11 Barb. 43 | N.Y. Sup. Ct. | 1850
Several important questions have been argued in this case. It is contended on the part of the plaintiff that most of this property, from its very nature, is personalty, and that were it otherwise, it must all he so considered, in equity, because there is an equitable conversion.
What shall be considered fixtures and as such pass with the realty, is often a vexed question, and is not always easy of determination. Different rules prevail under different circumstances, depending upon the relation of the parties and the nature and nse of the property. One rule obtains betweén heir and executor, vendor and vendee, mortgagor and mortgagee; another between landlord and tenant, and that again is affected by the occupation of the tenant, whether it be trade or agriculture. Another between the personal representatives of the tenant for life and the remainderman or reversioner.. Indeed as to machinery, the motive power has been deemed worthy of consideration. Hardly any two decisions can be said to be precisely alike; each generally having some distinguishing peculiarity. The application of any common principle is therefore very difficult. The old law favored the realty; hut that has been much relaxed in favor of 'trade.
Our revised statutes declare that things annexed to the freehold, or to any building for the purpose of trade or manufactures, and not fixed into the wall of a house so as to be essential to its support, shall be deemed assets; and go to the executor or administrator, to be applied and distributed as part of the personal estate of the testator or intestate. (2 R. S. 82, § 6, subd. 4.) “ Things annexed to the freehold, or to any building, shall not'
It may be proper to remark that so much of this property as was purely personal, on the death of Townsend McCoun, would go to his executors, and not specifically to the residuary legatee. They alone had the title in law. (4 Bac. Abr. 444. Jenkins v. Freyer, 4 Paige, 47. Wodin v. Bagley, 13 Wend. 453. Beecher v. Crouse, 19 Id. 306. Edgerton’s Adm’rs v. Concklin, 25 Id. 236. 2 R. S. 81, § 60.) But our statute, after payment of debts, &c. permits the distributees to take the remaining personalty by order of the surrogate. (2 R. S. 95, § 72.) And if that were necessary in this case, after the long possession by the Buckleys, perhaps that might be presumed. In that case of course it would go to the husband of the residuary
Lawton v. Lawton was a question between the executor of a
About forty years after this, Lawton v. Salmon was decided. (1 H. Black. 259, note. S. C. 3 Atk. 16, n.) This was trover in the King’s Bench, by an executor against the tenant of the heir, for salt pans used in salt works, and placed there by the testator, who was seised in fee. They might be removed without injuring the buildings, and were not joined to the walls, but were fixed with mortar to the brick floor, with furnaces under them, and the workmen could walk around them within the building.- They could be removed without injuring the building. Ld. Mansfield
I do not find any relaxation of the rule between heir and executor, in this state. (Hermance v. Vernoy went off on another point. (6 John. 5.) So did Cresson v. Stout, (17 John. 116.) In that case there was a plain answer to the defense, without reference to the question of fixtures. And had there not been, the mortgage by the owner conveyed every thing to the plaintiffs except the frames for spinning flax, and those were not fastened to the floor or walls. And besides, Mr. J. Platt puts his opinion upon the authorities cited in Elwes v. Maw. No reference is made by him to the distinction between the rights of owner in fee and a tenant. Holmes v. Tremper, (20 John. 29,) was between landlord and tenant for years. No reference was made to the fact that the case of the cider mill, and others, were supposed to have turned upon usage. But there, the rule between heir and executor was recognized. Miller v. Plumb, (6 Cowen, 665, in 1827,) was trover by a vendor of the premises on which an ashery stood, for kettles, troughs and leaches, and 500 feet of boards, belonging to the ashery. Two potash kettles were set in an arch of mason work with a chimney; the arches on a platform, but not fastened to the building. The troughs were sunk in the ground. The boards were for an upper floor, and part of the kettles were not set in any way. The lessee of the grantee had taken possession. The plaintiff recovered, and the defendant, on a writ of error, reversed the judgment. Woodworth, J. in delivering the opinion of the court said, “ the rule appear to be well established: whatever is affixed to the freehold becomes part of it and can not be removed. Exceptions have been admitted between landlord and tenant; between tenant for life or in tail and the reversioner; yet the rule holds between heir and executor.” And he approves the remark of Lord Ellenborough in Elwes v. Maw, that “ the rule obtains with the utmost rigor in favor of the inheritance and against the right to disannex therefrom and to consider as a personal chattel any thing which has been affixed theretoand said that the cases of heir and executor, and vendor and vendee, were different
In Walker v. Sherman, Mr. J. Cowen took an elaborate view of most of the leading cases. (20 Wend. 658.) Had that been a case of heir and executor I should have thought it unnecessary to re-examine the question. It was a case of partition between tenants in common, who Judge Corven thought stood upon the same ground as grantor and grantee, where we have seen the principle between heir and executor before our statute, prevailed. The property was a woolen factory, a house, barn and 20 acres of land. In making partition the court treated two double carding machines, a picking machine, spinning machine, looms, &c. as personal property. On the hearing before the commissioners the plaintiff’s counsel admitted that all the machinery affixed to the freehold was real estate, but" denied that machinery which was loose and movable was so. The articles in question, as stated by the plaintiff’s counsel, were in the factory, but not in any manner affixed or fastened to the buildings or lands. The commissioners acted upon this distinction. Judge Cowen thought from the affidavits that the machinery treated as personalty by the commissioners “ was such only as was movable and in no way physically attached to the factory or land, though it had been used for several years as belonging to the factory, and was material to its performance in certain departments of its work, as the machinery which was actually affixed. Did the commissioners err in disregarding the movable machine ?” The court held they did not. In this case, then it was said, that whatever
As between tenant for life and remainderman or reversioner, the rule in favor of the realty is, as we have seen, somewhat relaxed. And I am inclined to think that a tenant for life who erects a fixture for the purposes of trade or manufacture, has an equal right, in respect to their removal, with a tenant for years, {Law of Fix. 117,) though the cases have perhaps not generally gone so far. But this only applies to those fixtures put up by the tenant. Thus in the leading case against the remainderman, (Lawton v. Lawton, supra,) engines in a colliery, put up by the father of the tenant for life, were considered realty. (3 Atk. 16. And see the case of Tarrant v. Thompson, 2 D. & R. 1. S. C. 5 B. & Ald. 826.) In that case, where a windmill and machinery had been leased, Holroyd, J. said, “ the machinery was let
This review of the cases is sufficient to show what the law was before. And we have seen what construction Chancellor Walworth has put upon our statute. It is difficult to see how any other can be given without doing incalculable mischief. This view of the law does no injury to creditors ; for the real, as well as personal, property of the decedent is held liable for all debts. But, if fixing into the wall of a house so as to be necessary to the support of that wall, is the test between heir and executor or administrator, then injury will be done to creditors by depreciation and loss, as well as to heirs. Take the case of a flouring mill erected for the purpose of manufacturing flour; the water wheels, gearing, mill stones and bolts, &c. must all come away, and the mill be substantially rebuilt. If a saw mill, the destruction would be as complete. If a forge, its heavy wheels and massive beams and hammers, anvil and block, touch no walls, and three-fourths of the works must be removed. A rolling mill, with its ponderous machinery, if possible, suffers more. A large portion of the parts removed would be quite valueless elsewhere. The greatest care and prudence, probably, would not prevent a sacrifice of, at least, fifty per cent. Language should be very explicit and imperative, before it receives an interpretation so disastrous in its consequences. Toller, to whom the revisers refer, cites no case that maintains such doctrine. (Toller, 199. 11 Vin. 167.) That rule was never applicable between the real and personal representatives of the owner in fee. If we read “ things annexed to the freehold” for trade, &c. without reference to the remainder of the paragraph, and consider a building aá distinct from the freehold, perhaps the administrator may take from the heir, buildings. As between landlord and tenant for years, it has been held the tenant could remove the building itself erected for the purposes of trade. (Van Ness v. Pacard, 2 Peters, 137.) The revisers say, the 8th section was inserted
It seems to me the legislature never intended these consequences. This fourth subdivision, probably, applies to those cases only, where the interests of the late occupant and the present owner are adverse, or at least distinct; as where the present owner is not the real representative of the decedent. The preceding parts of the section refer to such cases. And the word “ things,” which has been held to refer to personalty, (Cook v. Oakley, 1 P. Wms. 302,) may here be restrained to articles ejusdem generis. Even where the decedent had a lease for years, or an estate for the life of another, or where the lands are devised to an executor for a term of years, to pay debts, it is very proper that all the machinery and fixtures should be set forth in the inventory.
Technically, every thing that has been completely annexed to the freehold by the owner in fee, becomes, ipso facto, a part of the freehold itself. And in Winne v. Ingilby, (supra,) and Miller v. Plumb, (supra,) this absolute ownership is fully appreciated. It seems to me that the rule in this state, as between grantor and grantee, vendor and vendee, mortgagor and mortgagee, and heir and personal representative of the deceased, still is, that whatever is annexed or affixed to the freehold, by being let into the soil or annexed to it, or to some erection upon it, to be habitually used there, particularly, if for the purpose of enjoying the realty or some profit therefrom, is apart of the freehold.
Perhaps our statute has altered this rule ; but devisees are not mentioned in the sixth and eighth sections. The seventh uses language implying that fixtures may descend to the devisee, but strictly a devisee takes by purchase. (Ram on Wills, 18, 20, 110.) If such is the legal intent-of the will, Walker v. Sherman applies. But I do not think it necessary to rest the case upon that ground.
The plaintiff claims as grantee or vendee of Phinehas H. Buckley, the husband of Phebe Buckley. If this property was real estate, and Phinehas was tenant by the curtesy, he had the same right to the fixtures annexed to the land of his wife, as an ordinary tenant for life. (Law of Fix. 126.) A tenant by the curtesy was always liable for waste. (2 Saund. R. 252, n. 7. 2 Bl. 283.) Though tenants for life were not punishable at common law, but were by statute. (1 Cruise, Dig. 69. 2 Bl. 283.) It has been held that the assignee of a tenant by the curtesy, was not liable. (Bates v. Shrœder, 13 John. 260.) But now the assignee is liable. (2 R. S. 334, § 1.) The interest of the plaintiff, as having an estate pur outer vie, on his death perhaps under our statute, would become a chattel real. (1 R. S. 722, § 6.) But however that may be, if Phinehas H.
But admitting this to be realty, it is strenuously urged that there was never such seisin of the wife as is requisite to consummate this estate. This objection I think not well founded. Phinehas H. Buckley became partner and received a. proportionate share of the profits, immediately after Townsend McGoun’s death; .and until long after the death of his wife. And again, if this was real estate in the hands of the partners, they were tenants in common, and the seisin of one tenant in common will be considered the seisin of the other, for this purpose. (Clancy on Rights of Married Women, 181. 7 Vin. 150. 2 Crui. Dig. 551, 560. De Grey v. Richardson, 3 Atk. 469. Ellsworth v. Cook, 8 Paige, 646.)
At common law a tenant by the curtesy could not have a writ of partition. (Allnatt on Partition, 34.) But no such objection now exists, if it ever did in equity. Phinehas H. Buckley, or his grantee, has an estate for life, within the statute. (2 R. S. 317, § 1. And see 1 Story's Eq. Jur. § 665; Wotten v. Copeland, 7 John. Ch. 140.)
Another ground has been warmly contested in this case. It is said by the plaintiff, that this is partnership property, and consequently should be considered personal estate. In that case, the legal estate would be in the heir or devisee, though equity might treat it as personal. {Coll, on Part. § 133, Perkins' ed. Delmonico v. Guillaume, 2 Sandf. Ch. R. 366.)
The authorities in England upon this point are very conflicting. An elaborate examination of them will be found in the recent edition of Collyer on Partnership by Mr. Perkins. That writer and Mr. Bissett in his late work on the same subject found it difficult to reconcile the decisions. Mr. Gary hardly pretends to give an opinion; though he says “ opinions, however, preponderate in favor of its being treated as personal estate.”
Bell v. Phyn, (7 Ves. 453,) was decided in 1802, by Sir Wm. Grant. Three persons, merchants and partners, with another, purchased a plantation in New-Granada, and before the death of one of them, had nearly paid for it, out of partnership funds. All the accounts in relation to it were kept in the partnership books. One of the residuary legatees of a deceased partner, filed a bill, and it was held that the plantation was real estate. The master of the rolls said there was no occasion to call for it for any of the purposes of the partnership.
Balmain v. Shore, decided in 1804 by Sir Wm. Grant, (9 Ves. 500,) also turned upon the articles of copartnership, and the recitals in the conveyances. It was held, that the firm had a right to the use of the property during its existence, and that, subject to this use the property was real estate. The property was purchased after the formation of the copartnership, and was a china and pot manufactory, the firm carrying on the business of potters. This case is hardly in consonance in all respects with Ripley v. Waterworth.
In Randall v. Randall, (7 Sim. 271,) decided in 1835, the Vice Chancellor, Sir Lancelot Shadwell, reviewed many of the authorities. Two brothers, one a land surveyor, and the other a grocer, became copartners in the business of farming. Soon after, they became partners, also, in the business of making malt; and again soon after that, in the manufacture of biscuit. The malting business continued about 13, and the biscuit making about 20 years. The farming business continued in all nearly thirty-five years, until the death of one of the brothers. When-they began, they were tenants in common with others of property partly freehold and partly leasehold, consisting of a house, barn, lands, &c. their father’s estate. There the farming and malting business were carried on, and the baking business there and on the separate land of one of them. They began in 1792, and in 1802, bought out one of their co-tenants with partnership funds. In 1803, they purchased and paid for another parcel in the same way, and in 1805, another; all of which were used for their farming and agricultural purposes. In 1808, certain allotments of land were made to them, which they improved with partnership funds, and they were used as the other property. In 1820, they purchased some other lots with partnership funds, which they let to tenants. It was held that these parcels were not personal estate.
Cookson v. Cookson, was decided by the same judge in 1887,
If these cases declare the law, there has been no conversion in this case. But there are contrary decisions. Ripley v. Waterworth, we have noticed. It was decided in 1802 by Ld. Eldon ; and turned upon the construction of the deed of partnership, which, it was held, was a conversion of the real estate out and out. Leigh & Dalzell put the case as -one of contract of sale. (Leigh & Dal. on Eq. Conv. 21.) This case is said, by Mr. Collyer, to have paved the way for the modern doctrine and the leading case of Ld. Eldon favorable to equitable conversion incases of partnership. (Coll. on Part. 72, Perk. ed. § 142.) But he says it was placed upon express agreement, and I think Ld. Eldon expressly put it upon that ground. There was a right of pre-emption, and one of the partners elected to purchase and did so. So the agreement to purchase was executed. The property was both freehold and leasehold; and was conveyed to trustees to the use of such" persons as the partners should respectively appoint and, in default of appointment, to the use of the partner and to sell and pay partnership debts and divide or convey, &c.
The same chancellor is said to have gone further in Townsend v. Devaynes, (1 Mont. on Part. App. 96.) As reported in that work, he decided that real estate consisting in part of
Fereday v. Wightwick came on before Sir J. Leach, M. R. in 1829. (1 Russ. & My. 45; S. C. 1 Taunt. 250.) Six persons took a lease for years of certain mines, for the purpose of working them in partnership. One, who had been manager, assigned his shares by way of security for money advanced, and then became bankrupt, greatly indebted to the concern. The bill was filed by the other persons interested therein; prayer for sale of partnership property, and to have accounts taken and co-partnership dissolved and that the shares of the bankrupt be applied in payment of the debt to the partnership he had incurred in managing its affairs. The court so held. The master of the rolls is reported by Tamlyn to have said: “ It is a principle that all property, whether real or personal, is subject to a sale, on a dissolution of the partnership. This is property acquired by the partnership for the purposes of the concern, and it is subject to all the debts of the partnership property, and to the debts of one partner to the other partners in respect of the partnership.” By Russell & Mylne, that “ the general principle is, that all property acquired for the purposes of trading concerns, whether it be of a personal or real nature, is to be considered as partnership property, and is to be first applied accordingly in satisfaction of the demands of the partnership.”
Broom v. Broom, (3 Myl. & Keen, 443,) was decided by the same judge, ten years after Philip v. Philip. On the strength of the latter case, as between the heir and administratrix, it was held that real estate, purchased by partners with partnership funds, for partnership uses, was, in equity, personalty. The same judge who decided Randall v. Randall and Cookson v. Cookson, decided Houghton v. Houghton, (11 Sim. 491.) Two partners purchased land for the purposes of their trade, and borrowed money to do it, for which they gave a mortgage upon the land. They erected trade buildings on it and paid for them, for insurance, and the interest on the mortgage, with partnership funds ; and one died. The survivor took another partner and they did the same, and finally paid the mortgage out of the partnership property and took a reconveyance of the land to themselves, and the survivor of the first firm died. Held, against the heir of both of the first partners, that the land was personalty.
There are other cases bearing upon this question. (Smith v. Smith, 5 Ves. 189. Bolmain v. Shore. 9 Id. 500. Rowley v. Adams, 1 Beav. 548. Custance v. Bradshaw, 4 Hare, 315.) But I have referred to enough to show it may well be considered queestio vexata in England. Supposing the law laid down by Ed. Thurlow and Sir Wm. Grant to be overruled by the decis
The decisions in this country are as unsatisfactory as in England. Most of them are collected by Mr. Perkins in his edition of Collyer’s work on partnerships.
La this state, the question has arisen but a few times. Coles v. Coles was a case at law, and was decided in 1818. (15 John. 159.) There is no doubt but the property descends to the heir, who is tenant in common with the survivors. (Broom v. Broom, supra. Perkins’ Colly. § 133. Howard v. Priest, 5 Metc. 582. Buchan v. Sumner, 2 Barb. S. C. Rep. 165.) But the dicta of the court went further, in Coles v. Coles, than to put the case on mere legal grounds. It was an action of assumpsit by the administratrix of a deceased partner, against the survivor, for a moiety of the avails of real estate conveyed by the partners, and which they had used in their partnership trade. It was contended that it was a partnership transaction, and required the investigation of partnership accounts. But the plaintiff recovered. The court say “the principles and rules of law, applicable to partnerships, and which govern and regulate the disposition of partnership property, do not apply to real estate.” And it is added that “ there may be special covenants and agreements entered into between partners relative to the use and enjoyment of real estate owned by them jointly, and the land would be considered as held subject to such covenants, but nothing of that kind appears in the present case; and in the absence of such special covenants, the real estate owned by the partners must be considered and treated as such, without any reference to the partnership;” and they rely upon Thompson v. Dixon and Bolmain v. Shore, both cases in chancery.
McCoun, V. C., in Smith v. Jackson, decided in 1833, (2 Ed. Rep. 28,) reviewed many of the authorities. Lands, which had
In Delmonico v. Guillaume, (2 Sandf. Ch. R. 366, in 1845,) Assistant Vice Chancellor Sandford held that real estate, purchased with partnership funds and for partnership purposes, and so used, was liable for the debts of the firm. He declined giving any opinion how it would be between the real and personal representatives.
Chancellor Walworth examined the subject very fully in Buchan v. Sumner, (2 Barb. Ch. Rep. 198 to 207.) The rule, as found in Thornton v. Dixon, Bell v. Phyn, and Bolmain v. Shore, he thought overruled by Lord Eldon in Townsend v. Devaynes; and that, unless otherwise expressed in the partnership articles, in England, real estate is considered in equity as personal property, and goes to the personal representatives; and cited Selkirk v. Davis, (2 Dow’s P. C. 231,) and Philips v. Philips, Broom v. Broom, Houghton v. Houghton, and Morris v. Kearsley, (2 Young & Coll. 139,) before Mr. Baron Alderson. He however mentioned the later cases of Rowley v. Adams, Randall v. Randall, and Baxter v. Newman, (1 Lutw. Reg. Cas. 287,) as departures from this rule. But he considers the American decisions as establishing these two principles; that where real estate is purchased with partnership funds, for the use of the firm, in equity it is chargeable with the debts of the copartnership, and with any balance which - may be due from one copartner to another upon winding up the affairs of
But it is further contended, that there is an equitable conversion by the will of Townsend McCoun. The death of T. McCoun dissolved the partnership. (Murray v. Mumford, 6 Cowen, 441. Cary on Partnership, 162, 185.) A subsequent continuance of a concern may be provided for by will, but the intention should be clearly and distinctly expressed. (Burwell v. Mandeville’s Ex’ors, 2 How. U. S. R. 560. Scholefield v. Eicheberger, 7 Pet. R. 586.) On his death his share of the real estate descended to the heir, Mrs. Phebe Buckley, unless affected by the will. And as the devisee in this instance is the heir, she took by descent and not as purchaser, unless a different estate was given her, or there was a conversion. Even if there is a charge upon the realty, (2 Kent, 507. Ram on Wills, 17,) I do not think there is any conversion. There is in terms no devise of this property to be sold for any purpose, nor a power or direction to sell. There is no clear intention that there should be an absolute conversion. (Leigh & Dalz. on Eq. Conv. 88. 2 Story’s Eq. Jur. § 1213, a. Bogert v. Hertell, 4 Hill, 492.) A general direction to pay debts, it is said, is not a charge upon land for that purpose. (Lupton v. Lupton, 2 John. Ch. 624.) And that is so, it seems, where the executors are directed to pay and no land is devised to them. (Ram on Assets, 64, 5. Keeling v. Brown, 5 Ves. 359. Powell v. Robbins, 7 Id. 209. 2 Story’s Eq. Jur. § 1247. And see Rogers v. Rogers, 1 Paige, 190; Mollan v. Griffith, 3 Id. 402; 2 Wms. Ex’rs. 1201.)
The first clause of the will reads, “ First. It is my will, that all my just debts and funeral expenses be paid by my executors hereinafter named.” Upon this, the charge would be confined to property given to the executors. (Id. And Warren v. Davies, 2 My. & Keene, 49. 2 Jarm. on Wills, by Perkins, 523. And see Dover v. Gregory, 10 Sim. 393.) And here is
Again, it is said that the agreement under seal between the partners, in 1825, is a declaration of an intention to consider this property personal. If this, was the purport of that instrument, it may be doubtful whether the covenants would run with the land. However, I think it is not capable of any such construction. There is no evidence that the first lands were purchased by the partners as such, or with copartnership funds ; and the
I have now disposed of all the points in the case affecting, that share of the property formerly owned by Townsend Mc-Ooun.
The will of John Gale is also in evidence, and his executors, heirs, devisees and widow, are made parties. The "first clause is : “1st. I order and direct my just debts and funeral charges to be paid.” He does not order Ms executors to pay them. This by the English rule, would create a charge upon the realty. (2 Jarm. on Wills, 512.) But a charge merely, as we have seen, does not alter the rights of the parties to the realty, until enforced. (1 R. S. 729, § 56.) Nor does a devise of lands in trust to sell and pay debts and legacies, if the devisee can not receive the rents and profits. (Id. Germond v. Jones, 2 Hill, 569.) Though different at common law. (Hill on Trustees, 231.) Much less does a mere power to sell. (Taylor v. Morris, 1 Comst. 358, Jewett, Ch. J.) And as to the equitable rights of the parties under this will, it is not possible for me to declare them, without knowing the situation of the estate. After the debts are all paid, the widow is to have an annuity of $200 from the “ dividends made from the cotton factory, if made to that amount.” Without some evidence upon the subject I can not give directions for the distribution of the avails of Mrs-. Gale’s portion of this property. Nor is it necessary to decide whether
A decree must be entered declaring the copartnership of Wm. Mowry & Co. dissolved; and a reference ordered to take the accounts; the costs of this and of all the proceedings, not relating to partition of the real estate, to be paid out of the property belonging to the present firm, without reference to the real estate. I think good cause for a sale has been shown. The property is so situated and. the parties are so numerous, probably a partition is impracticable without great prejudice to the owners. The property to be divided is the real estate owned by the partners at the time of the death of Townsend McCoun, and particularly set forth in the report; and this includes the fixtures and machinery annexed to the freehold, or which are usually thereto attached.' The costs of the proceedings for the partition are to be paid out of the proceeds of the sale, and the balance divided as follows: To Wm. H. Mowry and Henry Holmes, each one-twelfth part as the grantees of John T. McCoun the devisee of Samuel McCoun. Unless their wives release, the value of their inchoate right of dower must be ascertained. (Laws of 1840, ch. 177.) To the widow, executors, legatees, devisees and children of John Gale, deceased, one-third, to be apportioned among them according to their rights, to be ascertained by reference if required. To Anne Caroline Holmes, wife of Henry Holmes, one-sixth, as devisee of Wm. Mowry, deducting the value of the interest of her husband. Whether there is issue of this marriage, is not in proof. He will take for their joint lives, or as tenant by the curtesy initiate, as that may be.
Of the remaining third, the plaintiff is entitled to the value of an estate for the life of Phinehas H. Buckley therein. Also absolutely, to a reasonable proportion of the avails, as owner of one-third of the buildings and fixtures, and improvements made, built or purchased for the purposes of trade or manufacture, since the death of Townsend McCoun. But this does not in-
Hand, Justice.]