Volume 3 — Barbour's New York Chancery Reports

This was an appeal by the defendants from a decretal order of the vice chancellor of the third circuit, overruling the demurrer to the bill of the complainants. Held: that in equity it shall be considered an appointment of her sole and separate property. The power of appointment is incident to the right to enjoy her separate property. There must appear to be an intention to change her separate estate; otherwise the debt will not affect it.

This was an appeal from a decretal order of the vice chancellor of the seventh circuit. The complainants were the committee of the person and estate of an habitual drunkard.

This case came before the chancellor .upon the appeals .of both parties from the taxation of the defendant's costs, by a vice chancellor, upon a dismissal of the complainant’s bill with costs. Eighty-two items of the costs were objected to on the taxation; some o'f which were allowed and others disallowed by the vice chancellor; and some were allowed by him only in parí.

This was an appeal, by the complainant, from a decree oí the vice chancellor of the second circuit, dismissing the bill of the complainants. J. B. Schoonmaker and L. Gasharie had been copartners in trade under the name of Schoonmaker & Gasharie, and as such copartners had become indebted to the complainants; wbo subsequently recovered a judgment for their debt, and an execution was issued thereon and returned unsatisfied.

This was an appeal from a decretal cider of the vice chancellor of the eighth circuit, overruling the several demurrers of the appellants to the complainant’s bill.

This was an application, by The American Mutual Insurance Company, to dissolve an injunction restraining that company from receiving, and The Mutual Safety Insurance Company from paying, the amount due from the last mentioned company upon a policy of reassurance. The motion was made upon the matter of the bill only.

' •This was an appeal .from a decree of the vice chancellor of the first circuit, allowing the demurrer of the defendant,, J. L. Lawrence, and dismissing the complainant’s bill as to him, upon the following state of facts, as presented by the bill: Abraham Beach, a citizen of New Jersey, the father of the complainant, died in 1828.

<p>The bill in this cause was filed by the executors of Archibald Craig, deceased, to obtain a judicial construction of the will of their testator, in various particulars; and for directions as to the manner of investing and distributing his estate, under the provisions of the will. The testator made his will in June, 1845, and died about a year afterwards, leaving a second wife surviving him. He also left one daughter by his first wife, and three sons and one daughter by his last wife, his only heirs. At the time of making the will, and at his death, his oldest son and his two daughters were married, and his-second son was a lunatic. He owned a large estate, consisting of real and personal property; and there was also stock standing in the joint names of himself and wife, which she claimed as her separate property, and she had also real estate which had been conveyed to a- trustee for her use.</p> <p>By his will, after making provision for the payment of his debts, and giving some small legacies to collateral relatives, the testator disposed of the residue of his estate as follows:</p> <p>“ Fifth. It being my desire that a certain provision be made for my son John (the lunatic,) which will, give him a sure and ample support during his life, I therefore order and direct that my executors, before any distribution of my estate be made, invest in bonds and mortgages, and in New-York state stocks, a sum of money sufficient to produce, in legal interest, at least five hundred dollars per annum, to be held by my executors in trust for my said son John; which income,.or so much thereof as may be necessary, I direct to be used by my executors, and the survivor or survivors of them, in his support and maintenance. Such investment I direct to be made, as near as conveniently may be, in equal sums, in bonds' and mortgages and in New-York state stocks; the bonds and mortgages to be taken on unincumbered productive real estate within this state, worth, exclusive of buildings thereon, at least double the sum so invested. The principal so invested, or so much thereof and of the proceeds thereof as may remain, at the decease of my said son, unexpended, I give, devise and bequeath to the legal issue of my said son; and in case he leaves no issue, then I give, devise and bequeath the same to my four children, James R. Craig, La Rue Craig, Elizabeth C. wife of Julius Rhoades, and Gertrude, wife of John T. Hudson, and to their respective heirs and assigns forever, share and share alike.</p> <p>Sixth. I give, devise and bequeath tocmy wife, Anna Maria Craig, the use and occupation of my present dwelling house, lot and premises connected therewith, in the city of Schenectady, together with all and singular the out-buildings and appurtenances thereunto belonging, during her natural life. I also give to her an annuity of $1600 per year, to be paid to her in semi-annual payments; the principal of such annuity to be invested in such manner as she may reasonably require. I also give to her my family coach or carriage, my two-horse pleasure sleigh, and such carriage horses, harness, and other carriage appendages as I may die possessed of, and all my household furniture. The several devises and bequests unto my said wife are given for her use, in lieu of any right of dower and other claim which she may have upon any part of my estate, and to take effect upon her executing to my executors a release of her right of dower or other claim, when requested so to do by the persons interested therein.</p> <p>Seventh. My son James R. Craig, having for several years past occupied and improved that portion of my real estate which is situated at and near the aqueduct, containing between three .and four hundred acres of land, and being desirous that he--should receive the- title to those lands upon terms which I - deem reasonable - and just, I hereby give, devise and bequeath into him. in fee the lands aforesaid, upon condition, however, that he shall-pay, in consideration thereof, to my executors, for the same,. $6000, qvithin. five years after my decease, without interest.; which-sum,-when paid, to be regarded as part of my .estate, and to be equally divided between my children, Elizabeth,- Gertrude,. James R. and La Rue, or to their legal repre-sentatives. It being expressly understood that my said son • James is to make - no charge against me or my estate, for any services rendered or any expenditure made on the said lands; nor is he to be charged any rent for the use and occupation of the same.</p> <p>Eighth. I order and direct that my executors, in taking an inventory of the rest and residue of my estate real and personal, not herein before devised,, bequeathed and disposed of, shall charge my son James R. with the sum of $9000, my daughter Elizabeth with the sum of $8000, my daughter Gertrude with $6000, and my. son La Rue with the sum of $6000, each being the amounts, as nearly as I can ascertain the same, which I have already advanced to them respectively; and that the aggregate of such real and personal property be divided into four equal shares.</p> <p>Ninth. I give, devise, and bequeath one of those equal shares or parts lastly above mentioned to my son James R. Craig, and to his heirs and assigns forever; but the sum of $9000, advanced to him, is first to be deducted from his said share or part, before any payment is made to him, and my estate credited for that sum.</p> <p>Tenth. I give, devise, and bequeath one other of those equal shares or parts to my son La Rue Craig, in fee; but the sum of $6000, advanced to him, is first to be deducted from his.said share, before any payment is made to him, and my estate credited with that sum.</p> <p>.Eleventh,. I give and bequeath to my daughter Gertrude, wife of John Tiv Hudson, the income and avails of one othei of the said equal shares or parts before mentioned; the said avails and income to be paid to her, by. my executors, annually, during her natural life; and.upon her death, I give, devise, and bequeath such equal share or part to-the heirs at law of the said Gertrude, and to their heirs and assigns forever; but the $6000, so advanced to her, is to be deducted from such share, before any payments are made thereon, and my estate credited with that sum.</p> <p>Twelfth. I give, devise, and bequeath to my daughter Elizabeth, wife of J. Rhoades, the remaining equal share or part before mentioned ; the avails and income to be paid to the said Elizabeth, by my executors, during her natural life; and upon her death, I give, devise, and bequeath such equal share or part to the heirs at law of the said Elizabeth, and to their heirs and assigns forever; but the $8000, so advanced to her, is to°be deducted from such share, before any payments are made thereon, and my estate credited with that sum.</p> <p>Thirteenth. It is my wish, and I so order and direct, that the portion of my estate mentioned in the eighth article of this instrument be divided as soon as the same conveniently can be, and the shares of my sons James and La Rue be delivered to them respectively, and the shares of my daughters be invested for their benefit respectively, by my executors ; but before effecting this division, it is my desire that my executors sell my lot of ground, situate on the corner of Main and Tupper-streets in the city of Buffalo, and also the lot called the Mill pasture and canal stable in the city of Schenectady; and for that purpose, they are hereby empowered to execute the necessary tide deeds to convey the same to purchasers.</p> <p>Fourteenth. It is my wish, and I so order and direct, that my four children, James R., La Rue, Elizabeth and Gertrude, and their respective heirs, shall at all times share equally in the division of all the property which I own in my own right, as well as the property the fee and title of which is in my wife; but being advised, that in case my said wife, at her decease, should leave the property, the fee of which is in her, undisposed of, that the title to the same would pass to her children, exclu ding my daughter Elizabeth : with the view, therefore, of equalizing such property, in every contingency, among my four 'children, James R., La Rue, Elizabeth and Gertrude; and in case my said wife, in her lifetime, shall fail to give, devise, or 'divide such "property, the title of which is in her, in equal shares •or portions to and among such four children, then, and in such case, I give, devise and bequeath the real estate before devised for life to my said wife, and also the principal of the said annuity of $1600 so invested for my said wife, to my executors, in "trust, for the benefit of my said children or child as may not receive an equal share of said estate of my wife, so far as to make such child or children equal to the largest share that may be received by either of them from the estate of my said wife; and that the residue, after such equalization, be divided equally between such four children and their legal representatives, share and share alike; it being the express intention of this instrument to make the shares of the said Elizabeth, James, La Rue •and Gertrude, in the estate left by me, and in the property so owned by my said wife, in all respects equal.</p> <p>Fifteenth. It being my wish and desire that my son John Craig should be amply provided for, I hereby order and direct, 'that in case1 my said son should recover, and become of sound ' mind and capable of taking care of himself, my other children shall each pay over to" him, out of the'shares of my property bequeathed to them respectively in and by this instrument, the sum of $2000, making $8000 in all; this sum to be given to him in addition to the annuity of $500 herein-before bequeathed to him.”</p> <p>The testator appointed his wife executrix, and the complainants James R. Craig and John Strong the executors of his will; and gave to Strong a legacy of $500, in addition to legal commissions, upon condition that he accepted and executed the trust of executor. The executrix renounced- the trust; but'the executors"proved 'the will, and took out letters testamentary 'thereon. And the widow elected to- take the provision made for her by the will, in lieu of dower and other claims-upon the estate of the testator, and released! her right of dower, in conformity with the directions of the will on that subject. At the time of filing the complainants’ bill, Mrs. Rhoades' had two children and Mrs. Hudson one, who were made defendants; and who, being minors, appeared and put in answers by their guardians ad litem,. John Craig, the lunatic, also appeared by his guardian ad litem, and put in a general answer. The cause was heard upon bill and answer as to the adult defendants; and upon the bill, answer and master’s report, as to the minors. And at the hearing, J. Rhoades and wife, John T. Hudson and wife, James ,R. Craig and La Rue Craig entered into a written stipulation, authorizing the executors to retain $2000 from the share of each of the children of the testator, except John, before a division between them under the eighth and ninth clauses .of the will, and to invest the same in such manner as the court should from time to time direct, to provide for the contingency of the recovery of John Craig as contemplated by the testator in the fifteenth clause of his will.</p> <p>The complainants ask for a judicial construction and decision upon the parts and particulars of the will of the testator, specified in their bill of complaint; and also upon such other parts of said will as may appear to be doubtful or obscure; and they ask for such directions in respect to the execution of. the said will, and particularly in reference to the doubtful, obscure, or ambiguous parts thereof, as may be necessary. to guide and protect them in the discharge of their duty. The complainants also ask for a decision of the question whether the acts of the testator, stated in the bill, constituted a reduction to possession of the stocks and personal property of Mrs. Craig, so as to make the same parts of the testator’s personal estate. The complainants ask especially for the decision of the questions stated in the seventh particular of the bill, and particularly whether they can make a division of the residue of the testator’s real and personal estate, as directed' by the 8th and 13th clauses of the will, as executors, or as trustees; or .whether tlie same can be made before Mrs. Craig shall have given of devised her property among the four children of the testator ’; or if made before, whether such division will be absolute or contingent "on Mrs. Craig’s compliance with the 14th clause of the will; and if such division will be contingent, whether the income of the shares of Mrs. Hudson and of Mrs. Rhoades is to be applied as directed in the 11th and 12th clauses of the Will, until it be ascertained whether the disposition specified in the 14th clause has been made. The complainants especially submit the question, for the decision of the chancellor, whether á valid trust is created by the will to receive the income of two fourths of the residue of the real and personal estate of the testator, and to apply the same to the use of Mrs. Rhoades and of Mrs. Hudson respectively during their lives. And if no valid trust is created by said will, and if there is a failure to dispose of the two-fourth parts of the residue of said estate, intended for Mrs. Rhoades and Mrs. Hudson, how such failure affects the other provisions of the will. The complainants also especially ask for the decision of the question, whether they are authorized to sell any part of the real estate, other than that mentioned in the 13th clause of the will, for the purpose of dividing the proceeds of the sale between the four children; or whether they are authorized to lease such real estate, or to receive the rents thereof and to pay the same over to the said four children. The complainants also ask the chancellor to decide whether: they are appointed trustees, by said will, of the shares of the testator’s estate devised to Mrs. Rhoades and to Mrs. Hudson, and' to their lieirs. And if it shall be decided that they aré trustees of such shares, then they ask permission to resign such trust. The' complainants also ask for a decision whether they are authorized by the will, in making the division directed by the will, to divide any part of the real estate among the four children. And they ask for all necessary directions as to the division of the said residue of the real and personal estate among the devisees and legatees, or as to the sale of the same, or of any part thereof, and the division of the proceeds thereof among such devisees and ‘ legatees; and generally, that all bucIi other directions may be given as the circumstances of this case may require; and that the accounts of the complainants as executors may at all proper times be taken and passed under the order of this court.</p> <p>It was the intent of the testator that five hundred dollars absolutely, should be raised annually for the support of his son John. The executors should invest in five per cent state stock, enough to produce two hundred and fifty dollars annually. The devisees are not bound to supply any deficiency in the fund, if there should be any. The executors may reserve the surplus of one year for the accidents of another, and are to invest it. No part of any excess during a year should be distributed during the life of John. The principal sum invested to produce the annuity for John, is disposed of by the 5th clause of the will, and is not subject to division under the 8th clause, and is not affected by the 11th and 12th clauses. We suppose all the land which the testator had used as premises connected with the lot, passed to Mrs. Craig, and all the outbuildings. IiLrs. Craig is to direct in what securities the investment for her is to be made; and the fund will be at her risk. The shares of the $6000 to be paid by James R. Craig, are given absolutely to the four children of the testator, and form no part of “ the residue” referred to in the 8th clause, and are not subject to the 11th and 12th clauses, but should be paid over at once to all the legatees. The remainder in fee in the premises devised to Mrs. Craig for life, and in the principal sum invested for her annuily, is devised by the 8th clause to the four children. The property is to be divided by the executors as such. This is a mere power. All the property, excepting the principal of John’s annuily, the $6000 to be paid by James R. Craig, and that devised to Mrs. Craig, or invested for her, is to be immediately divided. The property devised to Mrs. Craig, and invested for her, is to be divided upon her.death, by the executors, according to the 14th clause. By the devise of the avails and income of one fourth of the real estate to Mrs Rhoades-and Mrs. Hudson, an absolute estate is vested in them for life, in the lands. The income of the personal estate is- to1 tie paid over to Mrs. Rhoades and Mrs. Hudson by the executors, as such ; and they have no estate as' trustees. In case-of death, resignation, &c. the duty is to be performed by the administrator with the will annexed; and the personal estate is to be invested by them as executors'. The avails and income thus devised, are' not separate estates for the Wives, but interests which the husbands may reduce to possession. But the husbands offer and agree that the decree be entered to pay over on the receipts of the wives. Mrs. Rhoades and Mrs.Hudson take only life interests. The fee is expressly devised over. The executors have no power- to sell the real estate, unless it is necessary for the purpose of division. The charge of $2000, in the event of John’s recovery, is upon the deviseespersonally, and not upon the real estate devised. No deduction should be-made in the division of it on that account-; nor should any thing be retained by the executors for the purpose-of paying that charge. No security is necessary or required by the will to be given by the devisees. But, if John should be in the same situation- when the tenants for life die, the court will probably direct sufficient to bo retained: by the executors ; instead of paying it' to the"devisees in fee.</p> <p>The two clauses in the xvill of the testator which regard the defendant-John Craig, to wit, the fifth- and fifteenth, are founded upon the express wish of the testator, not only to “give him et sure and ample support during his life,” but- with the manifest intention of making provision for him in the event of his having legal issue,- or becoming of sound mind.- And as- the-only reason appearing on the face of the will, why the -testator withheld from'this son his full-share of the estate is his unsound ness of mind, and as the provisions- made for him in any event1 fall far short of Ms full share, they ought not to be burthetledwith limitations and restrictions,, but should be benignly and liberally construed in his- behalf. The. provision made for this-defendant, by the 5th clause of the will, entitles him to have invested, before any distribution of the estate of the testator, a sum sufficient to produce in legal interest at least $500 per am num. This defendant is en titled to have this investment made, in the language of the will, “ as near as conveniently may. be iw equal sums in bonds and mortgages and in New- York state stocks.;” that both as it respects the security of the investment and the interest therein, to which his legal issue, should be have any, will be entitled, this direction of the will should be observed so far as practicable. The trust created in favor of this defendant by the 5th clause of the- will was intended, by the testator, to secure to the use of this defendant not only the annual sum of $500, but such annual sum to grow out of the particular funds specified. And no obscurity occurs from the use of the words legal interest; nor can- they in any event reduce the annual income of $500, to which this defendant is. entitled. These words legal interest regard the rate of interest,, which both the state stocks and bonds and mortgages, procured for the purposes of such investment, shall legally bear—the stocks by the law, of the state which created them—the bonds and mortgages by the contract between the executors and mortgagor. The trust created in favor of this defendant, by the 5th clause of the will, was intended to secure to him absolutely the annual sum of $500; whether such sum- be necessary for his support and maintenance or not. And the principal out of which such annuity is to grow, a.s well as all increases in value of such principal,, and surpluses of tire- income thereof, and the accumulations thereof arising from the investment of such surpluses, if any, is a fund sacred to the uses ofthis defendant and his legal issue,, if any,, who shall him survive. It will become, the duty of the executors, as the trustees of the fund directed, to be created for this defendant, to invest from time to time, such portion of the annual proceeds thereof as shall not be applied to the support and maintenance of this.defendant. As to the mode in which the provision made for the defendant by the 15th clause of the will,, whereby, in the event of his becoming of sound mind, the sum of $8000 is to be paid to him by the other children of the testator, shall be secured, his guardian submits to the direction of the court. It is insisted, however,, that whatever may be the construction given’ to the bequest, ■ made in the will, to-the complainant James R. Craig.and the defendant La Rue Craig, or to the trusts created for the benefit of the defendants Elizabeth C. Rhoades and Gertrude Hudson,, the sum directed to be paid to this defendant by the 15th clause should either be withheld from division and distribution, among those entitled in case the event contemplated in said clause shall not happen, or before such division and distribution it shduldbe properly secured to this defendant.</p> <p>The will creates, if not in terms, then clearly by impli cation, a valid trust estate in one of the shares of the testator's residuary estate, for the benefit of his daughter Mrs. Rhoades, and her heirs at law. The intention of the testator to preserve the capital of this part of his estate and to give to Mrs. Rhoades the benefit-of the income only, with remainder to her heirs at law, is distinctly declared in-the 12th and 13th sections of the will. And no ambiguous or doubtful language used in other parts thereof, will be permitted to overrule the testator's clearly views on this point. It is manifestly to be implied froin the-will, that the executors are to act as trustees for the fund. They are, at any rate, to act as such so far as the personal estate is concerned. Under the 8th section, they have divide the estate. In the 12th section, they are directed to pay the income and avails of the share to Mrs. Rhoades, and by the 13th section they are to invest the share. But if the court should be of opinion that the executors were not trustees by the testator, it will not permit his intentions-to fail, but will appoint trustees to execute the trust. If, how-ever, the share of the estate referred to was not devised in trust, then a valid power in trust is vested in the executors, under the will, in favor of the heirs at law of Mrs. Rhoades, which will require them to execute. Or, if nd such power exists under the will, then its provisions, in regard to the said share, contain valid directions for the disposition of the same, which the court will require the executors to carry into effect on their part. By these directions, if they are such, a life estate vests in Mrs. Rhoades in one of the residuary shares, with remainder to her heirs at law. In case the court shall be of opinion that under the will Mrs. Rhoades took an absolute estate in the one fourth part of the testator’s residuary estate, then, under the offer in the answer of Mr. and Mrs. Rhoades, a proper settlelhent of her share of the estate should be made, under the direction of the court, so as toi protect and preserve the capital thereof for the benefit of her children and heirs at law, as originally contemplated by the testator. The capital of the fund which may be set apart to secure the annuity to John Craig and the amount of $6000 to be paid by James R. Craig under the 6th section of the will, and also the amount to be set apart to secure the annuity to Mrs. Craig, and the house and lot in, Schenectady devised to her for life, subject to the execution of the power as to the two latter, contained in the 14th clause of the will, on the happening of the contingency therein mentioned, form part of the residuary estate of the testator disposed of in the 8th section of the will, and the one fourth part of which was devised in trust as aforesaid, for the benefit of Mrs. Rhoades and her heirs at law.</p>

This was an appeal from an order of the vice chancellor of the first circuit, upon exceptions to a master’s report as to the right to the surplus moneys, on a foreclosure and sale of mortgaged premises.

This was an appeal from a decretal order of the vice chancellor of the fourth circuit, allowing the demurrer of the defendant A. Clark, and dismissing the bill as to him; but with leave to the complainant to amend.

This case came before the chancellor upon a bill filed by the husband, against his wife, to annul the marriage contract between them, on..the ground of fraud.

This was an appeal from a decree of the late assistant vice ¡chancellor of the first circuit. The bill was filed by the surviving executor of R. M. Steele, for a judicial construction of certain provisions of the will of the testator. The will was made ■in 1813, and the property of the .testator consisted of personal .¡estate, entirely.

This was an appeal from an order of the late vice chancellor of the seventh circuit, denying an application of the complainants for a resale of mortgaged premises, and for other relief, James Skinner, deceased, appointed the complainants his executors, and authorized them to sell his residuary estate and to divide the proceeds thereof among his legatees.

This was an appeal from a decree of the vice chancellor of the eighth circuit, allowing a demurrer of the defendant W. W. Mumford, and dismissing the complainant’s bill as to him. W. W. Mumford, being the owner of a farm in the county of Monroe, mortgaged it to Robert Ray, in January, 1838, to secure the payment of $6000 and interest. And in June of the same year,, he again mortgaged it to E. M. Parsons, the complainant, to secure the payment of $7000 and interest.

This case came before the chancellor upon an appeal from the decision of the circuit judge of the third circuit, made upon an appeal to him from the sentence and decree of the surrogate of the county of Columbia, establishing an instrument propounded as the last will and testament of James Nelson, deceased, as a valid will of the real and personal estate of the decedent. The will was made in July, 1832, when the testator was between seventy and eighty years of age.

This was an appeal, by the complainant, from a decree of the. assistant vice chancellor of the first circuit. In September, 1835, I. Bennem bought of A. Prince four lots of land it) Brooklyn, and gave back a bond and mortgage upon two of those lots for $1900; payable in five years, with semi-annual interest. He also gave back a similar bond and mortgage upon the other two lots for the like sum, and payable at the same time.

This case came before the chancellor upon an appeal from a decree of the assistant vice chancellor of the first circuit, upon the following state of facts. Isaac Clason died in March 1815, seised of real estate in the county of Westchester and in the state of New Jersey, and of a large real estate in the city of Nevy-York.

This was ail appeal from, a decree of the late vice chancellor of the third circuit, allowing a demurrer, and dismissing the bill of the complainant, .with costs. Gilbert Devoe died in September, 1834, intestate, leaving his father C. Devoe his heir at law; to whom all the real estate of the decedent descended, subject to the payment of his debts.

This was an appeal from a decree of the assistant vice chancellor of the first circuit, dismissing the complainant’s bill without costs to either party.

This was an appeal from a decree of the vice chancellor of the eighth circuit, dismissing the bill of the complainants, under the following circumstances. In May, 1808, Theodore Sedgwick contracted with Derick Spoor to convey to him a lot of land in the county of Ontario, for the price or consideration of $200.

This case came before the chancellor for hearing, upon pleadings and proofs as to the defendants O. Thompson and W. C. H. Waddell, and upon the bill taken as confessed as to the other defendants. The principal object of the bill, originally, was to obtain a separation from bed and board, between the complainant and her husband J. H. Sackett.

This case came before the chancellor upon an appeal, by the complainants, from a decree of the vice chancellor of the eighth circuit, dismissing the bill of the appellants, with costs. Held: in the case of Pettibone v. Hawkins, that the directors of a banking association had no power to contract to give up securities held by them in payment for subscriptions to their own stock, upon the surrender and cancellation of such stock.

This was an appeal from a decree of the vice chancellor of the fifth circuit, dismissing the bill of the complainants. The bill was filed against J. C. Yates, and subsequently revived againt the defendant A. E. Yates, his executrix, to recover moneys received by the former for a lot of land taken by the Utica and Schenectady Rail-Road Company.

'T-h-is was an appeal by-the Bank of 'Rochester, one of the defendants in this cause, from an’interlocutory decree of the vice chancellor of the .eighth, circuit.

This was an appeal from a decree of the vice chancellor of the second circuit, dismissing the complainant’s bill. The object of the bill was to obtain a judicial construction of the will of Thomas Arden deceased; particularly in reference to the third and fourth codicils.

This case came before the chancellor upon an appeal from an order of the vice chancellor of the third circuit, overruling the defendant’s exception to the master’s report, upon an exception to the answer for insufficiency. The bill was filed to ob- . tain a decree restraining the defendant from using a skiff ferry for the conveyance of passengers across the Hudson river at Troy.

This was an appeal by N. A. Graves, one .of the defendants in this cause, from a decree of the vice chancellor of the eighth circuit. The facts of the case, as they appeared upon the pleadings and proofs, were as follows: James M. Flagg was the owner of a house and lot in the village of Albion, Orleans county, which he had leased to N. Bedell for a year, to commence on the first of May, 1842.

This was an appeal from an order of the vice chancellor of the first circuit, denying the application of W. Taylor, one of the defendants in this cause, to dissolve an injunction.

This was an application by the complainants for a new trial of the issues awarded in this cause by the court of chancery. The object of the complainant’s bill was to set aside two conveyances executed by C. Lansing, a short time previous to his death; on the ground that they were obtained from him by fraud, or that they were in fact never executed by him. C. Lansing died in 1842, in the 90th year of his age.

This was an application, on the part of the defendant, to open an order referring this cause to a vice chancellor for decision, and the order to close the proofs in the cause, both of which orders had been regularly entered; and to let the defendant in to set up a discharge under the bankrupt act, as a defence to the suit.

This case came before the chancellor upon an appeal by the defendant Stoughton from a decretal order of the Vice chancellor of the first circuit, overruling a plea to the complainant’s bill. The complainant was a creditor of the defendant Kim-ball in March, 1842, and his debt Was provided for, either wholly or in part, by an assignment of the property of his debtor, to Stoughton, in trust for the payment of debts.

This case came before the chancellor upon an application, ny the complainants, for an injunction and receiver. George Rapelye of the city of New-York, died in May, 1835, without lawful issue, leaving a large real and personal estate. By his will, executed in due form of law, he devised and bequeathed to his wife all the income of his real and personal estate for life; and appointed her the executrix of his will, during her life.

This was an appeal by the complainants from an order of the vice chancellor of the first circuit.

This was an appeal by Fitzhugh, one of the defendants, from an order of the vice chancellor of the fifth circuit, denying the application of the defendant Fitzhugh, to set aside the docket of a decree, in the books of the clerk of tills court, made on the 12th of June, 1843. The hill in this cause was filed to foreclose a mortgage, given by Fitzhugh and wife, and to obtain satisfaction of a debt which was also secured by the personal bond of Fitzhugh, dated in 1836.

This case came before the chancellor upon an appeal, by E. Wolcott, one of the defendants, from a decree of the late vice chancellor of the eighth circuit.

<p>A decree setting aside proceedings, by which the real estate of a feme covert had been transferred from the trustee of the estate and vested in her husband, as being fraudulent and void as against the children of the feme covert; directing a refers ence to a master to ascertain the value of those portions of the trust estate which have been sold by the husband to bona fide purchasers, and what sum, if any, should be paid by him to reimburse the trust estate, and to report a proper person and appoint him as trustee; and giving all the consequential directions, so as finally to dispose of the whole case upon the coming in and confirmation of the master’s report, by a common order in the clerk’s office, without the necessity of bringing the cause again before the court for any other decree, or further directions, and which also disposes of the question of costs, is a final decree.</p> <p>Serving notice of an appeal from such a decree, and giving the ordinary appeal bond, in the penalty of :$250, for the costs and damages of the respondent upon the appeal, will operate as a stay of all the proceedings upon the decree appealed from, except the proceedings for the costs, directed to be paid by the appellant.</p> <p>Except as to the costs, such a decree is not a decree for the payment of money, within the intent and meaning of the 82d section of the article of the revised statutes, relative to appeals; so as to make it necessary for the appellant to give security to; pay the amount decreed, before the coming in and confirmation of the master’s report showing that money is to be paid.</p> <p>The case is different where the decree directs the payment of costs, but which have not been taxed, or directs the payment of the amount due upon a bond and mortgage, which is a matter of mere computation, upon the coming in and confirmation of the report as lo such amount.</p> <p>Where a final decree directs the appointment of a new trustee, and a conveyance to such new trustee when appointed, if the decree is not appealed from until after' such trustee has been actually appointed, the appellant must comply with the pro-: visions of the 83d and 84th sections of the article of the revised statutes relative to appeals, if he wishes to make his appeal a stay of proceedings.</p>

<p>A bill of interpleader may be filed whenever it is a matter of doubt to which of the defendants the fund in the complainant’s hands actually belongs, so that he cannot safely pay it to either.</p> <p>Who are proper parties to a bill of interpleader.</p> <p>Where the holder and owner of a bill of exchange is declared a bankrupt, and it is a matter of doubt whether such bill was not within the jurisdiction so as to pass to the assignee in bankruptcy, except as to bona fide holders thereof without notice, the drawer of the bill, who is liable to pay the same to the rightful holder and owner, may file a bill of interpleader against the different claimants of such bill to compel them to settle the right to the same between themselves.</p>

This case came before the chancellor upon a demurrer of G. A. Jones, one of the defendants, to the complainants’ bill of complaint. John Mason, late of the city of New-York, died, seised and possessed of a large real and personal estate.

This was an appeal from a decree of the assistant vice chancellor of the first circuit. The facts as established by the pleadings and proofs, and the proceedings in the cause, were substantially as follows: The complainant being the owner of a farm in the county of Seneca, sold it to H. Montgomery, and took from him a bond and mortgage to secure the payment of the purchase money.

This was an' appeal from a decretal order of the vice chan-' c'ellor of the eighth circuit, overruling a demurrer to the coinplainant’s bill. Thé object of the'hill was to redeem a farm, of about 203 acres of land- in the county of Chautiatique, fvdm’ A mortgage, and from a foreclosure1 and sale’under the same.

This was an appeal from a decree of the vice chancellor of the first-circuit, allowing a demurrer and dismissing the complainant’s bill, with costs.

This was an appeal, by the complainants, from a decree of the vice chancellor of the eighth circuit, dismissing their bill as to the defendant J. Howell, and the infant child ren and heirs of T. Collier . deceased.

This was an appeal from a decretal order of the late vice chancellor of the third circuit, overruling the demurrer of the defendant to the bill of complaint in this case. The bill stated that in 1836 the complainant and the defendant commenced the business of buying and selling spars, ship timber, and other lumber for the New-York and other markets, on joint account, and to share equally in the profits and ioss.

This was an appeal, by J. Walker, one of the defendants, from a decree- of the late vice chancellor of the first circuit.

This case came before the chancellor upon appeal, by W. and R. Kelly and Downer and Rogers, four of the defendants, from a decree of the vice chancellor of the eighth circuit. In November, 1837, J. J. McPherson mortgaged to D. McPherson certain lands in Genesee county, to secure the payment of $8000; for which he also gave his bond, payable in eight yearly payments, commencing on the first of April then next, with annual interest.

This-was an appeal from a decree of the vice chancellor of (he first circuit, settling the construction of the fourth .clause of the will of Peter Marks deceased, and authorizing the' defendants, as executors of the decedent, to pay to the’ complainant and others their several legacies of $506 each, in conformity to that construction.

This case came before the chancellor upon demurrers to the complainants’ bill. The complainants claimed to be the only next of kin of the late John G; Leake of New-York, who died unmarried and without issue in June, 1827; and whose will was established by the court for the correction of errors; upon appeal, in December, 1829. (See 1' Paige’s Rep. 348; 4 Wend.

This was an appeal from a decretal order of the vice chancellor of the first circuit, allowing the demurrer of H. E. Davies, one of the defendants, to the bill of discovery filed in this cause. The complainants and B. Tail, who subsequently died, were copartners in trade in 1834, -and as such copartners had a debt against the defendant Bailey for goods sold to him.

This case came before the chancellor upon an appeal by 0. Kneeland, one of the defendants, from a decretal order of the vice chancellor of the first circuit.

This case came.before the chancellor upon an appeal, by Maria S. Bogardus, from a decretal order of the vice chancellor jf the third circuit, overruling the exceptions to a master’s report as to the part of the real estate mentioned in the decree m this cause, upon which a portion of the u.wer of the defendant Ann Eliza Freeland, mentioned in her petition, was properly chargeable under such decree, and the order in which the real estate upon which it was a charge should be…

This case came before the chancellor upon appeal from a decree of the vice chancellor of the eighth circuit. At the time of the death of Harmanus Garretson, in 1813, he and Gosen Ryers were the owners, as tenants in common in equal shares, of the north half of township No. 1, in the second range of townships in the county of Steuben, containing about 11,500 acres of land; excepting out of the same 600 acres which they had previously conveyed.

<p>To a bill filed by a cestid.que trust against the trustees and the other cestitis que trust, for the purpose of obtaining a conveyance of the complainant’s share of the legal title to real estate, alleged to be in the trustees, and for a partition of the premises, two of the defendants pleaded that neither the complainant nor the trustees in whom the legal title was vested, were, nor was either of them, in possession of the premises at the time of the commencement of the suit; without denying the allegation in the bill that the trustees held the legal title as trustees for the complainant and the other cestitis que trust in different undivided proportions; Held that the complainant was entitled to a decree establishing the alleged trust, and directing the conveyance of the complainant’s share of the legal estate to him whenever the trustees could legally make such conveyance ; notwithstanding the whole premises were, at the time, held adversely to both parties.</p>

This was an application on the .part of the complainants to withdraw a replication which had been filed to a paper purporting to be an answer of E. E. Boudinot, executor, See. to a supplemental bill filed against Sackett and others, to which supplemental bill Boudinot was not a party, and to take such answer from the files of the court.

This was an appeal by two of the creditors of the decedent from an order of the surrogate of the county of Otsego, confirming the sale of a part of the real estate of N. Howe deceased, by his personal representatives.

This was an appeal from a decree of the late vice chancellor of the seventh circuit for the foreclosure and sale of mortgaged premises. The defendants were judgment creditors of the mortgagor, and set up as a defence that the mortgage to the complainant was without consideration, and fraudulent as against the appellants. The facts appear sufficiently in the opinion of the chancellor.

<p>Upon a rehearing, the case is open, as to the party upon whose application the order for a rehearing was granted, only as to those parts of the decree which were complained of in the petition upon which that order was founded.</p> <p>Form and requisites of a decree for the foreclosure of a mortgage, and the sale of the mortgaged premises, where the mortgage is conditioned for the support of the widow of the mortgagee, and where the several owners of different parcels of the mortgaged premises are bound to contribute to her support ratably.</p>

This was an application, by the defendants, to dissolve an injunction restraining the collection of a judgment recovered against the complainant in the name of the Bank of Ithica. The judgment was recovered against the complainant as the first endorser of a draft, drawn by E. Bissell upon Benson, & Lefferts of New-York, payable to the order of A. W. Douglass the complainant, and accepted by the drawees.

This was an appeal, by the complainant, from a decree of the vice chancellor of the sixth circuit, dismissing the bill The facts of the case are sufficiently stated in the chancellor’s opinion.

• Upon an,application of the wife, who was the defendant ip■this suit for a divorce, for an allowance for ad interim alimony,., and an allowance tq enable her to defend the suit, the corn-. , plain ant read affidavits to show that he had recovered in aii action of crim. con. against-the alleged paramour of the defendant. But the vice chancellor made the usual órdéf; 'from which the complainant appealed'to the éháncellor.

This was an appeal from an order of the vice chancellor of the first circuit, denying the complainant’s application for an injunction, to restrain the defendants from selling personal property mortgaged to her, under execution against the mortgagor.

This was an application by Abram I. Fort, E. Van Tech ten, H. Van Rensselaer and wife, and also in behalf of A-bby R, -the wife of Abram.I. Fort, to open the order-taking the bill as confessed against them in this case.

This was an application on the part of Adam A. Nestle and Jonas Nestle, two of the defendants, to set aside the order taking the bill as confessed against them and also the decree entered thereon, by default; and to allow the defendant Adam A. Nestle to put in an answer setting up his discharge under the bankrupt act. The bill was an ordinary creditor’s bill as against the defendants Warren, and Adam-A.‘Nestle. And ■tlie defendant.

This was an application to amend a sworn bill. The facts, as stated in the present bill, and the general object of the suit, appear in the report of the case when it was before the chancellor upon the application to dissolve the injunction. (See Hall v. Fisher, 1 Barb. Ch. Rep. 53.)

This was an appeal, by the defendants, from a decree of the late vice chancellor of the sixth circuit', setting aside two judgments by confession, in favor of the defendants Jonathan G. Widger and Betsey his wife against Green Randall, on the ground of usury. The judgments were given in November, 1839, and were docketed so as to become liens upon the real estate of Randall in Binghamton, in the county of Broome.

Thts case came before the chancellor on an application by the receiver of the Croton Insurance Company, an insolvent corporation, for leave to re-insure the risks which the corporation had assumed ; for leave to compromise claims against the corporation; and for leave to pay the officers of the company their salaries in full.

This was an application, on the part of the complainant in a creditor’s suit, for a receiver of the property of the defendant Isaac M. Schermerhorn, the judgment'debtor of the complainant ; and also to extend the receivership to certain property assigned by the judgment debtor to the defendant Jacob M. Schermerhorn.

This was an appeal by Van Wyck, one of the defendants, from a decree of the vice chancellor of the second circuit, allowing the redemption of a mortgage which had been originally assigned to the defendant S. Sweet as security for a debt.

<p>It is not necessary for the assignee of a judgment to issue a new execution tiler» on before he can file a creditor’s bill against the defendant.</p> <p>It is a good objection to an application for the appointment of a reciever" in a creditor’s suit, that no execution has been issued to the county in which the judgment debtor resided.</p> <p>Where the complainant in a creditor’s suit has sworn positively, in his bill, that an execution has been issued to the county in which the judgment debtor resided, an injunction granted in such suit will not be dissolved, upon a simple affidavit contradicting that fact. The defendant must put in his answer, denying the allegation, and then move to dissolve the injunction on bill and answer.</p> <p>In the case of an execution issued before the statute was passed, requiring executions to be made returnable sixty days after the delivery thereof to the sheriff, a creditor’s bill, founded on such execution, should state at what time the execution was made returnable.</p> <p>Where the complainant in a creditor’s suit claims the whole of the debt and costs included in a judgment, as the assignee of such judgment, he must show a valid assignment entitling him to the costs as well as to the debt, or the original judgment creditor, to whom the costs belong, must he joined with him in the suit, or must be made a party to the same as one of the defendants therein.</p> <p>Where it does not appear from such bill that the whole judgment has been assigned to the complainant, but it is merely stated that the oSligations upon which ■ the judgment was recovered, have been assigned to him, the bill is defective.</p> <p>A general averment, in such a bill, that the defendant is primarily liable for the payment of the obligations upon which the judgment was recovered, is too indefinite to excuse the complainant from issuing an execution to the county where the other judgment debtors reside; or making them parties to the suit.</p>

This was an appeal, by the complainant, from an order of the vice chancellor of the third circuit, disallowing an exception to a report upon a reference to compute the amount due upon the complainant’s mortgage. On the 14th of December, 1833, the complainant conveyed the mortgaged premises to the defendant H, Harrington for the consideration of ¡$3200; but by the terins of the conveyance was to retain possession until the first of April then next.