7 Johns. 557 | N.Y. Sup. Ct. | 1808
The following questions arise in this case; 1. Whether the infants were properly before the court of chancery so as to be bound by the decretal order of the 21st May, 1804, confirming the appraisement; 2. If they were properly before the court, whether the setting aside that order, as to all the respondents, was fit and proper on the ground of mistake in the appraisers; surprise on the respondents ; or imposition or fraud of the complainants. I shall not, on the first question, take up all the proceedings, and examine the merits of every objection in detail. This would be an unnecessary task; many of them, being mere matter of form, were curedby subsequent acts, and others not noticed in season, were waived; but shall content myself in selecting suchas appear of sufficient weight to have influenced the chancellor in granting the order, as to the infants, from which the party has appealed.
From the manner in which this cause was first commenced, it appears that the rules of the court of chancery have not been strictly adhered to by either party; but the interest of infants being implicated, it required the proceedings to be conducted with the greatest care and vigilance, to secure the effect of the application to the court, and in every step connected with their rights, to have committed them exclusively to the ¡direction of the
On an examination of the letter of attorney of Elizabeth Toxvers to John Nixon and David Walker, it does not appear that they were authorized to answer in chancery ; it is confined to the management of her proportion of her father’s estate; and if even it had contained sufficient power for the purpose, the joint signature of John Nixon & Co. is improper, and the answer could derive no legal authenticity from it; but the signature of Mr. Hopkins, as solicitor, (she residing in foreign parts,) might legalize the answer in the view of the court, if, at that time,. the letter of attorney had not been virtually revoked by her intermarriage with Alexander Maitland. She could not be called upon to answer by a wrong name, or be made a party without her husband, who became entitled to her proportion of the personal estate by the marriage; those parties, consequently, never were in court, and I cannot discover in what manner the suit could have been revived against her infant children; yet this was done, and the order entered for that purpose is founded on a suggestion, that Betsey Towers, one of the defendants, answered the bill, after which she died, and that Ann Towers, Peggy Towers, Catharine Towers, and Mary Towers, were her only children and heirs, and that she had no executor or administrator, or other representative, except the said children, when in truth Mrs. Maitland, named in the order Betsey Towers, had left Francis Claxton, William Mitchell and William M'Cormick, her executors and the guardians of her children; and though they were not made parties, still, as executors, they retain their remedy for the personal estate left by her* The doctrine contended for, on the ground of want of information of their marriage, and subsequent death of Mrs. Towers, cannot, in this instance, be countenanced. It may with propriety be applied to acts of colonial governments done in the mame, and after the death of the sove
It is an unquestionable rule that infants cannot bind themselves by their own acts, or by consent, even by guardians, unless it be rendered manifest to the chancellor that they would be benefited by it. Several of the other respondents were infants when the proceedings, in many instances, were by consent. The investigation of those, however, may become unnecessary, from the result of the discussion of the second question proposed, which I shall therefore proceed to examine.
Whether the setting aside of the order of the 21st of May, 1804, was fit and proper as to all the respondents on the ground of mistake in the appraisers; surprise in the respondents; or imposition or fraud of the complainants.
It is alleged that the appraisement of Rose-Hill farm, containing ninety-two acres of land, subject to a lease during the lives of Mr. and Mrs. Gates, at 50,000 dollars, and the land opposite, at 2,500 dollars, is inadequate * to the real value.
The persons appointed appraisers of this property stand before this court unimpeached. The charge of imposition or fraud cannot be attributed to them.
If the amount is inadequate, they have been mistaken in the value, and it must be deemed an error in judgment, to which a rigid adherence to theoretical calculations, as to the value of encumbrances, with
From the testimony before us, it appears that the highest unencumbered value of Rose Hill farm, agreeably to the calculations made on the principles supposed to have been adopted by the appraisers, was about 91,000 dollars, making a difference of upwards of 4-9ths for the two lives, the one aged 63, and the other 75, with which it was encumbered; far exceeding any amount I can possibly conceive the real existing difference to be. This system of calculation will unquestionably,. I think, admit of an age in human life to which an estate may be subjected, nearly, if not equal in value, to the fee-simple, which would render the reversion not worth any thing, a position wholly inadmissible, and at war with common sense. It cannot reasonably be imagined that the incumbents would have charged 41,000 dollars to extinguish their interest in the premises : I am persuaded it would be nearer the true value to estimate it at half that amount. In that case; the unencumbered valuation would be 70,000 dollars, instead of 50,000 dollars; and yet this is a sum, from the testimony before us, certainly below its real value; but, independently of the offer made by the respondents of 100,000 dollars, compare it with the average of nearly all the sales in evidence, and it falls short a considerable sum; but take those made by John Hone, about 600 yards farther from the city, on the same road, at a price exceeding an average of2,000 dollars per acre, and it will be found, after a reasonable deduction for the encumbrance, to be grossly inadequate, and that too at a period of a few days previous to the date of the order of the 21st of May, 1804, and at a time when the appointment was subject to the rule of reference to a master, a circumstance tending to show the situation of the respondents, although doubtful, yet ignorant of the real value of this estate, and at that time reluctantly assenting to the appraisement, under a mis
The testator ordered his executors to pay each of his children their separate shares, on their arriving to the age of 21 years, and to allow sufficient for their education and support during infancy. This refusal, therefore, to say the least, was illegal, and must, in some measure, have induced a compliance with the confirmatory order, and, consequently, in its operation, have been oppressive to the respondents; and I think it may be denominated a species of fraud, attended with stronger circumstances than are requisite to constitute the third kind enumerated by Lord Hardwicke, in the case of Chesterfield v. Jansen. (2 Ves. 155.) The respondents certainly, by their counsel, at the earliest period, evinced a doubt or dissatisfaction in relation to the appraisement, or why, only" eight days after filing of the report of the appraisers, enter this rule of reference to a master, whereby each party should be at liberty to except to all or any of the valuations contained in it, touching which the master
I cannot think that the subsequent acts of some of the respondents to obtain a partition under the statute, can be considered a sufficient confirmation of the appraisement and election, so as to vest the property in Mrs. Rogers; but admitting for a moment, that the property elected, by.her had vested at the time, of such election, and that on an investigation before a master, it had been found to exceed one third, either by mistake in the appraisers, or otherwise»
In the consideration of this cause, the following are the leading and important questions which are presented for decision;
1. Can the decree or order of the 21st May, 1804, and the proceedings upon which it is founded, be set aside, on the ground of fraud, mistake, or irregularity, as against all the respondents, or any of them ?
1. The discussion of the first question, in my view of the subject, is the most important in the cause. It involves a construction of that part of the will upon which the rights in severalty of the appellants depend, and that construction being once ascertained, it will be found to have an almost controlling influence upon every question that arises. To the correct decision of this point, the following parts of the will are necessary to be stated, and particularly attended to, viz.
“ I order and direct my executors, herein after mentioned, to make a full and perfect inventory of my estate, as soon after my death'as with decency and convenience it can be done.
“ The. rest and residue of my estate, both real and personal, I will and devise in manner following, that is to say, I give, devise and bequeath one third part thereof to my beloved wife, Ann Cruger, and to her heirs and assigns for ever; and it is my will that my said wife may, if agreeable to her, take the said one third part thereof out of such part or parts of my estate, real and personal, or out of either of them, as she may choose, so that on a fair and equitable valuation or appraisement of the same, the said part or parts she shall so choose shalhnot together exceed the value of one third of my said real and personal estate, as above devised and bequeathed to her. , ' 1
“ I again devise and bequeath the remaining two third parts of my estate, both real and personal, to my children, sons and daughters, as well those of my first marriage as those of my second, (they being all equally near and dear to me,) to be divided, share and share alike.
“ It is my will that my said executors, as soon after my death as my said wife shall choose, assign and convey to her the one third part of my estate, real and per
In the construction of wills the intention of the testator must always prevail, and that intention is to be collected from the whole will, “ ex visceribus testamenti,” and, if possible, full effect is to be given to every part of it. It is, perhaps, needless to remark, that when a will appears to have been legally executed by a person of sound mind and discretion, the distribution which the testator makes of his estate must take effect, however unreasonable or improvident such distribution may appear to be. Courts of justice are to expound, not to make, wills. The right which every man has to dispose of his property after his decease, in such manner as he thinks proper, is founded in wisdom and good policy, and is secured by the laws of this and every other civilized country.
The will in question was executed about nine years before the testator’s death, and when most, if not all his children were infants. By that part which I have just recited he directs, and as the first act to be done after his decease, that an inventory of all his estate should be made by his executors. And here I will take occasion to remark that the appellants were competent to make this inventory, without the executors who refused to act; and this was equally proper and necessary, whether the appellants did or did not exercise the right of election given by the will.
The testator then devises to his wife (one of the now appellants) a third part of bis estate, real and personal, and gives to her the right to take the same out of such part or parts of the estate, real and personal, or out of either of them, as she might choose, so that on a fair and equitable valuation, or appraisement of the same, it should not exceed the value of one third of the whole. It is further provided, in relation to the property elected, that as soon after the testator’s death as the election should be made, that the executors should assign and convey the
The testator intended to facilitate the exercise of this right of election, as far as he could, and never designed that it should be embarrassed or delayed, much less defeated, by reason of the infancy of his children. One great and important object of the testator was, (for reasons with which we have nothing to do,) to secure to his wife the means, if she saw fit to use them, of separating, according to her own will and pleasure, her part- of the estate from that of the children. It is .highly probable, however, that the testator supposed an appraisement would be made previously to the making of the election.
The counsel on both sides have supposed that the
I have already remarked that the right to make the election accrued at any time when the widow chose to exercise it, after the death of her husband. I have also endeavoured to show that the election having been made, the effect of it would be to convert the estate of the widow in common with the children, into an estate in severalty, and that independently of the executors, who, as they never derived any interest from the will, could impart
By reason of the refusal of the executors to prove the will, and to take upon themselves the execution of any of the powers thereby vested in them, there was no person who could cause a valid appraisement of the estate to be made, or to execute any writing by which the widow could preserve the evidence of her election, and acquire a proper assurance of hen title, in virtue of her election, if that were required. It became necessary for these purposes, and for these purposes only, to resort to the court of chancery. In pursuance of an arrangement made between the widow and some of the adults, and by the advice of able and learned counsel, an amicable suit was agreed to be instituted, wherein the appellants were to be the complainants, and the children of the testator were to be the defendants. This proceeding was for the benefit of the parties, who all had an equal interest therein.
The bill was filed accordingly, and the defendants answered it. The bill states all the material facts relating to the premises, which are admitted by the defendants.
The appraisement contemplated by the will was completed, (but by order of the court was not made known to any of the parties,) and was filed on or about the 20th May, 1803. The election by the appellants was filed on the IPth May, in the same year, designating the parts of the estate chosen by her.
In consequence of the refusal of the executors to act, the execution of the powers and trusts contained in the will devolved upon the court of chancery, (for a trust is never defeated for the want of a trustee,) and that court was, to all intents and purposes, substituted in the room of the executors.
The appraisement, therefore, having been made by competent authority, and the election having been filed, the title became vested in the widow, and, in my opinion, absolutely; but, at all events, in such a manner as to entitle her to a conveyance, or such other writing, as would be competent to render her title complete. It has been insisted upon, and not without effect, that inasmuch as it was unknown whether the property designated in the election, did or did not exceed one third of the value of the estate, that the election was not perfect until the court of chancery should previously examine into that fact, and that until the election should receive the sanction of the court, it Was not complete.
Upon the fullest reflection I am satisfied, that the validity of the election cannot depend upon that circumstance. I have before observed, that the difficulty arising from the contingency that the property elected might exceed one third of the appraised value of the estate, is created by the order of the court directing the concealment of the appraisement from the appellant; a measure never contemplated by the testator, but which, if contemplated,
Before dismissing this point, I will briefly state a few-other considerations which occur to me on the subject of the election.
The part or parts of the property elected by the widow, the will provides, shall not, upon a fair and equitable valuation thereof, exceed one third part of the estate. Hence it has been inferred, that until an appraisement was made, the right of election did not attach, but that, at all events, no estate was acquired under the election, until it should be confirmed by the trustees. But the very terms of the will import that the election might be made the moment after the appraisement was completed; and if so, the exercise of the right necessarily vested the estate, and this is of the nature and essence of the right, in all cases where an estate is to be acquired by election. The appraisement which was requisite to be made in order to determine whether the part elected did or did not exceed the value of one "third of the estate, is a matter of subsequent arrangement and inquiry, but can never operate to defeat or devest the estate which had been already actually acquired, on making the election, unless on the ground of fraud. The right of the widow to the property elected, (or, in other words, her estate in severalty therein,) began by the election. She was bound by that election; and if she was bound, nothing is clearer
I have taken some pains on this part of the subject on account of its very great importance in forming a correct opinion on the remaining questions in the cause.
I will now, as briefly as the nature of the case will permit, proceed to consider whether the decree of the 21st of May, 1804, can be set aside on the ground of fraud, mistake, or irregularity in the proceedings on which it is founded.
And first, as to fraud. On this part of the subject, I will detain the court but a few moments.
Fraud is never to be presumed. It is always to be made out, either by positive proof, or by the disclosure of such facts and circumstances as are irreconcilable with good faith and the principles of morality. Many things may be illiberal, reprehensible, and, perhaps, even dishonourable, which will not in legal signification be deemed fraudulent, so as to avoid a contract. The evidence to make out the charge of fraud against the appellants, principally relied upon, is, that large sums of money in the hands of the appellants, due, as is contended, to the respondents, was improperly and oppressively withheld whereby they were forced to assent to the order in question by an undue and illegal advantage which the appellants took of their necessities.
Undoubtedly, if this charge was supported, their consent to the order would not be obligatory upon them. But after all that has been so ably urged upon this sub»
Has there been such a mistake in the valuation of the Rose-Hill estate, as that the respondents can be relieved on that ground ?
I have, in the former part of my opinion, endeavoured to show, that the election vested the estate elected in the appellants, and that, as they were obliged to abide by that election, the respondents were equally bound to acquiesce in it. The election, was made, and consequently the estate vested, on the 17th of May, 1803.
The value of Rose-Hill, at that period, and at no other, is, then, the proper subject of inquiry. The will clearly points to that event, as the time in reference to which the valuation of the estate was to be made. Indeed, this is a point which ought to have been conceded, because it is too-plain to be controverted.
What, then, was the value of Rose-Hill on the 17th of May, 1803 ?
If the respondents are to be relieved on the ground of a mistake in the valuation, at the time I have just men
In the language of a wise and upright judge, who understood this doctrine, (Lord Thurlotv,') u there must be an inequality so strong, gross and manifest, that it must be impossible to state it to a man of common sense, without producing an exclamation at the inequality of it.” And he adds, “ The principle then is loose enough-looser than I wish to be established in a court of justice.”
I do not mean to go very fully into the evidence as to the value of Hose-Hill, at the time, when, according to my opinion, it ought only to be inquired into, to wit, on the 17th of May, 1803.
Three sworn appraisers, men of integrity and competency, have respectively testified, (for in that light the court are to consider their appraisement,) that in the month of February, 1803, they considered Rose-Hill, subject to the life-estate of General Gates and his wife, to be worth 50,000 dollars. There is no evidence, neither do I know that it is pretended, that between the months of February and May, there was any change in the value. This testimony must then be taken as establishing the value, until it is completely done away by other counter testimony; not by testimony which leaves the matter in doubt, but by such as to establish unequivocally that the appraisement of Messrs. Isaac Low, Abijah Hammond, and John Lawrence, is grossly and manifestly inadequate.
The testimony relied upon is, 1. That arising from the aflidavits of some of the respondents. 2. From the sales made of other property in the vicinity of Rose-Hill, co-temporary with the appraisement! and, 3. From sales made posterior thereto.
The evidence arising from the sales made about the time of the appraisement, and the offer made by Titus to Kip, in 1802, is equally uncertain and inconclusive.
The evidence derived from the sales, afterwards, and near the time of the order of the 21st May, 1804, a year after the election, is inadmissible except in the point of view in which I shall presently consider it.
It is a rule as well settled as any that can be stated, that when a contract is made for the sale of real or personal property, without fraud, and which is obligatory on both parties at the time, that no change in the subsequent value of it, can be alleged by either party, for the purpose of rescinding it. If it depreciates, nay, if it be absolutely destroyed by conflagration, earthquake, or in any other way, the purchaser must pay the stipulated price, if its value is increased by the discovery of mines, the founding of a village or city, or by any other means, which occasion an appreciation in the value, no matter to what extent, the vendor is bound, on receiving the consideration money, to execute a conveyance. This is a maxim in our law, known to every man, and it would be trifling with the time of the court to cite cases in support of its existence or reasonableness. The sales made subsequent to the election, about the time of the order of the 21st May, 1804, and afterwards, undoubtedly prove that at that period there had been a most rapid and unexampled rise in the value of property general^, in
The difference between the appraised value of Rose-Hill, and the probable increased value of it, in the spring of 1804, may, perhaps,in a greatdegree, be accounted for, from natural as well as adventitious causes. The yellow fever raged with great violence in the autumn of 1803. The prosperity of our country producing a most rapid increase of population, wealth and commerce, are circumstances which of themselves would explain the reason of the difference. At any rate, the sales I have last mentioned can never afford that kind of evidence xvhich can countervail the testimony of the three appraisers.
But there are other considerations of great weight on this part of the subject. During the whole of the period which intervened between the filing of the appraisement and the making of the order of the 21st May, 1804, the respondents had an opportunity of excepting to the appraisement. They, however, did not except to it. In this interval of time, also, according to the evidence of Mr. .Benson, negotiations were carried on between the counsel of the parties, and with the privity of the respondents, which finally terminated in the agreement contained in the order last mentioned, in all which he says “ he never heard a complaint, suggestion, or intimation, that any parcels or articles of the estate had been appraised too high or too low.” Mr. Harison testifies to the same effect. After the appraisement, and for a long time thereafter, the respondents acted upon the order of the 21st May, 1804. They received property under it to a very large amount. They proceeded to take measures for making partition of that part of the real estate which fell to their share in consequence of the election and order-. I cannot but consider after all this, that they are bound (I mean the adult respondents at least) by the appraise.™ ment.
I shall in delivering my opinion on this part of the case, notice but a few of the many exceptions which have been insisted upon. Those not mentioned are to be considered either as having been sufficiently answered, or waived.
At the time of filing the original bill and answer, which was the 18th May, 1801, the respondents, Bertram Peter Cruger, Henry N. Cruger, Nicholas Cruger, and Betsey Towers, were of age. The respondents Catharine Cruger, Polly Cruger, and Sarah Cruger, were infants. Catharine became of age the 7th May, 1802, and married the respondent William Bard, in October thereafter. Mary was of age on the 24th September, 1803, and was married to the respondent, Henry Cruger, jun. in August, 1802. Sarah Cruger, married to William Heyward, is yet an infant. All the adults, except Mrs. Towers, it is agreed, were regularly before the court. For the purpose of expressing my opinion, it is material only to consider whether the children of Mrs. Towers were improperly made parties to the suit, and whether Mr. and Mrs. Bard, and Mr. Henry Cruger, jun. and Mary his wife, were so far parties on the 21st May, 1804, as to be bound by the order entered on that day.
First, as to William Bard and his wife, and Henry Cruger, jun. and his wife.
William Bard, and Henry Cruger, jun. became inte
In no case where a feme sole is a party defendant, and marries pending the suit, does the suit abate at law ? It proceeds as if she remained a feme sole. In equity it is necessary that the husband be made a party; sometimes he is made so by the mere order of the court, on suggesting the marriage; he may be made a party also by inserting his name in the proceedings; and there can be no doubt, if his name is thus inserted, with his consent, and he afterwards acts in the progress of the cause, in consequence thereof, in the character of a party, that he is bound by the decree and orders that shall be made. If a party, after an irregularity has taken place, consents to a proceeding, which, by insisting on the irregularity, he might have prevented, he waives all exceptions to the irregularity. This is a doctrine long established and well known. Consensus tollit errorem is a maxim of the common law, and the dictate of common sense.
On the 23d February, 1803, after the marriage of Mr. Bard, (but when his wife was still an infant,) and Henry Cruger, jun. whose wife was then of age, they for the first time appear in the proceedings. They then united in a petition to the chancellor for certain purposes, which it is not necessary here to mention,, but which related to this cause. This was then their own act, and can be considered as done by them in the character of parties only. The court of chancery proceeded to make an order upon this petition, thereby considering them as parties, and they not objecting to such order, waived all exception, afterwards, as to the form in which they were made parties.
On the 21st May, 1804, when all the respondents, except Mrs. Heyward, and the children of Mrs. Towers, were of age, the order was made for confirming the appraisement and election, and discharging the reference to the master, and for other purposes. This order was
Much has been said with respect to Mrs. Towers never having been regularly and legally a party. I pass over what has been urged on that subject, as not material, in my apprehension of the question relating to her infant children.
After the appellant, Ann Cruger, intermarried with William Rogers, the suit abated. It could be continued only by filing a bill of revivor, and this was the course pursued. At this time, Mr. Maitland and his wife were both dead, and of course were no longer parties. The infant children of Mrs. Towers, residing without the United States, succeeded to the interests of their mother, at least as to the realty, and, to be bound by the order of the 21st May, 1804, must have been parties to it. To make them so, the complainants proceeded under the provisions of our statute. And the question is, whether they were, in virtue of this proceeding, regularly brought into court ?
I have just stated, that after the marriage between the complainants, the whole suit abated, and a bill of revivor became requisite to continué it. To this bill it was necessary the respondents should answer, which (except the children of Mrs. Towers) they did. This was, in one sense, an original proceeding. The com
But, although the proceedings as to the infants are irregular, it. by no means follows that they are not obligatory upon the other respondents, who, in the making .the order of the 21st of May, 1804, were of age, and regularly-, as I hive endeavoured to show, before the court. And this brings me to the last 'material inquiry involved in this cause. . ,
Whether the children of Mrs. Towers are of the one or the other description, is not material, for, in either case, the result will be the same, and equally tend to show most dtijfconstratively that this part of the order appealed from ought to be reversed. Let us suppose for a moment they (the children of Mrs. Tozvers) were necessary parties before the order or decree of the 21st May, 1804, could be made, what ought the chancellor in this case to have done ? Most obviously, he should have told the other respondents they ought. to have made that objection at the time when that order was about to be entered; and although he might have permitted them to urge this defect on the petition for a rehearing', they ought not, by their own omission, to be placed in a better condition than they were in at the time when the order was entered. Suppose this objection had been urged at the time the order of the 21st of May was about to be entered, what would then have been the duty of the chancellor ? Certainly not to set aside all the previous proceedings against the adult respondents. "He would have suffered the cause to stand over for want of parties, and then the complainants (the ¿now appellants) might have pursued the proper course to bring them into court | "and this is
_ On the other hand, if the children of Mrs. Maitland might have been made parties, though they were not necessary parties, it is certain that the omission to make them parties could, in no possible manner, vitiate the proceed-against the adults. That part of the order appealed from, therefore, ought to be reversed.
Much has been said in the course of the argument to prove, that in consequence of the delay which took place in making the assignment of the stock which fell to the share of the respondents, they have suffered a heavy loss, by reason of the depreciated, value of it; and it has been insisted that the respondents' are entitled to some relief from this court -on that ground. This is a minor question in the cause, but which, notwithstandingjPequires some consideration. The administration of this estate, in relation to the personal property, is yet before the chancellor. If, on the closing of this transaction, on the final liquidation of the accounts, this should be considered a valid claim on the part of the'respondents, (and on this I give no opinion,) the chancellor, upon a proper application, is competent to enforce. it. To do. the respondents justice in this respect, it is surely not necessary to set aside the order of the 21st of May. The non-performance, on the part of the appellants, of that order, can never be a ground for vacating it.
I have, I am sensible, consumed much of the time of this court in giving my reasons for the opinion I have formed in this cause. But the importance of the decision about to be pronounced, and the very great responsibility which attaches to all who participate in that decision, render it necessary for me to detain the court a few moments longer.
If the order of the 21st of May is set aside, as'it respects the children of Mrs. Towers only, and is permitted to stand as to the other respondents, there can
There are many other important considerations which might be urged against setting aside the order of the 21st of May, 1804, which I forbear to mention. Mrs. Hey-ward is no party to the petition for a rehearing, neither is she a party now before this court. This circumstance has not been without its influence in producing the opinion I have formed.
I am, therefore, of opinion, that such part of the order appealed from, as directs all the proceedings purporting to have been had against the children of Mrs. Towers, to be set aside, be affirmed, and that the remaining part of the said order relating to the proceedings against the other respondents, be reversed.
Kent, Ch. J., Thompson, J., and Spencer, J., were absent.
Clinton, Senator. This cause has derived importance, not only from the magnitude of the property which it involves, but from the long and animated discussions, the eloquent appeals, and the learned researches, which have been exhibited in this place. After an attentive hearing and mature deliberation, we are now called upon to pronounce our- decision.
Nicholas Cruger, the former husband of the female appellant, and the father and grandfather of the respond
The friends of the deceased declined to act as executors, and the administration of the estate fell to the widow, who took upon herself the trust. The persons thus. appointed to apportion the estate under the will, and with full power over the subject, having refused to serve in that capacity, serious difficulties arose, as to the.allotment of the widow’s share. Three of the heirs were infants, and one of the adults, Mrs. Towers, was in a fo
The cardinal point of controversy is the valuation of a part of the estate known by the name of Rose-Hill, and a lot in its vicinity. The improper- motive, and the incorrect conduct charged against the appellants, and the irregular proceedings alleged to have taken place, are all exhibited with a view to operate upon that subject; and in order to present auxiliary inducements to the court, in case of too low an estimate of that property, to allow the respondents to come in and divide it, according to its real value, with the appellants. In order to decide properly on this controversy, it will therefore be necessary to inquire,
1. Whether the property at Rose-Hill and in its neighbourhood, was really fixed at too' low a price ?
2. If it was, whether the respondents are concluded by any subsequent acquiescence, or any proceeding in the cause; this court taking into view the infancy of some of them, the conduct of the appellants to others,
In determining the value of Rose-Hill, it is of primary importance to fix upon the period of estimating it; and in order to do this with propriety, it is necessary to retrospect to the will. The trustees, if they had acted, undoubtedly have been at liberty, at any time before the allotment to the widow, to have calculated the value of the estate. Indeed, it would have been their incumbent duty, if a sudden and extraordinary rise had taken place in the value of any portion of the property, to have revised and corrected their valuation, at the very moment, when they were about executing the conveyanee to the widow, under the will. Suppose, for instance, that they had compiled a schedule of the estate, had appraised the value of the parts, had estimated Rose-Hill at 50,000 dollars, and, on the 20th of May, 1804, had given directions to. counsel to have the writings made out for their signature, on the next day, (the day on which the election and appraisement were confirmed by the chancellor,) and suppose that when, on the eve of executing the conveyance* it was satisfactorily established to them, that the land at Rose- Hill was greatly undervalued, and that it was worth 100,000 dollars; is there a man who hears me that would hesitate to say, that it was not the duty of the trustees to throw aside the writings, and tó make a new appraisement ? The proceedings in chancery were instituted with a view to remedy the evils that resulted from the declension of the trustees^ The chancellor stood in their platje. He was to make an equitable allotment under the will, and at any time before he made it, or, in other words, confirmed the appraisement and election, it was proper and obligatory on him to correct the valuation, and to see that it was fair and just. In deciding on the' value of Rose-Hill, the proper era to select is the 21st of May, 1804. The time
It is not correct to say that the value must be considered as definitively established, at the time of the election; that previous to it, the widow was a tenant in common, with the heirs, but that the election severed the estate, and made her a tenant in severalty of the property elected. The admissions of the appellants themselves contradict this position. In the decree of cqnfirmation of the 21st of May, 1804, entered by the consent of the parties, the sanction of the court to the validity of the election was deemed essential. If, previous to the confirmation, and after the election, any public calamity had occurred which would have diminished greatly the value of the property selected, it would have been competent for the appellants to come in and protest against the con
The Eose-IIill farm contains ninety-two acres, and has
In order to illustrate the predominance and influence of that opinion, it is only necessary to say, that in 1805, when the yellow fever again appeared, the commercial and exposed parts of the city were immediately and ge» '■ nerally evacuated, the citizens having purchased or procured, in season, places of retirement and safety ; and; that when it prevailed in-1798, owing to the neglect of this salutary precaution, the ravages of the disease were dreadful. The sales at Kip's Bay, which took place on the 16ih of May, 1804, five days before the confirmatory •decree in this cause, exhibit, in the strongest point of view, the operation of the causes I have just mentioned, on a favourable local situation, and after a visitation of yellow fever, Kip's Bay, where the lots sold are situated, is near half a mile further in the country, and the land sold on an average at a sum exceeding 2,00Q. dollars an acre. Rose-Hill, if divided into, lots, would certainly have brought more. Exclusive of streets it would pro»
But allowing all possible force to the inadequacy of the price, it becomes now an important inquiry, how far a circumstance" of that kind can have'weight in this court. The respondents^ it will be said, have all declared their consent to the election. The infants are bound by the "acts, of their guardians, the adults by their own stipulations, and the records of chancery rise up in judgment against them. It is well established, that in making a bargain, a mere inadequacy of price will not, alone and unsupported by other circumstances, be sufficient to set aside a contract. The case of Heathcote v. Paignon (2 Pro. Cas. 167.) "speaks this language. This was an application, to set aside an annuity, where there was 23 per cent. clear profit, with a certainty of the principal being secure, and where the terms were such, as to show evidently the distress of the party. The lord chancellor in pronouncing his opinion in this case, said, “ if mere inadequacy is the ground, it should seem that it was scarcely sufficient, but there is a difference between that and evidence arising from inadequacy ; if there is such inadequacy, as to show that the person did not under*
If, therefore, any strong circumstances can be presented to this court, which can be connected with the low price of Rose-Hill, we can have no hesitation in decreeing in favour of the respondents.
And, 1. It is alleged, that the appellants, probably, obtained information of the’ appraisement of Rose-Hill, and regulated their selection accordingly, which gave them an unjust advantage over the respondents. Mrs. Rogers had,' under the will, an unrestrained right of selecting one third of such of the property as she chose. In the exercise of this right, she ought not to invade those of others. The ap‘ praisers "were not sworn to secrecy. They were onh sworn to a faithful execution of their trust. The objeit of the appraisement was to enlighten the chancellor, ipt to inform the parties, and all that Mrs. Rogers could expect under the will, was the liberty of selecting her'favourite objects, without any reference to, or knowhdge of, the specification of the value. If, therefore, she was informed of the appraisement, and regulated her Selection by the undervaluation of a particular article, not by a just ecxercise of the right of choice, she had an undue
á. It is charged to the appellants, that they unjustly withheld the property of the respondents,-xvhich had
Perhaps, it cannot be emphatically said that advantage was taken of the necessities of distressed men. Whether the wants of the heirs were real or factitious, whether they originated from a desire ofxexhibiting themselves in expensive life, or proceeded from an intention of supplying their families with necessaries, we shall not now undertake to ascertain. We know that they were desirous of obtaining possession of the property bequeathed to, them, and that it was withheld, until they acquiesced in the election of Mrs. Rogers. We also know that they supposed it necessary for the support of their families ; that Mr. Bard applied to the agent of the estate, and was refused; that Mr. Henry Cruger, jun. applied to Mr. Rogers in person, and was refused 3 that both the appellants gave the agent a general direction not to make any more advances, that Mr. B. P. Cruger applied in writing to Mr. Rogers, and was refused, until a final settlement should take place 3 that they did not receive . any money for nineteen or twenty months, and were so pressed that two of them had to horroxv money, and that
3. It is obvious that great irregularities have taken place in the management of this cause ; that the rights of infants have not been protected with that circumspection 'which the law requires, and that, particularly, one of the heirs, Mrs. Towers, and her orphan children, have been unduly and irregularly brought before the "court.
The original answer of Mrs. Towers was signed by a solicitor, without any authority. He was so conscious
In 11 Ves. 563. it is decided, that a commission must go to take the answer of an infant out of the country, and that it cannot be put in on motion; and we are told (2 Fonblanque, 239.) “ that guardians are appointed in chancery,, where such appointment is necessary for the purpose of protecting the infant’s general, interest, or for the pur, pose of sustaining a suit, or for the purpose, of consenting to the marriage of the infant, and that a guardian, cannot be otherwise appointed, than by bringing the infant into court, or his praying a commission to have guardians assigned him.”. None of these prescriptions have been obeyed; the .rights of the infants have been compromitted in every stage of the proceedings, by a species of legal hocus-pocus ¡ and it is now peculiarly our duty to redress their injuries, and restore them to their'
. Lastly, ifi our view of the whole case, although it is proper to consider and respect the intentions of the testator, yet. we ought to bear in mind that Mrs. Rogers « took under the will more than she was entitled to by the policy of our laws. If Mr. Cruger. had died intestate", her interest in the realty would only have been for life, and certainly he never intended that she should go beyond her third, as given by the will. He left seven children ; three unmarried young ladies under age, and. a widowed daughter in a foreign land. Each of these children would be to the widow comparatively poor. Pa - rental affection, the strongest feeling of the human heart, the sacrament of nature, implanted by the deity in our bosoms, for the preservation and perpetuation of the species, is always awake and watchful over the destinies of our offspring; and it is not improbable that the last-dying injunction of the testator was to guard with sacred care the inheritance and the fortunes of his children, and when on the bed of death, if his eyes were at any time diverted-from another world, to the immense possessions that he was about to leave, the only consolation he could derive from the view, must have been the conviction, that his enterprise and industry had transmitted’ the blessings of affluence, and the advantages of fortune, to this, wife and orphan children.
Without attending to the question, whether the right of transmitting- our acquisitions to our children is a right derived from the laws of nature, or founded on the positive institutions of civil society; whether as occupancy is the origin of exclusive property, the right in a state of nature does not- cease with the possession,, and
The majority of the court concurred in this opinion; and it was thereupon ordered, adjudged, andDECREED, that the petition of appeal exhibited by the appellants be dismissed, with costs, to be paid to the respondents by the appellants; and that the record and proceedings brought here by the said appeal, be remitted to the court of chancery, to be proceeded on according to law.
Appeal dismissed,
"fÍND OP THE CASE IN ERROR.
