text:
    Harper and wife against Phelps and wife.

      New-Haven,

    July, 1851.
    The testator gave to each of his brothers and his sister 10,000 dollars; to each of his nephews and nieces, of whom there were thirty-five, 5,000 dollars; and to each of his nephews and nieces in the second degree, of whom there were one hundred and twelve, 1,000 dollars. He then devised to C, a favourite niece living with him, at the making of the will, and continuing with him until his death, a dwelling-house in the city of New-Haven, to be furnished from his estate, in a manner suitable for her family’s use; and an annuity of 2,000 dollars, from a trust fund created by the will, during her life, for the support of herself, and of her nephews and nieces, whom she had then under her care, and of such other persons as she, from time to time, might wish and request to be members of her family. M, one of the testator’s nieces in the second degree, who had spent some time in his family, during his life-time, and received aid from him in support and tuition, being afterwards in feeble health and destitute condition, though not under C’s care, nor a member of her family, brought a bill in chancery against C, to obtain from her a portion of such annuity. Held, that the disposition of the annuity was left, by the will, entirely to the discretion of C, which it was not within the power of a court of equity to controul; consequently, the bill should be dismissed.
    It is a well established principle of equity, that to raise a trust, it must be ascertained what proportion each beneficiary is to take.

      Nor will a court of equity raise a trust from expressions importing recommendation, hope, confidence, desire, &c., where the objects of the trust are not certain and definite; or where the property, which is to be the subject of the trust, is not certain and definite; or where a clear choice to act, or not to act, is given; or where the prior dispositions import an absolute and uncontroulable ownership.
    This was a bill in chancery, seeking a reasonable proportion of the sum of 2,000 dollars, being the annual income of a fund devised by Samuel St. John for the benefit of his niece, Catharine S. St. John, one of the defendants.
    The material facts in the case appear in the report of the committee appointed by the court to ascertain them. By that report, the following facts are found. On the 12th day of September, 1844, Samuel St. John of New-Haven made and published his last will and testament, containing the following provisions. After directing the payment of his debts and funeral expenses, he disposed of all the residue of his estate as expressed in the subsequent articles. To each of his brothers, and his sister, living at the time of his death, ten thousand dollars. To each of his nephews and nieces, then living, five thousand dollars. To each of his nephews and nieces in the second degree, then living, one thousand dollars. The principal of these sums he devised and bequeathed to Isaac H. Townsend and Stephen D. Pardee, and the survivor of them, upon the trusts and for the purposes therein specified. The thirteenth and fourteenth articles of the will were as follows:
    “Thirteenth. In consideration of the kindness and attention of my niece, Catharine S. St. John, I give and devise to her, in fee simple and forever, the land and dwelling-house in the city of New-Haven, known as Number One, St. John Place: and I direct my executors to furnish the said dwelling-house with appropriate furniture, and in all respects, in a suitable and proper manner, at the expense of my estate; and I give and bequeath to my said niece, absolutely and forever, the furniture and other articles with which the said dwelling-house shall be furnished, pursuant to the above direction.

      Fourteenth. All the rest, residue and remainder of my estate I give, devise and bequeath to Isaac H. Townsend and Stephen D. Pardee, and the survivor of them, as joint tenants, in fee simple and forever, upon the trusts and for the purposes following—that is to say:
    Upon trust, to hold the same as a trust fund, and to manage the same as they shall deem expedient, and to receive and collect, from time to time, the income, interest and profits of the same, and the avails thereof; and of the nett proceeds of the said income, interest and profits, to pay the sum of two thousand dollars, to my niece, Catharine S. St. John, annually, during her natural life; and in the same proportion for the part of the year which may have elapsed at the time of her death; for the support of herself, and of her nephews and nieces whom she has now under her care, and of such other persons as she, from time to time, may wish and request to be members of her family; and the balance of the said nett proceeds to add, from time to time, to the principal of the trust fund under this article of this will, as part of the same.”

      Isaac H. Townsend and Stephen D. Pardee were appointed executors.
    The testator died, at New-Haven, on the 4th day of November, 1844, leaving real and personal estate of more than four hundred thousand dollars in value. The will was duly proved; the executors and trustees named therein, accepted the trusts, took possession of the estate and proceeded therein according to law. I. H. Townsend, one of the trustees, has since died, and S. D. Pardee is the survivor, on whom the duties under the will devolve. As surviving trustee, he now holds, for the uses and purposes mentioned in the 14th article of the will, real and personal estate of the testator, amounting in value to not less than seventy thousand dollars; the average nett annual income from which, since the death of the testator, has been three thousand dollars. The nett income from the same, at the end of the first year from the decease of the testator, was sixteen hundred and seventy dollars; and at the end of the current year, it will be not less than thirty-five hundred dollars.
    Mrs. Catharine S. Phelps, who is the person named Catharine S. St. John in the fourteenth article, at the decease of the testator, and for many years previous thereto, lived and resided with him, and had the superintendence, care and management of his household. Mary Jane Harper
      and Lucinda Amelia Baldwin, are her nieces, and nieces in the second degree of the testator. Lucinda Amelia entered the family of the testator, and resided as an inmate thereof, from the month of December, 1842, and was so residing therein, at the time of making the will, and at the time of the decease of the testator; and was, during all that time, under the care of the said Catharine, and received her maintenance and support from the voluntary bestowments of the testator.

      Mary Jane Harper, at the age of sixteen, came, uninvited, and commenced residing, as an inmate in the family of the testator, in the month of August, 1842, and so continued to reside until the first of January, 1844, attending the school of Miss Seeley, as a day scholar, and receiving, during all that time, her entire maintenance and support from the voluntary bestowments of the testator, which were furnished by said Catharine. From the first of January, 1844, until after the death of the testator, she received her board, and resided in the family of Miss Seeley, and continued a pupil of her school, under the direction of the testator, to qualify her to become a teacher; having her expenses of clothing and tuition paid by the testator, and furnished by said Catharine, exclusive of any expenses for board, except that from January, 1844, to April, 1844, her board was paid by the testator. During this period, from January, 1844, to the death of the testator, she frequently visited the house and family of the testator, called it her home, asked permission from him relative to her amusements, and took direction from him as to the employment of her time, while she was so boarding and residing in the house of Miss Seeley. At the time of the decease of the testator, she was of the age of eighteen years; and Lucinda Amelia of the age of sixteen years. They were then destitute of any means of support, and were especial objects of his affection and bounty, so far as it appears by the facts herein found.
    The trust fund continues to be held by Stephen D. Pardee, the survivor of the trustees, for the purposes mentioned in the fourteenth section of the will, who has received and collected, from time to time, the income, interest and profits thereof, and from the nett proceeds thereof, has, ever since the death of the testator, paid over to said Catharine, the said sum of two thousand dollars, annually, except the first year after the death of the testator, when the proceeds thereof amounted only to the sum of sixteen hundred and seventy dollars, which was duly paid to said Catharine; and which has been paid annually, under and pursuant to, and for the purposes mentioned in, the fourteenth article of the will; and the surviving trustee expects and intends to pay said sum of two thousand dollars, annually, during the life of said Catharine.

    Since the 9th day of July, 1847, when Mary Jane arrived at the age of twenty-one years, said Catharine S. Phelps, has refused to pay her any part of said sum of two thousand dollars, or to contribute, in any form, from said fund towards her support.

      William. A. St. John, and George S. St. John are the nephews of said Catharine S., and nephews in the second degree of the testator, and were minors under the age of twenty-one years, at his death: they each received, annually, some pecuniary aid from the testator, before his death; but they never resided in the family of said Catharine S., or of the testator, but occasionally, during the last year of the testator’s life, received remittances from him of money and stationery, to aid in their support and education.
    In the month of May, 1845, said Catharine S., upon the application of her brother, Benjamin St. John, the father of the nephews and nieces above named, for the sake of peace, and with a view, on her part, to compromise an unpleasant family difference arising from the claims of these nephews and nieces, denying her liability to contribute to them, or either of them, any part of said fund, entered into an agreement in writing, by which she agreed to allow them, while they should respectively be under the age of twenty-one years, as follows, viz., to each of her nieces, 15 per cent. and to each of her nephews 5 per cent. annually, of the 2,000 dollars, or any part thereof which she should be entitled to receive.
    Ever since the execution of this agreement, she has faithfully paid the sums therein stipulated to be paid.
    On or about the 17th day of March, 1848, Mary Jane requested of said Catharine, a continuance of 15 per cent. of the income of said fund; she, Mary Jane, being, at the time, in feeble health and in a destitute condition.

      The said Catharine S., resided with the testator, most of the time for several years before 1836; and in that year, she commenced living with him permanently, accompanying him in all his journeys and visits, and never thereafter, till his death, was separated from him. She went with him, in the autumn of 1836, through the Southern states to New-Orleans, the journey having been undertaken on account of his health, and returned North the following season. The testator had a disease in one of his eyes, which required careful attention and dressing, from once to three times a day; and she having received instructions from an occulist in New-York, was able to attend, and did attend, personally, to the same, from that period until his death. She had charge of the testator’s household and domestic affairs, during all that time, taking the principal management of the same, in making purchases and paying bills, and assisting him, in much of his other business, by keeping his accounts, and doing a large portion of his writing, under his directions and advice.
    The plaintiffs, Mary Jane and William R. Harper, intermarried, in the year 1848, and have ever since their intermarriage, resided in the state of New-York, where they now reside; and said Catharine S., has resided, ever since the death of the testator, in the state of Connecticut, where she now resides.
    Previous to the making of the agreement of May, 1845, she made some arrangements preparatory for house-keeping, in the house devised to her by the testator, which was to be furnished with furniture, as provided for in the will; but in consequence of ill health, which has ever since continued, she has not been able to complete her arrangements for housekeeping, or take the the charge or management of the same, and has not kept house since the death of the testator.
    At the time of making the will, and from that time to the death of the testator, there were no other nephews and nieces of said Catharine S., whom she had under care, than said children of her brother, Benjamin St. John; and these nephews and nieces were then under her care only as is above stated.
    At the time of the death of the testator, he left, surviving him, three brothers and one sister; thirty-five nephews and nieces; and one hundred and twelve nephews and nieces in the second degree.
    The case was reserved for the advice of this court as to what decree should be passed.

      Kimberly and C. A. Ingersoll, for the plaintiffs,
    contended, 1. That the plaintiff, Mary Jane Harper, one of the nieces of the defendant, Catharine S. St. John, is one of those designated in the 14th article of the will of the testator, as “her nephews and nieces whom she has now under her care." First, there were no other nephews and nieces of the defendant then under her care, than the children of Benjamin St. John, one of whom is the plaintiff. Secondly, the children of Benjamin St. John, were all, more or less, the peculiar objects of the testator’s regard, during his life. They were all, more or less, assisted by him; the two daughters had, for more than two years, resided under his roof, and had been members of his family; one of them was then actually residing in his house, and the other was by him supported at a boarding school, and receiving her education under his directions, while she continued to come and go at her pleasure, treating his home as her home, and receiving his advice and direction as to the employment of her time. And during all this time, the defendant was the house-keeper and stewardess of the testator; having the superintendence, care and direction of his family and affairs, and, with the money of the testator, actually furnishing the plaintiff with clothes and tuition. Thirdly, the plaintiff and her sister were poor and destitute of the means of support, and were the especial objects of the testator’s bounty, so far as appears by the facts found. 2. That the plaintiff had, at the decease of the testator, an absolute interest in the fund, provided and holden upon trust, under the 14th article of the will, not dependant upon the mere will and caprice of the defendant. In the first place, the court will look through all the provisions of the will, for the purpose of ascertaining what was the intent of the testator; and that intent, when discovered, is to govern, in giving a construction to each and every provision of the will. Ram, 31. 64. Secondly, it is apparent, that the testator did not intend the 2,000 dollars annuity provided by the

      14th section, for the sole and exclusive use of the defendant, or to be subject to her arbitrary pleasure, He appears to have designed, that all his relations in the same degree of consanguinity, should share equally in his bounty; with certain exceptions indeed, for which he has assigned his reasons. The defendant shares equally with the other nieces and nephews of the testator, in the provision made in a previous article of the will; and by another article, the testator has made a liberal special provision for the defendant, “in consideration of her kindness and attention to him" Now, it is difficult to understand why the separate provision, by a distinct article, should have been made, if it was designed solely for her separate use.
    3. That the defendant, then, does not take the 2,000 dollars annuity, as her own estate, but as trustee in part for the use of these nephews and nieces. This appears further from the express terms of the 14th article “for the support of herself and of her nephews and nieces now under her care." It is also in accordance with the general rule, that where one gives property to another for the use of a third, a trust is created in favour of such third person, unless it is clearly expressed that the trustee shall have an option to defeat it. Inglis v. Sailor's Snug Harbour, 3 Peters, 119. per Thompson, J. Jubber v. Jubber, 9 Sim. 503. Pushman v. Filliter, 3 Ves. 7. The continuance of the trust is not limited to the minority of the cestui que trust, or to the time of her intermarriage. No such limitation is expressed or alluded to, in the will; but, on the contrary, it is limited, by express terms, to the life of the trustee.

    4. That each of the four children of Benjamin St. John is entitled to one-fifth of the fund, so long as the trustee shall not choose to have other nephews and nieces members of her family. Of course, the plaintiff is entitled to that proportion, from the time she became of age till this time, and for the future, until there shall be some change in the relation of the parties to each other.

      R. I. Ingersoll and Baldwin, for the defendants,
    contended, 1. That the terms of the will import absolute ownership of the 2,000 dollars annuity, in Miss Catharine S. St. John, now Mrs. Phelps, whenever the trustees pay the money to her. It is given to her, for her life; payable to her, and to no one else. Her receipt, by the 8th article of the will, is made an effectual discharge, “for all money which shall be paid to her;” and the whole is left to her discretion, in the expenditure.
    Had the testator intended to create a trust for nephews and nieces under her care, and for such other persons as she might from time to time invite to her house, he would have made it similar to the other trusts of the will, and empowered his selected trustees, Townsend and Pardee, to execute it. Looking through the whole will, it would seem to be manifestly a harsh and strained construction, to say, that he intended, by this provision for his niece Mrs. Phelps, to make her the sub-trustee, of the general trustees. Nor is it to be supposed, in an instrument where every thing else is so plainly written, that he would have failed to say, that such was his intention, had he designed to create this peculiar trust upon a trust, that is contended for here.
    The language of the testator, whatever else may be said of it, imposes no legal obligation on Mrs. Phelps. It expresses, perhaps, the motive, or cause of the gift, but does not put a condition upon it. It is one of those cases where, to use the language of Judge Story, “the intention of the testator is to leave the whole subject, as a pure matter of discretion, to the good will and pleasure of the party enjoying his confidence and favour; and where his expressions of desire are intended as mere moral suggestions, to excite and aid that discretion, but not absolutely to controul or govern it.” 2 Sto. Eq. § 1069.
    2. That the uncertainty of the persons intended by “nephews and nieces whom she has now under her care, and of such other persons as she from time to time may wish and request to be members of her family”—would render it nugatory as a constructive trust. It never could be carried out, by any decree of a court of chancery. In the first place, the only nephews in the second degree of the testator, mentioned in the finding of the committee, Wm. A. St. John and George S. St. John, claimed to be the nephews here referred to—never resided in the family of the devisee; and it is not found, that they, or either of them, ever were, in any way, under her care.

      But secondly, the nephews and nieces here referred to, if we suppose them to be ascertained, are placed on the same footing as all other persons whom she may, from time to time, invite to partake of her bounty, and who are not, and cannot be, ascertained. The language of the will is, “her nephews and nieces whom she has now under her care, and of such other persons as she, from time to time, may wish and request to be members of her family. Suppose four-fifths, or any other portion of the 2,000 dollars annuity, should, by a decree of the court, be put aside, for these four nephews and nieces, and Mrs. Phelps should to-morrow invite 10, or 20, or 50 other persons to become members of her family, would not such a decree defeat the will of the testator? If she, by the terms of the will, can expend this fund as it comes to her hands, or such portion of it as she sees fit, on any persons whom she may from time to time prefer, as well as on the nephews and nieces, it is inconsistent with the idea of a trust. The language is too indefinite to predicate a trust upon it. See Curtiss & al. v. Rippon & al. 5 Madd. 263. (top,) 434. (side.) Jarman, 335. (top.) 339. (side,) and onward. 2 Sto. Eq. § 1069. Knight v. Knight, 3 Beavan, 148. Gilbert v. Chapin, 19 Conn. R. 342.
    3. That even if the objects had been clearly enough defined, instead of being left as here to the future discretion of the devisee, in her invitations to those whom she might desire to be members of her family; still there could be no trust, where the portions to go to each object are left in such absolute uncertainty.
    The court say, in Gilbert v. Chapin, 19 Conn. R. 347. “Here, though the objects and the property are well enough defined, yet the way in which the property shall go, how much each child shall take, is not pointed out, but left entirely to the discretion of the testator’s wife.” Adopting the language of the Chief Justice, in that recent case, in giving the opinion of the court: “We think in the will before us, that there is as much of this uncertainty of description, and of the portions which each child was to take, and as much of discretionary power conferred upon the devisee, as was adjudged in many of the cases referred to, to be sufficient to defeat the trusts there claimed.”
    4. That the other parts of the will, show, that the con struction now attempted to be put upon the 14th article does not belong to it. The testator had already provided for present plaintiff, Mrs. Harper, and all his nephews and nieces in the second degree, by the “fifth” article of the will, and named his trustees for them, Messrs. Townsend and Pardee. He had also provided a house and furniture for his niece Catharine, (now Mrs. Phelps,) and the 2,000 dollars annually given to her, was manifestly intended as a provision for supporting the establishment, as she might from time to time desire: it is made therefore to depend on her life, not on the lives of others, as it would have been, had it been intended for others independent of her.
    The expression “now under her care,” coupled with the other fact found, that the testator was educating Mrs. Harper, to enable her to become a teacher and thus support herself, is inconsistent with the idea, that she was to have a support independent of Mrs. Phelps; and this too, when of age, married, and having a family of her own, separated from the family of her aunt, living in another state, and in no respect under her care.
   Ellsworth, J.

The questions in this case arise upon the construction of the 14th article of the will of Samuel St. John, Esq. Does this article give to Mrs. Harper, one of the plaintiffs, a fixed and certain portion of the 2,000 dollars annuity to Catharine S. St. John, now Mrs. Phelps; and in case of her default in distributing it, can it be distributed by a court of chancery? Or, on the other hand, as claimed by the defendants, is the annuity given to Mrs. Phelps, to be expended, for her support and others in her own family, according to her wishes and pleasure?

At the first reading of this will, there is an apparent ambiguity as to the testator’s meaning in the language made use of, which strikes us with some doubt and surprise, when we find, that the other parts of the will exhibit such professional accuracy and precision. But a more attentive perusal and comparison of its provisions one with another, removes all doubt; and we are quite satisfied what is the meaning of the testator, and that that meaning is clearly enough expressed, by the language used.

He first gives 10,000 dollars to each of his four brothers and sister; then 5,000 dollars to each of his nephews and nieces, being in all thirty-five; then 1,000 dollars to each of his nephews and nieces in the second degree, being in all, one hundred and twelve. So far, by a three-fold classification, Mr. St. John puts all his relatives upon a corresponding equality. He next makes an additional bequest to Mrs. Sheffield, a favourite niece, who had once been a member of his family, of a dwelling-house in the city of New-Haven; and then, a like bequest to Mrs. Phelps, a favourite niece living with him, at the time of his death.

The house thus given to Mrs. Phelps is to be furnished from the estate, in a manner suitable for her family’s use; and an annuity of 2,000 dollars is given to her, to support her family, in a manner corresponding, as we believe, with what she had been accustomed to, in the family of her uncle, during his life. It is for herself likewise to say, who shall be the inmates of that family, though the article seems to assume that she will wish to continue her kindness in her family to such nephews and nieces as were then under her supervision and care. It is, we think, the clear expectation of the testator, that Catharine will keep an establishment in New-Haven, with such a family or inmates as will be agreeable to her to maintain; for she is to have the annuity of 2,000 dollars for that purpose alone; and no persons are to share in the annuity but through her pleasure and invitation—such as she may invite to dwell in the family with her—“members of her family,” is the expression used.

The annuity, let it be remembered, is given to her, for her life, to be paid to her; and she alone can receive it and execute a legal discharge for it. Had the testator intended to create a trust for nephews and nieces, and strangers, (for they too may become inmates,) he would have made it similar to the other trusts of the will, and would have empowered his confidential trustees, Townsend and Pardee, to execute it; as they do the other trusts of the will.

Looking through the whole will, it would seem manifestly a harsh and strained construction of the 14th article, to say, that the testator intended, by this provision, for his niece Mrs. Phelps, to make her the sub-trustee of the general trustees; and especially, as the trust terminates with her life, and the four nephews and nieces, claimed to have some special rights in this annuity, may survive their aunt, and be in dependent and necessitous circumstances. If the nephews and nieces were intended, by the will, to be the beneficiaries of the testator’s bounty, rather than that of Mrs. Phelps, it is strange, that the will, so carefully drawn, does not say so, explicitly. This would have been most natural. And why give her such discretionary power over a fund, which belongs absolutely, in part, to other persons? Why too, make the legacy dependent on her life, rather than on the lives of the beneficiaries themselves? No reason can be perceived why the testator is supposed to single out these children of his brother Benjamin to be the special objects of his favour and bounty; the nephews had never lived in his family; nor had they ever been under the care of his niece Catharine; nor does it appear, they were specially near to him. True, they had occasionally received aid, from his generosity, to defray the expenses of their schooling and support, as undoubtedly did other nephews and nieces. In his will, he manifestly ranks these nephews and nieces with the rest of his relatives in equal degree; and he gives each 5,000 dollars, and the annuity, in addition, to Mrs. Phelps. This annuity is given to her, over and above all else, in order to enable her to make them, and other relatives and strangers, if she pleased, objects of her favour, in her own family. Surely, the testator does not intend to make her his almoner, when he provides that her generosity, her election, her pleasure, shall denote the beneficiaries of this provision.

The language of the testator, whatever else may be said of it, imposes no legal obligation on Mrs. Phelps in the use or distribution of the annuity. He expresses perhaps the motive or cause of the gift; but he does not put a condition upon it, and place her under a legal responsibility to others. The disposition of the annuity belongs to that class of cases where it is the intention of the testator to leave the whole subject of disposition, as a pure matter of discretion, to the judgment and pleasure of the party enjoying his special confidence; and where his expressions of desire are intended as mere moral suggestions to excite and aid that discretion, but not absolutely to controul and govern it, or in the language of Ch. J. Church, in Gilbert v. Chapin, 19 Conn. R. 348. “No trust will be raised, by expressions in a will importing recommendation, hope, confidence, desire, &c., &c., unless there be certainty as to the parties who are to take; nor if a discretion whether to act or not, be left with a devisee, or so called trustee.” It is a principle of equity, well established by numerous cases, that to raise a trust, it must be ascertained what proportion each beneficiary is to take. Bardswell v. Bardswell, 9 Sim. 320. Pope v. Pope, 10 Sim. 1. Curtis v. Rippon, 1 Madd. R. 434. Knight v. Knight, 3 Beavan, 148. 1 Jarm. on Wills, 338. Now, who will assert, that in this article in Mr. St. John’s will, the beneficiaries, or their proportions, except Mrs. Phelps, are definitely ascertained and fixed; or that any practicable rule for ascertaining either, is given? She may invite into the family whom she pleases, relatives or strangers; but this election is too indefinite as a rule of property, and as such, must therefore, be held void and inoperative. Besides, the two nieces Mary Jane and Lucinda Amelia, “now under her care,” though alluded to, in the manner of her enjoying the legacy, as possibly to be members of her family, the nephews, William A. and George S., are not so alluded to; nor were they ever subjects of her care, nor nearer to her than the other nephews and nieces of herself, or of the testator. Wherever the objects of the supposed recommendatory trust are not certain or definite; or wherever the property to which it is to be attached, is not certain or definite; or wherever a clear discretion and Choice to act, or not to act, is given; or wherever the prior dispositions import absolute and uncontroulable ownership; in all such cases, courts of equity will not create a trust from words of this character. 2 Sto. Eq. § 1069. 1070. 3 Beavan, 148. Gilbert v. Chapin, 19 Conn. R. 342. and cases there cited.

The plaintiffs then fail to make out a case for distributing this annuity fund. They present no certain rule for settling the distribution, or the supposed share belonging to Mrs. Harper. They talk of one-fifth as a rule, it is true; but for what reason we cannot apprehend. Before we can feel it to be our duty to adopt that principle of distribution, we should unhesitatingly pronounce this bequest to be utterly void for uncertainty and indefiniteness. We have already alluded to another difficulty, which appears to us insurmountable by the plaintiff, unless we are prepared to discard the intention of Mr. St. John in his bounty towards Mrs. Phelps. The annuity is to be paid to Mrs. Phelps, primarily to support her family. A furnished house is provided for her; and the annuity is to enable her to live in it, in a style, as we think, corresponding with the rank and habits of life, in which she had lived, in her uncle’s family. Surely, he did not mean, that as soon as he was dead, she should be forced to earn a livelihood, by taking boarders in her elegant and “furnished" house, or to live upon a scanty allowance inadequate to the maintenance of the establishment committed to her care. Is it possible, that Mrs. Phelps, after this generous provision for a respectable family establishment, is to be deprived of this provision, and to pay over four-fifths of the annuity to four nephews and nieces, leaving for herself only 400 dollars, to fulfill the wishes of the testator? And to do this too, irrespective of their places of residence, or their necessities and circumstances in life; or is she to be compelled to receive them into her family, whatever may be her own situation, even though they become ever so unworthy of her care, and utterly indifferent to her comfort and happiness?

And further, if this annuity is to be considered a trust, why is it not, as we have already hinted, put into the hands of the selected trustees, Townsend and Pardee, for the beneficiaries of the testator, and not paid over by them to a sub-trustee for the same identical purpose, imposing an onerous burden upon an inexperienced and delicate female, who too might contract new relations in life, inconsistent with the trust, and, as it might be, take up her residence abroad, in this or any foreign country? And further, we have already said, that the legacy is made to fall with her life, even though she may die immediately after the testator. A strange provision this for nephews and nieces!

Our conclusion is, that the superior court be advised, that the plaintiffs’ bill be dismissed, with costs.

In this opinion the other Judges concurred.

Bill dismissed.

         To avoid unnecessary prolixity, the twelfth article, here referred to, and some other portions of the will, occasionally alluded to, have been omitted, in the statement of the case.


source: Caselaw Access Project

author: Church, Ch. J.

license: Public Domain

text:
    The State against Wolcott and another.
    New-Haven,
    July, 1851.
    The ninth section of the bill of rights in the constitution of this state, is not applicable to an enquiry before a grand-jury; nor is it essential to the validity of an indictment, that the accused should be present at such enquiry, or that notice should be given him for that purpose.
    Therefore, where the accused, during the enquiry by the grand-jury, which resulted in an indictment against him, was confined in the state’s prison, had no notice of the proceedings against him, and no opportunity to be present, and was not present; it was held, that the indictment was not thereby invalidated.
    It is not usual for the court, without special reasons, suggested, on application, to give directions regarding witnesses to be called before the grand-jury.
    Therefore, where D, an accomplice in the crime charged, went before the grand-jury, and testified, as a witness, without the direction or permission of the court; it was held, that the indictment was not thereby invalidated.
    If the accused plead Not guilty, and proceed to trial, without suggesting such objections, they will be considered as waived by him.
    Where D, an accomplice, having testified, on the trial before the petit jury, witnesses were called to prove circumstances tending to corroborate the testimony of D; it was held, that the evidence of such witnesses was admissible.
    An accomplice is a competent witness to prove the crime charged, before the grand-jury, or the petit jury.
    The testimony of an accomplice, without corroboration, the law considers as credible, in some degree, and may be sufficiently so to produce conviction; which is a matter exclusively for the jury to determine.
    This was an indictment for burning a dwelling-house, whereby the lives of persons were endangered. John W. Wolcott was indicted as principal in the offence, and Elisha W. Wolcott as an accessory, aiding in the commission thereof.
    The accused pleaded, severally, Not guilty; and the cause was tried, at New-Haven, October term, 1850. After a full hearing, it was committed to the jury, who found them, severally, guilty.

    The accused thereupon moved in arrest of judgment, on two grounds: 1. That when the bill of indictment under which they were tried, was before the grand-jury for their consideration, and witnesses were examined with reference to the truth of the allegations therein contained, the accused were confined in Connecticut state prison; which was well known to the state’s attorney, who drew up and furnished to the grand-jury, the bill of indictment; and the accused, at the time of such inquest, were wholly ignorant thereof, and had no notice of the time and place of the meetings of the grand-jury, and no opportunity to be present and cross-examine the witnesses summoned to testify against them. 2. That during the examination, by the grand-jury, William A. Dickerman went before them, and testified, as a witness, without the permission of the court having been obtained therefor, though he was an accomplice in the crime charged in the indictment.
    On the trial of the cause to the jury, it was proved and admitted, that at about the hour of 12 o’clock, on the night of January 8th, 1850, the dwelling-house of William H. Ellis, in which he and his wife were then sleeping, was feloniously set on fire; and to prove that the prisoners committed the crime, as charged against them in the bill of indictment, the attorney for the state called as a witness William A. Dickerman, who testified, that, in various conversations had by the prisoners and witness, during a period of two or three weeks previous to the fire, it was arranged and agreed, that said dwelling-house should be set on fire, in consequence of a prosecution against Elisha M. Wolcott, which, it was supposed, Ellis had been instrumental in causing to be made; and that to prevent Elisha from being suspected of the crime, as he was known to Ellis, it was arranged, that he should go to Hartford, and be there, at the time when the house was set on fire. He further testified, that on the Saturday evening previous to the fire, the prisoners and the witness were at Onthank's store, and, in a conversation with Amos Thomas, they were informed by him, that the hose of the fire-engine, in that part of the town, had been sent to Boston to be repaired. It was in consequence agreed, that the house should be set on fire, before the hose was returned, that the fire might not be extinguished. That in pursuance of the arrangement, Elisha went to Hartford; and John W. Wolcott, with the assistance of the witness, set fire to the house, by boring an auger hole through the clapboards, and inserting therein some rags saturated with oil and spirits of turpentine, and then setting fire to the rags. That on the Friday after the fire, Elisha
      returned from Hartford, and in conversation with the witness and the other prisoner, expressed his satisfaction with what had been done, and said to them, that he would go to Ellis, and ask him to assist the prisoner in the purchase of some blacksmith’s tools, adding that Ellis would not suspect him, if he came to him for assistance. That he accordingly went to Ellis, and came back, saying that the old devil did not then even suspect them; and detailed to them the conversation which he had with Ellis, and how he had deceived him.
    The attorney for the state next called Rachel Dickerman, the wife of the former witness, who testified to various conversations which she had heard at her husband’s house, between the prisoners and her husband, when they were all together, repeating the mode and manner of firing the dwelling-house, before it was burnt, and the arrangement that Elisha should be absent, when the building was set on fire. That on the night of the fire, John asked her for some rags, and she told him where he could get them; that he then asked her for some spirits of turpentine, and she went to the closet, and got a bottle, and handed it to him. That he then dipped the rags in oil and spirits of turpentine, which, as her husband testified, were the same used in setting fire to the dwelling-house. She also testified to the conversation of Elisha, after the fire, his going to see Ellis, and what he said after his return, as testified to, by her husband.
    It appeared, that at the time of the fire, and for some months previous thereto, John was a boarder at her husband’s house; and it did not appear, that she was, in any manner, connected with the commission of the crime, farther than to hear the conversation of the prisoner and her husband at her house, while engaged in her domestic concerns, and to inform John, where he could get some rags, and to give him the spirits of turpentine. She also testified, that when John asked for the rags and the turpentine, she inquired of him what he was going to do with them; and he told her, it was none of her business, but would tell her, when he came back.
    The attorney for the state then called Ellis, as a witness, to prove the conversation with Elisha, when he called upon him to assist Elisha in the purchase of tools, for the purpose of shewing, that Elisha did have the conversation with the witness, which had been detailed in the testimony of Dickerman, and also for the purpose of shewing the answer and conduct of the prisoner, when the witness told the prisoner that he was suspected of having set fire to his house. To the admission of this testimony the prisoner’s counsel objected; but the objection was overruled and the testimony received.
    The attorney then offered Thomas, as a witness, to prove that the conversation between him and the prisoners and Dickerman, respecting the hose of the engine, was as stated by Dickerman. To this testimony, the prisoner’s counsel objected; but the testimony was also admitted.
    Other evidence was introduced, tending to confirm the testimony of Dickerman and his wife.
    The counsel for the prisoners claimed, that the jury ought not to convict the prisoners upon the testimony of Dickerman, unless they should find his testimony corroborated, in material points, by other evidence, legally sufficient for that purpose. That the testimony of Dickerman's wife was not legally sufficient for that purpose. That if, upon the evidence, the jury should find, that she was an accomplice with her husband in the commission of the crime, for that reason her testimony was not legally sufficient to corroborate the testimony of her husband, and that the jury ought not to consider it sufficient for that purpose; and that, if they found the testimony of Dickerman against John W. Wolcott, legally corroborated by other testimony, but his testimony against Elisha M. Wolcott, not confirmed by other testimony, it would be their duty, while convicting John, to acquit Elisha; and prayed the court so to instruct the jury.
    The court, upon this part of the case, instructed the jury as follows: “Much has been said in relation to the testimony of accomplices, and the degree of credit to be given to it. There are certain principles connected with this subject, that are obvious to every mind. In order to enable you to find a verdict against the prisoners, it is necessary that the public prosecutor produce before you evidence, sufficient to satisfy your minds, beyond any reasonable doubt, that they are guilty of the offence charged against them. An accomplice is an admissible witness; but as he comes before the court under suspicious circumstances, his testimony ought to be received with great caution. As a general rule, it will be unsafe to convict upon the testimony of an accomplice alone, uncorroborated by other testimony. It ought to be corroborated in material facts, connecting the prisoners, and each of them, with the crime. But the degree of credit to be given to the testimony of an accomplice, and the amount of corroboration necessary to render it satisfactory, are matters to be considered and determined by the jury. Much will depend upon his manner of testifying; the manner of answering the interrogatories put to him, and the consistency of his story with facts proved by other witnesses. The attorney for the state relies mainly upon the testimony of Dickerman and his wife, with other evidence, in corroboration. She stands before you as the wife of an accomplice. How far her testimony may be biased, by a desire to have her husband liberated, it is for you to say.”
    After the verdict, the defendants moved for a new trial.
    The questions of law arising upon the motion in arrest of judgment, and upon the motion for a new trial, were reserved for the advice of this court.

      Ives and Harrison, in support of the motion in arrest,
    contended, 1. That in all criminal prosecutions, our constitution and laws had anxiously secured to the accused the means of defence. First, the accused has “a right to be heard, by himself and by counsel.” This involves a right to be present in court—present on the watch—present, soon enough to do the first necessary act of self-defence—present throughout all successive stages of the “ prosecution.” Stat. 28. § 9. Sperry’s case, 9 Leigh, 623. 2 Ala. R. 102. 6 Penn. 384. Secondly, the first necessary act of self-defence may be a challenge to the array or to the polls of the grand-jury: the grand-jury being not merely accusers, but triers, and their proceedings constituting an important stage of the “prosecution.” Davis’s Prec. 24, 25. 82. 83. and authorities cited. Juryman’s Guide, 24. 25. 82. 83. 1 Chitt. Cr.L. 309. and notes. (Am. ed. of 1847.) Wharton’s Am. Cr. L. 120. 121. 3 Wend. 314. 1 Burr's Tri. 33. 37. 38. 39. 41. 43. 1 Sw. Dig. 737. 4 Bla. Com. 306. 1 Chitt.

      Cr. L. 318. Wharton’s Am. Cr. L. 125. Davis’s Prec. 24. 25. State v. Fassett, 16 Conn. R. 473. Thirdly, it is therefore, a sound rule, that the grand-jury cannot be “legally impannelled and sworn” until “the accused”—present in court—is allowed an opportunity to challenge the grand-jury, and “ to be heard” upon his challenges. Stat. 257. Fourthly, “the accused” has a right to be confronted, by the witnesses against him—i. e., all the witnesses: and this right cannot be reduced to a practical certainty, unless “the accused” is permitted to confront, not only “the witnesses against him” before the petit jury, but those, (possibly a totally different set,) who testify “against him” before the grand-jury. The law of Connecticut admits this right, to the full extent here claimed. Stat. 28. Wharton’s Cr. L. 114. to 119. and long note. 2 Sw. Syst. 379. Lung’s case, 1 Conn. R. 428. 2 Sw. Dig. 371. 16 Conn. R. 457. State v. Spencer, Sup. Ct. Hart. Co. Jan. T. 1850. Fifthly, it is, therefore, a sound rule, that a “bill of indictment” cannot be legally “found” by a grand-jury, on testimony taken in the absence of the prisoner. Stat. 257. Sixthly, the present case does not fall within any exceptions to these rules. The state had the power to bring the prisoners into court soon enough for them to exercise their aforesaid rights. With that power the duty to exert it was inseparably connected. The prisoners did not waive their right to have it so exerted. 3 Bla. Com. 129, 130. 4 Bla. Com. 290. and note 4. Davis’s Prec. 25. In re Cook, 7 Ad. & Ellis, N. S. 653. (53 E. C. L. 653.) Bail of Peter Vergen, 2 Stra. 1217. Clark v. Smith, 3 Man. Gran. & Scott, 982. (54 E. C. L. 982.) State v. Spencer, before cited.
    2. That Dickerman, an accomplice, should not have been sent before the grand-jury, without permission of the court first had. Rose. Cr. Ev. 122. 1 Phil. Ev. 39. 2 Phil. Ev. 68.
    3. That the grounds above stated are a sufficient foundation for a motion in arrest. 2 Sw. Dig. 415. 1 Chitt. Cr. L. 300. Argument of state’s attorney, 16 Conn. R. 462.
    4. That on the motion for a new trial, the testimony of Ellis and of Thomas, particularly that of Thomas—was inadmissible; being irrelevant and calculated to prejudice the prisoners, by giving to the accomplice, in the minds of the jury, a false and delusive credit. Commonwealth v. Bosworth, 22 Pick. 399.
    5. That the charge of the court was erroneous. 2 Russell, 962. 963. 964. 965. 967. 1 Greenl. Ev. § 380. 381. and notes. 1 Russell, 18, 19. 23. Rex v. Wilkes & al. 7 Car. & Pa. 272. (32 E. C. L. 507.) Rex v. Neal & al. 7 Car. & Pa. 168. (32 E. C. L. 481.) Rex v. Addis, 6 Car. & P. 388. (25 E. C. L. 452.) Rex v. Wells & al. 1 Mood. § Mal. 326. (22 E. C. L. 325.) Commonwealth v. Bosworth, 22 Pick. 399. 1 Sw. Dig. 30. 1 Greenl. Ev. § 380. Instead of intimating to the jury, that “as a general rule, it will be unsafe to convict” upon the uncorroborated testimony of an accomplice, the court should have authoritatively advised the jury, that as a universal rule, it would be wrong for them so to convict. The court should not have entirely withdrawn from the jury the question whether or not Dickerman’s wife was his accomplice. The jury should have been told, that the wife of the accomplice could not be legally capable of corroborating him; especially, if they should find her to be an accomplice.

      C. A. Ingersoll, (state’s attorney,) contra,
    contended, 1. That it is not necessary that the accused should be before the grand-jury, to make the indictment good. 2 Sw. Dig. 370, 1.
    2. That Dickerman was a proper witness to go before the grand-jury.
    3. That if there wras any validity in the objections, at any time, the accused waived them, by going to trial. Selleck v. Sugar Hollow Turnpike Co. 13 Conn. R. 453. Woodruff v. Richardson, 20 Conn. R. 238. Regina v. Sullivan & al. 8 Ad. & Ellis, 831. (35 E. C. L. 529.) Orrok v. Commonwealth Ins. Co. 21 Pick. 457. By pleading the general issue, they admitted that the indictment was properly found. Smith v. The State, 19 Conn. R. 493. 1 Chitt. Cr. Law, 364. [447.]
    4. That the testimony of Thomas and Ellis was properly admitted. It went to shew that Dickerman had told the truth.
    5. That there was nothing exceptionable in the charge. In the first place, the testimony of an accomplice is, of itself, sufficient to found upon it a verdict of guilty. 1 Greenl.

      Ev. § 380. The People v. Costello, 1 Denio, 83. Commonwealth v. Bosworth, 22 Pick. 397. United States v. Lancaster, 2 McLean, 431. 445. 3 McLean, 224. But secondly, if any corroboration was necessary, such corroboration was had, by the testimony of the wife, and by other evidence. Thirdly, Mrs. Dickerman was not an accomplice: she had done nothing criminal.

   Church, Ch. J.

Under the motion in arrest of judgment, in this case, the claim of the prisoners is,

First, that while the indictment on which they have been found guilty, was under investigation, by the grand-jury, they were confined in the state’s prison, had no notice of the proceedings against them, and no opportunity to be present, to confront or examine witnesses produced against them.

The practice in this state, so far as we are informed, from the earliest times, has been, if the accused be in custody of the court, for the grand-jury to cause him to be brought before them, at the hearing, and perhaps also, if he is out on bail and desires to be present; but this is done without any other order or interference of the court than is expressed by the court to the grand-jury in the charge. We have not known the practice to be extended further.

It is claimed now, that every one accused of crime of which a grand-jury takes cognizance, has a constitutional right to be present with the grand-jury, during their investigation. The bill of rights in our constitution declares, that “in all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, and to have compulsory process to obtain witnesses in his favour,” &c. Stat. 28. § 9. This provision has never been understood to apply to grand-jury enquiries: on the contrary, the rule in Connecticut, so far back at least as the time of Peter Lung’s case, in 1815, has been in conflict with this claim of the prisoners. Then this court adopted and published a rule, in the form of a charge to the grand-jury, by which counsel were not permitted to be present before them, nor any witnesses on the part of the accused; and this has been followed ever since; shewing conclusively, that the privilege thus conferred by the constitution, has been considered as extending only to trials before petit juries. Nor have we any statute conferring the right now claimed.

Grand-juries have a right to investigate offences, and present bills of indictment against persons at large, as well as those in custody or on bail. They have a right to originate charges against offenders, without fore-warning them of their proceedings against them.

A different practice may have been followed in England, and in our sister states. Ours has been effective to secure the rights of our citizens, and has been so long pursued as a safe one, as to forbid courts to change the law, without legislative sanction.

A second objection, under the motion in arrest, is, that William A. Dickerman, who was an accomplice of the prisoners, was admitted, without permission of the court, to testify against them before the grand-jury. We do not understand by this, that he went before the grand-jury, in violation of any order, or usual practice of the court. It is not usual for the court, without special reasons, suggested on application, to give directions regarding witnesses to be called before the grand-jury. The prosecuting attorneys send such as they believe to be necessary. And whether the witness, in such case, be an accomplice or not, can make no difference. Accomplices are competent and admissible witnesses; and especially, since our present law, which has abolished both interest and infamy, as tests of competency. This objection was made in Dr. Dodd’s case, but was unavailing. 1 Leach’s Cr. Cas. 185. 1 Chitt. Crim. Law, 319. Grand-juries do not try, but enquire; they do not condemn. but only accuse; and it would be found intolerable, in practice, to confine them to technical rules of evidence.

Besides, we think these objections came too late. The grounds of them should be treated as waived, by the general plea of not guilty, and proceeding to trial, without a suggestion of them by the accused.

Under the motion for a new trial, the first claim is, that the testimony of Thomas and of Ellis should have been rejected. Dickerman had testified, that, a little while before the fire, he and the prisoners, at a certain place, had been informed by Thomas, that the hose of the fire engine was at Boston, to be repaired; and that this was the reason why the fire was set, at the time it was. Thomas was called to confirm Dickerman, as to the time and subject of this conversation. It shewed a privity and connexion, and a conspiracy, between Dickerman and the prisoners, and a reasonable motive for the commission of the deed, at a time when it would prove effective; that they knew the engine could not then be worked effectively, to extinguish the fire; and that their information was derived from this source.

So, as to the testimony of Ellis. It proved, that Dickerman had knowledge of a fact connecting these prisoners with Ellis, which he could have derived only from them; that he, Dickerman, was their confidant, to whom they imparted their plans and their movements, as he had testified; and which, in part, at least, were shewn to be true, by the testimony of Ellis; and thus, in a degree, it corroborated Dickerman, as to what he had sworn of the fact, that Elisha M. Wolcott was at Hartford, at the time of the fire, and the reason of it. Besides, the conversation between Ellis and Elisha, was proper to be proved, to show his conduct and his answers, when conversing on the subject of the fire, and the persons suspected.

The testimony of Mrs. Dickerman was very direct and positive, not only as corroborative of her husband’s testimony, but as charging the prisoners from their own acts and conversations. That her husband was an accomplice, or even that she was an accomplice herself, would not disqualify her from testifying; and the credibility of her story was for the jury to consider.

It was important to shew a combination or conspiracy between Dickerman and the Wolcotts; and to do this, as in other cases, it is frequently necessary to resort to circumstances in themselves of apparently little consequence, which, when brought together, are very satisfactory for this purpose.

Another ground for a new trial is, that the judge refused to instruct the jury, that the testimony of Thomas and Ellis and of Mrs. Dickerman was not legally sufficient to corroborate Dickerman, the accomplice; and without corroboration, there could be no conviction of the principals. The testimony of an accomplice is admissible, and of course, to some extent, is presumed to be credible. The law would not proof, which it had decided, a priori, should not be believed, when admitted. If credible at all, it may be sufficiently so, to produce belief and conviction; and this is not unfrequentlv true in fact. The degree of credit which is due to an accomplice, is a matter exclusively for the jury to say. Rosc. Crim. Ev. 120. 1 Greenl. Ev. 380. Commonwealth v. Bosworth, 22 Pick. 397. Courts frequently do and ought to advise caution in reposing confidence in the naked testimony of an accomplice; but this is rather in the exercise of a proper judicial discretion, than because the law demands it.

What will amount to a corroboration, has been a matter of some discussion in the books. Any evidence, aside from the testimony of the accomplice himself or connected with it, which proves reasonably, not merely that the crime charged has been committed, but that the accused participated in it, may satisfy the mind. And frequently facts of no great prominence will be sufficient to do this.

In the present case, the judge went very fully and fairly into this subject with the jury; and it is difficult to say, what more favourable charge for the accused could have been given, unless the judge had taken upon himself to say, that Dickerman was in no respect corroborated.

We think that neither the motion in arrest of judgment, nor the motion for a new trial, should prevail; and both are denied.

In this opinion the other Judges concurred.

Motion in arrest overruled; —— for a new trial, denied.


author: Hinman, J.

text:
    Treadway against Coe:
    New-Haven,

      July, 1851.
    IN ERROR.
    A judgment of the superior court on a cross-bill filed in answer to an original bill of the adverse party, during the pendency of such original bill, is not a final judgment, on which a writ of error can be brought.
    A motion in error stands on the same footing as a writ of error; the only difference being the dispensing, in the former case, with the service required in the latter.
    The original suit was a bill for a foreclosure of mortgaged premises, brought by Russell Coe against Francis A. Gale, the mortgagor, and Lyman Treadway, a creditor of Gale, who had obtained judgment and execution against him, and had the execution levied on his equity of redemption. During the pendency of this bill, at the term of the superior court, in October, 1850, Treadway filed his cross-bill, averring, that he was the true and equitable owner in fee of all the right, title and interest which Gale had in the mortgaged premises, when the mortgage was executed; and praying that Coe’s bill, as against Treadway, be dismissed. The cause was continued to the term of the court, in January, 1851, when Coe demurred to the cross-bill; and after a full hearing, it was adjudged, by the court, that the cross-bill was insufficient. At the same time, leave was given to Treadway to amend his cross-bill, in the particular suggested on the argument, without costs.
    After the decision on the demurrer to the cross-bill, Treadway filed his motion in error. In the supreme court of errors, Coe appeared, and pleaded in abatement of such motion in error, alleging, that the judgment therein complained of, was not a final judgment of the superior court; but that the cause in which the said judgment complained of was rendered, is still pending, in the superior court, for the further action of that court; and that no final judgment in said cause in the superior court, in which said judgment in the motion in error complained of was rendered, had ever been rendered in the superior court.
    To this plea in abatement, Treadway demurred; and the case was thereupon reserved for the advice of this court.

      R. I. Ingersoll and Harrison, for the plaintiff in error.
    C. A. Ingersoll, for the defendant in error.
   Hinman, J.

This is a plea in abatement, to a motion in error, from a judgment of the superior court. There was a demurrer, in the superior court, to the cross-bill and answer of the defendant to the original bill; and it was adjudged insufficient, and the defendant had leave to amend it.

The defendant, however, instead of amending, filed a motion in error, to reverse that judgment; and the question is, whether the judgment complained of, was a final judgment, on which a writ of error can be brought. We think it was not.

A motion in error stands on the same footing as a writ of error. The only difference is, that in a motion in error, no service is required to be made on the opposite party; because, being before the court, when the motion is filed, he is bound to take notice of it, at his peril. Stat. 93. § 166.

It is well settled, that a writ of error cannot be brought upon an interlocutory judgment; and if so brought, it will abate. Gleason v. Chester, 1 Day, 27. The only question then, is, whether this was an interlocutory, or a final, judgment. A judgment, to be final, must put an end to the suit. In this case, the original suit is still pending in court; and unless it is improperly there, it is clear, that no final judgment can have been rendered in it. To avoid this result, the plaintiff in error treats the original bill and the cross-bill as two separate suits, and insists, that the judgment is final on the cross-bill. If this could be done, in any case, the result claimed would not follow here. This judgment does not dispose of the cross-bill, even; but only gives liberty to the party to amend it: it is not dismissed. It is needless, however, to dwell on this. Two suits cannot be made of those proceedings. The cross-bill does indeed set out a title to distinct relief; but it is also a principal object of it, to answer the original bill; and so far as this object is concerned, the judgment can, in no sense, be said to be final. The court will not hold a judgment to be divisible, for the mere purpose of multiplying suits. Magill v. Lyman, 6 Conn. R. 59. Lyman v. Magill, 6 Conn. R. 69. Gleason v. Chester, 1 Day, 27.

Judgment will be rendered for the defendant, on his plea in abatement.

In this opinion the other Judges concurred.

Plea in abatement sufficient.


author: Ellsworth, J.

text:
    Foster against Thomas and another.

      New-Haven,

    July, 1851.
    It is the duty of an administrator, in selling estate of the deceased, by order of the court of probate, to sell for ready money; and if he neglect to do so, and sell on the personal security of the purchaser, it is a breach of duty, for which, if a loss ensues, he is liable on his bond to the court of probate. And in such case, his having acted prudently and in good faith, will not exonerate him from liability.
    Where the administrator sold on credit, and took the promissory note of the purchaser; then resigned his office, and an administrator de bonis non being appointed in his place, he delivered to the latter the note thus taken; it was held, that the first administrator was not thereby exonerated from liability.
    It is a general principle of law, that wherever a public officer is entrusted with property to sell, he is liable for its true value, if he parts with the title, without receiving the cash.
    This was an action of debt on bond, brought by Eleazer K. Foster, as judge of the court of probate, against Leveret Thomas, administrator of Hezekiah Thomas, deceased, as principal, and Henry A. Smith, as surety. The defendants pleaded performance of the condition of the bond. The plaintiff replied, setting forth specially certain breaches; to which there was a rejoinder, by the defendants, detailing the circumstances of the administration. The plaintiff demurred to the rejoinder.
    By the pleadings in this case, it appeared, that the defendant Thomas, had been appointed administrator on the estate of Hezekiah Thomas; that, being duly qualified, there came into his possession, certain articles of machinery, belonging to the estate of the deceased, viz., four spinning frames, three cotton cards and one sapper, of great value. The administrator inventoried this property, and returned the inventory to the court of probate, in June, 1845. On the 20th of August following, he rendered to the court his administration account, in which he charged himself with the aforesaid property, at the inventory price; and this charge stands uncancelled, at this time. In June previous, the defendant Thomas, the administrator, having first represented the estate insolvent, obtained from the court of probate, an order to sell all the assets, at public or private sale. In July, he sold the spinning frames above specified to Woodworth & Curtis, (a house, at that time, in good and undoubted credit.) for the sum of 1500 dollars, viz., for 800 dollars cash, and 700 dollars in their note of hand, payable in six months from date. On said 20th of August, the day when the defendant rendered his said administration account, and charged himself with said property as on hand, he resigned his administratorship, and Thomas W. Bradley was appointed administrator de bonis non. The defendant Thomas was thereupon ordered to deliver and pay over to the new administrator the goods, chattels and effects belonging to the estate of said Hezekiah Thomas remaining in his hands. After deducting what he had paid to extinguish a lien on the property in favour of Allen & Rising of New-Jersey, he avers, in his rejoinder, that he delivered and paid, in fulfillment of said order, to the new administrator, the balance of the 800 dollars in his hands, and 240 dollars, which he had collected on the note of 700 dollars, together with the note itself, (the remainder being unpaid,) and all other property of the estate which he had in his possession.
    It further appeared, that Woodworth & Curtis became bankrupt, before the defendant Thomas delivered over to the new administrator the note above mentioned, and it proved to be of no value whatever. This, the defendants insisted, was a good defence to any claim on them for a supposed breach of the bond, by said Thomas, the administrator. The plaintiff, on the other hand, insisted, that the defendant Thomas had no right by law to make sale of the property in question to Woodworth & Curtis for any thing but money; and that the administrator’s selling it on credit, and afterwards delivering over said note to the new administrator, did not save the defendants from the penalty of the bond, and that the defendants still remain liable for the unpaid balance. He insisted, that it would not not be a good accounting in the court of probate, and of course, cannot be any where else.
    The case was reserved for the advice of this court.

      Baldwin and Beach, in support of the demurrer,

      i. e. for the plaintiff, contended, 1. That if an executor or administrator voluntarily part with the assets of the estate, upon personal security alone, he is guilty of a breach of trust, and shall be personally answerable, if the security prove defective. First, if he loans the money belonging to the estate, upon personal credit, and a loss ensue, it is well settled, that he will be held responsible. Ryder v. Bickerton, 3 Swanst. 80. Adye v. Feuilleteau, Id. 84. and 1 Cox, 24. 2 Madd. 134. Wilkes v. Steward, Cooper's Ca. 6. Harden v. Parsons, 1 Eden's Eq. R. 148. 50. note. 2 Sto. Eq. § 1274. Thompson v. Brown, 4 Johns. Ch. R. 619. Stukes & al. v. Collins & ux. 4 Desaus. 207. Orcutt v. Orms, 3 Paige, 459. Secondly, nor will the fact, that he acted in good faith, and for the supposed benefit of the estate, exonerate him from liability for such loss. Crosse & ux. v. Smith, 7 East, 246. Clough v. Bond, 3 Mylne & Craig, 491. Ackerman v. Emmet, 3 Barbour, 267. Thirdly, these principles are applied more stringently in favour of creditors than of legatees or heirs. Gibbs v. Herring, Prec. Chan. 49. Brown’s appeal, 1 Dal. 311. McNair’s appeal, 4 Rawle 148. Fourthly, the same reasons exist, and to the same extent, for subjecting the administrator, if he parts with any of the assets of the estate, upon personal credit. King v. King, 3 Johns, Ch. R. 552. Palmer & al. appellants, 1 Douglass, (Michigan,) 422. 9 Petersd. Abr. 362. Norden v. Levit, Freem. R. 422. S. C. 2 Lev. 189.
    2. That there is nothing to be derived from our statutes varying these principles; on the contrary, they confirm them. First, the administrator is to sell “in such manner” (i. e., at public auction or private sale,) as the court may deem best, not on such terms, &c. Stat. 361. § 59. Secondly, the administrator is charged with the estate at appraisement and the oath of the appraisers requires that this shall be only “its present true value in money.” Stat. 525.
    3. That the record discloses facts, showing that the administrator has acted in bad faith towards the estate, and been guilty of a willful breach of trust.

      C. A. Ingersoll and Peck, for the defendants,
    remarked in limine, That the general rule adopted with respect to the liability of executors and administrators for a devastavit, is founded on two principles: 1st, that in order not to deter persons from accepting these offices, the court is extremely liberal in making every possible allowance, and cautious not to hold executors and administrators liable upon slight grounds; 2nd, that care must be taken to guard against an abuse of this trust. 2 Williams on Exrs. 1530. 2 Spence's Eq. Jur. 932. They then contended,
    1. That an administrator, or other trustee, is not liable for any loss which may happen to the estate, unless such loss has been occasioned by his own wrong, his own negligence, or his own willful default. 2 White & Tudor’s Eq. Cases, 640. 642. Taylor & al. v. Benham, 5 Howard (U. S.) 275. Osgood & al. v. Franklin & al. 2 Johns. Ch. R. 1. 27. S. C. in err. 14 Johns. R. 527. Thompson & al. v. Brown & al. 4 Johns. Ch. R. 619. Pybus v. Smith. 1 Ves. jr. 193. Palmer v. Jones, 1 Vern. 144. Caffrey v. Darby, 6 Ves. jr. 497. a case of laches. Paine v. Fox, 16 Mass. R. 129. 1 Sw. Dig. 451. 2 Sto. Eq. § 1271. 1272. 6 Watts, 188. 253. 8 Watts, 21. 9 Watts & Serg. 107. 2 Grattan, 116. 1 Madd. 290.
    2. That by selling, as the administrator did sell, he was not guilty of any wrong, negligence or willful default. The cases cited by the plaintiff, are the cases of loaning on interest of money, for the purpose of increase. In such a case, the rule in England is, that the loan on interest must be on mortgage security, or on the security of public stocks. These cases are not applicable to the sale of property by an administrator.
    3. That the sale by an administrator of property entrusted to him, by the court which appointed him, and when he is ordered to sell, to a purchaser on time, on the personal security of the purchaser, is not such a wrong, such negligence, such willful default, as will make him liable for the price the property sold, in case of the insolvency of the purchaser before the day of payment, if, at the time of the sale, the purchaser was in good credit, and the administrator acted prudently, and in good faith, in making the sale and in trusting to the purchaser’s personal security. Thompson &. al. v. Brown & al. 4 Johns. Ch. R. 619. Smith v. Smith & al. Id. 281. 445. Brown v. Campbell, Hopk. 233. Mead & ux. v. Byington, 10 Verm. R. 116. 122. 6 Watts, 188. 253. 8 Watts, 21. 9 Watts & Serg. 107. Paine v. Fox, 16 Mass. R. 129. 133. The administrator was obliged to sell: he had, in that respect, no discretion; and the same principle should be applied to him as to a trustee or executor, who, from the exigency of the testator’s affairs, is obliged to deposit money with a banker. In such a case, the trustee is not liable, if, at the time he deposits the money the banker is in good credit, even though a loss is sustained, by the failure of the banker. Knight v. Lord Plymouth, 3 Atk. 480. 2 Sto. Eq. § 1269. Jones v. Lewis, 2 Ves. 240. 2 White & Tudor’s Eq. Cases, 642. 643.
    4. That the statute law authorizes the administrator to sell on credit. Under the direction or order of the court of probate, he sells in such manner as will be most for the benefit of the estate. The statute leaves him to exercise his discretion. It may be at public auction, or at private sale; for cash, or on credit. Stat. 353. § 38, 9. p. 356. § 42. p. 361. § 59.
    5. That it is the usual practice and common law of Connecticut for an administrator to sell on credit. No estate of a merchant or manufacturer could be settled, without great loss, unless the administrator was authorized to sell on credit.
   Ellsworth, J.

The particular question which has been chiefly argued at the bar, the right of an executor or administrator to sell on credit, is one of very considerable importance, and of frequent recurrence in the settlement of estates. This question we design to settle, by the present decision, if indeed there has been, at any time, a different impression in courts of probate, or among other officers of the law. What then is the duty and the power of an executor or administrator in settling an insolvent estate? Comyn says, “The office of an executor or administrator consists, principally, in the probate of the will; in the payment of debts; and the payment of, or assent to, legacies:" and on the subject of debts, Blackstone says, “whatever assets come to his hands, he may convert into ready money, to answer the demand that may be made against him; for the executor or administrator must pay the debts of the deceased.” By our statute, it is made his duty to administer upon the estate “according to law.” What then is it to administer according to law? We answer, to pay the debts due from the estate; and this he may and must do, by converting the assets into money, the only means known to the law for performing the duty. It must be done directly, by a sale for cash, and not indirectly, for something else, in exchange, by way of barter or speculation.

To do it directly, is all that is necessary, and all that is ordered; and it is the very thing that is ordered. To barter or exchange one chattel for another, or to sell for promises of future payment, is not to sell for money; and to part with the estate, upon mere personal security, however ample and satisfactory, is but a circuitous and contingent mode of raising money, open, as we think, to many and serious objections; for the estate must be settled without delay. The duty enjoined is, to sell absolutely and unqualifiedly; and this is the true measure and limit of the power delegated, whether to this or any other officer of the law, who is ordered specifically to raise money, by the sale of property. Let the order be followed implicitly, and the law is exactly satisfied; any deviation from this rule is substituting the discretion of the officer, for the precepts of the law. If the executor or administrator may go beyond this rule, and sell for anything but ready money, what is the limit of his discretion? How many changes and exchanges may he make; and how much traffic pursue, without departing from the line marked out by the law? Can a sheriff, who is directed to raise money on execution, barter and trade with the property he has levied on, or make sale of it for anything but cash in hand? Has he power, or has any agent of the law power, when he is peremptorily ordered to raise money, by the sale of property, to raise money by trafficking with it, or by pledging it, and waiting for a more convenient time to sell? Or to part with the title on promises, written or unwritten? In the case of authority derived from a power of attorney, written or verbal, or in case of any substitution of one person for another, by a voluntary act, there is, not unfrequently, considerable latitude allowed, in the exercise of a wise and just discretion; because, in such cases, we seek to learn the intention of the principal, by a fair and proper construction of the authority he has given. If the instrument given is clear and explicit in its terms, that must govern the agent; but if it is not clear and explicit, the instrument may be construed to authorize the use of customary means to accomplish the object specified. As, if a factor or broker be authorized to make sale of goods, and nothing is said in the instrument about giving credit to the purchaser, the customary credit is justly supposed to be intended and expected, by all parties concerned; but when the law specifically directs property to be sold, it means nothing more than it says: it goes no further than the language used, and a sale for cash alone satisfies that language. This then is the measure and limit of the authority given.

The court feel no disposition to relax the rule, wherever it properly applies, or to change it for one less uniform and certain, if more latitude is required, in order to avoid sacrifices in the sale of property, by executors or other officers of the law, who are ordered to sell, let an appeal be made to the persons interested, for an enlarged authority. We lay it down, as a general principle of law, that wherever a public officer is entrusted with property to sell, he is liable for its true value, if he parts with the title, without receiving the cash. If, for any reason, he cannot sell for cash, he will not be held responsible, there being on his part no fault. Let any other rule be adopted, and few cases will occur where the person accused of a breach of trust, will not be able to prove a usage or a discretionary power broad enough to screen him from all liability.

By this decision, we do not mean to declare, that executors and administrators are to be held responsible, under all circumstances, and of course, for the assets belonging to the estate they represent; but, in all cases, they are required to use due diligence in collecting and keeping the property; and they must not part with it, during administration, without first receiving the money.

This is the rule, we believe, in relation to executors and administrators, and other officers of the law, if not to general trustees having no discretionary power, which prevails in England and New-York, and most of these states. So are the cases in the books. In Pennsylvania, the rule is different. In South-Carolina, an executor is authorized to sell on credit, by the special license of the judge of probate. Whether the judge of probate in our state could, under the statute law, give such license to an executor, if he chose to do it, we have no occasion now to enquire, or to decide: he did not give it in this case, and this is decisive.

The liability of trustees and of public and private agents in England, in the instances of converting assets into money, or the safe-keeping or investing of funds, is believed to be more rigorous and stringent than in our own courts. There, unless the specific line of duty is definitely marked out, landed security, or security in public stock, is required, in their court of chancery. Ryder v. Bickerton, 3 Swanst. 80. Adye v, Feuilleteau, 1 Cox, 24. Holmes v. Dring, 2 Cox, 1. 2. Walker v. Steward, Coop. Eq. R. 6. Hardin v. Parsons, 1 Eden's Eq. R. 148. 2 Sto. Eq. § 1274. Thompson v. Brown, 4 Johns. Ch. R. 620. Crosse & ux. v. Smith, 7 East. 246. Clough v. Bond, 2 Myl. & Cra. 491. Ackerman v. Emmet, 4 Barb. 629. Gibbs v. Herring, Prec. Chan. 49. Brown’s appeal, 1 Dal. 311. McNair’s estate, 4 Rawle, 148. King v. King & al. 3 Johns. Ch. R. 552. 9 Petersd. Abr. 362. Norden v. Levit, 2 Lev. 189.

The second question made in the case, is, does the old administrator delivering over to the new administrator the note which he took on the sale to Woodworth & Curtis, constitute a good accounting or a fulfillment of this bond. On this point, we need add nothing to what we have already said. If the administrator could not make sale of the machinery to Woodworth & Curtis, for anything but money, he must, of course, remain chargeable for the property, at the inventory price, to the new administrator. That account is yet open and unsettled; and it ought regularly to be settled in the court of probate. We think, the defendant Thomas, has made the property his own, by selling it on credit; he has sold and parted with it, without any legal equivalent; and has therefore been guilty of a devastavit, according to the authorities every where. In Bac. Abr. tit. Executors and Administrators. L. 1. (Vol. 3. p. 78. Gwil. ed.) it is said, “If an executor or administrator takes an obligation, in his own name, for a debt due to the testator, this shall charge him, as much as if he had received the money; for the new security has extinguished the old right, and is quasi a payment to him.” “So if the executor sues a person by trover and conversion, in which he has a right to recover; and afterwards, he and the defendant come to an agreement, that he shall pay the executor such a sum, at a future day, and the party fails; this is a devastavit, and he shall answer ad valorem.” For this is cited Yelv. 10. 2 Lev. 189. Keil. 52. 1 Vern. 474. The last case is said to have been affirmed, on a writ of error, in the House of Lords; and a case was there cited, by the Lord Chancellor, which, he said, was adjudged when Pemberton was Chief Justice, where an executor of an obligee accepted a note drawn upon a goldsmith for the money; the goldsmith accepted the bill, and before payment, failed; the executor afterwards brought an action upon the bond, and this matter being given in evidence, it was adjudged a good payment. So in Comyn's Dig. “If the executor accept note, covenant, &c., in satisfaction of a debt, which is not paid, it is payment to him.” In Barker v. Talcott & Shaw, 1 Vern. 473. the Lord Chancellor held, that an administrator, by taking a note for a debt due the estate, made the debt his own; and that the debtor, when sued by a subsequent administrator, could plead the payment of his note to the first administrator, as a bar to the action.

We advise the superior court that the plaintiff is entitled to judgment.

In this opinion the other Judges concurred.

Judgment for plaintiff.