source: Caselaw Access Project

author: Mason, J

license: Public Domain

text:
    Thomas T. Bloodgood, Executor, &c. of Thomas Bloodgood, v. Herman Bruen, Executor, &c. of Thomas H. Smith.
    A will contained the following clause: “ I direct all my just debts to be paid, and in relation to all- claims and demands, either in my favor or against it, I give to my executors power to compound, compromise, submit to arbitration, or otherwise in their discretion adjust and settle the same, as they shall judge most for the interest of my estate, and conformable to justice.” Held, that this provision did not create a trust for the payment of the testator’s debts, which would prevent the statute of limitations from applying to a demand against the estate.
    Where a bill was tiled by a receiver, (appointed in a creditor’s suit brought against B., the judgment debtor,) which bill alleged that B. was the executor and surviving partner of S., and a devisee under his will, that all or nearly all of the debts and liabilities of the firm had been compromised, or paid and discharged, and that upon a settlement of the estate of S., there would be found a large balance belonging to B. individually, or as one of the partners of the firm, and also in right of his wife as devisee or heir of S., and prayed for an account, and B. put in an answer alleging that a debt owing by S. to T. B., with the interest upon it, was a subsisting and valid claim against the estate of his testator, entitled to priority over the claims of the legatees and devisees under' the will, he himself, in right of his wife, being one of such legatees and devisees; held, that this acknowledgment implied not only B.’s obligation, but his willingness to pay if he had sufficient funds of tile estate in hia hands for that purpose; that it was a plain admission that the debt was due, and that the party was willing to pay it; and that in a suit brought by the executor of T. B. against B., to recover the amount of the debt, such acknowledgment was sufficient to take the case out of the statute1 of limitations.
    It is not necessary that an acknowledgment of a debt, in order to take the debt out of the statute of limitations, should be made to the creditor himself, or his agent. It is sufficient if made to a stranger.
    Although, in ordinary cases, where an executor has no duties to perform, or power to exercise, in regard to the realty, an admission or acknowledgment by him of the existence of a debt will not bind the real assets in the hands of the heir or devisee ; yet where the executor is also devisee in trust of the whole estate, and has the entire management of it in his hands, and the whole control over its disposition, the rule is otherwise.
    (Before Duer, Mason, and Campbell, J. J.)
    Nov. 1, 1850 ;
    Jan. 25, 1851.
    The original bill in this cause was filed in th'e court of - chaneery on tbe 16th of August, 1845, by the plaintiff, as sole acting executor of Thomas Bloodgood deceased, against George W. Bruen, as the sole acting executor of Thomas H. Smith deceased, and individually, together with Mary T., his wife; Francis L. "Waddell and Louisa Ann, his wife, Thomas'H. Smith, John Smith Bruen, George W. Bruen Junior, Mary Bruen, Virginia Bruen, and Bichard S. Williams.
    The bill stated in substance that, in 1828, the firm of Thomas H. Smith & Son, being then composed of Thomas H. Smith and George W. Bruen, became indebted to the plaintiff’s testator in the sum of ten thousand .three hundred and sixty dollars and eleven cents, to secure the payment of which the firm gave to the testator their promissory note, dated June 21st, 1828 ; that upon this note no part of the principal nor the interest has ever been paid; that Thomas H. Smith, in the month of September, 1828, departed this life, having previous^ made and published his last will and testament, in and by which George W. Bruen was named as executor thereof, and that Bruen qualified and became sole acting executor thereof; that T. H. Smith, at the time of his death, was possessed of a large real and personal estate; that Bruen was also sole surviving partner of Smith, and that all the boobs and papers of Smith, together with a large amount of real and personal property belonging to him, came into Bruen’s possession, and that he had never in any manner accounted for the same, nor for any part thereof — and the bill thereupon claimed from Bruen an account and discovery thereof. The bill further stated, in effect, that Bruen had several children, minors, who claimed some interest in the estate of Thomas H. Smith, and that all the debts of the firm of Thomas H. Smith & Son had been paid or compromised, except the promissory note above mentioned; that there were certain judgments still outstanding against Smith, which, in fact,'had been paid or satisfied with assets arising out of the estate of Smith, or the firm of Smith & Son. The bill further charged that Bruen had in his possession, property or assets arising out of the estate of Smith, more than sufficient to pay the note, together with the interest, and described a part of such property, and that, in 1842, Bruen admitted this property to be liable for the debts of Smith, including the promissory note above mentioned. The bill charged that the other heirs and devisees of Smith, had in their possession lands belonging to his estate. The bill further charged that Bruen had, at divers times and to divers persons, admitted the note to be due, and promised to pay the same, and particularly in a certain suit in which James Iddings was complainant, and George W. Bruen and others, defendants. Bruen, on or about the eighteenth of June, 1842, in a certain answer duly signed and sworn to by him, in answer to the bill of complaint of Iddings, averred and stated that part of the debts of Thomas H. Smith were compromised, but that a certain promissory note to Thomas Blood-good, and which is the same note above mentioned, amounting, with interest, to about twenty thousand dollars, was yet due and unpaid. And the bill charged that the admission, so made in that answer, was not accompanied by any qualification or condition, or any thing from which it could be inferred that •.Bruen was unwilling to pay the amount whenever it should be demanded. The bill further charged that Bruen had been discharged under the bankrupt law, and that he had refused to pay the note, or any part thereof, and prayed that he might be directed to pay the amount due on the note, for principal and interest.
    George W. Bruen appeared, and with his wife put in an answer to the bill, which was excepted to. The exceptions • were in part sustained, and in part disallowed. But no further answer was put in by them.

      The defendants, Waddell and wife, T. H. Smith, J. Smith Bruen and Williams, demurred to the bill. The other defendants, who were infants, put in an answer.
    On the 20th of October, 1846, on the petition of the complainant previously presented, an order was duly made and entered by the surrogate of New York, by which it was ordered and adjudged that George W. Bruen should within five days execute and deliver to the surrogate a bond to the people of the state of New York, with two sufficient sureties to be ap.proved by the surrogate, in a penalty of eighty thousand dollars, conditioned that he should faithfully execute the trust reposed in him as the executor of Thomas H. Smith. Upon proof of service of this order upon George W. Bruen, and that he had wholly neglected to comply with it, a further order was made by the surrogate, by which it was ordered, adjudged, and decreed, that the letters testamentary issued to George W. Bruen as executor of Thomas H. Smith be superseded.
    The complainant then filed a supplemental bill stating the above facts, and alleging that by a further order of the surrogate, Herman Bruen, who was one of the executors of the last will and testament of Thomas H. Smith, and who had duly qualified,.had taken out letters testamentary on Smith’s estate.
    The same parties were made defendant, and the same relief insisted upon and prayed, as in the original bill.
    ■ George W. Bruen suffered the supplemental bill to be taken as confessed by him.
    Herman Bruen, the substituted executor of Smith, put in an answer admitting the bankruptcy of George W. Bruen; the debt to Bloodgood and the note therefor as stated in the bill; that from information, he believed the principal money secured by the note, with interest from its date, still remained unpaid; and he admitted that he had not, as executor óf Smith, paid the note or any part thereof. He also admitted that George W. Bruen, by his answer in the suit in which James Iddings was complainant, and George W. Bruén and others were defendants, before mentioned, and which answer was sworn to and filed on the day and year set forth in the bill, did state and say as follows: “ And these defendants further answering, say, that a large amount of the debts and liabilities of the said firm of Thomas H. Smith & Son have been páid or compromised in some way, but that there is still a considerable amount of debts and claims outstanding against thém; that among the rest there is a judgment in favor of the United States for $9000 and upwards, besides interest from the year 1828, outstanding against said firm, and docketed in the circuit court of the United States for the district of New Jersey, in the year 1829; secondly, a debt of $10,000 and upwards, with interest from the year 1837, paid by the said Matthias Bruen to the representatives of David Stebbins, "deceased, and still held by the said Matthias Bruen against said firm; thirdly, a debt due by the said firm to Thomas Bloodgood, and amounting to $20,000 and upwards, including interest, and that all these, amounting to $57,000 and upwards, including interest, are exclusive of the aforesaid judgments, amounting to $800,000 and upwards, in favor of the United States, and which were assigned by the government of the United States to the said Matthias Bruen in the manner aforesaid, in the year 1835. These defendants, therefore, deny that all or nearly all the debts and liabilities of the said firm of Thomas' H. Smith & Son have been compromised or paid by any person out of the funds or property of the said firm or otherwise.”
    But the defendant insisted that the complainant’s cause of action in his bill of complaint set forth, did not accrue within six years next before the filing of his bill, nor within six years before the commencement of this suit, and the defendant insisted upon the objection and upon the statute in such case made and provided, and claimed the same benefit thereof as if he had pleaded the same.
    The defendant alleged also that he had not, at any time since the issuing of the letters testamentary to him, nor since he was made a party to this suit, had, and had not now, any goods or chattels which were of Thomas H. Smith, deceased, at the time of his death, in the hands of the defendant as executor to be administered; and he prayed and claimed the same benefit thereof in this suit as if he had pleaded the same.

      The will of Thomas H. Smith, the defendant’s testator, contained the following clause, which the plaintiffs insisted created a trust for the payment of the testator’s debts, and that the .statute of limitations therefore did not apply, viz.: “I direct all my just debts to be paid, and in relation to all claims and demands, either in my favor or against it, I give to my executors power to compound, compromise, submit to arbitration, or otherwise in their discretion, adjust and settle the same, as they shall judge most for the interest of my estate and conformable to justice.”
    Replications were filed, and proofs taken, in the cause. It was transferred from the supreme court to this court,- under the act of 1849.

      T W. Tucker and G. O’Conor, for the complainant.
    I. George W. Bruen, sole executor and surviving partner of Thomas H. Smith, within six years of the commencement of this suit, in an answer in chancery, under oath, to a bill filed by one James Iddings, averred the debt which the plaintiff seeks to recover to be due and unpaid. This averment was sufficient to prevent the plaintiff’s claim from being barred by the statute of limitations. It was an unequivocal admission, unaccompanied by any qualification or condition. The averment was made to protect the testator’s estate, and his own interest, and was intended to convey the idea of an intention to pay. It was not necessary that the admission should have been made to the plaintiff. If made to a stranger, or in plaintiff’s absence, it would be sufficient to bar the statute. (Angell on Limitations, 296: Adams v. Orange County Bank, 17 Wend. 514; Purdy v. Austin, 3 Wend. 187; Allen v. Webster, 15 Wend. 284; 1 Peters, 351; McCrea v. Purmort, 16 Wend. 460.)
    II. The admission and promise of George W. Bruen, the surviving partner, was sufficient to take the plaintiff’s'claim out of the statute of limitations. Bruen, as surviving copartner, had, after the death of Smith, authority as to all things indispensable to winding up the copartnership. (Van Keuren v. Parmelee, 2 Comstock, 531.) This necessarily gives him the right to employ the copartnership funds, in his hands, in the payment of the copartnership debts. A surviving partner, in whose hands the partnership assets are, is in equity a trustee to pay the copartnership debts. ’ (Abeel v. Abeel, 1 Paige, 498.) At the time of Bruen’s admissions, it was' established- by the decree in Iddings v. Bruen, that Thomas H. Smith owed the copartnership of which he and Bruen were members, $800,000. This debt is copartnership assets, and is liable in equity for the copartnership debts. As to the assets in question, Bruen is to be regarded as the trustee of the plaintiff. There has been no ádverse holding, no demand, or refusal, and the statute has never commenced running.
    III. George W. Bruen, executor of Thomas H. Smith, within six years of the commencement of this suit, expressly promised to pay the1 plaintiff’s demand. This promise was sufficient to bar the statute of limitation. The statute had not commenced running at the testator’s death ; the note not being payable until afterwards. An express promise by an executor, to pay a debt not barred -at the testator’s death, will take the debt out of the statute. (2 Williams on Ex. 1384; Mauson v. Felton, 13 Pick. 206 ; Johns v. Beardslee, 15 John. 3.) The promise of Bruen creates no new obligation. It being the duty of the executor, to pay the debts due, at the testator’s death, and the law not obliging an executor to. plead the statute of limitations, (2 Williams’ Ex. 1288,) it follows that he may pay, and a fortiori may promise to pay, notwithstanding lapse of time.! It is the duty of an executor to apply the assets as they come into his hands, to the payment of the testator’s debts. In the performance of this duty he is a, trustee for the creditors, and it is'' not necessary, in order to protect their claims against the ' statute, that they should commence suits against an executor who is acting in good faith for their advantage.
    IY. The will of Thomas H. Smith, the testator, créatéd a trust to pay the plaintiff’s claim against which the'statute never had any operation. The plaintiff’s demand was a just debt at the testator’s death; the note on which the claim is founded not being then due. The executors have, under the will, power of satisfying not only just or legal debts, but any claim that may amount to a moral obligation, so long as they have assets in their hands. The most common mode of creating direct trusts not cognizable at law, is by the appointment of executors and administrators, (Angelí on Lim. 163,) and a trust created by will, prevents the statute from running in equity against debts not barred in the testator’s lifetime. (2 "Williams’ Ex. 1452; Blanchard on Lim. 39; Baker v. Martin, 5 Sim. 380; Fenwick v. Chapman, 9 Peters, 461; Kane v. Bloodgood, 7 Johns. Ch. Rep. 90; Roosevelt v. Mark, 6 Johns. Ch. Rep. 293; Rogers v. Rogers, 3 Wend. 517 ; Auld v. Goodrich, 4 Russ. 430; Crallan v. Outton, 3 Beavan, 1.)
    Y. The testator’s right of action accrued prior to 1830. The limitation created by the revised statutes in respect to trusts does not affect this claim. (Williamson v. Field, 2 Sandf. Ch. Rep. 533; Spoor v. Wells, 3 Barb. Ch. Rep. 199; Ward v. Smith, 3 Sandf. Ch. Rep. 596.)
    YI. The defendant, Herman Bruen, has not set up in his answer the bar of ten years, but only that of six years. The plaintiff would be, therefore, entitled to recover, even if the revised statutes had a retroactive effect, so as to affect trusts created previously to their enactment. This point was expressly adjudged in Dickinson and Wife v. Codwise, 1 Sandf. Ch. Rep. 214, 233; also in Van Hook v. Whitlock, 3 Paige, 407.
    YII. There is now in the hands of Herman Bruen, executor, five hundred thousand dollars, realized from the sale of real estate of Thomas H. Smith, which, by the testator’s will, and the decree in Iddings v. Bruen, he is directed to apply to the payment of the debts of Thomas H. Smith and Thomas H. Smith & Son.

      Wm. M. Hearts and Wm. Kent, for the defendant, Herman Bruen, executor.
    I. The cause of action against the firm of Thomas H. Smith & Son, (composed of Smith and George W. Bruen,) set up in the bill, accrued to the plaintiff’s testator, on the 22d day of September, 1828. This bill was filed August 16th, 1845, and alleges admissions made by George W. Bruen, that the debt remained due and unpaid as late as the year 1842.
    II. The cause of action arising upon a promissory note is, in its nature, exclusively of common law jurisdiction; it comes to be a matter of equitable cognizance, only from the death of one partner, and the bankruptcy of the other; the statutory limitation, therefore, applicable to the case is, that a suit must be commenced within six years after the cause of action accrued. (2 R. S. p. 296, § 18; 301, §49; 365, § 8; which are in accordance with the law previous to their passage.)
    III. The bar of the statute of limitations is sought to be avoided by admissions of the debt made by George W. Bruen, within the necessary period before the commencement of the suit; such admissions, to be effectual against Bruen himselfj must amount to a new promise, -and can be claimed to bind the estate of Thomas H. Smith only, (1) as a new promise made by Bruen, as surviving partner; or (2) in his office of executor of Thomas H. Smith.
    IV. The bill contains no allegation of any admission by George W. Bruen within the time necessary to avoid the operation of the statute, except that in his answer in the suit of Iddings v. Bruen, sworn to and filed June 18th, 1842, and evidence of this specific admission only is competent under the allegation.
    This admission does not make out in law a new promise as against George W. Bruen. (1.) Its terms express no promise to pay, or expectation or design of paying the debt admitted. (2.) It was not made to the creditor, nor to any agent of his, nor upon application or inquiry in his behalf, and is too indefinite as to the debt and the amount of it. (3.) It was a compulsory statement, under oath, respecting the condition of the fund applicable to the satisfaction of the claim of the complainant Jddings; if was, and was required to be, historically true, but the occasion on which it was made, permitted no implication of a promise, and required no exclusion of the inference of one. (4.) The character and all the circumstances of the suit in which the answer was made, exclude any inference of an intention or promise to pay the debts recited in response to the charges of the bill.
    V. If the allegations of the bill permitted proof of other admissions within the necessary period, none such have been established by the evidence.
    VI. The statements or admissions of Bruen respecting the debt relied on by complainant, if made by him in any relation with Smith or his estate, were made in his character of surviving partner. (1.) The charges of the bill in Iddings v. Bruen, to which the answer was responsive, relate to the debts and funds of the firm, and the dealings of Bruen with them, as surviving partner; it neither charges respecting, nor requires an answer concerning, his proceedings as executor. The answer must be intended to be in the' same relation in which the charges are applied. (Deyo’s Executors v. Jones’ Executors, 19 Wend. 494.) (2.) The bill in this cause does not charge any new promise or admission by George W. Bruen, as executor.

    VII. An acknowledgment and promise to pay made by one of the partners, after a dissolution, will not revive a debt against a firm which is barred by the statute of limitations. (Van Keuren v. Parmelee, 2 Coms. 523.)
    VIII. An admission or acknowledgment of a debt by an executor, in terms sufficient, if made by the debtor himself, to revive a debt barred by the statute, will not revive such a debt against the testator’s estate. An express promise is necessary, if even that can avail. (Tullock v. Dunn, Ryan & Moody, 416; Oakes v. Mitchell, 3 Shep. (Me.) 360 ; Johnson v. Beardsley, 15 John. 3; Thompson v. Peter, 12 Wheat. 565; Peck v. Botsford, 7 Conn. 176; Fritz v. Thomas, 1 Whart. 66; Reynolds v. Hamilton, 7 Watts; Angell on Lim, (2d ed.) pp. 291, 296.)
    IS. Attributing, then, the statements of George W. Bruen, concerning the debt, to his official character as executor, they do* not revive the debt against the estate. Especially not against the real estate, the fund sought to be charged in this suit; and should a decree be made for the debt, as revived by a new promise of the executor, it should be limited, so as to confine its collection to legal assets only in the hands of the executor. (Morris v. White, 6 Johns. Ch. R. 373; 2 R. S. p. 101, §10.)
    X. If a decree should be made for the principal debt, it should be without interest, or with interest at an equitable rate, and for not more than six years.

       See the report of this case, so often referred to in the pleadings and argument of the principal case, in 4 Sand. Ch. B. 223. In the principal case, it -was among other things proved, that under the final decree in the suit of Iddings v. Bruen, the real estate of Thomas H. Smith was sold in 1849, and that after paying arrears of taxes and assessments, and also $101,315 to Herman Bruen, A. M. Bruen, and the estate of Matthias Bruen, there was a surplus of more than four hundred thousand dollars payable to Iddings as receiver. The remaining history of the affair is, that the debt represented by Iddings was paid, and a sum reserved to cover other claims; and the residue was divided between G. ’W. Bruen and the heirs of Thomas H. Smith by an amicable arrangement.

   By the Court.

Mason, J

The original justice of the plaintiff’s demand against Thomas H. Smith & Son is not disputed ; nor is it pretended that any portion of either principal or interest has ever been paid upon it. The only question discussed before us was, whether the claim is or is not barred by the statute of limitations.

It was contended by the plaintiffs that the testator had created a trust for the payment of his debts, and that the statute of limitations therefore did not apply. The will contained the usual direction that all his just debts should be paid, but we are not aware that such a direction has ever been held to create a trust. It is only where the testator has ordered his real estate to be sold, or has devised it to be sold for the payment of his debts, that a trust is created, which is not affected by the statute of limitations. We have not been able to find any such devise or order in the will before us, or any clause or expression from which an appropriation of the real estate for the payment of debts, can be inferred. The idea that it might become necessary to resort to it for that purpose, does not appear to have entered into the testator’s thoughts. He evidently considered his personal estate to be much more than sufficient for the discharge of all his pecuniary obligations, for he directs that all the debts and incumbrances upon his real estate shall be paid ■ out of his personal estate, and gives a legacy of $30,000 to each of his children, and also the sum of $280,000 to be invested by his executors for their benefit, and then directs that if the personal estate should not suffice, after payment of all his debts, for these large sums thus given to his children or set -apart for their benefit, his executors should sell such part of his real estate as would enable them to make up and provide, not for his debts, but for the personal sums thus given to his children. He thus had distinctly in view, at the time of penning or dictating this clause, the existence of debts, and the necessity of their payment, as well as the amount of the legacies, and his direction to sell a portion of the real estate for the payment of legacies, and not of debts, is conclusive to show that he considered the personal estate to be sufficiently large to pay all the debts, and that therefore a provision for them out of the real estate was wholly unnecessary.

There was no trust then created by this will which would prevent the statute of limitations from running against this demand.

The plaintiffs next insisted, that, admitting the statute of limitations to be applicable to the claim, George W. Bruen, the executor, had made a sufficient acknowledgment of it to remove the bar of the statute, and, in support of that position, read his answer verified in June, 1842, to a bill in chancery, filed against him by one James Iddings. The plaintiff in that case was a receiver appointed by the court of chancery in a creditor’s suit, brought by Joseph Cowperthwaite, upon a judgment recovered by him against George W. Bruen for the sum of $36,000, or thereabouts; and the bill set forth the will of Thomas H. Smith and the various relations which George W. Bruen held towards his estate as surviving partner, executor, and devisee. It also charged, that all or nearly all of the debts and liabilities of the firm of Thomas H. Smith & Son had been compromised or paid and discharged, and that upon a settlement of the estate of Thomas H. Smith, there would be found a large balance belonging to Bruen individually, as one of the partners of Thomas H. Smith & Son, and also in right of his wife as devisee or heir of her father, and prayed for an account by him of the private estate of which he was executor, as well as of the partnership property.

In his answer to this bill, George W. Bruen admitted that a large amount of the debts and liabilities of the firm of Thomas H. Smith & Son had been compromised or paid, but insisted that there was still a considerable amount of debts and ..claims outstanding against them, several of which he specifies, and among them a debt due by the firm to Thomas Bloodgood, amounting to $20,000 and upwards, including interest, and that all these specified debts amounting in the whole to about $57,000, 'including interest, were, exclusive of certain judgments amounting to more than $800,000, recovered against them by the United States. He therefore denied that there was a large sum belonging to the firm of Thomas H. Smith & Son, in which he had an individual interest. He also denied that he had any interest in right of his wife in any surplus of the estate of Thomas H.'Smith, after payment of the debts and liabilities existing against it, because he believed that such debts and liabilities would, if they were all. paid, absorb the whole property of himself and wife, or either of them, in right of his said wife, as one of the heirs of Thomas H. Smith or otherwise. He then set forth two debts due from the individual estate of Thomas H. Smith, amounting, with interest, to $75,000, and said that those debts, being added to the before-mentioned debts of $57,000 against the estate of Thomas H. Smith & Son, made an aggregate liability against the estate of Thomas H. Smith, of $132,000 or thereabouts, exclusive of the judgments in favor of the United States for $800,000.

It was admitted that there was no other debt due from Thomas H. Smith & Son to Thomas Bloodgood than the 'debt mentioned in the pleadings in this cause. ' Here, then', was an acknowledgment in the year 1842j by Bruen, not only in his capacity of surviving partner of Thomas H. Smith & Son, but as executor of Thomas H. Smith, that the plaintiff’s debt, with the interest upon it, was a subsisting and valid claim against the estate of his testator, entitled to priority over the claims of the legatees and devisees under the will, he himself, in right of,his wife, being one of such legatees and devisees. The acknowledgment, considering the circumstances under which it was made, implied not only his obligation, but his willingness to pay, if he had sufficient funds of the estate in his hands for that purpose. The interposition of the statute against the payment of this debt would have been entirely inconsistent with the defence set up against the claim of the receiver. The answer was, to use the language of Mr. Justice Bronson, in Van Keuren v. Parmelee, (2 Comst. 531,) a plain admission that the debt was due, and that the party was willing to pay it, for it was an absolute denial of any interest in the estate until after the debt should have been paid.

It was objected, however, that the acknowledgment was made, not to Bloodgood himself, nor to any one in his behalf, but to a third person. But it has been repeatedly decided,' both in this state and in England, that it is not necessary that the acknowledgment of a debt should, in order to take it out of the statute, be made to the creditor or his agent; it is sufficient if made to a stranger. In Walden v. Lawrence, (9 Wend.. 297,) the court, in answer to this objection, said that the statute .of limitations does not, like an insolvent’s discharge, impair the contract, but only operates upon the remedy by affording a presumption of payment, and hence the acknowledgment of the existence of the debt revives the debt by removing the presumption; and upon this ground it is obviously unimportant to whom the acknowledgment is made; and so, the court adds, are the authorities. The same point was lately decided by the supreme court in the third district in Carshore v. Huyck, 6 Barb. S. C. R. 583;) see also Whitney v. Bigelow, (4 Pick. 110,) Mountstephen v. Brooke, (3 Barn, and Ald. 141,) Clarke v. Houghton, (2 Barn, and Cres. 149.)

The defendant’s counsel further contended, that whatever might be the effect of the acknowledgment by the executor upon the personal estate, it could not bind the testator’s real estate, and cited the case of Mooers v. White, (6 J. C. R. 373,) in support of his position. Chancellor Kent in that case held that an admission or acknowledgment by the executor ought not to bind the real assets in the hands of the heir or devisee, inasmuch as the executor does not represent the heir, and has no control over the real estate. In the present instance, however, the executor who made the acknowledgment was also devisee in trust of the whole estate, and had the entire management of it in his hands, and the whole control over its disposition. Admitting, then, the authority of Moers v. White, in ordinary cases, where the executor has no duties to perform or power to exercise with regard to the realty, it has no application to a case in which the real estate is placed as entirely under the control of the executor as the personal. The same principle which renders his acknowledgment as executor binding on the personal estate, gives to it an equal power over the real estate.

But this question does not necessarily arise at present in this suit. The plaintiff, on the hearing, did not ask any relief against the real estate of the testator. It appears from a statement of the decree in the case of Iddings v. Bruen, which is in evidence, that provision has been made in that decree for the payment out of the estate of all the debts of Thomas H. Smith and Thomas H. Smith & Son. All that is necessary, therefore, in the present suit, is to declare that the note given by Thomas H. Smith & Son to the plaintiff’s testator, and set forth in the bill, is a valid and subsisting claim against the estate of Thomas H. Smith, to be paid with the interest accrued thereon, in a due •course of administration. The plaintiff is entitled to a decree declaring the amount due for principal and interest on the note, (which may be ascertained and shown to the court upon affidavit,) to be a valid and subsisting claim against the estate of Thomas H.’Smith, to be paid in a due course of administration.

The plaintiff is álso entitled to recover his costs, to be paid at the same time with the debt.


author: Duer, J.

text:
    Morgan v. Masterton and others.
    A testator devised all his estate, real and personal, after the payment of debts, funeral expenses, and three small legacies, to his executors as trustees, for the term of three years, and directed them to accumulate the rents and profits and income during that period; and at the expiration of the three years, if the moneys in their hands should not be applied to the erection of a statue to the memory of Gen. Washington, or should be found inadequate for that purpose, he ordered them to be equally distributed among three charitable institutions. Held, that the necessary effect of these provisions was to render all the property which they embraced inalienable during the continuance of the trust term. And that the property, being thus inalienably vested in the executors as trustees for a term of years not dependent upon lives ; and the limitation in favor of the charitable institutions being a contingent remainder, which could not take effect, if at all, until the expiration of the trust term, those provisions of the will were illegal and void, as coming within the prohibition of the statute respecting perpetuities,
    (Before Dum, Masom, and Oampbem, J. J.)
    April 13, 16, 16, 1850;
    Jan. 25, 1851.
    The complaint in this cause was filed in the supreme court in equity, by James Morgan, as sole heir-at-law, and one of the next of kin, of Alexander Morgan deceased, for the purpose of having a paper, purporting to be the last will and testament of the decedent, executed on the 28th day of June, 1841, annulled and declared void and contrary to law; and the plainfiff prayed that the same might be delivered up to be cancelled. The executors and trustees named in the will, together with the legatees and devisees therein mentioned, and the next of kin of the testator, were made parties defendants. The will was in these words:

      “ In the name of God, Amen. I, Alexander Morgan, of the city of New York, machinist, being weak of body but of sound mind, memory, and understanding, do make this my last will and testament. After the payment of all just debts, funeral expenses, and testamentary charges, I do give and bequeath unto each of my executors hereinafter named, the several sums of one hundred dollars, independent of any charges which, as executors, they may be entitled to make on my estate. I do will, bequeath, and devise unto my executors hereinafter named, and the survivors or survivor of them, all my estate, real and personal, upon trust nevertheless, to collect the rents, issues, and profits of my estate, real income, interest, and dividends of my personal estate, for the period of three years from and after my decease, to reinvest the same either on bond or bonds secured by mortgage or mortgages on real estate, or in the public stocks of the corporation of this city, or of this state, or of the United States, to repair ■ the buildings on my real estate, to insure the same, against fire, and in case my said executors shall deem it proper or advantageous to my said estate, or .more convenient to sell or dispose of my real estate, and proper conveyances to execute and deliver to the purchaser or purchasers thereof, and invest the proceeds of said sale as above directed for the period above specified, and upon this further trust, annually, in two of the daily newspapers of this city to cause advertisements to be published for three days successively, subscribed by my said executors or the survivors or survivor of them, that they hold in their hands a sum of money (setting forth about the amount) which they will be ready to appropriate towards the erection of a statue to the memory of General George Washington, in the city of New York, on such site as the corporation of this city may assign for that purpose, and which my said executors may approve, and after such design as my said executors may furnish, and also that they will co-operate with any committee who may undertake to raise by subscription, moneys sufficient, in addition to those here appropriated, to make such statue on a scale of magnificence corresponding with the merits of the subject it is intended to perpetuate, and the greatness of the city selected for its location.

      “ And upon this further trust, in' case my said executors or the survivors or survivor of them shall, at the expiration of the said three years, find the said funds inadequate, or that they have not been able to induce any committee to unite with them and procure subscriptions, at least equal to the moneys in their hands, or that the corporation have neglected to provide a suitable site for the erection of said statue, then and in such case, upon this further trust, after delivering my turning lathe with a rose engine, with all the articles belonging thereto, to the New York Institution for the Instruction of the Deaf and Dumb, to divide the said moneys with the accumulations thereon, or the bonds secured by mortgages, or the stocks in which the same may be invested, into three equal parts, and pay and deliver one-third part thereof to the New York Institution for the Blind, one other third part thereof to the society of the New York Hospital, to be applied by said last-named society to the procuring and paying for night and day watches, for the poor maniacs under their care, and otherwise for the care and comfort of these unfortunate beings, and the remaining one-third part thereof to the New York Institution for the Instruction of the Deaf and Dumb. Lastly, I do hereby nominate, constitute, and appoint my friends, Alexander Masterton, of Eastchester, in this state, stone-cutter, John Buchanan, of this city, soap-boiler, and Grassett Launy, of this city, coppersmith, executors of this my will, and trustees of my estate. In witness whereof,” &c.
    The executors, and two of the charitable institutions named in the will, put in answers, insisting on its validity.

      J. T. Brady, for the plaintiff.
    I. The testator made no valid testamentary disposition of any part of his estate, real or personal. (1st.) As to the real estate. It is not disposed of at all, except by the devise in trust to the executors. Assuming the trust to be void, and that the devise is not valid as a power, the heir must take this estate. Even if the trust could be sustained, yet the real estate itself is not disposed of, and the trust and ultimate disposition in the will relate only to the rents, profits, or income of that estate. A sale of the real, estate not being absolutely directed, but- made dependent on the discretion of the executors, or the occurrence of a contingency, it retains its character as real estate, and even if it were sold by the executors, that which represented the fee in the proceeds would belong to tbe beir. (Wright v. Trustees of Methodist Church, 1 Hoffman’s Ch. Rep. 202; Ackroyd v. Smithson, 1 Br. Ch. Rep. 503; Mr. Cox’s note in 3 P. Wms. 22; Jarman on Wills, 526, 529, 553; Amphlett v. Park, 2 R. & M. 221.) (2d.) As to tbe personal estate, Tbe will merely directs tbe investment and disposition of tbe income and dividends of tbe personal estate. Tbe principal of that estat§ is not disposed, of. Tbe cases above cited present tbe legal principles which are to be applied under this point. The language of tbe will admits of no sound construction except that here suggested. If tbe second point be sustained, then tbe court have only to consider tbe question of the validity of tbe will in reference to tbe income and profits of tbe real and personal estate, and would be required to declare that no other part of either was disposed of by that instrument, so as to cut off tbe beir or next of kin.
    II. Tbe will is void as to both the real and personal estate. (1st.) Tbe trust to accumulate tbe income of tbe real or personal estate -for three years, either with tbe view to have a statue erected, or for tbe benefit of tbe ultimate devisees, (who are adults,.) is contrary to tbe provisions of the revised statute, and void. (1 R, S. 728, § 55; 4 Kent’s Com. 310; 1 R. S. 726, § 37; p. 761, § 2, 3, 4, 5.) (2d.) Tbe trust, as to tbe primary object of tbe testator in reference to tbe statue, is unquestionably void. (3d.) Tbe trust being for an absolute term is for that reason also void. (Bronson, J., in Hawley v. James, 16 Wend. 65.)
    III. The provisions in the will designed as trusts, do not create a valid power, because the accumulations directed are contrary to law, and because such provisions relate to a design of the testator impracticable, if not. illegal in its nature. And it is also insisted that where tbe testator attempts to create a trust eo nomine, and tbe attempt fails, a power cannot by judicial construction be substituted to accomplish indirectly what the law condemned.
    IY. The ultimate disposition of what is given by the will cannot, in any view of the case, be sustained, for reasons already suggested in these points, and also because — (1st.) That ultimate disposition is predicated of the attempt to execute the trust, and the failure for certain specified reasons. It is not limited on the trust itself, being from its own nature and by law defeated. (2.) The trusts are in the alternative, and mixed and complicated together, so that the separation of them is not either obvious or practicable, and the trust, though composed of several parts, is single. (Darling v. Rogers, 22 Wend. 483, 494; Coster v. Lorillard, 14 Wend. 265; Hawley v. James, 5 Paige, 318; 16 Wend. 61, and page 144; Hone’s Executors v. Van Schaick, 20 Wend. 564; Van Kleeck v. New York Dutch Church, 20 Wend. 451; Sharpstein v. Tillou, 3 Cow. 651; Jarman on Wills, pp. 301, 553, 555, 568; Schauber v. Jackson, 2 Wend. 13.)

      D. D. Lord and B. F. Butler, for the defendants, the executors and the charitable institutions.
    I. The executors being authorized to sell the real estate, there is an equitable conversion, and the whole property is, therefore, to be viewed as personalty. (Gott v. Cook, 7 Paige, 534; S. C. 24 Wend. 641; Stagg v. Jackson, 1 Comstock, 212.)
    II. ' Trusts of personal estate, and of the income thereof, not being enumerated in the section of the revised statutes which defines the purposes for which express trusts may be created of lands, the bequest in trust to the executors, in the present case, is not affected by that section, and will be upheld if otherwise lawful. (2 R. S. 728, § 55; Gott v. Cook, 7 Paige, 534; S. C. 24 Wendell, 641; Van Vechten v. Van Veghten, 8 Paige, 104.)
    III. There is no suspense of the absolute ownership of the property, in the present case, unless it be produced by the direction to invest and accumulate the funds for three years, with a view to the contingent application thereof, at the expiration of that period, to the erection of the. statue mentioned in the will.
    IV. If it be conceded that this direction involves, for the period named, a suspense of the absolute ownership of the property ; and if it be further conceded, that the direction for the accumulation of the income during said period is also unauthorized and void; jet the last trust created by the will, in respect to the capital or principal bequeathed to the three institutions therein specified,, is valid, because for a lawful purpose, and totally distinct from the objectionable provisions which precede it. (Darling v. Rogers, 22 Wendell, 483; Van Vechten v. Van Veghten, 8 Paige, 104; Parks v. Parks, 9 Paige, 107 ; Irving v. De Kay, 9 Paige, 521.)
    Y. Even if the principle of equitable conversion be not applicable to this case, and though it be conceded that the trust estate in the realty is void, yet the power of division between the three institutions is valid as to the realty, as a power in trust. (2 R. S. 729, § 56, § 58; 2 R. S. 724, § 24.)
    YI. Whether, therefore, the estate be regarded as consisting wholly of personalty, or as consisting in part of realty also, the executors and trustees should be directed to divide the capital or principal thereof, at the expiration of three years from the testator’s death, between the three institutions mentioned in the will.
   By the Court.

Duer, J.

It is scarcely possible to extract a consistent meaning from the provisions of this very obscure will, and were it necessary to make the decision, we should be greatly at a loss to determine whether the fund which is to be applied or distributed in the manner stated in the will, at the end of three years from the death of the testator, must be construed to embrace the entire capital of his estate, real and personal, (the real being converted into money or securities by a sale,) or must be limited to the accumulated rents, profits, and income. It is not necessary, however, to decide the question, since whichever may be the true construction, we are clearly of opinion that the dispositions in the will cannot be sustained.

The testator devises all his estate, real and personal, after the payment of debts, funeral expenses, and three small legacies, to his executors as trustees for the term of three years from the time of his death, and directs them to accumulate the rents, profits, and income, during that period; and at the expiration of the time, if the moneys in their hands (whether including the proceeds of a sale of the real estate is uncertain) shall not be applied to the erection of a statue to the memory of General Washington, or shall be found inadequate for that purpose; he orders them to be equally distributed .among three of our charitable institutions — The New York Hospital, and the Institutions for the Deaf and Dumb, and for the Blind, It is needless to state the proyisions of the will with more particularity, since it cannot be denied that their necessary effect is to render all the property which they embrace, inalienable during the continuance of the trust term; and whether that property be partly real and partly personal, or by an out and out conversion of the real, wholly personal, .is immaterial, since the distinction cannot prevent or vary the application of the statutory rule in relation to perpetuities. The rule is the same, whatever may be the description of the property to which it is applied. Whatever in this case may be the nature of the property, it is vested in the executors as trustees, for a term of years not dependent upon lives, and wholly suspending, during its continuance, the power of alienation, and the limitation in favor of the three institutions that have been named is a contingent remainder, which from the terms of its creation could not take effect, if at' all, until the expiration of the trust term. We have struggled in vain to escape from the conclusion that the term and the remainder are equally and wholly void. The decision of the court of errors in Hawley v. James, has settled the law that under the revised statutes there can be no suspense of the power of alienation for an absolute term of years, however short in its duration. Unless the continuance of the term is made to depend upon not more than two specified lives in being, it is wholly void,.and as we' understand the decision, every remainder which is only to take effect at the expiration of the term as too remóte, is equally void. It is possible that there may be a distinction in these cases between a vested and a contingent remainder, but the distinction,’if it exists, is not applicable to the préseñt case, since the remainder here is plainly contingent. It is probably a subject of just regret that the opinion of Chancellor Walworth, allowing a suspense of the power of alienation during a moderate term of years, was not followed in the court of errors, but we are bound by that interpretation of the revised statutes which the court of ultimate resort has adopted and to which it has constantly adhered. We certainly think that the law in its present state is defective, and a source of frequent and serious inconvenience', but it is only by an exercise of legislative power that it can now be altered and amended.

It was suggested that we might get over the difficulty in the present case by holding the trust term, the direction to accumulate, and the discretionary power given to the executors to apply the moneys in their hands to-the erection.of a statue, to be alone void, and. thus give effect to the remainders as a vested and immediate interest, but-we think that by converting a future into a present estate, and a contingent into a vested interest, we should make a will for the testator, instead of expounding that which he has himself made. It is possible that had the testator known or anticipated that the prior limitations in his will would be adjudged to be void, he would have made an immediate and absolute devise of his estate to the institutions which are conditionally the objects of his bounty; but no such intention can be deduced from the language of the will, and upon a mere conjecture, however probable, we cannot disinherit the heir-at-law, nor deprive the next of kin of their rights in the personalty. It fortunately happens that the heirs and next of kin of the deceased are his near relatives, whose reasonable expectations as the natural objects of his bounty, from some unexplained cause in making his will, he wholly disregarded. Under the Roman law, such a will would have been set aside as inofficious, that is, as violating the moral obligation which the ties of kindred create.

This imperfect obligation is not enforced by our own law, but it is not the less true that it exists.

There must be a decree declaring that all the provisions of the will, except those which relate to the payment of debts and funeral charges, and the appointment of executors and the payment of their legacies, are illegal and void, and that the real estate has descended to the heirs-at-law, and that the next of kin are entitled to the residue of the personal. There must also be a reference to a suitable' person to take and state the accounts of the executors, and to ascertain and report who, as next of kin, are entitled to distributive shares in the personal estate.

The costs of all the parties, and reasonable counsel fees of the executors, are to be paid out of the fund in their hands.

Further directions are reserved until the coming in of the report of the referee.

      it) 16 Wend. 61'.


author: Oakley, Ch. J.

text:
    Bulkeley v. Keteltas and others.
    On an appeal from a judgment rendered at the special term under the code of 1849, after a trial by jury, the general term cannot entertain the question, whether the verdict was warranted by the evidence, or the question whether the damages were excessive.
    The remedy of the party is only by a motion, at the special term, to set the verdict aside, and if unsuccessful, then by an appeal from the order denying his motion.
    An objection that the judge, in his charge to the jury upon the facts of the case, went beyond the line of his duty, can only be heard in the same manner, byway of motion to set aside the verdict, at the special term.
    Such a charge involves no point of law ; it is discretionary with the judge, and it is not the subject of exception.
    It is the right of the judge, in charging the jury, to comment on the evidence. The mode of exercising this right depends upon his own sense of judicial responsibility.
    If the court see that the charge has probably caused injustice, it may interfere to remedy it on a motion to set aside the verdict.
    The practice of inserting the judge’s charge, in extenso, in a bill of exceptions, is improper.
    Where a long series of propositions is submitted for the judge to charge, the better practice is for him to omit to notice them in detail. The party has his remedy by an exception, if the judge in his general charge omit any instruction thus called for which ought to be given. The catechising the judge in this form is to be discouraged.

      The question of probable cause, in an action for a malicious prosecution, is a mixed question of law and fact. Where the facts are uncontested, it is the duty of the judge to apply the law and determine the issue. If there are contested facts, he should charge the jury hypothetically, upon the state of facts claimed by each party.
    (Before Oakley, Ch. J., and Paine, J.; with the concurrence of three other Justices.)
    Nov. 22, 28, 26, I860;
    Feb. 15, 1851.
    This was an action for a malicious prosecution. The report of the case is mainly confined to certain questions of practice, and it is not deemed necessary to state the facts in controversy, nor the opinion of the court at large on the principal points argued.
    The cause was tried before Yanderpoel, J., in December, 1849, and resulted in a verdict in favor of the defendant, W. A. Keteltas, and against the three other defendants. In charging the jury, the judge commented at large, and with much force, upon the testimony, evidently favoring in his remarks the plaintiff’s view of the facts established- At the same time, he distinctly and clearly instructed the jury, that it was their province exclusively to weigh the evidence and decide upon its effect, and it was for them to determine the facts involved. The defendant’s counsel submitted to the judge numerous propositions in writing, which they requested him to charge, and upon which he charged specifically and in detail.
    After the trial, the three defendants made a bill of exceptions, in which the entire charge of the judge was inserted, it having been taken in full by a short-hand reporter at the time of its delivery. In this bill, they presented exceptions in respect of the charge on the facts, as well as on numerous points of law. No motion for a new trial was made at the special term, but a judgment on the verdict having been entered and perfected, the defendants appealed from the judgment to the general term.
    On the argument of the cause being moved, the plaintiff-objected to the defendants being heard on the several points, that there was not sufficient evidence to support the verdict against E. Keteltas and. J. H. Brush, that the damages were excessive, and that the judge’s charge on the facts was erroneous. The court reserved this objection, and the cause was argued at large.

      C. B. Smith and F. B. Cutting, for the defendants, appellants.

      L. F. Bulhéley and J. T. Brady, for the plaintiff.
   By the Court.

Oakley, Ch. J.

The controversy in this case had its origin in an action instituted in the common pleas, by one Bradley, against Eugene Keteltas, for an assault and battery, in which the respondent in this case acted as the attorney of Bradley. Upon the trial of that action in June, 1848, the respondent was examined as a witness on behalf of the plaintiff. Subsequently, and in the month of August, 1848, the appellants instituted a complaint before one of the police justices against the respondent, for perjury, in having sworn falsely upon the trial in the common pleas, that he was not interested in the event of the suit. Upon the hearing before the justice, the charge was dismissed by him. An application was thereupon made by the appellant, Charles B. Smith, to the assistant district attorney, and through his intervention an indictment against the respondent was, obtained from the grand jury. The indictment was\tried in the sessions, and upon the close of the evidence on the^ part of the prosecution, the presiding judge directed an acquittal of the respondent, and he was duly discharged.

The respondent thereupon instituted an action for malicious prosecution against the appellants, in this court, which was tried in December, 1849, before Judge Yanderpoel and a jury ; upon the trial of the cause, a verdict was rendered in favor of the plaintiff for the sum of $3750. The appellants now move to reverse the judgment, and for a new trial upon a bill of exceptions.

Upon the opening of the argument, it was insisted on behalf of the respondents, that there were certain questions sought to be raised on this bill of exceptions which were not properly before the court, and could not be raised on this appeal, which is from the judgment in the cause; viz., 1st It is said that there was not evidence sufficient to implicate Eugene Keteltas and J. H. Brush. Upon the trial in the court below, at the conclusion of the plaintiff’s case, the judge determined there was evidence enough on this point to go to the jury. As to William A. Keteltas, he directed a discharge. 2d. It is made a point that the damages were excessive, particularly as against the appellant Brush; and 3dly. That the general character of the charge of the judge was calculated to have an improper influence upon the minds of the jury.

We suggested upon the argument, a doubt whether the practice of bringing up questions both of law and fact upon an appeal like the present was correct; but we said we would hear the exceptions and the objection to the damages argued, and would afterwards consider whether they would be entertained or not in this. form.

We have examined the subject, and are of opinion that these questions cannot be reviewed on an appeal to the general term, from the judgment. In this conclusion' all the judges of this 'court concur. The question whether there was sufficient evi: dence to justify a verdict, must be first raised at the special term, on a motion to set it aside. If the motion for a new trial is denied, an appeal may then be taken from the decision of the justice at special term, not as a judgment, but as an order. So also as to the objection to the excessive character of the damages; this question can never come up on a bill of exceptions. The motion to set aside a verdict on the ground that the damages are excessive, is one properly addressed to the general discretion of the court. It is like motions for a new trial on the ground surprise or of newly discovered evidence, which never arise on a bill of exceptions.

Were these questions properly before us, after the examination we have given them, we should not, in all probability, disturb the verdict on either ground. If the appellants were liable at all, the damages awarded by the jury are not more than could have been reasonably expected.

The charge given by the judge has been inserted in extenso in the bill of exceptions. This practice is not to be encouraged, and is manifestly improper, unless the objection that in the charge the judge has gone beyond the line of his duty can be brought before the general term on an appeal from the judgment.

The charge before us is a very decided one on the matters of fact which arose upon the trial, and no doubt had its effect on the decision of the jury. But did the judge in this respect go beyond the line of his strict duty, and if he did, can it be reviewed here ? The right of the judge to comment on the evidence adduced upon the trial of a cause before him, is not to be questioned. The exercise of. this right is not the subject of exception. It involves no point of law. It rests in the sound discretion of the judge, and the mode of its exercise depends upon his own sense of his judicial responsibility. It is not to be presumed ■ that, in discharging this duty, he will deviate from his just province. But if the court see. that the charge of the judge has probably caused injustice, it may interfere to remedy the evil, in the same manner that it would with the verdict of a jury when against evidence. We are not aware of any other mode or ground for interference with the charge of a judge on this account.

• The line between the province of the judge and that of the jury seems to have been strictly maintained in this charge, and the jury could not- have received it either as instruction or authority; but merely as intended to aid and enlighten them in the formation of their conclusion.

The only matter of law involved in this case is this: Was there any error in the charge of the judge on submitting the cause to the jury ? There is at first blush a little difficulty, perhaps, in ascertaining the exact extent of the ruling of the judge. There was a long series of propositions submitted-for him to charge upon the trial, to .each of which he returned answers, some of them with qualifications, and some referring. to his general charge.

The right of counsel to present their propositions to the j udge is undoubted ; but it is- not my practice to notice them in detail. If the judge omit any instruction thus called for which ought to be given, it is error; but there is no need of specific answers to each. The practice of catechizing the judge, sometimes with points not called for by the case, is to be discouraged. It tends to embarrass the jury in their understanding of the general charge.

The leading proposition submitted by the counsel for the appellants, was that in an action for malicious prosecution, the want of probable cause, upon which the action alone is maintainable, is a question of law for the court, and not a question of fact for the jury.

It was said that the practice in this court had varied from the rule in other courts and was wrong. As to our practice, we have always held the question of probable cause to be a mixed question of law and fact; where the facts are ascertained, it is a question of law. So in every case, as on a demurrer. Where the facts are uncontested, it is1 the duty of the judge to apply the law, and determine the issue. But where there are contested facts, it is the duty of the judge to charge the jury somewhat hypothetically, i. e., that if they find the facts to be thus and so, the law is thus, and vice versa. We know no other rule in determining such questions, and no other practice in reference to a judge’s charge.

(The Chief Justice then proceeded to" consider the charge, and the other questions involved, and in conclusion the court sustained the judge who tried the cause.)

Judgment at the special term affirmed.


text:
    Eliza Moore v. The Mayor, Aldermen and Commonalty of the City of New York.
    Where a municipal corporation ia authorized by an act of the legislature to take lands for the public use, making compensation in the manner prescribed by the act, to the respective owners and persons entitled to or interested in the same, upon which being done, the corporation was to become seized in fee-simple absolute of the lands so taken; and in proceeding under the act, compensation for a portion of the lands whereof L. M. was seized in fee, was awarded and paid to him, without any notice being taken of the inchoate right of dower of his wife E. M. therein, or award made to her therefor; it was held, that her interest, for the purpose of compensation under the act, was not to be considered as distinct from that of her husband, so as to require a separate estimation, and that he was for that purpose to be deemed the entire owner of the estate; and hence she was not entitled to dower therein after the death of her husband.
    Thq wife’s right of dower being an incident to the marriage relation, is merely inchoate during the lifetime of the husbandduring which she has no vested or certain interest in his lands. Before it vests by his death, any regulation of it may be made by the legislature, though its operation is in effect to divest her right of dower.
    The case of Lamence v. Miller, 1 Sand. S. O. R. 516, and 2 Comstock, 245, commented upon, and the foregoing principle sustained.
    The power of the state to take private property for public uses, results from its right of eminent domain, which is only restricted by the constitutional provision that just compensation shall be made to the owner. In cases of this character, the husband is justly considered the entire owner, and the award is properly made to him. And on payment to him of the full value of the property, the title vests in the public, discharged from any claim of dower on the part of the wife.
    (Before Oakley, Ch. J., and Sandford and Paine, J. J.)
    Feb. 12;
    March 15, 1851
    This was an action commenced by tbe plaintiff, as tbe widow of Lewis Moore, to recover dower in certain premises in tbe city of New York occupied by tbe defendants.
    Tbe lands were taken by tbe corporation of tbe city of New York under an act passed March 14,1817, (Laws of 1817, cb. 75, page 63,) by which _ it was enacted that in order to obtain tbe lands required for tbe public use, (described in the abt,) tbe supreme court was to appoint commissioners of estimate and assessment, who were on oath to make a just and true estimate of the loss and damage to the respective owners, lessees, parties, and persons, respectively, entitled, unto or interested in the lands, tenements, hereditaments, or in the privileges or appurtenances to the same belonging, which were so required for the public use. The report of the commissioners was to be confirmed by the court, and when confirmed, was to be final and conclusive, as well upon the corporation as upon the owners, lessees, and persons and parties' interested in and entitled unto the lands, &c., so required, and the corporation should thereupon become seized in fee-simple absolute of such lands, &c. The sums awarded for loss and damage were to be paid by the corporation to those in whose favor such awards were made by the commissioners. Under this act, the commissioners reported that Lewis Moore was seized in fee of the premises in question, and they awarded to him, for his loss and damage, by reason of their being taken by the corporation, $29,420. The report was confirmed, and this sum was paid to Lewis Moore. Some other facts appear in the opinion of the court. The cause was tried before one of the justices at special term, on the 22d of October, 1850, a jury being waived by the parties. Upon the trial, judgment was rendered for the plaintiff, from which the defendants appealed to the general term.

      A. J. Willard and II. D. Davies, for the defendants.
    I. The act of March 14th, 1817, conferred full and ample authority upon the defendants, on complying with its provisions, to become vested and seized in fee-simple absolute of the lands of Lewis Moore, mentioned in the complaint.
    The proceedings taken to divest the title of Lewis Moore to the lands, and to vest the same in fee in the corporation, were in strict conformity with the statutes; Lewis Moore appeared before the commissioners and the supreme court, and was heard in the premises; the judgment of the supreme court was given in confirmation of the proceedings; the sum awarded as the value of the fee-simple of the lands was paid to Lewis Moore, and the sum was accepted by him, in the year 1821; and the corporation entered thereafter, in the same year, into possession of the lands, as seized thereof in fee-simple; and have, by themselves or their grantees, continued in such possession; claiming to be absolute owners in fee, until the filing of the complaint in this suit. The title of the corporation, at all times from the payment of the award, was that of a good and indefeasible estate in fee-simple; liable in no'respect to any claims of Lewis •Moore, or of any other person.
    II., The act of the' legislature, under which the lands were taken and vested in fee in the corporation, was constitutional and valid. (2 Kent’s Comm. 339, note c. 6th ed.; 4 Ibid. 49; 3 Paige, 73, and 5 Ibid. 160, per Chancellor; 1 Hamm. R., Ohio, 538; 3 Edw. Ch. R. 47; Park on Dower, 246, note.)
    HI. Lewis Moore, and all persons claiming under or through him, are estopped from impugning or questioning the title of the corporation. (See Smith’s Leading Cases, Law Library, vol, 28, p. 45.)
    IY. The proceedings set forth in the pleadings, for transferring the lands in question to the corporation in fee, had, in pursuance of the statutes referred to and resulting in the confirmation by the judgment of the supreme court, in 1821, form a final decision of the matters acted on.
    Y. .The amount awarded was for the lands taken, and is to be regarded as a substitute therefor; and the plaintiff, if entitled to dower out of the said lands, is to obtain it from such substitute.

      J. M. Mason and J. M. Knox, for the plaintiff.
    I. The respondent, Eliza Moore, is entitled to dower in the real property whereof her husband was seized during coverture of an estate of inheritance. (4 Kent’s Com. 35, 41; 2 R. S. 26, § 1, 3d ed.; 2 Black. Com. 132.)
    II. A widow’s title has relation to the time of the marriage, and to the seizin which her husband then had. Her estate is a continuation of the husband’s, commencing at the time of the purchase, if the lands were acquired after marriage. (Lawrence v. Miller, 2 Comstock, 255, per Gardiner, J., who cites Cruise Dig., Title Dower, Tit. VI., ch. 2, §§ 34, 17.)
    III. By marriage and seizin, the right of dower is a vested right, and cannot be defeated by subsequent legislation. (Kelly v. Harrison, 2 John. Ca. 29; Jackson v. Edwards, 22 Wend. 498; Lawrence v. Miller, 2 Comstock, 245, per Shankland, J., at p. 253.)
    IV. The appellants claim under an act of the legislature of 14th March, 1817, authorizing the taking of the premises in which the respondent had an inchoate right of dower, for public purposes; but private property cannot be taken for public use, without just compensation. (U. S. Const., Amendment 5, (1789,) adopted in N. Y. Const. 1821, art. 7, § 7.) And this is declaratory of a great and fundamental-principle of government, and any law violating that principle must be deemed a nullity, as it is against natural right and justice. (Spencer, Oh. J., in Bradshaw v. Rogers, 20 Johns. 106.) And provision for the compensation must be made when the taking is authorized. (Walworth, Ch., in Bloodgood v. Mohawk and H. R. R. Co., 18 Wend. 8.)
    V. There is no provision for the compensation to the respondent for her right of dower, made by the commissioners’ report; and the proceedings under the act of 1817, have not, therefore, divested her rights either to an assignment of dower, or to a compensation for that dower. Other special interests are noticed and provided for in the- report, as mortgages, liens, &c. The money might have been paid into court, for her dower, or if her exact rights were unknown. The city never has paid for the right of Mrs. Moore. The corporation has what they have paid for, i. e., the right of Lewis Moore.
    VI. It is admitted that the respondent did not unite with her husband in any receipt to the defendants, for the amounts awarded to him, or any part thereof. And that she demanded her dower in the said premises, of the defendants, in July, 1843, and that the same was refused. If not strictly entitled to dower in these premises, she is entitled to compensation for her interest in tbe property taken by tbe appellants under tbe act of 1817. And the amounts awarded to her husband, are the proper measure of damages; the appellants being in the same situation as a grantee of the husband alone would have been. (Hale v. James, 6 J. C. R. 258.)
   By the Court.

Oakley, Ch. J.

This is an action brought by the plaintiff, as the widow of Lewis Moore, deceased, to recover her dower in certain premises in the city of New York, of which her husband was seized in his lifetime. The land in question is a portion of the ground now occupied by the Eulton market.

An act was passed by the legislature of this state on the 14th March, 1817, authorizing The Mayor, Aldermen and Commonalty of the city of New York, to take possession of certain lands in that city, among which were the premises in question, for the purpose of a public market. Under this law, commissioners of estimate and assessment were appointed by the supreme court. These commissioners proceeded in the performance of their duties, and estimated the amounts due to the several owners of the lands. Their report was submitted to the court and duly confirmed. The amount awarded to Lewis Moore, the husband of the plaintiff, as the entire value of the land belonging to him which was required for the market, was paid to him. The law provided that upon the confirmation of the report, the land included in it should vest in the corporation of the city, in fee-simple absolute. No objection is made to the regularity of the proceedings on the part of the commissioners; nor is any question made as to their effect on the interest of the husband. .

The plaintiff now claims that she is entitled to her dower in that portion of the premises so taken, which were owned by her husband; no provision having been made in the report of the commissioners for compensation to her, although she was at that time the wife of Lewis Moore.-

The question which is here presented is, whether a wife has such an interest in the premises owned by her husband, while her right of dower is inchoate, as cannot be divested by this act of the legislature and the proceedings under it. Reference has been made, on the part of the respondents, to the case of Lawrence v. Miller, (1 Sand. S. C. Rep. 516,) which.came originally before this court, and in which the court of appeals subsequently reversed our decision. The reversal did not affect the principles which governed us in that case, so far as they are applicable to the present. We then held that the wife’s right of dower was merely inchoate during the life of the husband, and that she had no vested or certain interest in his lands. • The right being merely an incident to the marriage relation, it seems to us that while this Tight is thus inchoate, and before it has become vested by the death of the husband, any regulation of it may be made by the legislature, though its operation is in effect to divest the right; the marriage relation itself being within the power of the legislature to modify, or even abolish it.

The power of the state, to take private property for public uses, results from its right of eminent domain, and that power is not restricted except by the constitutional provision, that just compensation shall be made to the owner. In this case, the husband was deemed to be the owner of the entire estate in the land, and the inchoate right of the wife was not considered by the commissioners, and we think justly so, as an interest distinct from that of her husband, as the subject of' estimate as to its value, separate from his. Indeed, the value of her interest,. such as it was, would seem to be scarcely capable of being estimated as a separate interest. We see no reason to doubt, that the commissioners were right in considering the entire estate in these lands as vested in the husband, and that he having been paid the full value of them, the corporation, by force of the act, became seized of the lands in fee-simple absolute, discharged of any claim of dower of the wife therein.

Judgment of the special term reversed.


author: Sandfobd, J.

text:
    Hoyt v. Doughty and others.
    Where two unite in mortgaging their lands owned in severalty, each is presumptively liable for half the debt, and his lands are primarily chargeable to that extent.
    A subsequent unrecorded agreement, by which one of two joint mortgagors of lands owned by them severally, agrees to pay off the whole debt, does not affect subsequent bona fide purchasers of his lands for value without notice of the agreement; and as to him, the mortgage debt will be charged one half upon the lands of each mortgagor.
    I. and J., owning lands in severalty, joined in mortgaging them to D. for a joint debt. I. afterwards executed a bond of indemnity to J., agreeing to pay the whole mortgage. Subsequently I. executed mortgages on his lands to other parties, for a valuable consideration, who had no notice of the bond or agreement between him and J. On the foreclosure of the mortgage to D., held, that J.. could not, as against the subsequent mortgagees, compel the collection of the whole of it from the lands of L to their prejudice, and that half of it was collectible from the lands of J.
    (Before Oakley, Ch. J., and Sandford and Paine, J. J.)
    March 8;
    March 15, 1851.
    This was a suit to foreclose a mortgage for $1000, executed December 31st, 1829, by John Doughty and Isaac Doughty, to Jacobus Dikeman, duly recorded, and on the 13th of April, 1850, assigned by his executor to the complainant. The mortgage was on two distinct parcels of ground in the city of New York, one of which was owned by John Doughty, and the other by Isaac Doughty, in severalty. The latter consisted of four lots on 121st-street.
    On the. reference hereafter stated, the following facts appeared. The object of executing the mortgage was to raise money for the discharge of certain joint liabilities of John and Isaac Doughty, as sureties.
    In 1837, some arrangement was made between John and Isaac Doughty, by which the latter was to assume the payment of the whole of the mortgage, and thereupon Isaac, on the 16th October, 1837, executed to John Doughty a bond, with a condition that he, Isaac, would pay the mortgage, and would indemnify and save harmless John therefrom.

      Subsequently, in 1845, Isaac Doughty executed to the complainant and Philip Tillinghast, a bond with a mortgage on the lots in 121st-street, and other lands. This bond and mortgage were to secure the payment of $5500. At the time of the execution and recording of this mortgage, the mortgagees had no notice of the arrangement between John and Isaac Doughty, as to the payment of the mortgage of 1829, or of the bond of indemnity given by Isaac to John. It was proved, however, that when this mortgage was executed, the complainant and Isaac “ figured up that $1000 was due on the 121st-street property” of Isaac D., and it was claimed that this established notice to the complainant of John Doughty’s equity.
    In 1847, Amanda Eels, having some judgments against Isaac D., which were a lien on his real estate, cancelled the same, and received from him his mortgage on the 121st-street lot, and the other premises embraced in the mortgage given by Isaac D. to the complainant. There was no evidence that she had any' notice whatever .of the arrangement by which Isaac D. had assumed the payment of the whole mortgage to Dikeman, or of his having executed to John D.' a bond of indemnity to that effect.
    These subsequent mortgages were recorded about the time they were executed. The bond of indemnity never was recorded.
    John Doughty having died, his executors and devisee were made defendants in the suit, as were also Amanda Eels, Philip Tillinghast, William Colwell, and Isaac Doughty. The latter put in an answer. In July, 1850, the usual judgment was rendered in the cause, for a foreclosure of the mortgage to Dikeman, and a sale of the premises mortgaged thereby, directing the surplus, if any, to be brought into court.
    On the 11th of September, 1850, the court, on the application of John Doughty’s executors, ordered a reference to ascertain whether John IV executed the original mortgage as surety for Isaac D., or for his benefit, and whether Isaac ever assumed to pay it as between him and John Doughty.
    The lands mortgaged to Hoyt and Tillinghast, and to Eels, were inadequate, to pay the amount of their mortgages, and Isaac D. had no other property.

      The referee reported the facts above stated, and thereupon an order was made by Duer, J., directing the sheriff, in executing the decree for sale previously entered, to raise one half of the debt and costs, (i. e., the original mortgage of 1829,) out of the parcel of land owned and mortgaged by John Doughty, and the other half out of the premises on 121st-street, owned and mortgaged by Isaac Doughty.
    From this order, the devisee and executors of John Doughty appealed to the general term.

      J. JS, Gary, for the executors and devisee of John Doughty,
    cited 2 Paige, 300; 6 Ibid. 35; 8 Ibid. 300; 3 Sand. Ch. R. 135; 4 J. C. R. 17, 20; 17 Ves. 520; 1 Story’s Eq. Jur. §§ 642, 645.

      8. A. Grapo and T. W. Twicer, for the plaintiff and P. Tilling-hast.
    N. Ketchum, for Amanda Eels.
   By the Court.

Sandfobd, J.

We agree fully with the counsel for John Doughty’s representatives, that on the execution of Isaac Doughty’s indemnity bond in 1837, he became the principal debtor for the amount of the Dikeman mortgage, and John D. was thereafter, his surety. As the facts were at that date, on a foreclosure of the mortgage, the whole of Isaac D.’s four lots on 121st-street, would have been ordered to be sold before resorting to the land mortgaged by John. — And if the latter had taken the precaution to record the bond of indemnity, as being what it really was, an equitable mortgage on Isaac’s lots for the payment by him of John’s half of the mortgage debt, the difficulty now presented would never have arisen. The same result would have been attained, by taking and recording a direct mortgage from Isaac, with a condition to pay and discharge the Dikeman mortgage.

But upon the unrecorded bond of indemnity, this right of John as against the land of Isaac was a mere equity, which could not avail him against subsequent purchasers for a valuable consideration, in good faith, without notice of its existence. Hoyt and Tillinghast became such purchasers, by the mortgage executed to them by Isaac Doughty in 1845, and there is no sufficient evidence that they had any notice of the equity by which the Dikeman mortgage was' to be paid by him. That mortgage, upon its face, was the joint and equal debt of both Isaac and John; and notice that it was, or had become otherwise, must be proved against the subsequent mortgagees. The testimony about figuring up the amount due on the 121st-street property, is altogether too slight to warrant us in inferring notice of this equity; especially when Isaac Doughty, who was examined as a witness for John’s representatives, could not remember that he gave any information of it to those mortgagees.

As to Amanda Eels, the third mortgagee, there is no pretence of notice to her in any form. She also was a purchaser for value, having surrendered some judgments against Isaac Doughty on the faith of the mortgage, and John D.’s equity cannot stand against her legal right thus acquired.

The subsequent mortgagees do not ask to have the securities marshaled in their favor. They do not claim to charge the whole Dikeman mortgage upon John D.’s land. They simply require that it shall be collected, as by its terms it was originally collectible, one half from each of the mortgage debtor’s lands. It is John Doughty’s representatives who seek to marshal the mortgages, by throwing the whole burthen of that mortgage on the lands of Isaac Doughty. This they are not entitled to do, because it would interfere with the rights of subsequent purchasers for value without notice of their equity.

The order appealed from is right, and it must be affirmed.


author: Oakley, Oh. J.

text:
    The People v. Mitchell and others.
    A bastardy bond, made under an order of filiation some years after the birth of the child, is not made void by inserting in the condition, besides the sustenance of the child, &c., a clause that the putative father should indemnify the city in which the order was made, and every other city, town, or county, against expenses incurred, or which might be incurred, for the support of the mother during her confinement and recovery therefrom.
    Where a compulsory statutory bond pursues the precise language of the act directing it to be taken, it is valid, although at the time it is taken, some part of the prescribed condition cannot be enforced.
    Where the condition of such a bond contains an obligation beyond that provided by the statute, it is void.
    (Before Oakley, Oh. J., and Sawotoko and Paine, J. J.)
    Feb. 7 ;
    March 15, 1851.
    This was an action brought upon a bond executed by tbe defendants on the 4th day of September, 1847, under an order of filiation against the defendant, Mitchell, made by two special justices in the city of New York. By the affidavit of the mother of the child made before the magistrate, as recited in the bond, it appeared that the child was born on the 18th of March, 1841, and the complaint upon which the subsequent order was granted was not made until July, 1847.
    The declaration set forth the bond, and the proceedings before the magistrates, upon which the order of filiation was made and the bond given. Among other conditions, the bond provided that the defendant, Mitchell, the reputed father of the child, “ should pay weekly such sum for the support of the said child, so born a bastard, and the sustenance of its mother, as has been ordered by the said justices as aforesaid, or shall at any time hereafter be ordered, by the court of general sessions of the peace of the city and county of New York; and shall and do fully and amply indemnify the city of New York, and every other town, county, or city, which may have incurred any expense, or may be put to any expense, for the support of sueb child, so born a bastard, or its mother, during her confinement and recovery therefrom, against all such expenses,” &c., &c. The declaration averred that the child so born was living, and chargeable to the city of New York, and for a breach of the condition of the bond, that the defendant, Mitchell, has not indemnified the city for the expenses incurred for the support of the child, nor paid the expense of its support, as provided in the bond, but that the same had devolved upon the city:
    The defendants interposed separate demurrers, setting up various grounds of objection td the form of the declaration, and the validity of the bond declared on. It is unnecessary to specify the points of the demurrers, as the decision of the case, and the argument before the court, was confined to the validity of the condition of the bond. The suit was commenced in the supreme court, and afterwards transferred to this court.

      H. 8. Mackay, for the defendants.

      D. T. Walden, Jr., and T. TJ. Tomlinson, for the plaintiffs.
   By the Court.

Oakley, Oh. J.

This action was brought against the defendants upon a bond executed by them under an order of filiation. _ To the declaration upon the bond, the defendants interposed demurrers, setting up various grounds of objection. Upon the argument, the only ground insisted on was one not specified in the demurrer, viz., that the condition of the bond upon which the action was brought, was broader than was authorized by the statute; that the bond not being a voluntary instrument, but executed in pursuance of a compulsory statute, must be precisely in accordance with it, and if it contain provisions not warranted by-the statute, it is void. Upon this point we were referred to the case of The People v. Meighan and others, (1 Hill, 298;) and there can be no doubt of the correctness of the general proposition, that where the bond-imposes further obligations than those provided by the statute, - or, in other words, contains a broader condition, it is void. .

In this case, it is contended that tbe condition of tbe bond was too broad, because it embraced the sustenance of tbe mother during her confinement. Tbe child here bad been born several years at tbe time of tbe giving of tbe bond; and it is contended, that after tbe birth of tbe child,'a bond could only be required for its maintenance, and that it could have no retroactive effect for the sustenance of tbe mother.

The answer to all this is, that tbe bond in question was given under an order of filiation, and must be in pursuance of the provisions of the statute upon that subject. By a reference to tbe statute, (1 R. S. 651, § 47, 48, 49,) it will be perceived that the bond in question has literally followed the provisions there specified. It must therefore be valid, however superfluous any of its provisions may be. The bond is not only in conformity with the provisions of tbe statute, but follows its precise words..

Judgment for tbe plaintiff on the demurrer.