text:
    Bunnell and others against Read and another:
    IN ERROR.
    Where a contract was made between H, an individual living in New York, and P, a manufacturing company in this state, that P should convey to H, all the real estate and privileges used and occupied by P, in working the mills of the company, situated in the town of B; for which H promised to pay to P a certain sum of money, and to D, another sum; H performed on his part; and to carry this agreement into effect, on the part of P, he gave a deed of the property, describing it as situated in B; a portion of the property was in fact situated in the adjoining town of T, separated from the residue, only by an ideal township line, having been originally purchased and used for the purpose of a reservoir of water for the mills connected therewith, and necessary for their profitable enjoyment; on a bill in chancery, brought by a party claiming under H, for a legal title to the estate in T, it was held, 1. that whether the inaccuracy in the deed, was the result of fraud or mistake, the plaintiff was entitled to the relief sought; 2. that an interest vested in H, creating in him a trust, which was assignable and descendible, and which could be taken on execution.
    Where W, the grantee of D, in such case, claimed, that his deed was prior in time to the plaintiffs’ lien, and that when he received it, he had no notice of such lien; it was held, that if he would avail himself of his purchase and want of notice, it was incumbent upon him, in plea or answer, to aver those facts, and set out the consideration of his purchase.
    After a hearing on the merits and a decree passed, it is quite too late to except to the bill for want of proper parties.

      Qu. Whether it is necessary at all, to make a person, who has formerly had an interest in property, but which has since been wholly taken and set off on execution, a party to the suit?
    This was a bill in chancery, brought by Read and another against W. R. Bunnell and the Pequonnuck Manufacturing Company, praying for the correction of a deed, under which the plaintiffs claimed title in equity.
    The facts in the case were these. On the 5th of Novem

      ber, 1846, the Pequonnuck Manufacturing Company was justly indebted to Hubbell, Thatcher & Green, copartners, of the city of New York, in the sum of sixty-five thousand dollars, for a large portion of which they had mortgages on most of the real and personal estate of said manufacturing company. The same manufacturing company was, at that time, also indebted to Diantha Bunnell of Bridgeport, in the sum of about thirty thousand dollars, for which she held a mortgage on the same property, with other securities. This company being then in embarrassed circumstances, uniting with Mrs. Bunnell, proposed to Hubbell, Thatcher & Green, to convey to them to all their interest in certain personal estate, and also in all the real estate and privileges used and occupied, by the company, in working their mills, commonly called the Pequonnuck Mills, situated in Bridgeport, and that H. T. & G. should pay to Mrs. Bunnell ten thousand dollars.

      Fairfield,

    June, 1852.
    This proposition was accepted by H. T. & G.; and thereupon, said company and Mrs. Bunnell promised to convey the premises to H. T. & G.; and in pursuance of such agreement, said company and Mrs. Bunnell executed and delivered to said firm, deeds, purporting to convey to them, the real estate of said company in Bridgeport. Now, in fact, a portion of the real estate of said company lay in the town of Trumbull, standing, some, in the name of said company, and some in the name of Mrs. Bunnell. This real estate was purchased and held, by said company, for the purpose of ponding the water and using it, in connexion with, and for the purposes of, said mills; all which was known to said company and to Mrs Bunnell, but was not known to H. T. & G.

    The real estate aforesaid consisted of a piece of land, with a pond thereon, called “the upper pond.”
    It was the true intent and meaning of the parties, that the whole of said real estate should be conveyed to said firm; but the deeds of conveyance were drawn under the direction of the defendants, and by mistake, so as not to embrace the real estate in Trumbull; said H. T. & G., ignorant of the situation of said real estate, and supposing that all the real estate of the defendants connected with said mills, was embraced in the deeds, received them, in full satisfaction of the indebtedness of said company to them, and complied with the agreement on their part. The privilege of ponding the water on said real estate in Trumbull, is necessary to the profitable enjoyment and use of the mills.
    On the 8th day of December, 1846, H. T. & G. were indebted to the plaintiffs in the sum of four thousand dollars and upwards, when the plaintiffs commenced a suit against them, returnable to the superior court, by which they attached said real estate in Trumbull, and all the right, title and interest of H. T. & G. therein ; and having afterwards obtained judgment in said suit, for the sum of four thousand, eight hundred and fifty-seven dollars, sixty cents, damages, they had the execution issued on the judgment in said suit levied on said real estate in the town of Trumbull, and duly set off to the plaintiffs, whereby all the right, title and interest of H. T. & G. became vested in the plaintiffs. Afterwards, on the 1st day of May, 1848, Mrs. Bunnell, by her deed of that date released to William R. Bunnell, of Bridgeport, all her right, title and interest in the above-mentioned premises; by reason of which deed he now claims to own them.
    After finding these facts, the court decreed, that the legal title to the piece of land, with a pond thereon, called “the upper pond,” described in the bill, be vested in the plaintiffs, and they were decreed to be the owners of said piece of land, as their estate in fee simple.
    The defendants thereupon filed their motion in error, and brought the record before this court for revision.

      Hawley, for the plaintiffs in error,
    contended, 1. That no contract for the Trumbull land appears to have been made; as it is shown in the bill, that Hubbell, Thatcher & Green had no knowledge that any such property belonged to the Pequonnuck Co., or to Mrs. Bunnell. They, consequently, could not have contemplated it in their bargain.
    2. That it does not appear what part of the lands stood in the name of the Pequonnuck Co., nor what part in the name of Mrs. Bunnell, nor what interest or estate either had in any part of it; yet the decree vests an estate in fee simple in the plaintiffs. The bill should show facts warranting such a decree, and what part each defendant owned in the

      legal title, that the precise effect of the decree on each party, and especially on Wm. R. Bunnell, should appear.
    3. That Wm. R. Bunnell had no notice, that the Pequonnuck Co. had any estate or interest in the lands Mrs. Bunnell conveyed to him, nor that H. T. & G. had any claim by contract to the lands, or any part of them. He stands before the court, as a purchaser, for full consideration, without notice.

    The plaintiffs cannot have relief against him, unless he bought with notice, or without consideration. This can never be presumed, especially against a defendant. The plaintiffs, to entitle themselves to a decree against the defendants, must show that such was the case. They take the onus, and their bill must show it.
    4. That H. T. & G. had no estate or interest, which could be taken by levy of execution, as the plaintiffs have attempted to take it. They had a mere claim, by force of an executory contract—a mere chose in action—a mere right to call for the land, if they chose so to do—a right they might vindicate or waive, at their option.
    Neither our statute, nor any common law principle, warrants such a levy. An equitable interest in a term for years in real estate, cannot be taken. Metcalf v. Scholey, 2 New Rep. 461.
    A pledgor’s right to redeem cannot be. 1 Pick. 389.
    Nothing in our decisions warrants it;—for, in every instance, there was a positive, fixed, equitable estate vested, by force of an executed, uncontested contract—an equitable estate as positive as an equity of redemption.
    Such was the case in Whittlesey v. McMahon, 10 Conn. R. 137, in Botsford v. Beers, 11 Conn. R. 370, and in Davenport v. Lacon, 17 Conn. R. 278.
    In all these cases, the contracts were executed, and estates were vested, already, in the debtors. See 2 Sto. Eq. § 1040. c. 2 Spence, 264, 5, 6, and cases there cited.
    5. That H. T. & G. should have been parties to the suit.

      Dutton, for the defendants in error,
    contended, 1. That as the bill avers an agreement between the parties, that the Pequonnuck Manufacturing Company and Diantha Bunnell should convey the land in Trumbull to Hubbell, Thatcher &
      Green, and that, by mistake of the defendants, it was not conveyed, equity will correct such mistake. DeRiemer v. Cantillon, 4 Johns. Ch. R. 85. Young v. Craig, 2 Bibb, 270. Watson v. Wells, 5 Conn. R. 468.
    2. That the bill further avers, that in pursuance of this agreement, Hubbell, Thatcher & Green paid for those lands. When a man has paid for lands, equity will aid him in obtaining the legal title. Hopkins v. Stump, 2 Har. & Johns. 301.
    3. That as the bill avers, that all Mrs. Bunnell’s interest in the lands, was transferred to Wm. R. Bunnell, it was unnecessary to allege notice to him. If he had notice, and paid a valuable consideration, it was a matter within his own knowledge, and he should have pleaded it. If he purchased for a valuable consideration, and without notice, this also must be pleaded. Coop. Eq. Pl. 381. 2 Sw. Dig. 236.
    4. That by the levy of the plaintiffs’ execution, all the equitable title of H. T. & G. was transfered to the plaintiffs; and such an interest can be taken on execution. Hopkins v. Stump, ubi sup.
    5. That though the bill shows, that the whole legal title to the land in Trumbull, was part in the Pequonnuck Manufacturing Co. and part in Mrs. Bunnell, yet the whole equitable title was in the Pequonnuck Manufacturing Co. By the agreement with H. T. & G. the equitable title to the whole was vested in them; and by the levy of the execution, this was transferred to the plaintiffs. There was no necessity, therefore, of specifying how much of the legal title was in each of them respectively.
    6. That, in the absence of any plea or proof to the contrary, Wm. R. Bunnell merely represents Diantha Bunnell; and there is, therefore, no more need of particularity with regard to him than with regard to her. As neither Diantha, nor Wm. R. Bunnell, had any equitable right, they cannot be injured, by this proceeding.
   Church, Ch. J.

The superior court has found the averments in this bill to be true. Upon a first reading of it, there seems to be a doubt as to what property the parties to the deed to Hubbell, Thatcher & Green intended to include, by the description of the premises contained in it; and whether they meant to sell and to buy anything not situated in the town of Bridgeport. The defendants act upon the assumption, that nothing else was in contemplation, and that no other property was paid for, by Hubbell & Co. We think this is a false construction of the language of the bill, and a misapprehension of the object of the purchase.

Although the deed from the Pequonnuck Manufacturing Company and Diantha Bunnell to Hubbell, Thatcher & Green, referred to by the bill, does not, in its terms, describe property located out of Bridgeport, yet it is averred, that the proposition of the grantees was, to convey all the interest which the grantees had in all the real estate and privileges used and occupied, by the Pequonnuck Company, in working their mills; and it must have been equally the intention of the purchasers to buy them. But a portion of this property was in fact situated in the adjoining town of Trumbull, separated from the residue only by an ideal township line, and was originally purchased and used, for the purpose of a reservoir of water for the use of the mills themselves, and necessary for their profitable enjoyment. As we understand this bill, the only difficulty was, that Hubbell & Co., when they purchased, did not know that the town line separated the property they had contracted for, but the grantors did.

Whether the omission in the deed to give a full and accurate description of the property, was the result of fraud or mistake, is not material; in either alternative, a court of equity will interfere to do justice between the parties interested.

The superior court has found, that the intention of all the parties to the conveyance, was, that the property now in dispute should be conveyed to Hubbell & Co., as a part of their purchase, and that the whole was paid for, by them, by the satisfaction of their demand against the Pequonnuck Company, and the payment of the claim and mortgage of the said Diantha Bunnell.

If then Hubbell & Co. actually contracted and paid for the property in question, and either by fraud or mistake, have not received the legal title to it; yet they have a vested equitable interest and title, so that their grantors may be treated as holding the legal title in trust for them. 2 Sto. Eq. § 789. 1212. Champion v. Brown, 6 Johns. Ch. R. 398.

But it is objected, that, as Hubbell, Thatcher & Green claim nothing, and do not insist either upon fraud or mistake in the conveyance, these plaintiffs, strangers to the purchase, have no right to disturb it. If this had been merely a contract for a purchase, unexecuted on either side, by payment of the consideration, or possession taken, a mere chose in action, so that no interest, either legal or equitable, in the land itself, had vested, this argument might avail; but here, as we have said, an interest did vest in Hubbell & Co., so as to create a trust, which was assignable and descendible, and which could be taken on execution. 2 Sto. Eq. § 1212. Whittlesey v. McMahon, 10 Conn. R. 138. Beers v. Botsford, 11 Conn. R. 369. Davenport v. Lacon, 17 Conn. R. 278.

It must follow, from these premises, that these plaintiffs, creditors of Hubbell & Co., had a right to take their interest, by execution;-a right which does not depend upon the consent or coöperation of the debtors. Such equitable interest as Hubbell & Co. had in the property situated in the town of Trumbull, has been set off to the plaintiffs, their creditors, on execution, and it is the duty of a court of equity to make it available to them, unless some other objections of greater weight exist, that have yet been suggested.

It is however claimed, for William R. Bunnell, one of these defendants, that it does not any where appear, that he had notice of the condition of the title, when he received his deed, prior in time to the plaintiffs’ lien. This is true; but it does not appear, although he received a release or quit claim deed from Diantha Bunnell, that he was therefore a purchaser for valuable consideration, without which, he is not protected by want of notice, if indeed he was without notice. If he was such a purchaser, the fact was known to himself; and if he would avail himself of this and a want of notice, it was incumbent upon him, in plea or answer, to aver it, and set out the consideration of his purchase. 2 Sw. Dig. 236. Coop. Eq. Pl. 281. Mitf. Pl. 277 and notes.

Still another objection is made, which is, that Hubbell, Thatcher & Green are not made parties to this proceeding. The bill alleges, that these persons have no remaining interest in the property in dispute, which has all been taken, and set off on the plaintiffs’ execution. Why then should they be made parties? If they have in truth yet an outstanding interest, notwithstanding the allegations in the bill to the contrary, and the defendants would avail themselves of it, for any purpose, it should have been by demurrer, for want of parties, or in some other appropriate way. But however this may be, it is quite too late now, to make this objection in this way, as we have often decided. Lee v. The New London Bank, 11 Conn. R. 112.

We are satisfied, that no good objection exists against granting the prayer of this bill; and that the decree of the superior court should be affirmed.

In this opinion the other judges concurred, except Waite, J., who was disqualified under the late statute.

Judgment affirmed.


source: Caselaw Access Project

author: Waite, J.

license: Public Domain

text:
    Haight and wife against Turner and others.
    It is now fully settled, that the testimony of a juror cannot be received, for the purpose of setting aside a verdict, on the ground of mistake or misconduct of the jury.
    Therefore, where certain evidence had been introduced, which the court, in its charge to the jury, directed them to lay out of the case, and one of the jurors, who was willing to testify, was offered to prove, that the jury considered and acted upon such evidence, and that it materially influenced them in arriving at their verdict; it was held, that the testimony of such juror was inadmissible.
    Where the evidence exhibited on the trial, was detailed in a motion for a new trial; and the court, after a careful consideration of such evidence, could not say, that it satisfied the rule authorizing a new trial for a verdict against evidence; the new trial sought on that ground, was denied.
    Where the court, in an action for an injury, sustained by the plaintiff, in a stage-coach, instructed the jury, that if the defendant owned the horses, in the absence of all evidence to the contrary, it was reasonable to presume, that the driver having the controul of them, was placed in that situation, by the defendant’s consent, and that they were employed in his business; but that the contrary might be shewn; submitting the question to them as one of fact for them to decide; it was held, that the charge was unexceptionable.

      Fairfield,

    June, 1852.
    This was an action on the case, tried before the superior court for Fairfield county, at the February term, 1852.
    This action was brought to recover damages, for an injury sustained by the wife, while riding along the public highway, in the town of Wilton, from a certain stage-coach of the defendants, the horses of which had been so carelessly and negligently left, that they ran away with the coach, and occasioned the injury of which the plaintiffs complained.
    The plaintiffs having obtained a verdict for fifteen hundred dollars damages, the defendant, Turner, moved to set it aside, upon the ground, that certain evidence, which had been introduced by the plaintiffs, and which the court, in its charge to the jury, had directed them to lay out of the case, had nevertheless been received and acted upon by them, and had materially influenced them in arriving at their verdict. And to prove the allegations set forth in his motion, he offered the testimony of Cable, one of the jurors, in this cause, and who had consented to testify. To the admission of his testimony the plaintiffs objected; and the court rejected it, found the allegations untrue, and refused to set aside the verdict.
    He also filed a motion for a new trial, claiming, that the verdict was against the evidence, which was detailed at much length, and that the court erred in its charge to the jury. On the trial, it was a material question, whether Turner was interested in the stage and horses, and whether the driver, at the time of the injury, was acting as his servant, or only as the servant of Whitlock, another defendant.
    It was proved and admitted, that Turner was the owner of the wheel horses, by which the coach was drawn, and that the leading horse, was in charge of one Reed, a passenger in the coach, who wished to take the horse to Stamford; and for greater convenience, the horse, by direction of the driver, was harnessed into the team, as a leader.
    The plaintiffs claimed, that if Turner owned the horses, by which the coach was drawn, the law would presume the driver to be his agent, and requested the court so to charge the jury. The court did not so instruct them, but said to them, that if Turner owned the horses, in the absence of any contradictory, or explanatory evidence, it was reasonable to presume, that the driver, having the controul of them, was placed in that situation, by the consent of Turner, and that they were employed in his business; but that the contrary might be shewn; and that the question was not a question of law, but one of fact for the jury.
    The questions arising upon the motions, were reserved for the advice of this court.

      Hawley and Taylor, in support of the motions,
    contended, 1. That the verdict was against the evidence in the cause. It is apparent, that the jury must have misunderstood, or totally disregarded, the instructions of the court upon the evidence, or must have neglected properly to consider the facts, so that substantial justice has not been done. The verdict will, therefore, be set aside. Wendall v. Safford, 12 N. Hamp. 171. Thomas v. Hatch, 3 Sumner, 170. Sims v. McIntyre, 8 Sm. & Mar. 324.
    2. That the charge of the court was incorrect. It will forever preclude a man from letting his horses, without making him liable for the acts or carelessness of the bailee. Shall an act of kindness to a neighbour, in accommodating him with the use of your horses, render you liable for the acts of the bailee, or his servant, over whom you have no controul?
    3. That the evidence in support of the motion in arrest, ought to have been received. This evidence was offered, not to prove the misconduct of the jury, but to shew, that they misapprehended the charge and the evidence.

      Dutton and Butler, contra,
    contended, 1. That the evidence offered on the trial of the motion in arrest, was properly excluded. Meade v. Smith, 16 Conn. R. 346. 356. The State v. Freeman, 5 Conn. R. 348. Clum v. Smith, 5 Hill, 560.
    2. That the charge of the court was favourable to the defendants upon the point raised. So far as it is now excepted to, it was correct.
    3. That a new trial ought not to be granted, on the ground that the verdict was against the evidence in the cause. It has been repeatedly decided, and is well settled in this court, that the evidence must not be conflicting, and that the verdict must be clearly and manifestly against the weight of evidence, to authorize a new trial. But in this case, the evidence was conflicting throughout; and it not only justified, but required, the verdict given. Not only are the witnesses for the defence contradicted, by the plaintiffs’ witnesses, but they contradict each other, and some of them contradict themselves—i. e. the evidence given on the trial, is in conflict with the stories they had previously told.
   Waite, J.

Whatever opinions may formerly have been entertained upon the subject, the rule seems now to be fully settled, in England, in this state, and generally throughout the Union, that the testimony of a juror cannot be received for the purpose of setting aside a verdict, on the ground of mistake or misconduct, on the part of the jurors. Vaise v. Delaval, 1 Term R. 11. Owen v. Warburton, 1 New Rep. 326. Everett v. Youells, 4 Bar. & Adol. 681. (24 E. C. L. 141.) State of Conn. v. Freeman, 5 Conn. R. 348. Meade v. Smith, 16 Conn. R. 348. The People v. Columbia Common Pleas, 1 Wend. 297. Hannum v. The Inhabitants of Belchertown, 19 Pick. 311.

“The danger would be infinite,” says Lord Ellenborough, “if an affidavit could be received from a juryman, for the purpose of setting aside a verdict.” Rex v. Wooller, 2 Stark. R. 111. (3 E. C. L. 270.

It is however said, that the testimony was not offered to shew the misconduct of the jury, but their misapprehension. Whether their conduct was the result of an intentional disregard of the instruction of the court, or a misapprehension of their duty, the rule equally applies. The admission of such evidence would have a tendency to induce unsuccessful suitors to tamper with jurors, after their verdicts had been rendered, and to prevail upon them to come forward with disclosures to set their verdicts aside. It is far better that the rule should remain uniform and settled, than to suffer the consequences that would result from any relaxation.

2. The defendant Turner further claims, that the verdict against him, is against the evidence in the cause. We have carefully considered the evidence, as detailed n the motion, and cannot say, that the case is brought within the rule which will justify us in setting aside the verdict, and grant a new trial.

3. In the charge of the judge to the jury, we discover nothing erroneous. They were told, that if Turner owned the horses, in the absence of all evidence to the contrary, it was reasonable to presume, that the driver having the controul of them, was placed in that situation, by his consent, and that they were employed in his business; but that the contrary might be shewn; and the question was not one of law, but of fact for the jury.

The question was properly submitted to the jury, as one of fact for them to determine, uncontrouled by any rule of law. The presumption arising from the ownership of the horses, in the absence of evidence to the contrary, was a reasonable one. Every owner of personal property is presumed to have the possession, unless there be something in the case to justify a different conclusion.

We do not, therefore, advise a new trial.

In this opinion the other judges concurred, except Church, Ch. J., who was disqualified under the late statute.

Motion in arrest overruled;

New trial denied.


author: Storrs, J.

text:
    Ferry against Burchard:
    IN ERROR.
    By a true construction of the statute authorizing the magistrate, before whom two or more persons are brought, on complaint of an offence by them jointly committed, and a finding of probable cause, he is authorized to require each of them to become bound, with surety, for his own appearance only, before the court having cognizance of the offence.
    Therefore, where a justice of the peace, before whom A and B had been brought for examination, having found that there were probable grounds for supporting the complaint on which they had been arrested, ordered them to become bound, with surety, in a recognizance, conditioned that they should appear before the county court, at a time and place specified, to answer to such complaint, and abide the decision of the court thereon; and thereupon A and B, as principals with C, as surety, acknowledged themselves jointly and severally bound, in the sum required, conditioned that A and B should so appear, &c.; A and B made default of appearance; and in a suit brought on such bond of recognizance against C, it was held, 1. that, the order of the justice, by a just construction, required each of the principals to become bound for the appearance of the other; 2. that the justice was not authorized by law to make such order; 3. that as the bond was required of A and B as the condition of their liberation from imprisonment, it was not a voluntary bond on their part, but one entered into under duress; 4. that as against A and B, the bond was void; 5. that it was equally void, as against C, the surety, as well from the want of authority in the justice to require it, as from the nature of the undertaking of a surety; 5. that where the matters above stated appear in the declaration, the defendant may avail himself of his defence, by demurrer.
    Fairfield,
    June, 1852.
    This was an action of debt on bond, brought by Elias Burchard, as treasurer of the county of Fairfield, against Orris S. Ferry.

    The bond in question was a recognizance, entered into by Ferry, as surety for Jesse B. Raymond and Lewis Raymond, by order of a justice of the peace. The arrest and proceedings before the justice are minutely set forth in the declaration. The order of the justice and the recognizance thereupon entered into, after alleging the finding of the court, that there were probable grounds for supporting the complaint, are thus stated: “Whereupon it was considered by said court, that said Jesse B. Raymond and Lewis Raymond become bound, with surety, in a recognizance of two hundred dollars, to the treasurer of the county of Fairfield, conditioned that said Jesse B. Raymond and Lewis Raymond appear before the county court, to be holden at Fairfield, on the second Tuesday of December, 1849, then and there to answer said complaint, and abide the decision of said court thereon; whereupon, at said Wilton, oil said 23rd day of November, 1849, said Jesse B. Raymond and Lewis Raymond, as principals, and Orris S. Ferry, as surety, acknowledge themselves, jointly and severally, bound to the treasurer of Fairfield County, in the sum of two hundred dollars, on condition that said Jesse B. Raymond and Lewis Raymond should appear before the county court, to be holden at Fairfield, within and for the county of Fairfield, on the second Tuesday of November, 1849, then and there to answer to said complaint, and abide the decision of said court thereon.” The calling of the principals, at the county court, and their default of appearance, were then alleged.
    To the declaration of the plaintiff the defendant demurred; and thereupon judgment was rendered for the plaintiff. The defendant then filed his motion in error, bringing the record before this court for revision.

      Dutton and Ferry, for the plaintiffs in error,
    contended, 1. That the bond was illegally taken, and is void. Stat. 254. § 148. Lester v. State, 11 Conn. R. 415. Armstrong v. The United States, Peters’ C. C. 47. United States v. Brown, Gilpin, 155. 14 S. & R. 380. Fanan v. United States, 5 Peters, 374. United States v. Tingey, 5 Peters, 129. United States v. Morgan, 3 Wash. C. C. 10. United States v. Gordon, 7 Cranch, 287.
    The statute does not authorize a magistrate to require a defendant in a criminal cause, wherein there are several defendants, to procure surety for his co-defendants. Such a contradiction would involve this absurdity: a complaint is preferred against A and B for an offence cognizable by the superior court; A has friends and means; B has neither. The magistrate thereupon demands of A, under penalty of committal, a bond with surety, conditioned not only for his own appearance, but for that of B also. The same section which clothes the magistrate with any power to require bonds, also enjoins upon him, in case his order is not complied with, to commit. The very fact of his requiring such a recognizance as the present, implies duress.

    2. That if the bond is void, as to any of the parties, it is as to all. The claim, that the responsibility of the surety is at all altered, because he is a surety, is not set up, in any of the cases above cited, many of which are against the surety alone.
    3. That no presumption of law or justice would require the defendants in the original complaint to make a tender of a legal bond in order to avoid the effect of an illegal one.
    4. That the plea is correct. It is unnecessary to plead duress, when it appears on the face of the declaration. In the case of the United States v. Tingey, where duress was pleaded, the declaration did not exhibit, in any way, this defect in the plaintiff’s cause of action. But when the plea of duress was demurred to, the bond was pronounced void.

      Hawley and W. F. Taylor, (state’s attorney,)
    contended, That the bond in question was not entirely void, by reason that each of the persons complained of was required to become bound for the other.
    The order of court is to be construed according to its apparent intent; and no one can fail to see, on reading it, that the court did not intend to require each prisoner to become bound for the other: it requires each to become bound, with surety, for his own appearance, and this is all. If each had tendered or offered to give, such a bond, it clearly would have been a compliance with the order.
    The doings of justices are to be liberally construed, where there can be no doubt of their intent King v. Fuller, 3 Caines, 152. Day v. Wilbur, 2 Caines, 134. Pintard v. Tackington, 10 Johns. R. 104. Kline v. Husted, 3 Caines, 275. Picket v. Weaver, 5 Johns. R. 122. Rex v. Claxton, 3 East 58. Adams v. Supervisors, 8 Johns. R. 323.
    Courts construe sealed contracts, deliberately made, quite liberally. Chitt. Pl. 5. 7. 1 Sw. Dig. 133. James v. Emery, 8 Taunt. 245. Ecclestom v. Clipshan, 1 Saund. 153. & seq. Anderson v. Martindale, 1 East, 498. (very apposite.) 1 Selw. N. P. 480. 485. n.

    A covenant by several persons may be taken distributively, though there be no express words of severalty. Words, though never so joint, shall be taken severally, when they have a distinct subject matter to work upon. Shep. Touch. 167. n. Gridley v. Starr, 1 Root, 281. is much in point.
    In ascertaining whether a contract be joint or several, the only question is, whether the interest is joint or several. Servante v. James, 10 B. & Cres. 410. (21 E. C. L. 98.)
    Now, construe the judgment, just as you would a covenant, and the result is very clear. And this gives the construction both of the order and the bond. If so, then the whole difficulty is at end;—and if all the obligors were sued, there could be no objection taken by any of them. If this were not so, should not the record shew, that they offered to be severally bound, and were refused, and that they were
      compelled to give this bond? As no such fact appears, they must be considered as having voluntarily given this bond; and if they have voluntarily become bound for each other, they severally cannot object.
    At any rate, Ferry cannot object. He was under no duress. He has voluntarily assumed his obligation to have both in court; and this, by his several obligation. The case, therefore, stands on the same ground, as if he had given a sole bond, the others not having joined in it.
    In case of a joint and several bond, duress of one constitutes no defence for the other. A surety cannot plead duress of his principal. 1 Sw. Dig. 311. citing Roll. Abr. 687. Cro. Jac. 187. 1 Selw. N.P. 565. Chitt. Cont. 208. Bac. Abr. tit. Duress. B. Worcester v. Eaton, 13 Mass. R. 371.
   Storrs, J.

As the recognizance, on which the action against the plaintiff in error was brought, was entered into by him jointly with the principals for whom he was surety, pursuant to the order of the justice of the peace by whom the latter were bound over for trial to the county court, and the authority for requiring and taking it, is conferred solely by statute, if its condition is different from that which the statute prescribes in such cases, it is void, at least as against such principals, for a want of power or jurisdiction in the magistrate to take it. It is also voidable, in such case, on the ground, that, as it was one which he had no right to take, and was required, as the condition of their liberation from imprisonment, it must be deemed to have been not a voluntary bond on their part, but one entered into under duress.

It appears from the declaration, that this bond was such an one as the order of the justice required. If, as the plaintiff in error claims, that order directed each of the principals in it to become bound, that the other should appear before the county court and abide its judgment, it is clearly unauthorized, by the 148th section of the “act concerning crimes and punishments,” under which it is claimed to have been made. Stat. 254. By the true construction of that section, where several persons are jointly complained of before a justice, each of them, on a finding of probable cause, is to be required to become bound, with surety, only for his own appearance before the court having cognizance of the offence.

There being no recital of the order or recognizance in the pleadings, we can know nothing of the import of either of them, excepting from the averments in the declaration, where they are not described in terms, but only according to their legal effect. It is there alleged, that it was considered by the justice, “that the said J. B. R. and L. R. (the principals complained of,) become bound, with surety, in a recognizance, &c., conditioned that the said J. B. R. and L. R. appear before the county court, &c., and abide, &c.” and that thereupon “the said J. B. R. and L. R. as principals, and O. S. F. (the plaintiff in error,) as surety, acknowledged themselves jointly and severally bound to the treasurer, &c., in a recognizance, &c., on condition that the said J. B. R. and L. R. should appear before the county court, &c., and abide, &c.” The language of this allegation, in its ordinary and popular meaning, is clearly not susceptible of the construction that each of these principals was to become bound for the appearance of himself only, and not of the other. It is expressly and explicitly stated, that both were to be bound for the appearance of both, and of course each was to be bound for the appearance of the other.

The defendant in error endeavors to bring some of the rules of construction which have been adopted in reference to the proceedings of inferior magistrates, and to contracts, to bear upon this question, and claims, that, according to those rules, the order and recognizance are to be taken distributively with regard to the principals, so that each of them should be deemed to be holden only for his own appearance. Those rules of construction, however, are not applicable to pleadings, of which the declaration is a part. The rule as to them, is, that, in cases of doubt, they are to be construed most strongly against the pleader; who in this case is the defendant in error, the plaintiff below. The question here respects the meaning of the allegations in the declaration, and not of the order of the magistrates and recognizance, excepting as they are described by those allegations. Whether if the record of the order and bond were set out before us, and we were called on to put a construction upon them, we should give to them the distributive meaning here claimed for them, it is unnecessary to determine. On that point, it is enough to say, that they are not before us.

This bond, thlrefore, as against the principals in it, is void.

We are of opinion that it is also void, against the surety. In the first place, the objection to it, growing out of a want of authority in the magistrate to take it, applies equally to the surety of the principals, and renders it a nullity to all intents. In the next place, the nature of the undertaking of a surety is such, that there can be no obligation on his part, unless there is an obligation on the part of the principal. It is correctly laid down, in Chitty on Contracts, (p. 499.) that the contract of a surety is a collateral engagement for another, as distinguished from an original and direct agreement for the party’s own act; and, as stated in Theobald on Principal and Surety, (p. 2.) it is a corollary from the very definition of the contract of suretyship, that, the obligation of the surety, being accessory to the obligation of the principal debtor or obligor, it is of its essence that there should be a valid obligation of such a principal, and that the nullity of the principal obligation necessarily induces the nullity of the accessory. Without a principal, there can be no accessory. Nor can the obligation of the surety, as such, exceed that of the principal. In the present case, the recognizance of the principals being void, they were not bound by law to appear before the county court: hence it would be absurd to hold their surety liable for their non-appearance. In the last place, it would be most unjust and incongruous to hold the surety liable, where the principal is not bound; of which remark the present case would be a strong illustration, if the surety here were to be held liable. On the recovery against him, the whole loss of what he should be compelled to pay, would fall upon him, unless he would have a right to reimbursement from the principals; and if he would be entitled to indemnity from them, they would be in no better condition than if the bond were held to be valid against them.

The defendant in error has endeavoured to sustain the judgment below, on the ground, that the recognizance was entered into voluntarily, by the plaintiff in error, as surety; and that it is not competent for him to set up, that it was obtained by duress from the principals. It is not however necessary to examine this point, as we have already decided, that the recognizance is void, as well against the surety as the principals, on another ground, namely, that there was no authority in the magistrate to impose or take such an obligation.

This view of the case also disposes of the claim, that the defendant below could avail himself of his defence against the suit only by plea, and not by demurrer. If his defence was founded only on the duress of his principals, (supposing that such a defence would be available to him, which it is not necessary to examine,) perhaps it might properly be claimed, that, as such duress would make the obligation voidable only, but not void, and as it therefore would be good until avoided, the special matter of avoidance should be set up by plea. But as the declaration shews, that the bond was one which the magistrate had no power to take, and that it is therefore absolutely void, it discloses no cause of action, and a special plea was unnecessary.

For these reasons, the judgment of the superior court is reversed.

In this opinion the other judges concurred.

Judgment reversed.


author: Hinman, J.

text:
    Beers, executor of Josiah Sanford, against Lyon.
    The principal object of the statute of 1828, regarding assignments, was, to provide a responsible trustee to receive assigned property, and cause it to be equally distributed among the creditors of the assignor; and that statute should be liberally expounded so as to effect such object.
    Where an absolute bill of sale, of hats and other personal property in a hatter’s manufactory, was executed by A to B, his father, expressed to be, in consideration of 1500 dollars, received by the assignor, whereby he conveyed the estate under his hand and seal, and agreed to warrant and defend the title; at this time, A was in failing circumstances, and made the assign ment, with a view to his insolvency; but it also appeared, that no such consideration as that expressed was in fact paid or received; a note held by B against A was not given up, nor did B agree to pay another which he had signed jointly with A; no definite valuation of the property conveyed, was agreed upon, by the parties, though there was evidence to show, that the object of the assignment was, to pay said notes from the proceeds of the property, and to pass the surplus into the hands of an assignee under a general assignment of the residue of A’s property, then in contemplation, and shortly after made by him; in an action by B against an attaching creditor of A, for taking the property assigned, it was held, 1. that B was a trustee of such property, first, for the payment of said notes, and then for the general creditors of A; 2, that as the trust was not for the creditors equally in proportion to their respective claims, and was not in writing, the assignment was utterly void, as against the defendant, an attaching creditor of A.

      Fairfield,

    June, 1852.
    Where it appeared, on the trial of such action, that though upon the assignment, the key of the shop in which the goods were, was delivered to B, yet it soon got back into A’s hands, who was employed by B, to superintend the finishing of the hats, and fitting them for market; and all this was done at the shop where A had carried on his business, and B was not there more than three or four times between the assignment and the attachment, a period of eight days; it was held, that the possession of the goods was never changed, but was substantially retained by A; and on that ground also, the assignment made by A to B wag void.
    This was an action of trespass de bonis asportatis, for taking a quantity of hats and hat materials. The defendant pleaded the general issue, with notice that he should justify the taking, by virtue of writs of attachment, in favour of Samuel B. Peck and William A. Parsons, and also in favour of William B. Glover, against Julius Sanford, and the service of such writs, by him, the defendant, as a deputy sheriff.
    The cause was tried, at Fairfield, February term, 1852.
    There was much testimony on both sides, which was more or less conflicting. Among the facts which were either uncontroverted, or fully proved, were the following. On the 1st of February, 1849, the defendant, as deputy sheriff, took the goods specified in the declaration, by virtue of two writs of attachment, one in favour of Peck and Parsons, and the other in favour of W. B. Glover, against Julius Sanford; the goods then being at a manufactory in which said Julius had carried on the business of manufacturing hats. On the 17th day of January, 1849, said Julius had made an assignment of the same goods to his father, Josiah Sanford, by an instrument of the following tenor:

      "Know all men these presents, that I, Julius Sanford, Newtown, in the state of Connecticut, for the consideration of fifteen hundred dollars, received to my full satisfaction, of Josiah Sanford of said Newtown, have bargained and sold, conveyed and assigned, and by these presents, do grant, bargain, sell, assign and transfer to the said Josiah Sanford, the following articles of personal property, to wit, 6 dozen men’s finished hats, &c., [specifying the goods now in question :] To have and to hold the aforesaid property, to him, the said Josiah Sanford; and I do hereby agree to warrant and defend to the said Josiah Sanford, his heirs, executors, administrators, and assigns, said goods in consideration aforesaid, by these presents; of which said goods I do hereby give possession to the said Josiah Sanford.

    In witness whereof, I have hereunto set my hand and seal, this 17th day of January, 1849.

      Julius Sanford." [L. S.]
    In presence of Amos S. Treat.

    On the evening of the same day, Julius Sanford made a general assignment of the residue of his property to Moses Parsons, his father-in-law, to whom the keys of the shop were, at that time, delivered.
    At the time of making the first-mentioned assignment, Julius Sanford was indebted to Josiah Sanford, by a note, dated January 8th, 1849, for the sum of 556 dollars, 99 cents, with interest. Josiah Sanford had also signed, jointly with Julius, a note, dated, January 2nd, 1846, to Henry Beers, for eight hundred dollars, with interest annually, on which the interest which had become due, had been regularly paid and indorsed ; which note was signed by Josiah, as surety for Julius, for money advanced, to enable him, Julius, to carry on the hatting business.
    The cause turned on the validity of the assignment to Josiah Sanford, to which the testimony, on both sides, was principally directed. As the prominent features of such testimony are adverted to, in the opinion of the court, it will not be detailed here.
    At the close of the evidence, on the trial, the defendant requested the court to charge the jury, that if the facts were as stated by the plaintiff and his witnesses, regarding the bill of sale, and the disposition to be made of the surplus, if there should be any, the bill of sale would be void, as against the creditors of Julius Sanford, not being made in compliance with the statute law upon the subject of assignments made for the benefit of creditors. But the court did not charge the jury.

    The defendant further claimed, and asked the court to charge the jury, that if the plaintiff, after the bill of sale, employed the vendor to finish the hats for sale, and gave him the keys of the shop, and the charge of the property, and put him in possession of the property, in the manner and to the extent testified to, by the plaintiff and his witnesses, the property was liable to be attached, by the creditors of the vendor, as being transferred by a bill of sale, fraudulent and void, as against creditors. But the court did not so charge the jury.
    But the court charged the jury, that to constitute, as against the creditors of the vendor, a legal and valid sale and a transfer of personal property, capable of being removed, there must be an actual change and delivery of possession thereof to the vendee, and without expectation or intention of its coming back again into the custody, controul, and possession of the vendor; that a formal change of possession was not sufficient; and that a want of such real change of possession and controul, was not satisfied, by proof that the sale was made upon valuable and adequate consideration. And that the question here for the jury was, whether there had been such a real change of possession, and whether Julius had the superintendence and management of the hats, or any possession distinct from his father. And if there had not been such a change of possession and controul, the sale was fraudulent in law and void, as to the creditors of Julius.

    The plaintiff obtained a verdict; and the defendant thereupon moved for a new trial for the refusal of the court to charge as claimed by him, and also upon the ground that the verdict was manifestly against the evidence in the cause.

      Dutton and Belden, in support of the motion,
    contended, 1. That the court should have charged the jury, that according to the plaintiff’s own showing, the assignment was void as against creditors. According to the testimony both of the plaintiff and Julius Sanford, the surplus was to be paid over to the general assignee. In the first place, the general assignment was not made till after they had been to the shop. Secondly, such an assignment, if bad in part, would be bad for the whole.
    2. That Josiah Sanford would not be liable to account to Julius for the surplus. He would, therefore, hold it for himself, or for Julius' creditors. Stat. 363.
    3. That such a conveyance must be good, when made, or not at all. It was not certain then, that a general assignment would be made.
    4. That the conveyance stands on no better ground than if there had been no debt to be secured. A conveyance to Josiah Sanford of property, to be delivered to an assignee to be thereafter appointed, would be clearly bad, not only upon principles of the common law, but as contrary to the policy of the statute law. If there had been no general assignee appointed, the creditors would have been obliged to go into a court of chancery. If Josiah Sanford had not delivered over the property, the general assignee would have been obliged to do the same, or sue at law. This would delay creditors.
    5. That the court should have charged the jury, that by the plaintiff’s own showing, the conveyance was void, as to creditors. Both the parties to the conveyance, Josiah and Julius Sanford, say, that Josiah employed Julius to finish up the hats, and that Julius had the keys, at the time of the assignment. This, of course, left Julius in possession. Secondly, the circumstances, as proved by the plaintiff’s witnesses, are at least as strong as in Peck v. Whiting, ante, 206., where the court granted a new trial fora charge like the present. Thirdly, Julius swears that he had the general superintendence. This is all that is meant by possession. Fourthly, if the vendee can employ the vendor as agent, and the question is then to be left to the jury, whether this puts the vendor in possession; the rule amounts to nothing. Fifthly, the case, on the plaintiff’s testimony, shows, at least, a joint possession. The authorities are decisive, that such a possession renders the conveyance void, as against creditors. Wardell v. Smith, 2 Campb. Cas. 202. Sixthly, the point has been repeatedly ruled, in substance at least, as claimed by the defendant. Peck v. Whi

      ting, 21 Conn. R. 206. Bishop v. Warner, 19 Conn. R. 460. Carter v. Watkins, 14 Conn. R. 220. Osborne v. Tuller, 14 Conn. R. 529. Kirtland v. Snow, 20 Conn. R. 23. In Peck v. Whiting, and Kirtland v. Snow, the point was decided as a question of law.
    6. That the verdict is against the evidence in the whole cause. In the first place, this appears in all the particulars already specified. Secondly, there is no conflicting testimony as to the possession. The question is therefore really a question of law. Thirdly, if a verdict, under such circumstances, can be sustained, a vendor may always be employed to sell or work up the property. A nominal possession, by a vendee, would, in nine cases out of ten, satisfy a jury.

      Hawley and Treat, contra,
    contended, 1. That the bill of sale was not void, as claimed by the defendant. It was not an assignment or conveyance within the statute. Stat. 363. §1. Bates v. Coe, 10 Conn. R. 280. Its sole object was, to secure the payment of the liabilities of the vendor, not to third parties, but to the vendee. The provision regarding the surplus, was merely incidental. An action at law would have compelled the vendee, without any promise, to do the very thing he promised. Northrop’s exrs. v. Graves, 19 Conn. R. 548. 1 Sw. Dig. 398. Hall v. Marston, 17 Mass. R. 575. Claflin v. Godfrey, 21 Pick. 1. And surely honesty and equity here follow the law. St. John v. Camp, 17 Conn. R. 222.

      2. That there was no error in the refusal of the court to charge the jury, as claimed by defendant. The first question was one of fact,—whether the vendor or vendee had the legal possession and apparent ownership of the goods, and was, of course, for the jury, and not the court, to decide. The charge, as given, was unexceptionable. Avery v. Clemens, 18 Conn. R. 309. Kirtland v. Snow, 20 Conn. R. 52.
    3. That the verdict was not against the evidence, but is fully sustained by it. The sale and change of possession were open and notorious in the neighbourhood. Mills v. Camp, 14 Conn. R. 225. The process of manufacturing, before largely carried on, was, and from the transfer had been, notoriously and wholly discontinued. The presence Julius in the shop, as proved, was as the mere agent of, and mainly in company with, his father, and was unaccompanied with a single sign of apparent ownership in Julius, and did not, and could not, give him false credit. Julius had no possession or controul “ distinct from his father.” Ludlow v. Hurd, 19 Johns. R. 222. Allen v. Egerton, 3 Term R. 442.
   Hinman, J.

The defendant, a deputy sheriff, had writs of attachment in his hands, against Julius Sanford, and he attached, as said Sanford’s property, the goods in question. They consisted of hats, and hatting materials, and were found by the officer, at the manufactory where said Julius had been engaged in manufacturing hats: they were claimed however, by Josiah Sanford, the father of Julius, under an assignment made a few days previous to the attachment; and the question is, whether he can hold them against the attaching creditors of his son.

One point in the case is, whether Josiah Sanford’s assignment from his son, was not void, under the statute in reference to the assignment of property, by persons in failing circumstances, passed in 1828. That statute enacts, that all “ assignments of any lands, tenements, goods, chattels, or choses in action, made, directly or indirectly, by any person, in failing circumstances, with a view to his insolvency, to any person or persons, in trust for his creditors, or any of them, shall, as against the creditors of the person making such conveyance or assignment, be deemed and adjudged fraudulent and utterly void, unless the same shall be made in writing, for the benefit of all said creditors, in proportion to their respective claims, and be lodged for record, &c.” Stat. p. 363. The principal object of this statute undoubtedly was, as was said in the case of Bates v. Coe, 10 Conn. R. 280. to provide a responsible trustee, to receive assigned property, and cause it to be equally distributed among the creditors of the assignor. The law became necessary, because under the old system, assignments were frequently made to the confidential friends or connexions of the assignor, and the property kept, by the trustees, sometimes for their own personal use, but more generally for the use of the assignor; and hence it became a convenient way in which debtors in failing circumstances, were enabled to place their property out of the reach of attaching creditors, and at the same time, use it for their own purposes. The difficulty of making even responsible trustees account to the creditors, was so great as usually to prevent their attempting it; and it was, of course, never attempted, in the more common case, where the trustees were not responsible. It was, then, a statute made to prevent fraudulent conveyances; and hence it was passed as an “addition” to the act against such conveyances, as is shown by its title. Statutes of this description, we are told, should be liberally expounded so as, if possible, to answer the design of the legislature. With this principle in view, let us look at this assignment, and at the circumstances attending it, to see if, under this statute, it can be supported.

In the first place, it is not denied, that the bill of sale from Julius Sanford to his father, is embraced within the language of the statute. It is both a conveyance and an assignment of property. It is absolute, unconditional, formal, and precise in its terms—and for the consideration of 1500 dollars, which the assignor acknowledges he has received, it conveys the property, professes to deliver to the assignee the possession of it, and agrees to warrant and defend the title. And although a conveyance of personal property merely, yet it is executed under seal; and thus, in every particular, is about as solemn an instrument as could well be made—quite as solemn as we have ever seen made, for the purpose of conveying a few boxes of hats, some furs, and paper, and a few shop fixtures.

In the next place, the conveyance was made “by a person in failing circumstances, with a view to his insolvency,” This is abundantly shown by the proof. On the same day, and very soon after this conveyance, he made a general assignment of all his other property, excepting only such as was not liable to be taken on execution; and on the settlement of this estate, his creditors generally were paid only 24 cents on the dollar of their claims; and the plaintiff’s witnesses testify, that when the sale to him was made, the general assignment was in contemplation. Indeed, it is a part of the plaintiff’s case, which his proof supports most fully, that a contemplated surplus of the property conveyed to the plaintiff, over the amount of his own debt and the debt due Mr. Beers, was to be paid over to the general assignee. With all this evidence, it would not do to deny, and the plaintiff does not deny, either the contemplated insolvency of the assignor, or that the conveyance was made with a view to such insolvency.

The question then remains, whether the conveyance was an absolute sale for money, as it purports to have been; or whether it was, either in whole or in part, a conveyance in trust for his creditors, or any of them. If the former, it was a valid conveyance ; but if the latter position is true, then it must be admitted to be invalid, or, as the statute has it, “ utterly void,” as against his creditors. Now, it is worthy of observation, that this conveyance did not set forth the true contract between these parties. It can hardly be presumed, that it was intended for any such purpose. Why the parties preferred to take this course, we do not know. A jury might infer, that it was done because they supposed the truth would not answer their purposes; but we have nothing to do with that, in this part of the case. We only allude to it here, for the purpose of showing, that we are driven to look to the other evidence in the case, in order to determine the true nature of the contract, and thus to find whether this was an absolute sale, or a conveyance in trust.

What then was the real contract, which the instrument should have shown, and which the parties intended to carry out? We have seen what was the condition of the assignor,—that he was on the eve of insolvency. He owed his father a note of 556 dollars, and Mr. Beers another of 800 dollars, which his father had signed with him, as surety; and he owed other creditors to a much greater amount than the whole value of his estate. He wished to secure his father; and if that was all, nothing was easier than to have made him a mortgage, and let him take possession under it. They, however, did not choose this course, but chose rather that an absolute bill of sale, for the consideration, as it says, of 1500 dollars, received of the vendee, should be given, when in fact no such consideration was given. Nor, indeed, was there any consideration at all for such a conveyance as this. The plaintiff’s note was not given up; it was not treated as paid, by the conveyance; and they did not so consider it. Nor did the vendee agree with his son to pay the Beers note. The father’s liability to Beers and his own note would have been a good consideration for a mortgage; or, had he given up his own note as satisfied, and agreed with his son to pay the Beers debt, this would have been a consideration for an absolute conveyance of property to the amount of nearly 1500 dollars. But he carefully avoids taking a mortgage, and as carefully treating his debt as paid, and agreeing to pay Beers.

Again, the goods were not valued at 1500 dollars, or, indeed at any sum, excepting only as that in an ideal valuation put into the instrument, for the purpose of showing on paper, a consideration for the sale. On the contrary, the father and both his sons, Julius and Henry, say, that when the bill of sale was given, Julius spoke of the worth of the goods, as they named them; but the vendee did not agree with him, and was not willing to take them at his price; but he did take them, and agree to hand over the balance to the general assignee. And this was done, in order to avoid any difficulty in regard to the price. Henry's explanation of it is, that his father only wanted his pay for the two notes. He says, the goods were assigned to pay those notes; and that the notes were to be paid out of the proceeds of the property, as soon as his father could sell it. This is probably the true exposition of the agreement. The plaintiff’s witnesses, who speak on the subject, all agree in this substantially; and there is nothing to conflict with it.

Upon the plaintiff’s own showing, then, he takes the goods, without any price being fixed which he is to allow for them; he is to sell them, and out of the proceeds pay himself his own note; then, Mr. Beers' note, on which he is liable as surety; and he is to pay over the balance, if there be any, to the general assignee. We think this made him a trustee of these goods for the benefit of Mr. Beers, in the first place, and then as to the surplus, for the benefit of the creditors generally, through the trustee of property thereafter to be assigned for their benefit, and the assignment of which, the witnesses tell us, the parties contemplated.

A trust is an obligation arising out of a confidence reposed in the trustee, or person who has the legal title to property conveyed to him, that he will faithfully apply the property according to the confidence reposed; in other words, according to the wishes of the creator of the trust. This is the technical definition of a trust. 4 Kent’s Com. 304. & seq. There is no mystery in the idea of a trust. In a certain sense, a mere bailee or agent is a trustee; because he has property delivered to him, in the confidence that he will do with it according as he is directed by the bailor; but the word is not used in the statute in this sense. The statute requires, that the property must be conveyed to the trustee. He must take the title: until he takes the title, it remains the property of the bailor, and is liable to attachment for his debts. But where property is conveyed to another, in confidence that he will sell and apply the avails in a particular way, not for his own use, this, it would seem, must be a trust, if anything can be. Suppose the parties, instead of the instrument which they did execute, had reduced their real agreement to writing, what would have been its language? Could it have been anything else than this, in substance? In consideration that I am indebted to my father, in a note, and to Mr. Beers in another note, and to divers other creditors for whose benefit I contemplate assigning the balance of my estate,—I do sell and assign to my father the property, in trust, that he will sell and convert the same into money, and out of the avails pay his own note and also the said note of Mr. Beers; and in further trust, that the balance of said avails, if any remains after paying said two notes, he will pay over to such assignee as I shall hereafter appoint of my other property, to be applied by him as I shall direct in said assignment hereafter to be made. Could any one doubt that such an instrument would create a trust? Would any lawyer hesitate to factorize the vendee, as the trustee of Beers, irrespective of his indebtedness on the note itself? We think not. And we therefore hold, that this property was conveyed to Josiah Sanford in trust; and as it was not a trust for all the creditors equally in proportion to their respective claims; and moreover, was not in writing, and had none of the requisites of a legal trust under the statute, we hold it to be utterly void, as against the defendant, an attaching officer for creditors.

The point which we have been considering, seems to dispose of the case. A new trial must be granted, and on a ground, which, it would seem, must always prevent a recovery on the part of the plaintiff. Still we think a new trial should also be granted, on the ground that the possession of these goods was never changed, but Julius Sanford, the assignor, did always retain the possession of them, substantially. We know, that the witnesses testified, that the key of the shop in which the goods were, was delivered to the father; but it very soon got back into the son’s hands; and when the officer attached, the son not only had the key of the shop, but he was employed, by his father, to superintend the finishing up of the hats, and boxing them up for market. He says himself, that he was to arrange the things, in a proper manner, to be disposed of; that he only had charge of the property, as an agent; that he had the superintendence of getting up the hats; that he had the general superintendence under his father, and helped put the hats in order to be sold. Now, when we consider, that this was all done at the shop, where the assignor had carried on his business; that his father was not, or does not appear to have been, there, more than three or four times between the day of the assignment and the attachment, a period of about eight days; we think the case comes directly within the principle of all our late cases on this subject; and as we have said, in some of those cases, so we say in this, there was just about evidence enough of a change in the possession to satisfy an intelligent mind, that it was intended as a colourable, and not as a real, change. Kirtland v. Snow, 20 Conn. R. 23. Peck v. Whiting, 21 Conn. R. 206. and the cases therein cited.

We therefore advise a new trial, on both the grounds indicated.

In this opinion the other judges concurred, except Church, Ch. J., who was disqualified under the late statute, and Ellsworth, J., who dissented.

New trial granted.


author: Ellsworth, J.

text:
    Gold and wife against Judson and others.
    Fairfield,
    June, 1852.
    Though, for some purposes, a will is considered as speaking from its execution, the time of its inception, and for others, from the death of the testator, the time of its consummation; yet the general rule is, that it speaks from the death of the testator, where there is nothing in its language indicating a different intention.
    Where the testator, after giving portions of his estate to each of his brothers and sisters, and a nephew, or to the representatives of such as were deceased, devised to the heirs of each of his brothers and sisters, including the heirs of his sister N, the residue of his estate, to be equally divided between said heirs, each individual having an equal portion of the same; N died before the death of the testator, leaving a son, who died before the execution of the will, and he left a daughter, C, who is a party to the present suit; on an appeal from a decree of probate, it was held, 1. that the will spoke from the death of the testator; 2. that as N and her son, the father of C, were dead, at the time of that event, C was the heir of N, both in its technical and its popular sense; 3. that though the construction of any term used in a will, must be made with reference to all its parts, so that they shall, if possible, be allowed to have effect, yet to give the word heir a construction different from its usual and legal acceptation, the intention of the testator must be clear and decisive; 4. that the fact, that C and her sister took, under the will, a distinct legacy of 300 dollars, that this provision was inserted before any disposition was made of the residue, and that C is described, in one part of the will, as heir of her father, and in another part, as heir of her grand-mother,—neither of these considerations, nor all combined, were sufficient to vary the construction of “heirs of N,” so as to preclude C from taking under the residuary clause; 5. that C, and the other devisees under that clause, take per capita.

    This was an appeal from a decree of the court of probate for the district of Bridgeport, passed in January, 1851, or during distribution of the estate of David Judson, deceased.
    The decree appealed from was as follows: “Estate of David Judson, late of Huntington, in said district, deceased.
    Whereas it appears from the settlement of the administration account with said estate, that there is remaining for distribution in the hands of the administrator with the will annexed, the sum of one hundred and seventeen dollars, fifty-seven cents, in promissory notes, and six thousand, two hundred and ninety-eight dollars, ninety-nine cents, in cash; that sum including the avails of the real estate of said deceased, sold and conveyed, by all the persons claiming to be interested therein, under and by virtue of the provisions of the will of said deceased, making the whole amount for distribution six thousand, four hundred and sixteen dollars, fifty-six cents:—
    Ordered, that said estate be distributed, and that Messrs. Christopher N. Shelton, Zachariah L. Shelton and Joseph Tomlinson, of said town of Huntington, judicious, disinterested persons, be, and they hereby are, appointed distributors, and being first duly sworn, they are authorized and directed to assign, set out and distribute said estate to and among the several persons entitled to receive the same, under and according to the provisions of the last will and testament of said deceased, and according to law; that is to say, to set out and distribute the same, in equal shares and proportions, to and among the following persons, viz., William A. Judson, Ann M. Gibbs, and Rebecca B. Judson, children of Agur Judson; Nancy T. Judson and Hezekiah T. Judson, children of Roswell Judson, deceased; Caroline Simons, daughter of Nancy Lockwood, deceased ; Woolsey G. Sterling, Margaret A. Sterling, and Daniel H. Sterling, children of Hannah Sterling; and Alexander F. Sterling, son of Sally Sterling; and make return of their doings to this court.”
    The following is a transcript of the testator’s will:
    “I, David Judson of Huntington, do ordain this to be my last will and testament, in manner as follows; I give to the heirs of my nephew, Charles Lockwood, deceased, viz., Caroline Lockwood and Nancy Lockwood, the sum of six hundred dollars, to be equally divided between said heirs.
    I give to the heirs of my brother, Philo Judson, deceased, the sum of fourteen hundred dollars, to be equally divided between said heirs.
    I give to my sister Sally Sterling the sum of twelve hundred dollars.
    I give to Obed, a coloured man, living in Watertown, Litchfield county, Connecticut, son to Asahel, deceased, who was formerly servant to Agur Judson, of Huntington, deceased, the sum of one hundred dollars.
    I give to Silvia, a coloured woman, living in Watertown, Litchfield county, Ct., who was formerly a servant to Agur Judson, of Huntington, deceased, the sum of fifty dollars.
    I give to the heirs of my brother, Roswell Judson, deceased; the heirs of my sister, Nancy Lockwood; the heirs of my brother, Agur Judson; the heirs of my sister, Hannah Sterling; and the heirs of my sister, Sally Sterling, the residue of my estate, to be equally divided between said heirs, each individual alluded to having an equal portion of the same. In witness whereof, I hereunto set my hand and seal, the 23d day of July, A. D. 1840.

      David Judson. [L. S.]
    In presence of Edwin Shelton, Nathan W. Blackman, Sally Beardslee.”

    The appellants assigned the following reasons of appeal, alleging, that at the date and execution of said will, the testator had the following brothers and sisters then living, viz., Agur Judson, Hannah Sterling, wife of Daniel Sterling, Sally Sterling, wife of Frederick A. Sterling, and Nancy Lockwood, a widow. He had had two brothers also, who were then deceased, viz., Philo Judson, and Roswell Judson.

      Nancy Lockwood died about eight years afterwards, and before the death of the testator. She had two children,—Charles Lockwood, and Caroline, the wife of Samuel Simons, now deceased. Charles Lockwood died before the execution of the will, leaving two daughters, Caroline, now Mrs. Gold, and Nancy, now the wife of Henry Sanford.

      Philo Judson left six children, and Roswell Judson two.
    Mrs. Hannah Sterling has three children; Agur Judson, three; and Mrs. Sally Sterling, one; all of whom were born before the date of the will, and are still living, except Edward, son of Philo Judson, who died before the testator, and Hezekiah, son of Roswell Judson, who died since the death of the testator.
    The appellants therefore aver, that it was the true intent and meaning of the testator, in the residuary clause of his will, to devise and bequeath, and that he did thereby devise and bequeath to this appellant, Caroline Gold, as one of the heirs of the said Nancy Lockwood, the one-twelfth part of the residue of his estate, specified in said residuary clause, and that said court of probate should have decreed that the same should be distributed to her accordingly; or if not, that the testator, by said residuary clause, devised and bequeathed to this appellant and her said sister, jointly as children and representatives of their father Charles Lockwood, and thus as heirs of said Nancy Lockwood, the one undivided half of the share given to the heirs of Nancy

      Lockwood, the said share being one-fifth of said residue; and that the court of probate should have decreed a distribution of the same to them accordingly. The appellants therefore say, that said decree ought to be reversed and set aside, and that the court of probate should be directed to make a decree in conformity with the claims of the appellants.
    To the reasons thus assigned, the appellees demurred.
    The case was reserved for the advice of this court as to what judgment should be rendered thereon.

      Hawley and Dutton, for the appellants,
    contended, 1. That a devise to the heirs of a person, whether living or dead, is a devise to the person, who would take by distribution. 2 Wms. Exrs. 727.
    A legacy of personal property to A, “and failing him, by decease before me, to his heirs,” goes to the next of kin living at testator’s death. Vaux v. Henderson, 1 Jac. &. W. 388. n. c. Holloway v. Holloway, 5 Ves. 399.
    As to a legacy to such person or persons as shall be my heir or heirs at law, the master of the rolls said, “this is personal property, and it is said, that though heirs, &c., have a definite meaning as to real estate, yet as to personal estate, it must mean such person as the law points out to succeed to personal property: I am much inclined to think so.”
    A devise of a residue “among legal heirs,” means among legal distributees. Edling v. Long, 10 Ala. 203. So “next of kin, or heirs at law.” Lowndes v. Stone, 4 Ves. 649. Heirs means issue or descendants. Per Ball, J. 5 Barr, 266. All the heirs means children and grandchildren. Burkins' appeal, 3 Barr, 304. The word “heir” is to have its ordinary and natural sense, unless qualified by the will. Mounsey v. Blaimise, 4 Russ. Ch. 384. 3 Cond. E. Ch. 718. 2 Wms. Exrs. 726. 5 Ves. 401, 402. 2 Jarm. 743. [or 526.]
    2. That an additional devise to one of the persons answering the description, will not except such person. The devise of a residue, to be equally divided amongst the heirs of brother Ford, the heirs of my sister Nancy Stowe, the heirs of my sister, Sally Ward, deceased, and nephew, Levi Ward, being a son and heir of Sally Ward, was held to give Levi a quarter, and also a share as heir of Sally Ward. Stowe v. Ward, 3 Hawks, 604. A devise in trust for A for life, of 5000l., and after her death, to the heirs at law of the testator, of whom A was one, was held to vest a share of the reversion in A. Holloway v. Holloway, 5 Ves. 399. Per Lord Alvanley, Master of the Rolls, 8 Ves. 42. Doe d. Garner & al. v. Lawson & al. 3 East, 278.
    3. That the plain natural import of words is not to be controuled, except by explicit provisions in the will to the contrary. Philipps v. Chamberlaine, 4 Ves. 57. Per Master of the Rolls. Holloway v. Holloway, 5 Ves. 399. S. C. referred to 8 Ves. 42. 2 Sim. & St. 214.
    4. That the testator obviously intended to provide for all the descendants of the brothers and sisters named in his will.
    5. That the description of the appellants, as the heirs of Charles Lockwood, does not exclude them as the heirs of Nancy Lockwood, but the reverse. The heirs of Charles, would, of course, be the heirs of his mother Nancy.

    6. That the devisees took per capita. The devise gives it so expressly. Such would be the legal construction. Stowe v. Ward, 3 Hawks, 604. Blacklin v. Webb, 2 P. Wms. 383. Wild v. Bradbury, 2 Ves. 705. Northy v. Strange, 1 P. Wms. 340.
    7. That the residue is a family division. The prior legacies are only special favours.

      Jordan and Abernethy, for the appellees,
    remarked, in limine, that the words “heirs, &c.,” in the last clause of the will, are words of description or purchase, and not words of limitation. The estate was both real and personal, and the heir at law cannot take by the name of heir, in the life of his father. Nemo est haeres viventis. Jac. L. Dict. tit. Heir. 2 Leon. 70. Heard v. Horton, 1 Denio, 165. Hob. 30. Bla. Com. in loc. In strictness perhaps, a devise to the heirs of those living, (but not appearing to be by the will,) would be absolutely void; the word “heirs,” not being deemed descriptive, while that to the heirs of Sally Sterling, who appears by the will to be alive, would be valid, the word “heirs” in the latter case, being sufficiently descriptive. 1 Denio, 165. But the children of Sally Sterling, or those who are well described, have not however appealed, and that question is not now before the court.
    They then contended, 1. That the intention of the testator, (if not illegal,) is the law of the will—the polar star. And the court will ascertain and execute it, if possible, however inartificially or obscurely expressed. Ward on Legacies, 194. Lovelass on Wills, 274. 2 Pow. on Dev. 1. 5. 4 Kent's Com. 534. The court will put that construction on the language which upholds, rather than that which defeats, the will. Although the testator uses technical words, he will not be presumed to employ them in their legal sense, when the context shows he did not design so to employ them. Hodgson v. Ambrose, Doug. 341. Philips v. Garth, 3 Bro. C. C. 68. Roe d. Conolly v. Vernon & al. 5 East, 51. See Lord Ellenborough’s opinion, p. 78. As already seen, the word “ heirs” of a living person, in law has no meaning. But “heir” is a term frequently used in common language, to denote the child of a living parent. Darbison v. Beaumont, 1 P. Wms. 229. Heard v. Horton, 1 Denio, 170. Thomas v. Bennet, 2 P. Wms. 342. Loveday v. Hopkins, Amb. 273. Lord Beaubieu v. Lord Cardigan, Amb. 533. It is never so used to designate a grand-child.
    2. That in this case, it was the intention of the testator to give the residuum of his estate to the children of his brothers and sisters mentioned in the last clause of his will, but not to their grand-children, because such is the common acceptation of the terms employed; because such is consistent with the authorities above cited; and moreover, because the grand-children of Mrs. Lockwood had been once provided for, by the name of “the heirs of Charles Lockwood,” and it seems absurd to suppose that he intended to provide for them again, under the denomination of “heirs of their grand-mother, Nancy Lockwood.”

    There is nothing in the will denoting an intention to prefer the grand-children to the children, as they would be, if they first take their legacy, and then share equally per capita, taking between them double the share of any living child.
    3. That the legal construction of the word “children” accords with its popular signification, and does not comprehend grand-children; and though the precise word children is not used, the word “heirs,” which means the same thing, will receive the same construction. Duhamel v. Ardovin, 2 Ves. sen. 162. Reeves v. Brymer, 4 Ves. 698. Boyle v. Hamilton, Id. 439. 2 Pow on Dev. 298.
   Ellsworth, J.

We think the order of the probate court is erroneous, and should be set aside: the error is, in excluding the appellant, Caroline E. Gold, from an equal share in the residuum of David Judson's estate.

The language of the will, giving this residuum, is as follows: “I give to the heirs of my brother Roswell Judson, deceased, the heirs of my sister Nancy Lockwood, the heirs of my brother Agur Judson, the heirs of my sister Hannah Sterling and the heirs of my sister Sally Sterling, the residue of my estate, to be equally divided between said heirs, each individual alluded to having an equal portion of the same.”

One of the principal questions raised in the case, is, from what date the will is to be held to speak ; from its execution, or the death of the testator? We had occasion to examine this question in the case of Canfield's appeal, tried at Litchfield, on the present circuit. Canfield v. Bostwick & al. ante, 550. We there held, that the general rule is, that a will speaks from the death of the testator. We see nothing that distinguishes this from that case, or that relieves it from the rule stated.

For some purposes, a will is considered to speak from its execution, and for others, from the death of the testator; the former being the period of inception, and the latter that of the consummation of the instrument. To determine to which of these the language points, is not generally attended with difficulty, and certainly not, where the language used, is, as in this case, general, and not limited, and is broad enough in describing the subject matter of the bequest, to embrace all the residuum, and as to the devisees, all the persons who claim to take. Wherever a testator refers to an actually existing state of things, his language should be held as referring to the date of the will, and not to his death, as this is then a prospective event. Such, it is clear, is the construction of the word now. Thus, to the descendants now living of a person, means those living at the date of the will, exclusive of such as come into being between that period and the death of the testator. Crosby v. Close, Amb. 397. Abney v. Miller, 2 Atk. 593. Blundell v. Dunn, 1 Madd. 433. All Souls College v. Coddrington, 1 P. Wms. 597. And the same is true, where the word now is combined with a term which could not have full effect according to its technical import, unless used prospectively, as in the case of a devise to the heir male of the body of A, now living; under which the heir apparent of A, living at the date of the will, has been held to be entitled. 1 Eq. Ca. Abr. 214. 1 Vent. 334.

So words in the present tense have a similar effect: thus, all the property I am possessed of, at this date, (5 Ves. 816.) the devisee takes only what the testator then had. So in Bridgeman v. Dove, 3 Atk. 201. it was held, that a charge of all the debts I have contracted since 1735, extended to all debts owing by the testatrix, at her decease, including those she contracted after the period referred to. So in the description of the thing given, and the person or persons to whom given, it may be such as to embrace only the specific thing or persons described; as thus, the stock I now hold in Hartford Bank, or the children of my brother already born. But if the language is general, not specific, and not limited, the will speaks from the testator’s death, and of course disposes of whatever property the testator had, at that time, or to such persons as answer the description. So a general bequest of any particular species of personal property, as “my furniture and effects,” has been held to embrace property of this description belonging to the testator at his death. 3 P. Wms. 325. 1 Eq. Ca. Ab. 200. A will also is held to speak from the death of the testator in reference to gifts to classes, or fluctuating bodies of persons, as to children, descendants, or next of kin, which apply to the persons answering the description, at the death of the testator, irrespective of those to whom the description was applicable, at the date of the will, but who died in the testator’s life-time. And where property is given to classes, or fluctuating bodies, to be divided at a future time, those in esse, at the testator’s death, answering to the description, will take the whole, and the estate will open for others of the class born afterwards, but before the period of distribution. Bowers v. Porter, 4 Pick. 198. and the cases there cited. 5 Cush. 153. 232.

The language of the present statute in England, (1 Vic. 26.) is, “That every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.” This statute was passed to get rid of the principle in their law, that a will spoke from its date, as to real estate; for by their law, no real estate passed by a will, but what the testator had, when he made his will; but as to personal property, the law of England and of this state now is, and has ever been otherwise. We have a statute in relation to real estate, substantially like the English statute above referred to.

If, then, this will is to speak from the death of David Judson, the testator, the next enquiry is, did the appellant, Caroline A. Gold, at the death of the testator, answer the description, “the heirs of my sister, Nancy Lockwood ?” We think she did ; the said Nancy was dead, and the appellant and her sister were her grand-children, and Charles Lockwood, their father, was likewise dead. Why then is she not an heir of the said Nancy? She answers fully to the description.

There was no question made, on the trial, but that the word “heirs” was used in this will, as a word of purchase, descriptio personœ. Certainly as to the “ heirs” of Charles Lockwood and the “heirs” of Philo Judson, and the “ heirs” of Roswell Judson, this is so; for the will speaks of the ancestors as dead; and so a legacy of 1,200 dollars is given to Sally Sterling, and then the heirs take their share in their own right. Doubtless this construction of the word is correct throughout; and we are not disposed to make any distinction to the contrary, if it were less obvious. If the word “heirs” was held to be used otherwise, and in its strict technical sense, as one of limitation, and not of purchase, it might be difficult to see how the heirs of Hannah Sterling and of Agur Judson and of Sally Sterling can take at all; for these several parents were living at the death of the testator; and according to the familiar maxim, nemo est hares viventis, there were no such heirs in being. Bowers v. Porter, 4 Pick. 208. This distinction is here, however, of no importance; for the appellant’s father and her grand-mother, Nancy Lockwood, were both dead, at the death of the testator; so that she was the heir of both, according to the most technical accuracy.

If, then, the appellant was heir of Nancy Lockwood, she takes by the description of heir in the will, unless there be something in the other parts of the instrument, which shows that the word “heir” is not used in its usual and legal acceptation. On the argument it was contended, that this was the case. But evidence of such intent must be clear and decisive, or we cannot admit it to have such an effect. We are bound to suppose the testator used language in its usual and legal sense, and a devise to the heirs of a person generally, does not mean some of them, but all of them. The burden of proof lies upon the appellees.

And there is another familiar rule of law, which is applicable to this case, and must not be overlooked, viz., all parts of the will must, if possible, be allowed to have effect.

Now, the three circumstances which have been referred to, to prove the words “ heirs of Nancy Lockwood,” do not include the appellant and her sister, are, first, that the appellant and her sister, as the descendants of Charles Lockwood, take, by the will, a pecuniary legacy of 300 dollars; and if said Charles had lived, so as to have taken this portion himself, it is said, it would have been about 600 dollars. This accidental circumstance is of little weight; for, at the best, the amount of the testator’s property, at the date of his will, might have been different from what it was at the time of his death, and so the 600 dollars gives us no satisfactory rule. And so we perceive that the families of the brothers and sisters are not to participate with exact equality. Sally had a legacy of 1,200 dollars; yet her one child takes, as her heir, as much as the children severally of any of the other families, &c. We know not, nor can we speculate upon, the motives and purposes which influenced the testator in distributing his estate as he did, beyond what we find expressed in the will itself. We have no right to assume, that 600 dollars given to these grand-daughters, was, in the view of the testator, to exclude them from taking their shares of the residuum under the clear and unambiguous description of “the heirs of Nancy Lockwood.”

Nor does the second circumstance urged strike us with any more force, viz., that the appellant has this legacy of 300 dollars given her, in the first instance, in the will, and therefore she is not to participate in the residuum. Nothing is more common than for a testator to give legacies to the objects of his bounty, for the very purpose of making a distinction in their favour, and then order the residuum to be equally divided among all the devisees. He may have rendered unequal assistance to them while in life, and takes this method, as the last opportunity, to equalize their shares; or he may have thought it judicious, or there may have been other considerations, for this seeming partiality. The case of Holloway v. Holloway, 5 Ves. 399. if authority was necessary, is most decisive. The testator devised 5,000 l. in trust for his daughter for life, and then 1,000 l. of it after that, for another person, and the 4,000 l. in trust “for the person or persons who should be his heirs at law.” She and two other daughters were the testator’s heirs at law. Sir R. P. Arden, M. R., held the heirs, at the time of the testator’s death, to be entitled, from the absence of any expression showing that these words were something very especial. See 8 Ves. 42. Doe d. Garner & al. v. Lawson & al. 3 East, 278.

The third circumstance urged, is the fact, that these grand-daughters are, in the fore part of the will, called heirs of the testator’s nephew, Charles Lockwood, and, it is said, ought not, therefore, in the after part of the will, be held to be heirs of the grand-mother. It is true, they are first called “heirs,” but in the same clause, they are called children, and were it of importance, the language used in both places is matter of description, and nothing more. Certain it is, they are not the less heirs of Nancy Lockwood, and none the less included in that description, though they be heirs of said Charles. They are heirs of both; and this cannot be denied or evaded; and any inference to the contrary, drawn from this slight circumstance, is mere speculation.

We need not remark, that the devisees are to take per capita, this being the express language used in the will.

We advise, that there is error in the decree of probate, and that it be reversed.

In this opinion the other judges concurred.

Decree reversed.