*1 GASES
DETERMINED THE IN COMMISSIONOF APPEALS TTTT8
OP STATE OF NEW TOM, AT THE JANnCTAR**" TERM, A.. D. 1ST1.
Mary Woodgate and Thomas Forster, Executors, etc.,
John H. Wood gate, deceased, Appellants, v. Abraham Benjamin and Martha E. wife, Rush his and as survivor of James both commis more, Herriman, sioners for certain of the United States loaning moneys for the and Queens, county Res Ayres, pondents. parties concluded, estopped, are thereby only as to issues, the facts or law to the directly material involved in the litiga- tion. conveyance upon trusts, valid,
A of real estate some of are which while inoperative, are others vests an interest in the to the extent of the trustees trusts, leaving grantor. valid the residue of the estate in the A reversionary subject interest in real may estate levy and sale upon execution, although the extent of such interest cannot be ascer- sale, tained at the time of such contingent whole reversion is happening events, may never occur. Accordingly, upon following conveyed facts: In F. 1834 certain real upon trusts, estate to apply profits trustees 1. To the rents and support M., wife, J., son, and of children who should Upon he thereafter arriving age, convey born. 3. at full J. to him and (if to M. unmarried) respective she should then living pro- their — Hand Yol. Y. *2 of case.
Statement portions estate, proportions by the of to be ascertained number the such J.,M., and after living, being intended that such born then children die, the go to to sur- equally; if one his share should share children married, equally. the trust to continue as 3. If M. then be vivors should husband; joint and during the of herself and her if she to her lives share husband, proportion go to her heirs. 4. her her to The should die before respectively to held trust for them of such after born children shares respectively age. full In the become of trustees until should seal, purporting renounce the trust and an under to executed instrument 1837,judgment property May, reconvey the to F. was recovered M., wife, June, 1837, his F., F. and executed and thereon. issued fi.fa. October, 1837, premises a to the loan commissioners. F., plaintiff judgment against a and recovered was issued fi. fa. plaintiff November, sold of F. was to the thereon. all interest plaintiff executions, by and the afterward received the sheriff under the two (his to and M. thereof. Two children were born F. deed sheriff’s before, sale, whom, all of as wife) one child after the sheriff’s well and majority. M., to as alive attained his J. F. and J. afterward when plaintiff.—Meld, as conveyed all interest to the trusts to M. his valid, property becoming and J. took one-fifth of J. were by conveyance plaintiff. passed full to the The trusts as age, which being invalid, illegally suspending as to the other three children power alienation, to F. when J. property three-fifths reverted operated majority, the sale and deed the sheriff to attained his But, plaintiff. convey as the first had that three-fifths to sale, Special paid upon found Term have been before the been title, plaintiff’s three-fifths, incompetent evidence, as had subject mortgage, a therefore been to be lien new declared trial ordered. ” “ loaning moneys of certain the United States have no Commissioners them, moneys mortgage taken to them in to sell a sell, applied pursuance pur- either agreement an cannot be as mortgage. or in of such chase execution, sheriff, holding given an cannot be declarations of while thereof, against the prove payment judg- as owner evidence purchaser a sale issued, or a at under ment it was it. The died, not alter the rule. fact has since does sheriff 27th, 1870.) September 20th; (Argued decided December Appeal the General Term the from order of second Term. rendered district, Special affirming judgment : as follows case are The facts defendant, Abra- March, 1834, On the the 4th day lands in fee of certain the owner Fleet, ham 1870.]
Statement of case. executed a himself Queens, deed of trust between county of the first and James Lew Hackett, H. Sarah Van part, and Warren Cornwall of other in considera- wherein, part, tion he of the love bore his wife, Martha E. John son, then about four and of
reputed old, years the lands in on the $100, conveyed controversy following deed trusts, : That is specified to receive say, all the all rents, issues the said profits property *3 estate herein before mentioned and described, and the same in toward the and main- apply equal proportions support Martha, tenance of the wife of the said of the first party and and education John of K. part, support said and of son, children of the said of the reputed any party first that hereafter be born said with may wife, to invest whatever remain in the hands moneys may of the said of the second parties part, over above what be for the in may said required purposes good profitable said wife and children; and in securities for the benefit trust, the arrival of the said John K. further, Fleet at him and age the said twenty-one years, convey Martha she shall be then sole and (provided their unmarried), said all respective estate, or proportions title right, and interest of said of the first party part, and to of, the several lands and herein before premises mentioned and described, such to be determined the num- proportions ber of children said of the first party his said part, wife, shall be at the time the said JohnK. living arrive at shall is the twenty-one years age. express of said intention of the first that all party the said part, herein before described shall to and be divided property go said John Martha, and all K., lawful amongst children of the said first shall part, which be at the party living the said John K. shall time arrive at age, equal proportions, share and share alike.
And event of further, the decease of the said or either of said Martha, John K., children, share to would have which said been entitled shall be party equally
Statement case. it is And further divided survivors. provided, amongst at John the arrival of said if, age sole the said Martha shall not he living, years, twenty-one shall be her share or continue unmarried, proportion their of the second survivors held the said part, parties and her as her for her benefit so trust, survivor, long the said and as such survive; trustees, husband shall parties her her and over to second shall account with pay part, for her such as she time to time moneys may require and in case she maintenance; comfortable support shall her share or said survive her husband, proportion heirs. And that the further, be vested in her estate shall said hereafter as afore- said born shares of the children as may held in trust them said shall parties said, at lawful matu- shall arrive until said children second part, if at time before the trust, further, ; rity shall, K. shall arrive said John age, of the second become the said part, parties necessary, they *4 have the to sell said estate shall convey hereby execute trust, to them any thereof, conveyed therefor, and the deeds of the necessary proceeds conveyance of the several for sale to for the benefit parties of such apply created, this trust is in manner as men- benefit above whose tioned provided.” June and recorded 3d, deed was June
This acknowledged Queens county. 4,1834, the three instruments under 1835, trustees, by
In July, renounced the trusts hands seals, their formally reposed this deed. them by Thomas C. of 1837, the 25th
On day May, Pinckney Abraham Fleet a Supreme against recovered judgment entered and which was docketed for besides costs, Court $200 Queens On this writ the same day. county judgment of returnable on second Monday was issued, facias fieri 1837. July, Abraham Fleet and 1837, the 14th of June,
On day Albert- Benjamin executed wife, Martha E., mo.]
Statement of case. Queens son and Thomas loan Whiteson, commissioners of for on the same lands mentioned in the trust county $4,000, deed, which was recorded on the same duly day.
On the 21st H. October, 1837, John day recovered a Abraham Fleet in the judgment against Supreme Court for $1,329.93, besides confession of costs, bond and warrant of on which was due at the time of its attorney, $664.93, besides entry costs; which was on the same judgment Queens docketed in day On this county. writ of returnable on the first issued, Monday fieri facias 1838. May, Queens virtue of the two the sheriff of By writs, county levied and on the 24th lands, November, day he them 1838, sale, auction, in due exposed form public . all law, and sold title interest which Abra- right, ham Fleet had therein on the 25th day May 21st of October, day 1837, Woodgate, highest bidder therefor.
The sheriff and delivered thereupon executed to Woodgate his certificate of sale, and on the 24th subsequently, day executed a deed February, 1840, to him all the conveying title and interest which right, Abraham Fleet had in these on the lands, 25th 21st day May day October, 1837, or at time thereafter, which deed was duly acknowledged and recorded on same day. vir- Woodgate claiming, by tue of this title to the land and the posses- sion, commenced an 1840, action of April, ejectment and Martha E., wife. and in E. Martha Thereupon, June, John K. *5 Fleet, and the other infant children of Abraham and Martha E., to born of the trust deed, execution subsequent to wit: Melancthon, Lemuel and E. Fleet, their Anna next friend, Anna then under of one filed a age year,” bill in the Court of before the vice-chancellor of Chancery, circuit, first Abraham James H. against Fleet, Hackett, Sarah Lew, "Van James Herriman, D. Coles and John H. George that other Woodgate, trust deed praying, among things, y. Woodgate. [Dec. of case. Statement and force, parties upon should binding adjudged and that Wood- and that trustees be new thereto, appointed, the action of from prosecuting perpetually enjoined gate ejectment. under his title answered,
To this bill up setting a and deed. Herriman Coles answered, the sheriff’s claiming virtue of their as loan commissioners. lien by mortgage named in There- defendants the bill default. other suffered vice-chancellor, had before the such proceedings upon 23d other March, 1843, was, on the of that, day among and that executed the deed of trust was well adjudged things, lives a and valid deed and of for good joint proved, E. Martha E. Fleet and John and as to moiety trust con- and of the real estate the deed of the rents profits the life and that the for them, veyed, survivor to that extent carried into execution; trusts thereof the death of either Martha of trust to be void deed upon and E. for a rents and John the said moiety E. or profits, the death of both wholly, them injunc- H. John tion Woodgate, filing granted lives of be made during period bill, perpetual joint the life the survi- E. JohnE. Martha during as above That new trustees them, moiety expressed. vor of the trusts in deed to the extent perform be appointed named in the deed. declared, above place trustees of loans be That the commissioners established valid lien until off as a good discharged. October, 1846, On the 7th day Ayres paid and Peter Lyster, Jackson time loan Jarvis commis- toward the $3,650 the sum of sioners, purchase $4,000 a written instrument, under the loan signed mortgage, to him an commissioners, interest in whereby assigned extent, to him the agreed the mortgage assign whenever he should them the bal- absolutely pay it. ance due John E. February, the 16th
On day having executed deed attained con- majority, *6 Woodgate 1870.] of case.
Statement to him all his interest and title in the lands veying ques- tion, which deed was and recorded on the same acknowledged day.
In 1854, commenced action May, Ayres Supreme Court and Martha E. his wife, the loan then in those who made office, commissioners him, In agreement party. with therein set action, complaint in plaintiff up that facts as to the of $3,650 to the mortgage, payment loan other commissioners, that it prayed, among things, be was not adjudged sum upon and that the loan commissioners be to mortgage, liberty full foreclose the for the amount due thereon, and refund sum so they him paid. finally in that that the action, whole sum adjudged principal due with some that the interest; loan had commissioners it for foreclose the sum so due; that should to foreclose the same, and they proceed out on such foreclosure after money they should, realized their and the amount due the deducting expenses, costs State, the sum of pay $3,650. Ayres
Thereafter loan advertised the lands commissioners under the first sale, of Feb- mortgage, Tuesday their 1855, the entire sum of besides ruary, claiming $4,000, due. interest to be On the December, 11th day tendered the loan the sum of $350 commissioners interest, the balance due claiming be but tender, mortgage, accept refused claiming due, to be whole amount this commenced action,
Whereupon Woodgate setting up in his other facts above complaint, among things, stated, : substance, relief follows praying That the of the different
1st. priorities equities may ascertained. That it be decreed how much
2d. due on may money and that the plaintiff, mortgage, may per- Woodgate, mitted to come the same. pay *7 Woodgate of case.
Statement 3d. That if the be Herriman and decreed lien, mortgage Eushmore be decreed to on may satisfy same by plaintiff, Woodgate. That
4th. defendants be restrained from further proceed- to foreclose and sell. ings
5th. That further in restrained from proceedings Ayres in his relation the amount claimed him. action That if 6th. the loan commissioners be allowed to proceed, it be decreed what estate sell. That under trust
7th. new trustees appointed let into of the premises, and that such trustees be possession and account to same, or lease plaintiff, manage time to share. time, in answered, all substance the
The defendants setting up defences, viz.: following the execution sale, That under was title,
1st. Woodgate’s suit examined and chancery adjudicated upon fully and his settled and decision vice-chancellor, before fully deed; under the and determined the rights held a valid lien to be on loan commissioners’ mortgage to his title under in exe- superior question, premises had been that the execution sale; paid. and Pinckney cution to sell to Abra- That the loan commissioners agreed 2d. in account who on question, ham Ayres interest, $350; account $3,650, of principal, and also such adjudication that under agreement, Ayres suit commenced thereon, court $4,000 commissioners, pro- was entitled loan Ayres commissioners that the loan sale; ceeds of same, out proceeds to sell had a right due them. the balance to pay to pay Ayres, sale from John K. as to title Woodgate That 3d- into defrauded John K. because nothing, acquired his life had to alien and he no that deed; giving interest. loaned commissioners, faith, the loan That good
4th. two up moneys taking applied $4,000, 1870.] y. Fleet.
Statement oí case. $2,300, and the balance mortgages amounting prior before the recovery property question, repairing long under which claims Pinckney judgment, *8 title.
The cause was tried it and was Special Term, adjudged in as follows: substance
That the trust deed to the trustees therein conveyed named the entire interest Fleet, and estate of Abraham K. the in the real estate therein described, until John grantor, K. Fleet, son, then should arrive at reputed infant, lawful age.
That K. John his arrival Fleet, at the upon age twenty- one entitled to the was one-fifth years, real estate fee. in
That other one fifth part thereof held in trust the benefit of the for Martha E. defendant, the wife Fleet, K. of Abraham the life of her during husband; death, after his should she him then it survive, would togo her and that fee, her decease before her husband, such one-fifth would to her children, heirs- belong or go at-law.
That the provision purporting convey estates the after born children of Abraham K. Fleet and wife, three-fifths of the being eventually void, premises, if as valid, the of alienation might, suspend beyond the period. legal
That K. Fleet, Abraham retained the consequently, reversion of three-fifths, remaining which, that have events reverted to him or his happened, assigns, arrival of John Fleet at the twenty-one age to, however, August, subject, years, mentioned.
That wife, commissioners Queens, certain county loaning moneys was a States, lien to the extent United herein after mentioned three-fifths, of which remaining K. Fleet still reversion, is a lien thereon. held — Yol. V. Hand of case.
Statement Which three-fifths defendants, sold Ilerri- bemay man as such to enforce the Rushmore, commissioners, secured unless thereby paid, moneys such shall be tendered within moneys plaintiff, paid after days thirty judgment.
That Pinckney before and that the would sale, the sheriff’s have plaintiff otherwise under it, been concluded claiming decree the case of Fleet and others v. Woodgate. at the That sheriff’s purchaser plaintiff, Woodgate, interest of Abraham 3L Fleet sale, acquired subject three-fifths, mortgage. remaining and wife to from John K. Fleet That the deed *9 estate, and the fee, the real to him one-fifth of conveyed the same. from be selling commissioners may enjoined full of the be collected may That the amount by as the office, or their successors commissioners payment transfer and to to agreement by Ayres upon and no such transfer reduce the of the amount mortgage, collect the same has and the to could be made, right legally of this court. been formally recognized by judgment estate, real a sale of the commissioners, That the as above of the pi'emises, to of three-fifths mortgaged say, therefrom: out of the moneys must authorized, arising pay of the money remaining unpaid 1st. The amount principal $350, with interest now viz.: commissioners, to them as such shall he and until the same thereon, due and paid, unpaid law. allowed by and of sale and also the costs expenses the amount $3,650, To 2d. Ayres him on account purchase to the commissioners (after if residue, interest, without mortgage, value of the thereout and therefrom paying deducting in such Fleet, E. Martha inchoate dower of the defendant, to residue) Woodgate. plaintiff, con- and still to the commissioners That the estate real of the on three-fifths tinues to lien be that subject and to paid thereby; whole amount secured mo.]
Statement of case. and Martha thereto, to the inchoate of dower of E. as plaintiff, acquired purchaser Woodgate, sheriff’s sale the estate Abraham Fleet in reversionary and same.
That the defendants, James Herriman and Bush- Benjamin as such more, successors, and their are author- commissioners, ized all and directed to use the whole to collect diligence secured, amount money paid by mortgage; for that enforce sale of thereof purpose three xmdivided fifths of the estate, real to the sta- pursuant tute such made case out provided, sale as above moneys thereof, arising pay pro- vided.
That the defendants, Herriman and Bushmore, loan com- aforesaid, missioners as their successors office, be with, sell, forbidden interfere enjoined remain- pf the two-fifths part ing premises.
That of John K. be let Woodgate, grantee into immediate possession one undivided enjoyment fifth of the premises.
That a sale and three-fifths conveyance part. or their commissioners successors in office,pursuant shall the same as a statute, full operate bar, of any *10 or in so estate claim or to much of or thereof, of the any to this or under them. suit, parties any claiming the on That of the amounts so plaintiff, decreed to be loan and commissioners, to the defendant, within after notice of in days Ayres, thirty ease judgment, within after affirmance thirty days thereof, be let appeal into three-fifths as possession premises, in but the fee, own to dower subject Martha property right Fleet; as if which, E. to he is to asserted, retain under the and Martha E. Fleet is subrogation to be mortgage, for allowed offsets she hereafter have any may for mat- just after ters the of this decree. arising entry this From the to General appealed judgment Woodgate Term second and the district, been judgment having «. Fleet. per Earl,
Opinion of the Court After this affirmed, lie the to Court appealed Appeals. were substituted. appeal died, present appellants for the Dennis McMahon, appellants.
William J. for the Cogswell, respondents. C. The that the decree in claim the appellants
Earl, as to suit before the vice-chancellor is conclusive chancery true the and construction of the trust and force deed, it effect which is to doubt have. With considerable hesitation I that this have come to the conclusion claim is well founded. There is so much confusion papers that it is far evidence difficult to determine how the quite decree that suit should this. estop parties Wood- The main of that so far as concerned suit, object suit; was to him in the of his stay prosecution ejectment gate, and it for the to show was sufficient complainants rights for. that entitled them prayed equities injunction far as that trust deed was so valid When the court found it was them such unnecessary give rights equities, the deed farther. When established complainants go force, executed and was notwithstanding properly trustees, renunciation and reconveyance trustees or trusts far valid as to entitle deed contained so lands, had cestuis possession gue to a them decree to entitle all that was established necessary for reason If a wrong the court gave Woodgate. unnecessary grounds, its or placed judgment, reasons grounds would not be such parties estopped a construction did not other suit. The bill pray a matter of to have been and that does not seem All trial. and discussion grounds controversy in his are stated defended suit *11 as follows: vice-chancellor, the submitted to points “ consideration deed was made without any 1st. The trust the parties. between passing
1870.] Court, per Eael,
Opinion of the a 2d. That it the with fraudulent was made by “ grantor and to intent, time, indebted at the pro being protect void. creditors, and is therefore perty against trust, 3d. which was The trustees never “ accepted made their and as without consent way; knowledge it must with their assent. parties contracting “ 4th. The deed of the trustees is not to be met by it is instrument declarations solemn under witnesses; seal. The trust deed 5th. been executed and
“ having legally delivered in due form of made law, defend- by ants and without the or consent fraudulently, privity who refused to it trustees, when came to their accept did not vest the fee in them, but the same knowledge, remained in the and was to be sold under grantor, subject etc. execution,
“ 6th. The had trustees their by deed, reconvey and did so, and the was then in the property original grantor, Abraham K. Fleet. The defendant, 7th. Woodgate, purchased property sale,
sheriff’s an under execution, etc., received the sheriff’s which he became vested with by the whole title interest now claims to right, be entitled to of the same.” possession raised these were questions points necessarily and as involved in the all these litigation, questions decree that suit. undoubtedly parties estopped But the construction trust deed, far general so except as I have indicated, was not already involved in necessarily d the decision or of the vice-chan- litigation, opinion cellor thereon should not in this suit. estop parties
A is conclusive parties thereto only it, covered the law respect and facts grounds it; necessary uphold and, decree, although express to affirm fact terms, or rule of purports particular law, yet if such fact or rule of law was immaterial issue, did not turn it, decree will controversy not con- *12 y. Woodgate
Opinion Court, per Earl, v. John tiie in reference thereto. (The People parties elude Y., 38 N. son, 63.) claim made us on the of the
The before part appel only counsel, their either or oral lants, points argument was that the decision as to the construction was conclusive. the vice-chancellor assump- Upon I that either not do not understand that it was conclusive, tion to the construction deed is dissatisfied with given party no discussion before and as there has been below; the court the careful I shall without assume, us question, is that that I otherwise construction would give, examination correct. to be examined other only question deed as under sheriff’s against
Woodgate the loan commissioners. two
The sheriff’s deed be based upon purports judg in favor of 25, 1837, one docketed ments; Pinckney May commissioners, to the loan Fleet, before against docketed Octo- favor of another and both after the trust after the said 21,1837, mortgage, ber Term found that, The court at Special prior deed. and execution had been sale, the Pinckney judgment sheriff’s title hence satisfied, plaintiff’s fully paid to the loan commis- real estate was subject three-fifths this was The payment sioners’ mortgage. trial; and while there was some at the controverted question it to show payment, evidence tending competent this As evidence upon means portion no conclusive. and seemed certain received rely upon the court subject, sheriff' who held the of the deceased deputy declarations sale made the and who gave judgment, execution execution before show the deed tending to on the part evidence was objected This properly the sale. I do what defendant, perceive Woodgate, The declara- mere hearsay. was admissible. theory if the hence, res ; deputy no gesta tions were any as the be regarded sense agent could sheriff *13 1870.J per Leouabd,
Opinion Court, of tlie Com. not evi- owner of the would be competent judgment, dence him. are not to contradict against They competent makes recitals and I no rule that them know of because the declarant is dead. competent It is to this no answer evidence to incompetent say the decision of the vice-chancel- was Woodgate precluded from lor this was satisfied. paid denying judgment was no There in the or answer allegation complaint, action tried before him as to the Pinckney judgment. Whether was was no liti- judgment way in that and in action, no to or involved gated way necessary in its Hence, decision. above stated, principles n decree in that action furnishes no as to that estoppel judg- ment.
For this evidence the reception improper must be and a reversed new trial costs to abide granted, the event.
Leonard, C. The most material in this is case question ascertain the estate vested in (if Abraham K. Fleet any), after his execution of trust others, deed to Hackett and and at time of or subsequent John H. purchase by sheriff’s sale under the Woodgate executions on the the said Abraham. judgments against If the decree of March, before the vice-chancellor, must be res as to regarded adjudicada,, quantum estate is question determined acquired, thereby.
The action which that decree was entered, brought (the Mrs. Martha E. Fleet John wife), children the said others, Abraham and Martha, bene- ficiaries under the said trust deed, John against H. Woodgate have the others, to of the said validity trust declared, for of new trustees, and appointment for an injunction Mr. restraining Woodgate an action of prosecuting eject- ment for land in question, he claimed under his title at the sheriff’s sale. acquired The title so acquired was the interest of Abraham K. Fleet. v. Fleet. Leonard, of
Opinion Court, per the trustees If of the trusts the deed to contained valid, the sheriff’s no possession acquired constituted action deed, and the deed bar her of Mrs. Fleet and children The complaint ejectment. and others but not the evidence, Mr. We the want of the are, of Mr. answer Woodgate. the evidence to determine the without required pre- answer, *14 in that The evi- made the action. issues cise by pleadings at least, that the controversy turned, dence shows and the trust deed. The of the delivery acceptance to the trust were also maternal the provisions validity set the title of the and have been up against might inquiry, have is the evidence we on the subject, trustees. The best of Mr. at the made the counsel hearing, points by Woodgate as that was do not indicate' any question and these urged trust The assistant vice-chan- of the validity the provisions. and discuss the decree however, did, opinion, cellor the declare extent or quantity which pronounced, some of the beneficiaries, validity estate and where the others, invalidity trust provisions, which no vested; estate, present appeared fee finally Abraham K. and the decree vested in was future, of the action of eject- prosecution enjoined perpetually ment. tried, whom action was before present
Judge Strong, of the trust deed, construction effect, found, has or interests of the the estates extent of respective to the as in issue before vice-chancellor, was beneficiaries, limited to determination he was that in this respect valid so far main- as to the provisions whether question The omits to state in the trustees. judge title valid tain but an conclusion, he draws legal which the facts its confirms The the evidence propriety. examination of indication afforded us are the to, plainest referred points in a condition were not The beneficiaries evidence. inter sese. It estates, their respective the extent litigate valid trust. was if there for them, sufficient mo.] Leonabd,
Opinion per Court, material for Hr. trust to establish deed no estate, he was at that the passed liberty urge pro- of the trust were void in or in visions whole but there part, is no that he did Strong evidence so. holds that the Judge of 1843 was final decree this extent respect only its that the beneficiaries existing efficacy, required had which should be protected by equities injunction estate Mr. operation legal Woodgate;” that the case was construction of open and the extent or of inte- qucmtwm provisions rest of the beneficiaries. from declares judgment appealed that John 34.Fleet took vested estate at the age twenty-one one-fifth; that trust continued as to one other fifth the oint lives of Martha E. Fleet and her said during j husband; that as to the the reversion three-fifths, remained in remaining 34. vested in when John 34. possession attained his the sheriff’s deed majority, passed by *15 Mr. to to the to Woodgate, subject the loan com- missioners and to the of dower of Mrs. Fleet. The the trust as to three invalidity fifths of the estate, appears have so declared to been on the that the ground alienation was some suspended of the during portion lives of at the creation of trust the persons estate.
In we should this my opinion, construction. adopt car- ries effect the intention of into the as to the two-fifths grantor estate, the wherein the trust is held valid. The interest John 14. some Fleet, extent, to the effect of according this vested at the creation estate. judgment, The por- tion which he would finally take was then unknown, intention of grantor having, been declared deed, be that the shall to, and be “property divided go amongst the said Martha John K. (his wife), all (his lawful son), of the first children party part (the grantor) shall be at the time the said John 34.shall arrive at living age, share and share alike.” proportions, equal
When John 34. became of there were three other chil- age born after the dren execution the trust deed, living, — Hand Vol. Y. y. W . ocmo-ate Leomaed,
Opinion per Court, the inten- said also Martha E. was then Pursuing living. K. was John tion of declared by grantor, The then entitled to one-fifth of the estate in possession. of the trust that the shares further declared provisions them in trust for thereafter shall be held the children bom lawful When children shall arrive at until the said maturity.” K. was was made John the vice-chancellor’s decree of the estate extent infant, quantum yet him when he became would age finally belong of children who that the number for the reason unknown, If children uncertain. no other then he would living take a he would John became of were when Eving age, of Mrs. trust would continue for benefit moiety, also then if she should be living, as to the other moiety, Abraham 3L Fleet. revert to of the estate would and no part the trusts were void held that The vice-chanceUorcorrectly continue till children to in favor of unborn respectively but his views were erroneous of twenty-one, reached age take reason who were entitled to persons respect The of such children. the void favor invalidity provisions did not increase the for unborn children provision but K. Fleet nor of Mrs. extent of John interest land would revert grantor. of the vice-chancellor conclusive, decision The estate to Abraham K. conveyed deed of legal however, concluded not, Court trustees. Supreme in this provisions harmonizing *16 the to the the intentions of quantity action with grantor, the for her and to wife, use, his or of the estate granted and that at creation of the trust was son, who Eving has been effected. result when estate reverted to
Three-fifths of the grantor, his Had not the attained John K. Fleet majority. rights have so could intervened, a creditor the grantor judgment as to have or interest of this reverted proportion, disposed had he continued to into effect his original designs, carried takes deed, therefore, mind. The sheriff’s same 1870.] Leonard, of
Opinion Court, per as to three-fifths of the reverted to effect estate which Abraham Ii. Fleet.
There is no that the deed from John K. Fleet question, also his one-fifth interest Hr. conveyed Woodgate.
Some other of minor questions importance, urged I counsel, which will now consider: appellant’s 1st. Hr. sum to the loan paid commis- Ayres money toward of the sioners, purchase them, mortgage afterward, when of the one commissionerswent out of office, his successor amount aas on applied account, payment and the that now this sum appellant was so urges properly and that it was erroneous hold applied; that the whole remained unsatisfied. amount was never assigned, commissioners had no to sell or it. was mistake to assign enter aas That was money payment. for purpose which Hr. He was in Ayres paid money. no liable way and it was a mistake debt; of the commissioners to receive it as purchase, which agreement they had no to enter into. -Neither Abraham authority nor Hr. are entitled to benefit from money, nor was it on behalf either paid them, them. The decree on this state properly provides, facts, that the loan commissioners shall collect the whole sum due on the mort- him. to Hr. the sum gage, repay so received Ayres 2d. It is further urged by appellant, the evidence of Hr. and of Hr. Cogswell, Warner, as to what the deputy stated, sheriff respect Pinckney execution, inadmissible, has had some influence below, on judge affecting finding the execution issued, before the sheriff’s sale to Hr. Woodgate.
This evidence was admitted. The improperly deputy was dead the time sheriff trial, but did not his delarations to be authorize evidence. The declara- given former owner land, tions since deceased, *17 have been interest, own admitted as evidence Ids Leonard,
Opinion Court, per I am in but that is not the relation here. estate, successors can be not aware of which this evidence ground It did than sustained. not more prove payment any legally It is the sheriff’s deed the recitals of proved non-payment. that the learned have would reached the same judge probable that Mr. from other evidence. is said Wood- conclusion not set a foundation did up Pinckney judgment gate suit the sheriff’s or of his title to the land sale, it have off the vice-chancellor, when would cut before to loan commissioners. It would not be unfair it it would have from the omission set when to infer up, not, his interest he could with affected so favorably, its so, or that the evidence then existed to truth, do prove Mr. also some evidence Pinckney gave tending payment. But the states that was paid. judge show fact of the evidence of found the he has payment, part, think, I we for that Warner, and, cannot, Cogswell evidence immaterial. hold that their reason, I think last mentioned that we alone, Upon ground a new trial. must order trial costs to abide ordered, reversed new
Judgment event. S., language (1 R. Note.—Notwithstanding Statutes Revised created, any purpose express trust shall be for not an 68), where § sections, trustees," preceding in"the no estate shall vest in the enumerated trustees, conveyances, uniformly the title of the sustained have courts only, to that are the extent trusts valid. trusts, valid Rogers Wend., 488) or mort Darling (22 trust sell case The large; insisted that and it was benefit creditors for the gage real estate authorized, no estate vested in the express selling, purpose for the of Errors held valid Court trustees. Coweu, J., says: mortgaging. “The purpose for though void trusts, certain perfectly are valid to a given a deed with has debtor bylaw raising conferred completely exhausted the extent; he has particular whether, question in one idle sell; is because a trust failed, everything beyond strength and gone happened to have nothing agree all that there it. I think must fail with must done is well which calls such result.” things nature of *18 1870.] gate v. 21 Wood by Beporter.
Note
Walwobth,
(8
104),
Paige,
In
v.
Chancellor
Van Vechten Van Vechten
speaking
case,
any legal
says:
being
above
settled that
now
conveyance
is sufficient to sustain a
of
estate com-
the trustee
trust,
illegal
mensurate
with such
without reference to the
trusts which
grantor
attempted
estate,
testator
has
there
create
the same
will
difficulty
vesting
legal
any pur-
no
hereafter in
title in
trustee for
pose
by
Statutes,
which is authorized
reference to the
Bevised
without
illegal
trusts connected therewith." He held that the trust created
will
void,
suspension
as
certain real
estate
as
of aliena-
lives,
tion for more than two
that real estate descended to the heirs-at-law
upon
death,
profits
testator’s
and the rents and
thereof from that time
belonged to them absolutely.
principle
construction,
The same
to the effect
of valid and void
instrument,
trusts in the
(9
107);
same
Paige,
declared in Parks
Parks
v.
Irving DcKay
531);
(9 Paige,
affirmed,
647; Rogers
(3
v.
5 Den.
Ludlow
v.
Ch., 104);
(3
R.,
Dupre
Sandf.
Haxton
506);
Thompson
v. Corse Barb. Ch.
v.
(