3 Wend. 503 | Court for the Trial of Impeachments and Correction of Errors | 1829
Lead Opinion
The following opinions were delivered:
The questions in this case in the natural order in which they arise, are the following;
1. Have the complainants an interest in the estate of Thomas Rogers, senior, deceased, by virtue' of the special devise to their father, Thomas Rogers, junior, or as residuary legatees ?
2. Is the codicil to be considered part of the will of Thomas Rogers, senior, deceased ?
3. Was the sale by virtue of the judgment and execution irregular ?
4. Were the promissory notes referred to in the exception to the master’s report properly rejected as being barred by the statute of limitations ?
5. Should the appellant be held responsible for the personal property delivered to the widow ?
6. Was it equitable and just to charge the appellant with the costs of the suit ?
1. The clause in the will out of which the first question arises is as follows: “I give, devise and bequeath unto my son Thomas Rogers, junior, for and during his natural life and to the children of his body, lawfully begotten, after his decease, all that certain, &c.” (describing the premises) “ to have and to hold the said last mentioned premises unto my said son Thomas Rogers, junior, for and during his natural life, and after his decease,
It may not be improper to remark here, that by the common law there are but two modes of acquiring title to real estate, viz. descent and purchase. Where a person takes as heir at law, he is in by descent; the law casts the estate upon him at the death of his ancestor; but when he acquires title to land by his own act or agreement, he is a purchaser ; not that in the common acceptation of the term he has paid a consideration for it, for if it is given to him he is still, in contemplation of law, a purchaser. A devisee, who takes an estate different from what the law would cast upon him as heir, is a purchaser, and as such was exempt from the restraints imposed upon heirs in their minority, such as wardships and the right of marriage. These are remnants of the feudal system which have their influence upon the conveyances of the present day, and even in this country, though happily with the system itself we have no connection. It was perfectly natural that during the prevalence of military tenures restraints should be imposed upon devises of real estate; and it was established as a rule of law, at least as early as the 23d Eliz. about 1581, that “ Where the ancestor, by any gift or conveyance, takes an estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, that always in such cases the words the heirs are words of limitation of the estate, and not words of purchase.” This rule was established in Shelley’s case, (1 Coke, 94,) and has been uniformly adhered to in England, and numerous cases are to be found in the books
As this case of Perrin v. Blake is not found in books of reports which are common, a more detailed account of it may be acceptable. It was twice argued, and was one of the only two cases in which there had been a serious difference of opinion in the court for a period of fourteen years. The judges delivered their opinions seriatim, and occupied five hours. Mr. Justice Willes said there were two questions; 1. What appeared to be the intention of .the testator ? 2. Was that intention agreeable to the rules of law 1 The intention was apparent from the introductory clause which governed the whole will. If he could give an estate for life to one and the inheritance to the heirs of the body of the first devisee, and if his intention appeared to be so, he should think that intention must control the legal sense of the words heirs of the body. The rule contended for, which was in Shelly’s case, (was pronounced by Lord Coke upon a deed and in argument ; and though he should be for adhering to it in every case literally within it, yet it must not be extended an inch. The maxim itself grew with feudal policy, and the reasons of it were antiquated. The logicians say, cessante causa cessat effectus, and surely the lawer may say I will confine an old rule within its exact bounds, and extend is as little as possible. Mr. Justice Aston said, that the fundamental rule was that the intention of the testator was to be collected and allowed, though not expressed in any legal language. The intention was clear to give an estate for lifeand where the intention is clear, it should govern. He ad
Shelly’s case was one of the rules of construction. It had its origin in feudal policy, and though the reason had ceased, it had so long been the law of the land, it must continue such till parliament should interpose ; and that it- was equally applicable to a will as a deed.
Lord Mansfield said, that as the law had allowed a free communication of intention to a testator, it would be a strange law to saw, “ Now you have communicated that intention so as every body understands what you mean; but becausé you have used a certain expression of art, we will cross your intention, and give your will a different construction ; though what you meant to have done is rperfectly legal, and the only reason for contravening you is because you have not expressed yourself like a lawer ; ” that his examination of the question always convinced him that the legal intention, when
In the king’s bench judgment was given by the majority of the court that J. W. took an estate for life. A writ of error was brought to the exchequer chamber, where the judgment of the king’s bench was reversed. All the judges gave their opinions seriatim, and there were seven for reversing and one (Ch. J. De Grey) for affirming. Mr. Justice Blackstone seems to have given the leading opinion, which Hargrave has preserved entire, (Har. Tr. 487.) I quote from Cruise, tit. 38, Devise, ch. 14, § 69. He says, “ The great and fundamental maxim upon which the construction of every devise must depend is, that the intention of the testator shall be fully and punctually-observed, so far as the same is consistent with the established rule of law, and no farther.” He goes on to state that there are some rules of law which are great landmarks of property, which no testator can transgress, let his intention 1 e ever so clear—such as the powers incident to the several kinds of estates. Other rules are mere rules of construction to ascertain the intention and meaning of parties, by annexing particular ideas of property to particular modes of expression. Thus a devise to a man generally gives him an estate for life; to a man and his heirs, gives an estate in fee; to a man and the heirs of his body, gives an estate tail.
The rule in Shelley’s case is, that where the ancestor takes an estate of freehold with remainder to his heirs, or heirs of his body, the word “ heirs" is a word of limitation of the estate, and not of purchase; that is, in other words, that such remainder vests in the ancestor himself, and the heir, when he takes, shall take by descent from him, and not as a purchaser. This rule may give way to the manifest intention of the testator, provided that intent be so fully expressed as to leave no doubt whether it was his intent or not; and he held that in that case there was no such plain and manifest intent as to control the legal operation of the words and be consist
It is said in this case that the words children are words of purchase, and therefore Thomas Rogers, junior, took an estate for life only, and the children took the remainder. On the other hand it is contended that the whole devise must be taken together, and that the habendum clause is to explain, enlarge, lessen or qualify, though it cannot totally contradict or be repugnant to the estate granted in the premises; (2 Black. Com. 298 ;) that the devise in this case is imperfect without the habendum. An estate for life is clearly given to T. R. jun., but what estate is given to the children is not expressed in the premises, but is explained and enlarged by the habendum. By the premises a life estate at most in the children is created ; but by the habendum it is shewn that an estate in fee was intended to be given, and is to the heirs of his body lawfully begotten. The children of T. R. jun. named in the given premises, are the heirs named in the habendum. There is, therefore, no repugnance between the premises and habendum; but both stand well together, and are not at all
The authorities are numerous to shew that where an estate is devised to a man and his heirs, or to the heirs of his body, if the devisee die before the devisor, the devise is void; (4 T. R. 603, and cases there cited;) 'and the reason is because there is no person to receive the estate when it passes from the devisor at his death. The devisee being dead cannot take. His heirs cannot take; for by the devise itself they cannot take the estate as purchasers, but by descent only, through their ancestor; and his death precluding the possibility of his taking, prevents them from taking. (1 Pr. Wms. 398.) There are, however, many cases arising upon wills, where the true intention of the testator has been permitted to prevail, where the word heirs is so connected with or explained by the context, as to shew that it was not the intention of the testator to use the word heirs in its technical sense, as a word of limitation. In Doe v. Goff, (11 East, 617,) Lord Ellenborough says, “ heirs of the body” are undoubtedly prima fade words of limitation, but they may be construed to be words of purchase where it is clearly so intended ; and in that case he held that the words “ heirs of her body” were equivalent, under the devise in that case, to diildren or issue of her body, and therefore to be construed words of purchase. In Lessee of Findlay v. Riddle, (3 Bin. 148,) the testator devised certain lands to John Findlay during his natural life, and after his decease, if he shall die leaving lawful issue, I give and devise [the premises] to his heirs, as tenants in common, and their respective heirs and assigns forever. It was held that John Findlay took only an estate for life, and not an estate tail. The rule in Shelly’s case, and its application to such a case were considered, and the court felt themselves warranted in construing the word heirs as diildren and a mere designatio personarum. The testator in this case uses the word diildren in the premises of this devise, and. heirs of his body in the habendum. We may therefore
2. Is the codicil to be considered part of the will ?
In the bill the complainants charge that if any codicil was made, it was prepared by Halsey Rogers, and signed by the ■testator when he was totally incompetent to make any testamentary disposition of his estate, and therefore it is void and should be set aside as fraudulent. In his answer, the appellant sets up the codicil as fairly and properly executed by the testator, he being then of sound mind and memory. Witnesses were examined as to its execution, and it appears that the paper was actually signed by the testator; but the balance of testimony certainly is, that he was incompetent at the time to transact any business. Chancellor Sandford .must have held it to be void, though he has not said so in terms in his decree. It is now objected that it is not competent for a court of chancery to set aside a will or codicil on the ground of fraud, or incompetency of th.e testator, but that that question should be determined in a court of law on'
The codicil in this case makes material alterations in the disposition of the property of the testator, but does not effect" the devise to Thomas Rogers, junior, only by giving the executor power to sell real estate for the payment of debts-That power, however, does not appear to have been exer" cised by him. It seems to me, therefore, that there was no error in omitting to award an issue to determine the competency of the testator; nor does it appear that an issue was asked for by either party.
3. Was the sale by virtue of the execution regular ? It is charged in the bill, that no consideration was paid for this
There is no evidence of any actual fraud in the sale, but the propriety or impropriety of such a sale must depend upon the general question, whether a trustee can be permitted, under any circumstances, to sell the trust property and become a purchaser at such sale. In the case of Davoue v. Fanning, (2 Johns. Ch. R. 252,) Chancellor Kent has reviewed the English cases, in which the rule has been long established that a trustee shall not be permitted, unless by leave of the court of chancery, to purchase the property of his cestui que trusts. This case indeed is unlike in its circumstances to those cases, but it seems to me not distinguishable in principle. The appellant, as executor, had the administration of the personal estate, and had that been sufficient for, the payment of the debts of the testator, the duties of the executor, in character of trustee, would have been confined to the personal estate ; but by statute, when the personal estate is insufficient to pay the debts, it becomes the duty of the executor to make sale of the real estate, or so much thereof as shall be sufficient for that purpose, under an order of the surrogate. When it is ascertained that the personal property is insufficient to pay the debts, the executor’s duty makes him, by virtue of his office, a trustee for the devisees and creditors. So far as the personal estate is concerned he may retain his own debt, and he shall be preferred to other creditors of an equal grade; but when the real estate is to become assets and applied to the payment of debts, there is no preference, no distinction between specialty and simple contract debts. Had the appellant declined the character of executor, he might undoubtedly have pursued his remedy under his judgment and execution ; but he should
■ The case of Sheldon v. Sheldon (13 Johns. R. 220,) is an authority for this proposition, that he who undertakes to act for another in any matter, shall not, in the same matter, act for himself; therefore a trustee to sell shall not gain any advantage by being himself the person to buy. I am of opinion, therefore, that the sale by the sheriff was improper, and was correctly ordered to be set aside.
4. Were the notes barred by statute properly rejected by the master 1 Two of the rejected notes bear date in 1805, and the third in 1809, more than six years before the testator’s death. An objection was taken before the master that these notes were barred by the statute of limitations, which objection was allowed, and the notes rejected.
It is not do .lied that an executor has a right to retain his own debt; this right of retainer arises from necessity ; for as a person cannot sue himself, it follows that where the same person is both creditor and debtor, he must retain, or lose his debt. This right of retainer, being for the benefit of the executor, should not place him in a better situation than other creditors as to the kind of debts which he may retain. He can therefore not retain a debt which he could not recover if he stood as creditor simply, and not executor. The doctrine contended for, however, claims that the provision in the will for the payment of all just debts, revives every demand against the testator. This question has been long agitated in England where there are dicta on both sides, and it seems, so late as 1813, to have been a vexed question ; but in the case of Burke v. Jones, (2 Vesey & Beames, 278,) the vice chancellor, Sir Thomas Plumer, has given the question a most elaborate investigation, and reviewed all the cases; and after having done so, he remarks : “ I have now gone through all the cases that are to be found in print or manuscript upon this important question; and the result is, that there is not one in which this doctrine has been established to the full extent that has been contended ; that it rests sim
5. Was the appellant properly charged with the property delivered to the widow l The rule of law undoubtedly is, that the personal estate shall be first applied in the payment of debts before* the real, even where the testator expressly directs the real" estate to be sold for" that purpose, (Toller, 417, 18.) Nothing but an express declaration or plain manifestation' of intention will exonerate the application of the personal estate before the real. (18 Ves. 138.) Chancellor Kent
6. The only remaining question is, whether the appellant ought to have been charged with costs. The question of costs rests in the sound discretion of the court. A trustee will not, in general, be charged with costs, unless there has been corruption or gross negligence. (6 Johns. Ch. R. 411.) In this case, I cannot say that any thing like fraud has been proved. The appellant proceeded to collect his.judgment, as he supposed he had a right to do, by selling the land upon execution at public sale; and he might well suppose, as it was manifest, that the real estate must'he sold in some way, that it might bring as much at sheriff’s sale as if sold by order of the surrogate, or by himself under the power in the codicil. When the complainants were dissatisfied, he shewed every willingness to explain all his conduct in the course of his administration;1 and before the bill was filed, he offered to give up his purchase of the real estate if the other heii;s would pqy him their several portions of his just claims against the estate. This offer was rejected. When called on by Cotton, on behalf of the complainants, he denied their right to the lot, but offered to render an account of the estate, and a time was appointed for that purpose, but the complainants never attended. I can see nothing in the conduct of the appellant to shew any intention to sacrifice the property. It was indeed sold for much less than its value, and so it probably would have been if sold by order of the surrogate; but in that event the executor should not he held chargeable
On the whole case, therefore, I am of opinion that the children of T. R. jr. took an estate in fee in the property specifically devised to him, and that the chancellors were correct, 1. In setting aside the sale by the sheriff as contrary to law ; 2. In disallowing the second exception, and thereby excluding the notes barred by the statute; 3. In charging the executor with the whole of the personal property, not excepting that specifically devised to the widow; 4. In rejecting the codicil, as it had no effect in determining the rights of the complainants. But I am of opinion that the costs should not have been charged to the appellant but to the fund, and that therefore so much of the decree of the chancellor as charges the appellant with costs ought to be reversed, and that the residue thereof should be affirmed.
The form of the devise to Thomas Rogers, junior, is somewhat unusual. It has a clause corresponding to what is called an habendum in a deed, and the difficulty in expounding it arises, I apprehend, from an apparent discrepancy between the premises and the habendum clause. If the language of this clause had conformed to that used in the premises, Thomas Rogers, junior, could have taken only an estate for life, and at his decease his children would have taken the property devised to him, not as his heirs but as devisees under the will of their grandfather; and if the language in the premises had been like the habendum, he would have taken, if he had survived the testator, a fee, and his children could have derived no title to the property mentioned in the devise otherwise than through him. They must have taken by descent in the latter case, and not by purchase as in the former.
It must be assumed that the testator intended that those who took should hold; the word heirs in the habendum must therefore be construed to mean what the word children does in the premises. I am not about to enter on the considerar tion of that boundless theme of discussion, the rule in Shélly’s case, or rather the application of it, because I do not imagine that this case necessarily involves many of the nice
In a legal sense, the word “heirs” is ex vi termini a word of limitation, and is of a( different import from the words ' “ child ” or “ children,” “ son ” or “ sons,” or “ issue,” which signify a description of persons who usually take under a will or deed as purchasers. Notwithstanding the technical mean • ing of these terms when introduced into legal instruments is well settled, it frequently happens that the words child or children, sons or issue are construed to be words of limitation, and I believe more frequently, the words heir or heirs are taken to be words of purchase. Why have the same words of well ascertained technical meaning received a different interpretation ? The only answer that can be given to this question is, that the intention of the testator has appeared so manifest by other words used along with these that the technical signification could not be given to them without defeating that intention. It is true, we arrive at the intention of the testator by-means of the words he uses, and we arrive at the meaning of
Some of the cases to which the rule in Shelly’s case has been applied, have violated, it is supposed, this canon of interpretation. The case of Coulson v. Coulson, (2 Str. 1125, 2 Atk. 246,) and that of Perrin v. Blake, (4 Burr. 2579.) first decided in the king’s bench, and subsequently reversed in the exchequer chamber, are of the description of cases wherein thé courts have allowed the intention of the testator manifestly appearing in his will to be overruled, by adhering pertinaciously to the technical meaning of the word “ heirs.’’ There are many others, such as Long v. Laming, (2 Burr, 1100,) and Bagshaw v. Spencer, (1 Ves. sen. 142,2 Atk. 517,) where heir or heirs have been construed to be words of purchase. The signal failure, after all the mighty efforts which have been made to draw a clear line of distinction between those cases which admit and those which exclude the application of the rule in Shelly’s casé, is to be traced, I think, to añ irrecoiicileable conflict between two canons of interpretation—between that which requires the intention of the testator to be effectuated, and that which adheres to the technical meaning of legal terms in manifest opposition to- • that intention. This confusion or uncertainty is probably to bé ascribed as much to the intrinsic difficulty of the subject as to- any striking defectiveness in the rules. The remarks of Mr. Christian,- the learned editor of Blackstone’s Commentaries,- on this subject, appear to me to be exceedingly just. He says, that “ where technical phrases and terms of art are used alone by a testator, it is fair to presume he knew1 their artificial import and signification, and that such was his will and intention ; but when he happens to introduce them, and at the same time in effect declares that, ‘ I do not intend what conveyancers understand by these words, but my intention is to dispose of my estate directly contrary to the construction put upon them,’ courts of justice are or ought to be
I will now consider the devise to Thomas Rogers, jun. with a view to see if the intention of the testator is not so plain that no one can misunderstand it. If we look only at the premises of the devise, we shall see that no language could have been selected to express more clearly than that which the testator, has used, an intention to convey only a life estate to his son Thomas. The property is given to him for and during Ms natural life, and after his decease to the children of Ms body lawfully begotten. This is uncommonly explicit ; probably no language could make it more so. What is there in any other part of the will to abrogate this devise, and defeat an intention. so plainly and so appropriately expressed ? The habendum clause drops the word children, and substitutes therefor the word heirs. By that clause, Thomas Rogers, jun. is to hold for and during his natural life, and after his decease the property is to go to the heirs of his body lawfully begotten, and to their heirs and assigns forever. If I do not mistake the use and the effect of the habendum, it cannot defeat what is done by the premises. This clause, as has been before observed, is not usually found in a devise distinct and separate from the premises; but where it is so found, it is not, 1 presume, to have a greater effect than in a deed. In a deed it can never defeat the grant; it may enlarge, qualify and abridge it, but so far as it is repugnant to the premises it is void. (4 Cruise, tit. Deed, ch. 20, § 77.) Land given in the premises of a deed to a person and his heirs, habendum to the grantee for life, the habendum is void. (Plowden, 153.) Cruise says, “ The words inserted in the habendum for the purpose of shewing the quantity of the estate intended to be given, are called words of limitation in contra-distinction to the words in the premises by which the lands are given, and which are called words of purchase.” (4 Cruise, 229.) The limitation here mentioned refers to the estate, and not to the grantees, though their names are usually repeated in the habendum.
I have already adduced an authority to shew that where a fee is given in the premises, the habendum cannot defeat it. So where the land is given to two, habendum to one for life, remainder to the other for life, the habendum is void. (4 Cruise, 228.) This proceeds undoubtedly upon the principle, that what is completely and effectively done in the premises can not be defeated by the habendum. It should not be forgotten that the children of Thomas Rogers, junior, are as clearly designated in the premises to be devisees as their father is. To make this matter clearer, if possible, let us suppose that instead of the -children being named to take the estate after the death of their father, a third person had been inserted, would the omission of his name in the habendum have defeated the devise to him ? Placing myself upon the authorities, I do not hesitate to say it would not; 'and if it would not in such a case it would not in the case of the children. Where the premises and the habendum are equally clear, the former will not be controlled by the latter, but both will be allowed to have an operation. (4 Cruise, 229.)
It is not my intention to intimate that the habendum should be overlooked; it is as much a part of the devise as the premises, that they should be viewed together : ex antecedentibus et consequentibus Jit optima interpretaiio. It is a rule both in law and equity, so to construe the whole deed or will that every clause shall have its effect. If in pursuance of this rule of interpretation we attempt to make the two clauses.of the devise harmonious, we utterly fail by considering the word children as synonomous with the word heirs in its technical sense. Such a construction of that word renders the clause, “ fo,r and during, his natural life and to the children of his body lawfully begotten after his decease” in the premises, .and the clauses, for and during his natural life and after his decease,” and also “ to their heirs and assigns forever,” in the habendum wholly inoperative and useless; for neither of them is necessary to give a fee to Thomas Rogers, junior.
I admit that the language in the habendum, if in the premises, Would convey, according to the rule of construction Which prevails in England, an estate in tail, which, by our statute, would be instantaneously converted into a fee simple; yet there is enough to shew, even in this language, that such a construction would be against the intent of the testator. Unless a life estate was contemplated, the woi’ds in the habendum “for and during his natural life,” are useless and senseless. Such, also, Would be the case with the Words in .the same clause, “ and to their heirs and assigns forever,” unless we suppose the testator intent upon creating an estate abhorred by the policy of our government and abolished by our laws, an estate tail.
But suppose we do what, by acknowledged rules of construction, is to be done when the intention of the testator demonstrates the necessity of it, convert the word “ heirs” in the habendum into a word of purchase, all the difficulties will at once vanish; then no phrase used by the testator is inappropriate, no word is useless. This may be, and indeed'is to be done, according to the opinions of Lord Alvanley and Lord Mansfield, where it is necessary to carry into effect the intention of the testator rendered so plain by other parts of the devise or Will that no one can misunderstand it. This intention is demonstrated as clearly as any thing that regards human intention can be demonstrated. It is demonstrated by the uncontradieted and Unrevoked declaration, that Thomas Rogers, junior, shall take for and during his natural life,
By the foregoing views I am brought to the conclusion, that the devise to Thomas Rogers, junior, was intended to give, and in fair construction of law could give only a life estate to him, and the remainder was intended to go to his children in fee. The son dying before the testator, the devise to him lapsed, but his children take, not by descent from him, but under the will as the designated objects of the testator’s bounty.
As to the other questions in the case, Mr. Justice Marcy expressed, generally, his concurrence in the disposition made of them in the opinion delivered by the Chief Justice.
Mr. Justice Sutherland concurred in opinion with the Chibe Justice, and particularly expressed his concurrence in the views of Mr. Justice Marcy on the question of the construction of the devise.
1. In my view of the subject, the decree which set aside the sale under the judgment was correct. No necessity existed for the sale of the land by execution ; the estate being amply sufficient for the payment of the debts of the testator, including that due Halsey Rogers, he ought, as executor, to have adopted the remedies pointed out by the chancellor, by which not only his interest would
2. The disallowance of the three notes of hand, on the ground that they were outlawed, in my opinion was incorrect. The statute is no bar where there are circumstances unrebutted to take the case out of its operation. (Kane v. Bloodgood, 7 Johns. Ch. R. 360.) What are the circumstances in this case 1 The transaction was between the father and his son, and a son too, upon whom the father appeared principally to rely. The execution of the notes was proved to the satisfaction of the master, and there appears no evidence to disprove the fact that the debt was justly due the appellant. The frequent loans in money made by Halsey Rogers to his father, the charges for which were also rejected by the master in the first instance, though afterwards allowed, are evidence, presumptive at least, that the notes were unpaid. Halsey Rogers had no reason to suppose that his father would take advantage of the act of limitation, and it would have been indelicate in him to have harbored such a suspicion, or to have shewn it, by requesting a renewal of the responsibilities ; he was the sole executor or trustee of the estate, and if these notes had been held by any other person, and he as executor had promised to pay them, although they might, previous to such promise, have been barred by the statute, such promise would have renewed the debt. (Smith v. Ludlow, 6 Johns. R. 267. Johnson v. Beardslee, 15 Johns. R. 3.) and if so, why may not Halsey Rogers, as executor, have made a promise to the above effect to H. R. as creditor of the’estate. My conclusion is, therefore, that the debt is just, and that the notes ought to be allowed with interest.
3. As to the charge against H. Rogers of $528,25 for timber cut and rent recei ved, on the lot devised to Thomas Rogers, junior. Being of opinion, that the sale of the land under the the judgment was illegal, and as Halsey Rogers will be allowed interest on the debt due him on that judgment, it is but justice that he should repay the money he may have received, both for the rents and the products of the land thus devised.
Whenever the intention of the testator can be fairly ascertained, such intention ought to be carried into effect. That it was the intention of Thomas Rogers, senior, to leave his widow the full enjoyment, use and benefit of his household furniture, &c. during her natural life, cannot be disputed ; and yet the effect of the decree is, to deprive her of such use at the end of one year after the death of her husband. It appears to me also, that the fact of executing a codicil to the will is an evidence of this intention ; for it is pretty evident» from the exhibit of the situation of the testator’s affairs at his death, that between the making of the will in 1803 and of the codicil in 1816, the circumstances of the testator had materially altered. In 1803 the personal estate, over and above what was bequathed to his wife, may have been sufficient for the payment of all the debts he owed, or what he may have thought he was likely to owe ; and therefore he deemed it unnecessary to give any authority to his executors to sell his real estate for that purpose : but, in 1816, it appears these debts had increased to a considerable amount, and finding that his personal estate, over and above what he had bequeathed to his wife, would be insufficient, he authorized his executor by the codicil to his will, to sell and dispose of so much of his real estate as would be necessary for the payment of his debts.
My opinion therefore is, that the several decrees of the court of chancery ought to be arffirmed, except so far as they disallow the payment of the three notes with interest, due from the estate of Thomas Rogers, deceased, to Halsey Rogers, the executor of his estate, and except so far as Halsey Rogers is charged with the personal property left by the testator to his widow; and that the decrees be modified accordingly.
The devise to James follows the devise to Thomas, and is in these words : “ Fourthly, I give, devise and bequeath unto my son James Rogers, and to his heirs and assigns, all that certain piece or parcel of land, &c. (describing the same) containing 300 acres, to have and to hold the said last mentioned premises, unto my said son James Rogers, his heirs and assigns, to his and their own proper use and behoof forever.”
Concurrence Opinion
concurred in the opinion delivered by the Chief Justice upon the main questions in the case, but differed with him upon the question of costs. The liability to costs, he said, depended upon the intent with which the acts of the appellant complained of in the court below were done ; that is, whether they were fraudulent or not. Those acts were illegal, and their illegality is evidence of intent. The appellant expressed a willingness to account, accompanied however by a denial of the right .of the complainants. His offer to account amounted to nothing, and ought not to excuse him from the payment of costs. He was therefore of opinion that the several decrees of the court of chancery appealed from ought to be affirmed, and with costs to be paid by the appellant.
approved of the suggestion of Mr. Senator Maynard, that costs should follow the affirmance of the decrees, not on the ground of fraud, but because the appellant, in the offers made by him to account, had preferred unfounded claims, viz. the notes barred by the statute. The complainants were compelled to file their bill. Had the appellant offered to settle with the respondents on terms such as the court of chancery or this court would have approved, the respondents would not have been entitled to costs. As it is, however, costs should be allowed to them.
Senators Mather and Throop also expressed their opinions that the decrees should be affirmed, with costs.
In the final decision of the cause, the following questions were put and decided.
1. Ought the exception to the master’s report, in rejecting the notes claimed by the appellant Halsey Rogers, to have been allowed by the chancellor 1 In the affirmative, 2 viz. Senators S. Allen and Todd. In the negative, 17.
2. Ought Halsey Rogers, the appellant, to be charged with the property specifically bequeathed to the widow, and left by him in her possession 1 In the affirmative, 18. In the negative, 1, viz. Senator S. Allen.
4. Shall the appellant pay costs ? In the affirmative, 15. In the negative, 4, viz. Chief Justice Savage, Mr. Justice Marcy, Senators Todd and Wheeler.
Whereupon the several decrees of the court of chancery appealed from in this case, were ordered, adjudged and decreed to be affirmed, with costs to be paid by the appellant to the respondents.
