation of any established principle of law, that intention is to govern without further inquiry or regard to mere technical terms. 2 P. Wm. 741; Doug. 431; 4 Vesey 51. And in tender regard for the supposed situation of a testator, the law regards his acts with extreme indulgence, and without the presumptions which are raised against the grantor or the grantee of an estate. But in order as far as possible to sustain a uniformity in construing wills, courts, on the general presumption that such was the intention of testators, have settled the meaning of certain terms and principles as applicable alike to all wills wherein they occur or arise, and are not obviated by other matters. Thus the term “ die without issue,” standing uninfluenced by other parts of the will, is construed to mean an indefinite failure of issue, that is, a failure, not on the death of the first taker, but a-failure when all his issue or descendants shall cease, and this rule is on the presumption that, by “issue,” the devisor means all the children and their descendants of his devisee.

What, then, was the intention of the testatrix in this will? What estate did she intend to give to her daughter Eliza Rosetta, and what over to her son .Charles and daughter Margaret Salfer?

f n the first place, it is to become the absolute property of Eliza Rosetta, and to be to her and her heirs forever. Either of these terms alone would convey a fee simple, but this is not intended, for both are connected with the proviso that, “ if my said daughter Eliza Rosetta should die without heirs, and intestate,” then all the estate should go over to or vest in Charles and Margaret. Now, what was the object of inserting this proviso? Manifestly, in some wav to limit the absolute interest and fee simple previously given to Eliza Rosetta. But how limit? She was the particular object of her mother’s bounty, and to her and her children, if she had any, this absolute estate was to be given. But she was not the only object of the mother’s solicitude. She had other children who needed her aid, and she intended that her son Charles and daughter Margaret should have the estate, if her first devisee failed. Consistent with this special interest for Charles and Margaret, she intended that Eliza should have the whole estate or interest, be it what it may; it was to be possessed, enjoyed, and occupied by her for life, or, at will, to go to her children, if she had any, in such way as the mother, by will, should appoint, or as should arise under the devise. And this power of appointment, whether intentional or otherwise, by the generality of the words used, would extend to the sister and brothers, or to any others whom Eliza, by will, should designate. But Eliza might die without children, and without will or appointment by will. In that case, could it even have entered into the contemplation of the mother, whose “deepfelt regret” is expressed in the will, that she could not provide more amply for the other children, that she was giving Eliza an absolute interest in the estate, which she might convey by deed, and thus prevent its ever vesting in Charles and Margaret. The intention on the face of the will is, palpably, that Eliza was to take only such estate, and have such right and power only as that the property should go over to Charles and, Margaret in case of failure in the first devise. The only difficulty is, whether she has made use of such terms as will enable the court to carry out that intention without violating the settled principles of law.

“ Die without heirs ” is to be construed as the counsel conceded it to mean, without issue. Cro. Jac. 415; 3 Lev. 70; 1 P. Wm. 23; 2 Saund. P. 288, a, b.

The qualification thus understood would imply an indefinite failure of issue, (3 Llalst. 39; Spencer 6; 4 Kent 273,) and, without other qualification or annexation, would reduce the previously given absolute éstate of Eliza to an estate in fee tail in the realty, with a contingent remainder to Charles and Margaret. A devise to A B and his heirs, and if he die without issue, then to C in fee, being equivalent to a devise to A B and the heirs of his body, which is a fee tail at common law, or, under our statute, an estate for life. This would not, however, affect the personal property, as that cannot, unless under very special circumstances, be limited over after an indefinite failure of issue. It would, therefore, still remain the absolute property of Eliza. Forth v. Chapman, 1 P. Wm. 666; Ib. 564; 3 Atk. 288; 2 Ib. 88 (1); 2 T. R. 720; 4 Kent 275 (a); 11 Wend. 260.

But to the qualification, “die without heirs,” the testatrix his added the words, “and intestate,” and the whole case turns upon these two words, for Eliza Rosetta conveyed the real estate by deed, and afterwards died without issue, and intestate. What effect have these words on the estate, the qualification thereof, or both ?

There is a class of cases in which the doctrine is well settled, that when the will gives to the first taker an absolute power of alienation and disposal in express terms, or by necessary implication, he takes the absolute estate or fee simple, and the executory devise over is void as contrary thereto. Thus, in the Att’y-Gen. v. Hall, Fitzg. 314, real and personal estate was given to the son, and if he die without issue, then what he should be possessed of at his death was given over to the Goldsmith’s Company, of London; it was held that the term, “ what he should die possessed of” implied an absolute power of selling or disposal of the whole, which gave the first taker the whole -estate, and there was nothing to devise over. So in Ide v. Ide, 5 Mass. 500, what estate he shall leave is devised over, which Parsons, C. J., uays shows that it was the intention of the testator that the devisee should have an unqualified power of disposal of the estate at his pleasure, which implied a fee simple, and left nothing on which the executory devise could operate. So in Jackson v. Bull, 10 Johns. R. 19, there was a devise to M. in fee, and if lie died without issue the said property he died possessed of was given over to another, held for the same reason that M. took a fee, and the devise over was void. So also in Jackson v. Delancy, 11 Johns. R. 365, and 13 Ib. 537, and in Jackson v. Robbins, 15 Ib. 167, and in the same case in error, 16 Ib. 537. The cases arose under the will of Lord Stirling, of this state, by which he gave all his estates to B., his wife, her executors, administrators or assigns, but in case of her death without giving,' devising or bequeathing by will or otherwise, selling or assigning the said estate, or any part thereof, then the same, or such part as was undisposed of, was given over to his daughter, Lady Catharine Duer. It was held that the wife took the entire estate, and the devise over was void, though there were other points in the case which destroyed the plaintiff’s right of action. Chancellor Kent, in delivering the opinion of the Court of Errors, takes occasion to remark, that when an estate is given to a person generally or indefinitely, with a power of disposition, it carries a fee, and the only exception to the rule is when the testator gives the first taker an estate for life only by certain or express words, and annexes to it a power of disposal.

The extent of the rule was not involved in the case of Jackson v. Bobbins, or in any of the cases referred to, and the remarks, therefore, and distinction of the learned Chancellor were not required in the decision of the case, for in these cases the effect of the power controverted was full and absolute to the disposal of the whole estate by devising, selling, assigning or otherwise. And the authorities referred to on this point do not laeeessarily create such distinction, though they very clearly establish the rule that when an estate for life is given by will, with a power of disposal, then the devisee has but an estate for life, with a power which does not enlarge the estate. The cases are of express devises for life, with power of disposal, and are distinguished from mere naked powers to executors or others to sell or Convey; but if an estate for life is created in the first instance, with the power of disposal, it is of no consequence whether the life estate be created by express words or necessary implication or construction of the will. The same reasoning will apply to both, and of course the same rule should also. Tomlinson v. Dyton, 1 Salk 239; 1 P. Wm. 149 ; 2 Cox 396; 10 Vesey 370; 2 Wils. 6; see also 1 Sugden on Powers 119, 120, where the matter is fully discussed and cases cited.

Having shown the two classes of eases, viz., where a general and absolute power of disposal is given to the devisee, which create a fee simple, or when a life estate is given with a mere power of appointment or disposal to particular persons, or in a particular way, the question arises to which, if either, does the devise in this case to Eliza Rosetta belong? Here is no general and absolute power of disposal given in the will, either expressly or by implication, but the words can only imply a power to dispose of by will; and so, too, here is no life estate given by express terms, and can only arise, if at all, by fair construction of the will. Retaining in view, then, the manifest intention of the testatrix, what is the legal construction to be placed upon this devise and bequest. She first gives an absolute interest and fee simple, then adds the restriction, “die without heirs,” by which the fee is reduced to an estate tail, with-a contingent remainder, and to this restriction is added the words “ and intestate.” And then the inquiry arises, what effect are these words to have upon the restriction or the estate? Confined to the restriction, they merely change what was before an indefinite failure of issue to a definite failure upon the death of the first d.evisee, and so make the estate given to Eliza Rosetta either by the original devise of the fee simple and absolute interest, or by the general and absolute power of’disposal, as insisted by counsel, implied by the words “and intestate,” an absolute estate in fee simple, and the executory devise over to Charles and Margaret void.

No American authority has been cited or found which fully meets the question as it stands here and takes this view of it, and no English case to that effect has been adduced, except two of very recent date, and of no further authority in this court than what is due to the opinion of the judges who pronounced them, and the learning and reasoning by which they are sustained. All the cases except these two show an absolute power of disposal either expressly or by necessary implication, and we have seen that this class of cases of necessity creates a fee simple. But it has been before shown that you may create a life estate with a special power of appointment or devise over without this consequence following, because there is no general and absolute power of disposal given. The first of the two cases referred to is that of Cuthbert v. Perrine, 1 Jac. C. R. 441, which was a bequest to A to be paid at the age of 21, and if lie died under age, or after that period without heirs and intestate, then over ; and it was held that A took an absolute interest on arriving at the age of 21 years. This case belongs to a distinct class, different from the one under consideration, viz., when dying without issue is connected with the collateral contingency having reference to the age of the first taker, which is construed to mean a definite failure of issue, and to create an absolute estate in the first taker. Lewis on Perpet. 228 ; 1 Powell on Dev., by Janvin, 187, 8; 2 17;. 573, 9; and also Den v. Taylor & Shepherd, 2 South. 413; which is very nearly this ease. A devise to S. in fee, but if he die before he arrive at lawful age or has lawful issue, then over, was held to be a definite failure of issue, and created a fee in S. idee also 1 Taunton 174 ; and 3 Bing, 13. It thus appears that there is sufficient in the case of Guthbert v. Perrine to create precisely the interest decided by Sir T. Plummer to have been bequeathed, without reference to the words “intestate,” or requiring a construction thereon.

The other case relied on is that of Green v. Harvey, 1 Hare 428. The volume of reports embracing this case, has not been re-published in this country, and the only book in which I have been able to find any account of it is in Lewis on Perpetuities 230. It was a bequest of household property to a son, “ and should he die without heir or will,” then over, and it was held that, the son took an absolute interest, the gift over on the contingency of the legatee’s not making a will being held void. The case is certainly in point; but that the force of the decision is somewhat impaired, if not questioned, even in England, we have but to quote from the author just cited in introducing the case. A gift to take effect in the event of a person not exercising the power of disposition incident to the property or ownership which the testator or donor has vested in him is void; and if such a contingency cannot be contemplated, it is difficult to conceive what influence the mention of it can have on words importing a failure of issue, which ought, in that case, to be read independently of sue,h void collateral contingency.”

How far this view may have influenced the mind and opinion of Sir J. Wigram, V. C., it is impossible to say, for, the case being one of personalty only, if the words “ or will,” and the “ void contingency” were stricken out, the result of the case must have been the same.

According to the cases heretofore cited, “ die without issue ” created an estate tail in real estate and an absolute interest in a chattel or legacy. The same suggestions will apply, if it were necessary thus to appropriate them to the force of the word “ intestate,” in Cuthbert v. Perrine; and if we make the same application to the devise now under consideration, and strike out the void contingency “ and intestate,” the language of the will would create an estate tail, (a life interest under our statute) in Eliza Rosetta, in the real estate, with a contingent remainder in Charles and Margaret, and in the personalty an absolute interest in Eliza. But it is conceived that we have no right to strike out the words “and intestate” as a void contingency, because it is a well-settled principle in the construction of wills that, if it be possible, all the words in a devise or bequest are to be taken into consideration, and to have awarded to them their full import and meaning. 6 Cruise 171, 2; 2 Barr 770 ; 2 P. Wm, 282 ; 3 Yates 187; 4 Mass. 208.

And, in this respect, the reasoning, or rather the impression ” of Sir T. Plummer, in the case before cited, is considered defective; it is that the limitation over is not good, because “the absolute property is first given with the power of disposal as a consequence, and then it is given over if he die intestate,” The word intestate is used by the learned master to determine the failure of issue to be definite and then stricken out, without being .permitted to operate upon the nature of the interest bequeathed, to determine its character, but in lieu thereof the power of disposal and the character of the interest are assumed from the first bequest, without taking into consideration the contingency connected therewith or the qualification annexed to that; so in the ease now under consideration, the word intestate is used to change an indefinite failure of issue to that of a definite character, and then it is thrown aside without being permitted to operate on the character of the estate, but without its influence from the power given to the devisee to possess, enjoy and occupy the property for'herself and her heirs forever, subject to the restrictions, limitations and conditions of the will, an absolute interest is assumed, or else if the word is retained and suffered to operate at all, it is merely to neutralize the qualification of the estate “ die without issue ” and render the whole proviso nugatory, so that the construction is to be precisely as if the testatrix had bequeathed an absolute interest and estate in fee simple without any restrictions, conditions or limitations ” whatever.

How it is utterly impossible, from the face of this will, that either law or reason can presume any such intention on the part of the testatrix. The qualification and the addition were annexed to the devise to limit what would have otherwise been an absolute interest, and we have no right to make one defeat the other, unless some imperative rule of law requires it. But we have seen that an estate may be devised to one for life with a power to appoint or devise it over in fee. Adopting this as the construction, wc make every part of this will harmonize and every clause and word operative, and give full effect to the intention of the testatrix. We give to the favorite daughter all the interest and esfate which she can or was intended to have, preserve ihe interest from going into the hands of strangers and protect the devise over to the two other children. Cases are not uniform in England; slight circumstances of intention will often create a wide variance in the result. In Beacheraft v. Broome, 4 T. R. 441, under the words died without having settled, or otherwise disposed of the estate so devised, or without issue of the body, then over, Lord' Kenyon held the devise over good, as an executory devise; and in Doe v. Beeves, 7 T. R. 277, a devise to A. and her heirs, and if she die without issue, then A- to dispose of the whole by will or any other instrument in writing, attested by three witnesses as she should direct, limit or appoint, and for want of such issue and direction, then over in fee, the King’s Bench held the devise over good, as a contingent remainder. In Wright v. Atkins, 17 Vesey 255, and 19 Ib. 299, a devise to a wife and her heirs in the fullest confidence that after her decease she will devise the property to — family, it was held that the wife took an estate for life with remainder over in trust. In Mifflin v. Mifflin, 6 S. & B. 460, the Supreme Court of Pennsylvania held that a bequest to two sons, and if either die without will or lawful issue; then such, &c., over to the survivor and his heirs, gave a life estate to the legatee and an executory devise over. On the death of one, bis executors took the interest due, and the principal passed over to the survivor. And in Boyd’s Heirs v. Bingham, 4 Barr 102, the same court held that in a devise of all real and personal estate to a wife, her heirs and assigns forever, and to will the same to whom she pleases, on condition that she remains my widow, and in case of her marriage or death without a will, a devise over to other persons, the estate of the wife was held but a life interest, and that the devise over was good ; and although the wife remained unmarried and conveyed the estate by deed to B. B., and subsequently by will bequeathed the proceeds of the estate to B. B., yet the devise over was good, and the power to dispose of the property by will was not executed by conveying the same by deed and bequeathing the proceeds by will. The opinion of the court in this case by Chief Justice Gibson, placed the matter principally on the ground of intention; had his strong and lucid mind investigated the cases on the subject, his opinion would have been of more force and saved much labor in the present cause.

In Doe v. Howland, 8 Cowen 284, Savage, C. J., in delivering the opinion of the court, says, “ It is undoubtedly true that a devise with power to convey a fee, carries a fee, though a devise with power to devise in'fee carries but a life estate.” The remark was not essential to decide the cause, and so it is left to stand unsupported by reasoning or authority, yet whoever will consider the positions and examine the cases fully will find it difficult to come to a contrary conclusion.- The first proposition ¿s correct, because the power to convey in fee is a fee itself, and not a mere power; it is that which you cannot separate from a fee, being the absolute power or right of disposal in any way; but the power to devise in fee is a very different matter; not being itself a fee, but merely one of the attributes of a fee, it is a mere power and does not constitute a fee in the first devisee, as a power or right of general conveyance or disposal does, consequently the first devisee takes but an estate for life with a power j and no case of a devise contrary to this has been shown or discovered by the court.

When the power is to be executed by will it cannot be done by deed or otherwise. Boyd’s Heirs v. Bingham, before cited, 8 T. R. 57; 2 East 481.

It is said that an executory devise is indestructible; that it cannot be barred or destroyed by the holder of the preceding estate. How this rule only means that the first taker, as a general rule, cannot create a greater estate than he has ; having a defeasible estate he cannot create an indefeasible one; he can do uo act to prevent the vesting of the devise on the happening of the contingency, but he may prevent that occurrence. Mr. Fearne’s rule, as to the indestructibility of the devise by the holder of the preceding estate, does not apply, because the former does not proceed out of the latter, but is an independent estate, Wearne Ex. Dev. 418. And so is not indestructible by destroying the contingency, or vice versa. Thus the executory devise apon dying without a will is good; but if a will be made, the contingency is destroyed and so is the devise.

An executory devise may be so limited after an estate tail, and yet the tenant in tail may convey the estate by fine or recovery, and thus destroy the devise over. 16 Johns. R. 539 ; Powell on Dev., by Janvin, 246; Jarman on Wills 664; Cro. Jac. 592; Fearne, by Pow., 18.

The only question left for- our consideration is, whether the same doctrine applies to personal, that has been advanced as to real property. Where a fee-tail is created by will, the law, as before stated, creates a distinction between the real and personal estate, on the ground that it will not presume that the testator intended to limit personal property on an indefinite failure of issue, and, therefore, as to such property, is construed that the legatee under such a limitation has the absolute interest. But an executory devise only applies where the terms used imply a definite failure of issue, and of course the above distinction does not apply, but both real and personal property can and do go over on such definite failure of issue by way of executory devise. Hull v. Eddy, 2 Green 175; 16 Johns. R. 565, 584; 1 Jarman on Wills 793, (n. 2.)

We come, then, to the conclusion that in the real and personal property devised and beqeathed to Eliza Rosetta by the will of her mother, subject to the limitations therein expressed, she takes a life estate only, with a power of appointment or disposition by will ; and that in the event of her dying without issue and intestate, the executory devise over vested in her brother Charles and sister Margaret, and that they, therefore, are entitled to all the principal of the estate, which, of course, does not include interest, dividends, or rents and profits due at the death of Eliza; they go to her personal representatives.

The deed executed by Margaret Salter, Charles and Edward Armstrong, and the marriage settlement entered into between Eliza Rosetta and her future husband, and Judge Kent, can-in no way alter the above conclusion. The former only operates in confirmance of the power of their mother to execute a will under her marriage settlement, and the latter only on the property which Eliza Rosetta had a right to convey or absolutely control.

I am, therefore; of opinion that the decree below must be reversed and a decree entered in favor of the complainants, in accordance with the foregoing principles and conclusions.

In this opinion, Wall, Speer and McCarter, Judges, concurred.

Ogden, Justice, and Postee and Schenck, Judges, dissented.

Decree reversed.

Note. — Chancellor H., considering the questions involved in this case proper for the law courts to decide, and having given an opinion on the will when at the bar, referred it to the Supreme Court, and gave no opinion in the Court of Chancery, or the Court of Errors and Appeals. Kepobter.

Cited in Annin v. Vandoren, 2 McCar. 143; Downey v. Borden, 7 Vr. 469.