5 Johns. Ch. 497 | New York Court of Chancery | 1821
The account before the master was taken under an order of the 23d of February, 1816, made upon the petition of the defendant. There was no suit then pending, and the order was granted for her greater security and indemnity as executr x; it was not intended to be, and could not be, binding upon the infant plaintiffs, so as to exclude them, on coming of age, from calling her to account. But though it was an ex parte order, yet as the father of the infants attended before the master, as their guardian, during the whole protracted progress of the taking of the account, it does not seem to be necessary to open the account any further, than to correct such errors as have now been pointed out, on the part of the plaintiffs. I shall accordingly notice such objections as have been well taken, ar<d state the principles upon which the account is to be restated.
1. In the first place, the defendant is not entitled to dower in the undivided third part of the Union store and landing, which was purchased by her husband, Peter Tappen, of the executors of Israel Smith, deceased. This purchase was made fay the husband in If91, for 2,500 dollars, and he never paid any part of the consideration money ; and on the 24th of April, 1793, the defendant and George Clinton, as executors of Peter Tappen, sold that right to John Mott, for the same sum, and his bond and mortgage to the executors of Smith was taken and received as a substitute for the debt which Tappen owed them on the original purchase. Whether the defendant has any subsisting right of dower against that property, in whose hands soever it may now be, is not the question before me, though I apprehend, that her deed as executrix, without any mention or reservation of that dower, $ould be a bar to such a claim. The only point now is, whether she has any claim in equity against the plaintiffs, for the estimated value of such a right of dower, supposing it to have existed before the deed to Mott; and there does not'appear to me to be any colour for such
The agreement of the 17th oí October, 1799, signed by the parent of the plaintiffs, was never intended to apply to such a case, but to cases where the proceeds of the sale belonged to the heirs as beneficial property, capable of being applied to their maintenance and education! They never meant to be charged with an equitable dower in the proceeds of any sale, when their ancestor owed the whole original consideration for the land, and the sale was made purposely to extinguish that debt, and left the purchase without any use or benefit to the heirs.
But the defendant is entitled to dower in all the other lands and real estate, whereof her husband died seised in his own right, or in the proceeds thereof, if sold. I say, in his own right, for, as I shall show hereafter, he did not die seised in his own right of the real estate acquired by purchase from the commissioners of forfeitures, under the act of the 22d of March, 1788. She is, therefore, entitled to dower in the proceeds of the sale of another third part of the Union stove and landing, to G. B. Evertson, to be •computed according to the rule prescribed in the agreement above referred to, of the 17th of October, 1799. The claim upon those proceeds must be confined to the sale of the real estate, and not extended to the sale of the vessels, and other personal property, (if any,) belonging to this store and landing, and which were sold together with the real estate, and for one aggregate price. And the value of the dower is to be computed, according to the value of the property at the death of the husband, and not accord
2. The defendant is not accountable for the use of the personal estate left by her husband at his death, nor for the use of the real estate he owned, at the date of his will, as the use of all this was given to her by the will, nor for the use of the real estate purchased by her husband, as the confiscated property of Bartholomew Crannel. Btit she is to r * s be held accountable for the use of the residue of the real estate, and for the proceeds of sales of the residue of the real estate, and she is to be credited for the appropriation
4. The defendant is not accountable, because she is entitied, in her own right, to all the real estate, dot owned by her husband before that lime, and purchased by him in conjunction with Gilbert Livingston, in 1788, or the for-felted estate of B. Crannel. The act of the 22d of March?
It might have been deemed proper, that the amount of the debts so assumed by her husband, should have been charged1 to the defendant, for there never could have been any surplus-
The wood lot, of which so much was said by the witnesses, was included in the sale and deed given by the commissioners of forfeitures under the act, and purchased in by Livingston and Tappen, and was part of the trust property.
The defendant does not appear to me to be precluded from setting up her title to this property, as cestui que trust, under the act of the legislature, by the manner in which she has treated the property, since her husband’s death. She was in possession of it, and not anticipating any controversy between her and her children, she may not have deemed it material to assert' that title affirmatively. But when it does become material, she is not precluded or barred from asserting her title, either by the lapse of time, or by her silence, so long as she has not devested herself of her title by any legal act or deed.
The decision on this point renders it unnecessary to examine into the validity of the claim set up by the defendant to a part of the estate held under the purchase from the commissioners of forfeitures, as being derived from her. mother, the wife of Crannel. I have no difficulty, however, in saying, that the claim is entirely destitue of foundation. Crannel acted as owner, for twenty years and upwards, before he left the state ; and from that fact, and the removal and dispersion of the papers, during the revolutionary war, there is ground to presume a deed to him, and that the same has been lost or destroyed. That same property was confiscated and sold as his property, and treated as such by
In reviewing the accounts, all charges and disbursements by the defendant, for reparation or improvement of the property so purchased, as the forfeited estate of Crannel, are of course to be disallowed; and she, also, is not to be charged with the rents and profits received by her from that land.
5. The annual rests, and the consequent allowance of compound interest to the defendant, must be omitted. This mode of computation is sometimes resorted to, in order to meet the profits, which the trustee may have made out of the trust property, and will not disclose; but it certainly cannot be allowed in favour of a trustee.
6. Allowance must likewise be made in favour of the plaintiffs, for what shall appear to the master to have been the value of the labour and services of the mother of the plaintiffs, while she lived in the family with the defendant '; and this charge will form a reasonable set-off, as far it
7. The defendant must be directed to deposit with the master, her books of accounts, documents, and original entries, relating to the matters in controversy, for the inspection of the plaintiffs, under the master’s direction, and according to his discretion as to the time, mode and extent of the inspection, and the nature and kind of accounts, documents, entries and vouchers, to be so deposited.
8. In all other respects, the account already passed upon, and allowed by the master, is to be taken as correct, unless the plaintiffs shall be able to point out and satisfy the master of further mistakes therein; and so far as they shall be made to appear, they are to be corrected.
I shall direct a reference to a master, with special directions, according to this decree.
Decree accordingly.
Ante, p. 482.