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CHARLES A. WILLIAMSON AND CATHARINE, HIS WIFE, PLAINTIFFS, v. JOSEPH BERRY.

January 1, 1850

CHARLES A. WILLIAMSON AND CATHARINE, HIS WIFE, PLAINTIFFS,
v.
JOSEPH BERRY.



THIS case came up from the Circuit Court of the United States for the Southern District of New York, on a certificate of division in opinion between the judges thereof.

It was an action of ejectment for one third of eight lots of land in the city of New York. Mrs. Williamson was the daughter of Thomas B. Clarke, being one of three children who survived him, the other two being Mrs. Isabella M. Cochran and Bayard Clarke.

In the year 1802, Mary Clarke died, leaving a will, from which the following is an extract:––

'Item, I give and devise unto the said Benjamin Moore and Charity, his wife, and to Elizabeth Maunsell, and their heirs forever, as joint tenants, and not as tenants in common, all that certain lot of land number eight, in the said thirteenth allotment of the said patent, containing one hundred acres; also that part of my said farm at Greenwich aforesaid, called Chelsea, lying to the northward of the line herein before directed to be drawn from the Greenwich road to the Hudson River, twelve feet to the northward of the fence standing behind the house now occupied by John Hall, bounded southerly by the said line, northerly by the land of Cornelius Ray, easterly by the Greenwich road, and westerly by the Hudson, including that part of my said farm now under lease to Robert Lenox; also all my house and lot, with the appurtenances, known by number seven, within the limits of the prison, and now occupied by Thomas Byron; to have and to hold the said hereby devised premises to the said Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and to the survivor or survivors of them, and the heirs of such survivor, as joint tenants, and not as tenants in common, in trust to receive the rents, issues, and profits thereof, and to pay the same to the said Thomas B. Clarke, natural son of my late son Clement, during his natural life, and from and after the death of the said Thomas B. Clarke, in further trust to convey the same to the lawful issue of the said Thomas B. Clarke living at his death in fee; and if the said Thomas B. Clarke shall not leave any lawful issue at the time of his death, then in the further trust and confidence to convey the said hereby devised premises to my said grandson Clement C. Moore, and to his heirs, or to such person in fee as he may be will appoint, in case of his death prior to the death of the said Thomas B. Clarke.'

On the 2d of March, 1814, Thomas B. Clarke presented a petition to the legislature of New York, stating the will; that the trustees had signed a paper agreeing to all such acts as the legislature might pass, and requesting to be discharged from the trust; that Clement C. Moore, the devisee in remainder, had also consented to such acts; and that the estate could not be so improved and made productive as to answer the benevolent purposes of the testatrix. The prayer was for general relief.

On the 1st of April, 1814, the legislature passed an act, entitled, 'An act for the relief of Thomas B. Clarke.' It recited the facts above mentioned, and then provided, in the first section, 'that it shall and may be lawful for the Court of Chancery, on the application of the said Thomas B. Clarke, to constitute and appoint one or more trustees to execute and perform the several trusts and duties specified and set forth in the said in part recited will and testament, and in this act, in the place and stead of the said Benjamin Moore and Charity, his wife, and the said Elizabeth Maunsell, who are hereby discharged from the trusts in the said will mentioned. Provided, that it shall be lawful for the said court at any time thereafter, as occasion may require, to substitute and appoint other trustee or trustees in the room of any of those appointed in this act, in like manner as is practised in the said court in cases of trustees appointed therein; and such trustee or trustees so appointed, are hereby vested with the like powers as if he or they had been named and appointed in and by this act.'

The second, third, fourth, and fifth sections prescribed minutely what should be done by the trustees, and authorized them to sell and dispose of a moiety of the estate, and invest the proceeds in some productive stock, the interest, excepting a certain portion, to be paid to Mr. Clarke, and the principal to be reserved for the trusts of the will.

The sixth section was as follows:––

'VI. And be it further enacted, that in every case, not otherwise provided for by this act, the trustees appointed, or to be appointed, in virtue thereof, shall be deemed and adjudged trustees under the said will, so far as relates to the premises mentioned and described in the recital to this act, in like manner as if such trustees had been originally named and appointed in the said will; and they shall, in all respects, be liable to the power and authority of the Court of Chancery for or concerning the trusts created by this act.'

It did not appear that any proceedings took place under this act.

On the 1st of March, 1815, Clarke presented another petition to the Legislature, stating that Clement C. Moore, the contingent devisee, had released all his interest in the property to Clarke and his family, whereby the petitioner and his infant children had become the only persons interested in the estate. He stated also, that he had been unable to prevail upon any suitable person to undertake the performance of the trust.

On the 24th of March, 1815, the legislature passed an act supplemental to the 'Act for the relief of Thomas B. Clarke.' This act being a very important part of the case, it is proper to recite it.

'An Act supplemental to the 'Act for the Relief of Thomas B. Clarke,' passed April 1, 1814.

'Whereas, since the passing of the act entitled 'An act for the relief of Thomas B. Clarke,' Clement C. Moore, in the said act named, by an indenture duly executed by him, and recorded in the office of the Secretary of this state, and bearing date the 21st day of February, in the year 1815, hath, for the consideration therein expressed, and in due form of law, released and conveyed unto the said Thomas B. Clarke, his heirs and assigns, forever, all the estate, right, title, interest, property, claim, and demand whatsoever, of the said Clement C. Moore, of, in, and to the real estate mentioned in the said act, whereby the said real estate became exclusively vested in the said Thomas B. Clarke and his children. And whereas the said Thomas B. Clarke hath prayed the Legislature to alter and amend the said act, particularly in relation to the interest of the said Clement C. Moore, and the execution of certain trusts in the said act mentioned, therefore,––

'I. Be it enacted by the people of the state of New York, represented in Senate and Assembly, that all the beneficial interests and estate of the said Clement C. Moore, or those under him, arising or to arise by virtue of the act to which this is a supplement, or by the will mentioned in the said act, shall be, and the same is hereby, vested in the said Thomas B. Clarke, his heirs and assigns; and so much of the act to which this is a supplement as is repugnant hereto, and so much thereof as requires the trustees to set apart and reserve a certain annual stipend out of the interest or income of the property thereby directed to be sold, for the purpose of creating and accumulating a fund at compound interest, during the life of the said Thomas B. Clarke; and so much of the said act as requires the several duties therein enumerated to be performed by trustees, to be appointed by the Court of Chancery, as therein mentioned, be, and the same is hereby, repealed.

'II. And be it further enacted, that the said Thomas B. Clarke be, and is hereby, authorized and empowered to execute and perform every act, matter, and thing, in relation to the real estate mentioned in the act to which this is a supplement, in like manner and with like effect that trustees duly appointed under the said act might have done, and that the said Thomas B. Clarke apply the whole of the interest and income of the said property to the maintenance and support of his family, and the education of his children.

'III. And be it further enacted, that no sale of any part of the said estate shall be made by the said Thomas B. Clarke, until he shall have procured the assent of the Chancellor of this state to such sale, who shall, at the time of giving such assent, also direct the mode in which the proceeds of such sale, or so much thereof as he shall think proper, shall be vested in the said Thomas B. Clarke as trustee; and, further, that it shall be the duty of the said Thomas B. Clarke annually to render an account to the Chancellor, or to such person as he may appoint, of the principal of the proceeds of such sale only, the interest being to be applied by the said Thomas B. Clarke, in such manner as he may think proper, for his use and benefit, and for the maintenance and education of his children; and if, on such return, or at any other time, and in any other manner, the Chancellor shall be of opinion that the said Thomas B. Clarke hath not duly performed the trust by this act reposed in him, he may remove the said Thomas B. Clarke from his said trust, and appoint another in his stead, subject to such rules as he may prescribe in the management of the estate hereby vested in the said Thomas B. Clarke as trustee.'

On the 28th of June, 1815, Clarke presented a petition to the Chancellor. It recited the will and the two acts of the Legislature; stated that he had a large and expensive family and no means of maintaining them except from the rents and income of the devised property, which were then and always had been insufficient for the purpose; that he had been compelled to resort to loans and incur debts; that he had borrowed, in order to meet the exigencies of his family, the sum of $4,400 in the year 1805, and $4,500 since; that a sale of a moiety of the devised property had become necessary, so much of the proceeds of which as might be required should be applied to the payment of the above debts, and the residue vested in him as trustee under the acts; and praying the Chancellor to authorize, order, and direct a sale for the above-mentioned purposes.

On the same day, the Chancellor referred this petition to one of the masters, to examine into the allegations and matters contained in it, and report thereon.

On the 30th of June, 1815, the master reported, and stated the condition of the property and the income which it produced; the debts of the petitioner; the opinion of the master, that they had been contracted for the support of his family, and that the rents and profits were insufficient for the reasonable and proper support of the petitioner and his family according to their situation in life.

On the 3d of July, 1815, the Chancellor issued an order, reciting all the circumstances of the case, and concluding thus:––

'Therefore, on motion of Mr. S. Jones, junior, of counsel for the petitioner, it is ordered that the assent of the Chancellor be, and hereby is, given to the sale, by the petitioner, of the said house and lot in the fifth ward of the city of New York, and of the eastern moiety or half part of the said premises at Greenwich, in the ninth ward of the city of New York, to be divided by the line in the manner for that purpose mentioned in the said petition; and the petitioner is authorized and directed to sell and dispose of the same, under and according to the aforesaid acts of the Legislature in that behalf, the said sales to be made under the direction of one of the masters of this court, and the petitioner to proceed in making the sales and conveyances of the said premises, so to be sold, in the manner for that purpose in and by the said acts prescribed and directed. And it is further ordered, that the purchase-moneys for the said premises so to be sold be paid by the purchasers to the said master, to be disposed of by him as hereinafter directed. And it is further ordered and directed, and his Honor the Chancellor hereby doth authorize, order, and direct, that so much of the net proceeds, to arise from such sales, as may be necessary for the purpose, be applied, under the direction of one of the masters of this court, in and for the payment and discharge of the debts now owing by the petitioner, and to be contracted for the necessary purposes of his family, to be proved before the said master; and the costs, charges, and expenses of the petitioner, on his petition in this matter, and the proceedings had, and to be hereafter had, under or in consequence thereof; but so, however, and it is further ordered and directed, that the net proceeds of the said eastern moiety of the said premises at Greenwich aforesaid, or so much thereof as shall be necessary for that purpose, be applied in the first place, and before and in preference to any other appropriation or application thereof, to pay and satisfy to the President and Directors of the Manhattan Company aforesaid the aforesaid debt or sum of four thousand four hundred dollars, with the interest thereof up to the time of such payment, or such part and balance of the said debt, and interest, as shall not have been otherwise paid or satisfied. And it is further ordered and directed, and his Honor the Chancellor hereby doth further order and direct, that the residue of the said net moneys, and proceeds arising from such said sales, after the said debts, costs, charges, and expenses shall be discharged and paid by and out of the same, be placed out at interest, on real security, in the city of New York, in the name of the petitioner as trustee, under the direction of one of the masters of this court, upon the following trusts, to be expressed upon the face and in the body of the said securities respectively, whereon the same shall be so placed, that is to say, upon trust that the interest and income thereof, or so much of the same as may be required for that purpose, be applied, from time to time, in and for the suitable and proper maintenance and support of the petitioner, and his wife and children, already born and to be hereafter born, according to their situation in life, and for the suitable education of the said children; and upon further trust, that the principal sum or sums, with the securities whereon the same may be vested or placed, and may stand, shall be held, and he, the petitioner, as trustee, stand and be possessed thereof in trust, for the benefit of the lawful issue of the petitioner who shall be living at the death of him, the petitioner, according to the trusts upon which the unsold moiety of the said premises at Greenwich aforesaid, in the aforesaid acts of the Legislature mentioned, are or shall be held; and so, and in such manner, that the said interest and income of the said trust moneys, funds, and securities, or so much thereof as may be requisite thereto, shall be appropriated, applied, and secured in the first instance, and exclusively, to the suitable maintenance of the family of the petitioner, according to their situation in life, and the suitable education of his children, and shall not be subject or liable to or for the engagements, debts, or control of the petitioner, or for any other purpose whatsoever than the said purposes hereby designated and authorized; provided that any surplus of the said interest and income, that may be left and remain after the said objects and purposes, hereby designated as aforesaid, are first fully and liberally fulfilled and accomplished, according to the true meaning hereof, shall be for the use and at the disposal of him, the petitioner. And it is further ordered that the master, under whose direction the said sales should be made, and the debts paid, and surplus proceeds placed out as aforesaid, report to this court the proceedings that may be had in the premises, and the securities that may be taken therein, pursuant to this order, with all convenient speed; and that all and every person or persons who are, or is, or may become interested therein, have liberty to apply to this court, at any time or times hereafter, for any further or other orders or directions in or touching the premises.'

On the 12th of March, 1816, Clarke again applied to the legislature. The petition is short, and may be inserted.

'To the Honorable the Legislature of the state of New York. The memorial and petition of Thomas B. Clarke, of the city of New York, respectfully showeth:––

'That his Honor, the Chancellor, under the act 'for the relief of Thomas B. Clarke,' passed April 1, 1814, and the act 'supplemental to the act for the relief of Thomas B. Clarke,' passed March 24, 1815, did order and direct that the said Thomas B. Clarke should sell the eastern moiety or half part of the premises in the said act and order mentioned.

'And your petitioner further shows, that, owing to the scarcity of money, and the present low price of property, no sale can be made without a great sacrifice.

'Your petitioner therefore prays, that he may be allowed to mortgage such part of the property, in the said act mentioned, as the Chancellor may appoint, and for the purposes mentioned in the said acts and order; and that your petitioner be allowed to bring in a bill for that purpose. And he will ever pray, &c.'

On the 29th of March, 1816, the legislature passed the following act:––

'An Act further supplemental to an Act entitled 'An Act for the relief of Thomas B. Clarke.'

'Be it enacted by the people of the state of New York, represented in Senate and Assembly, that the said Thomas B. Clarke be, and he is hereby, authorized, under the order heretofore granted by the Chancellor, or under any subsequent order, either to mortgage or to sell the premises which the Chancellor has permitted, or hereafter may permit, him to sell, as trustee under the will of Mary Clarke, and to apply the money so raised by mortgage or sale to the purposes required, or to be required, by the Chancellor, under the acts heretofore passed for the relief of the said Thomas B. Clarke.'

On the 27th of May, 1816, Clarke presented another petition to the Chancellor, again reciting all the facts in the case, and praying his assent to a mortgage.

On the 30th of May, 1816, the Chancellor passed the following order:––

'It is ordered, that the said petitioner, under the act entitled 'An act further supplemental to the act entitled 'An act for the relief of Thomas B. Clarke," passed March 29th, 1816, be, and he is hereby, authorized, so far as the assent of this court is requisite, to mortgage, instead of selling, the lands he was authorized to sell, in and by an order of this court of the third day of July last; and that the moneys to be procured, and the debts to be extinguished by such mortgage or mortgages, be appropriated and adjusted in the same manner and under the same checks, and not otherwise than is prayed for in and by said order, and the said order is to apply to and govern the application of the moneys to be raised by mortgage, equally as if the same had been raised by a sale of all or any of the lands authorized to be sold in and by the said order.

'May 30th, 1816.

J. KENT.'

On the 8th of March, 1817, Clarke presented another petition to the Chancellor, representing the propriety and expediency of dividing the estate by an eastern and western, instead of a northern and southern line, and of granting to the petitioner the power to sell or mortgage the southern, instead of the eastern moiety. This being referred to James A. Hamilton, a master in chancery, he reported that it would be expedient to divide the estate by a line running from east to west, passing through Twenty-sixth street.

On the 15th of March, 1817, the Chancellor passed the following order:––

'On reading and filing the report of James A. Hamilton, esquire, one of the masters of this court, bearing date the 11th day of March, 1817, by which it appears that no part of the northern moiety of the estate at Greenwich, mentioned in the petition of the above-named petitioner, the same being divided into two equal parts by a line running from east to west, through a street called Twenty-sixth street, has been either sold or mortgaged by the said Thomas B. Clarke, and it appearing to this court reasonable and proper that the prayer of the said petitioner should be granted, it is thereupon ordered, on motion of Mr. S. Jones, solicitor for the petitioner, that the said petitioner be, and he is hereby, authorized to sell and dispose of the southern moiety of the said estate, the same being divided by a line running east and west through the center of Twenty-sixth street aforesaid, together with the lot in Broadway, instead of the eastern moiety of the said estate, as permitted and directed by the orders heretofore made in the premises. And it is further ordered, that the said Thomas B. Clarke be, and he hereby is, authorized to mortgage all or any tract or parts of the said southern moiety of the said estate, if in his judgment it will be more beneficial to mortgage them than to sell the same. And the said Thomas B. Clarke is further authorized to convey any part or parts of the said southern moiety of the said estate, in payment and satisfaction of any debt or debts due and owing from the said Thomas B. Clarke, upon a valuation to be agreed on between him and his respective creditors; provided, nevertheless, that every sale, and mortgage, and conveyance in satisfaction, that may be made by the said Thomas B. Clarke in virtue hereof, shall be approved by one of the masters of this court, and that a certificate of such approval be indorsed upon every deed or mortgage that may be made in the premises. And it is further ordered, that the said Thomas B. Clarke shall be, and he is hereby, authorized to receive and take the moneys arising from the premises, and apply the same to the payment of his debts, and invest the surplus in such manner as he may deem proper to yield an income for the maintenance and support of his family.'

On the 9th of April, 1816, Clarke mortgaged the premises in question, with other property, being in the southern moiety of the estate, to Henry Simmons, which mortgage was discharged in 1822.

Having given this historical account of the facts of the case, let us now see what occurred upon the trial in the court below.

It has already been mentioned, that it was an ejectment brought by Williamson and wife against a party in possession of a portion of the property included in the devise of Mary Clarke. The following case was stated for the opinion of the court:

Circuit Court, U. S., Southern District New York.

CHARLES A. WILLIAMSON AND CATHARINE H., HIS WIFE, v. JOSEPH BERRY.

This is an action of ejectment for the undivided third part of eight lots of land, in the sixteenth ward of the city of New York.

The pleadings may be referred to as part of this case.

The plaintiffs claimed under the will of Mary Clarke.

The plaintiffs gave in evidence an exemplified copy of the will of Mary Clarke, proved in the Supreme Court, of which a copy is hereto annexed.

It was then admitted by the defendant's counsel, that Mary Clarke was seized of the premises described in the said will as 'all that part of my said farm at Greenwich aforesaid, called Chelsea, lying to the northward of the line herein before directed to be drawn from the Greenwich road to the Hudson River, twelve feet to the northward of the fence standing behind the house now occupied by John Hall; bounded southerly by the said line, northerly by the land of Cornelius Ray, easterly by the Greenwich road, and westerly by the Hudson, including that part of my said farm now under lease to Robert Lenox.' At the time of the making of the will, and thence until her death, which took place in July, 1802, that the said premises included the eight lots claimed herein; that the said trustees, Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, are all dead,–Mrs. Moore having died since 1830, the other two previously; that Thomas B. Clarke was married in 1803; that his wife died in August, 1815, and himself on the 1st of May, 1826; that he left three children surviving him, Catharine, Isabella, and Bayard; that he had four other children, all of whom died before him, without having had any children, and unmarried; that Catharine was born on the 5th of June, 1807, and was married to Charles A. Williamson, on the 10th of May, 1827; that Isabella was born on the 11th day of June, 1809, and was married to Rupert J. Cochran on the 4th day of June, 1835; that Bayard was born on the 17th day of March, 1815; all of whom are still living. It was also admitted that the defendant was the actual occupant of the premises at the commencement of this suit, on the 6th of March, 1845; and that one third of the premises claimed was of greater value than two thousand dollars.

The plaintiffs thereupon rested.

The defendant's counsel then proved the acts of the Legislature, the deed of Clement C. Moore, the petitions to the Chancellor, the master's reports, and the orders of the Chancellor, (excepting only the order indorsed on petition,) of which copies are hereto annexed.

The defendant's counsel then offered in evidence the deed from Thomas B. Clarke to George De Grasse, of which the following is a copy:––

'This indenture, made this 2d day of August, in the year of our Lord 1821, between Thomas B. Clarke, of the city of New York, gentleman, of the first part, and George De Grasse of the second part. Whereas the said Thomas B. Clarke, by virtue of sundry conveyances, acts of the Legislature, and orders of the Court of Chancery of the state of New York, hath been empowered to sell, or mortgage, or convey, in satisfaction of any debt due from him to any person or persons, the southern moiety of the estate at Greenwich, devised by Mary Clarke, deceased, for the benefit of the said Thomas B. Clarke and his children, or any part thereof. Now, therefore, this indenture witnesseth, that the said Thomas B. Clarke, in consideration of the premises, and of two thousand dollars, lawful money of the United States, to him in hand paid by the said party of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, enfeoffed, conveyed, and confirmed, and by these presents doth grant, bargain, sell, alien, enfeoff, convey, and confirm unto the said party of the second part, his heirs and assigns, for ever, all those lots of ground situate, lying, and being in the Ninth ward of the city of New York, known and distinguished on a certain map of the property of the said Thomas B. Clarke,' & c.

(The deed then described twenty-nine lots, with a covenant of general warranty.)

James A. Hamilton joined in this deed, as a trustee for Clarke's life estate, of which he had become possessed.

This deed was objected to by the plaintiffs' counsel, for two reasons:––

1. Because not approved by a master.

2. Because not shown to have been given upon a sale for cash.

The objections were overruled, and the plaintiffs' counsel excepted.

The deed was then read in evidence, as was also a deed from George De Grasse to Margaret Van Surlay. (It is not necessary to insert this deed.)

The defendant's counsel then rested.

The plaintiffs' counsel then offered to read the petitions to the Legislature, the extracts from the journals of the two houses, and the order indorsed on petition, of which copies are hereto annexed. They were objected to by the defendant's counsel, the objection sustained, and the plaintiffs' counsel excepted.

The plaintiffs' counsel then proved the mortgage executed by Thomas B. Clarke to Henry Simmons, of which the following is a copy. (It is not necessary to insert this mortgage.)

The plaintiffs' counsel then offered evidence to show the consideration of the deed from Clarke to De Grasse. The defendant's counsel objected; the objection was overruled, and the defendant's counsel excepted.

The plaintiffs' counsel then called as a witness James A. Hamilton, who testified that he knew Thomas B. Clarke and George De Grasse; that in 1821, and for some years previous, he was a master in chancery in the city of New York; that the order of March 15, 1817, was put into his hands for execution, and that Clarke and De Grasse applied to him to approve the deed from Clarke to De Grasse above set forth; that on that occasion, which was at or about the time the deed was given, they explained to him the consideration of the deed, and that the consideration for which it was given was some wild lands in Pennsylvania or Virginia, and an account for articles previously furnished to Clarke by De Grasse, out of any oyster-house which he kept, including some items of money let. On thus ascertaining its consideration, he refused to approve the deed.

On his cross-examination, he said that he could not state the time at which the transaction occurred, except by reference to the deed; he had more than one interview with Clarke and De Grasse, he was sought by them more than once; he did not consider the execution of the life-estate deed a matter of any interest; he executed it as trustee. He did not remember at all a person by the name of James Cunningham; and on being shown the signature of James Cunningham, as subscribing witness to the deed for the life estate, witness said that his recollection of the person was not thereby revived. He received from De Grasse no fee. It was his impression, that the account for articles furnished at the oyster-shop was exhibited. He held the life estate of Clarke in the premises as trustee for Clarke. His impression was that Clarke filled up his own deed to De Grasse, and to obtain his sanction called upon witness; he was not certain that De Grasse was present upon that occasion. He did not recollect that De Grasse was present when the deed for life estate was executed, but he recollected that both Clarke and De Grasse came together to witness's office more than once on the subject, and he was besought by them frequently to approve the deed. In answer to a question by defendant's counsel what evidence he had of the insufficient value of the lands which formed part of the consideration, the witness stated that he had evidence enough then, though he did not recollect it now, that the lands were worthless tax lands. There might have been some money charged in De Grasse's account against Clarke; the whole account was for articles furnished previously. He did not recollect that there were any notes forming part of the consideration of the deed from Clarke.

The plaintiffs' counsel then proved that seven of the lots in suit, viz., numbers 5, 6, 7, 41, 42, 43, and 45, were reconveyed to De Grasse on the 31st of October, 1844.

The defendant's counsel then proved that lot number 44 had been conveyed to Samuel Judd.

They also proved the bond of Clarke to Simmons, referred to in the aforesaid mortgage to Simmons, and called Henry M. Western, who, being shown two indorsements on the said bond, as follows:––

'Received, New York, October 18th, 1821, from Mr. George De Grasse, one hundred dollars on account of the within bond.

$100.

H. SIMMONS.'

'Received of George De Grasse two hundred and fifty dollars, being in full for principal and interest, and all other claims and demands on account of the within bond, and also of the mortgage therein mentioned, for which mortgage I have this day entered satisfaction of record.

H. SIMMONS.

'New York, March 28th, 1822.

'Witness––

H. M. WESTERN.' testified that he was a subscribing witness to the last, which he wrote; but that he recollected nothing of the transaction but from the paper.

The plaintiffs' counsel then offered to prove,––

(1.) That the acts of the Legislature were not for the benefit of the infants, but for the benefit of Thomas B. Clarke merely.

(2.) That the orders of the Chancellor had the effect to take the proceeds of their future interest in the property, and to apply the same to the father's debts, without giving them any benefit, by support or otherwise, out of the income of the life estate in other parts of the property.

(3.) That, under the acts and orders, he actually aliened the lot on Broadway, and all of the southern moiety of the Greenwich property, excepting two lots, and that none of the children received any benefit from such alienation.

(4.) That the whole of this property was mortgaged or conveyed for old debts; that no proceeds were ever invested, or secured, or even received from the grantees or mortgagees.

(5.) That, so far from providing for the children, or protecting the estate, he suffered a large portion of the northern moiety to be sold for assessments, and was proceeding to dispose of the northern moiety for twenty-one years, when, on the 31st of March, 1826, a bill was filed against him on behalf of the children, and an injunction issued.

(6.) That the plaintiff, Mrs. Williamson, was, from the death of her mother in August, 1815, supported entirely by one of her aunts; and that after about two years from the mother's death, the other children were supported by their friends, and were entirely neglected by their father; and that this was notorious in the city of New York, and would have been immediately known to any one making inquiry.

The defendant's counsel objected; the objection was sustained, and the plaintiffs' counsel excepted.

A verdict was then taken for the plaintiffs for one undivided third part of the eight lots, subject to the opinion of the court upon the questions of law, with power to enter a verdict for defendant, if such should be the opinion of the court, and with liberty to either party to turn this case into a special verdict or bill of exceptions.

On the 18th of May, 1846, the judges of the Circuit Court pronounced their judgment upon the four following points, viz.:––

1. Under the will of Mary Clarke, the first-born child of Thomas B. Clarke, at its birth, took a vested estate in remainder, which opened to let in his other children to the like estate as they were successively born.

2. This estate would have become a fee simple absolute in the children living on the death of T. B. Clarke, the first day of May, 1826; and it is not important now to decide whether the trustees took a fee, under the will, in trust to convey to the children after his decease, or a fee for his life, as in the latter case the estate would vest in possession in the children at the death of T. B. Clarke, and in the former case the law would presume an execution of this trust by the surviving trustee on the death of T. B. Clarke, or the trust would be executed in 1830, by force of the Revised Statutes.

3. The several offers of the plaintiffs to give parol evidence to the jury touching the objects and operation of the acts of the Legislature, referred to in the case, or the effect of the orders of the Chancellor therein stated upon the interests of the children of T. B. Clarke, or the failure of T. B. Clarke to apply or secure the proceeds of the devised estate, when disposed of by him, to and for the benefit of his children, or the consideration on which the devised estate was disposed of by T. B. Clarke, or his neglect to protect the estate from sacrifice for assessments, &c., or to provide for and support his children, were properly overruled by the court, with the exception of such particulars included in those offers as may be embraced in the points hereafter stated, upon which the judges are divided in opinion.

4. The acts of the Legislature of the state of New York, of April 1, 1814, March 24, 1815, and March 29, 1816, referred to in the case, are constitutional and valid.

But the judges are divided in opinion upon the following points presented by the case:––

1. Whether the acts of the Legislature, stated in the case, devested the estate of the trustees under the will of Mary Clarke, and vested the whole estate in fee in Thomas B. Clarke.

2. Whether the authority given by the said acts to the trustee to sell was a special power, to be strictly pursued, or whether he was vested with the absolute power of alienation, subject only to re-examination and account in equity.

3. Whether the orders set forth in the case, made by the Chancellor, were authorized by and in conformity to the said acts of the Legislature, and are to be regarded as the acts of the Court of Chancery, empowered to proceed as such in that behalf, or the doings of an officer acting under a special authority.

4. Whether the Chancellor had competent authority, under the acts, to order or allow such sale or conveyance of the estate by the trustee, as is stated in the case, or any other consideration than for cash, paid on said conveyance.

5. Whether the deed executed by Thomas B. Clarke to George de Grasse, for the premises in question, being upon a consideration other than for cash paid on the purchase, is valid

6. Whether the said deed is valid, it having no certificate indorsed thereon that it was approved by a master in chancery.

7. Whether Thomas B. Clarke, having previously mortgaged the premises in fee to Henry Simmons, had competent authority to sell and convey the same to De Grasse.

8. Whether the subsequent conveyance of the premises as set forth in the case, made by George De Grasse, rendered the title of such grantee, or his assigns, valid against the plaintiffs.

It is thereupon, on motion of the plaintiffs, by their counsel, ordered that a certificate of division of opinion, upon the foregoing points, which are here stated during this same term, under the direction of the said Judges, be duly certified, under the seal of this court, to the Supreme Court of the United States, to be finally decided.

Upon this certificate, the case came up to this court. It was argued, in conjunction with the next two cases which will be reported in this volume, by Mr. Field and Mr. Webster, for the plaintiffs, and Mr. Jay and Mr. Wood, for the defendants. Mr. Flanagan also filed a brief for the defendants.

Each one of the counsel pursued his own train of argument, and filed a separate brief. The statement of these points will make the report of this case unusually long, but the importance of the principles discussed makes it necessary to place before the reader the view which each counsel took in the case. They will be stated in the following order:–Mr. Field for the plaintiffs, Mr. Jay and Mr. Wood, for the defendant, and Mr. Webster for the plaintiffs, in reply and conclusion.

Mr. Field. The plaintiffs maintain,––

1. That the acts of the Legislature stated in the case, whether they devested the estate of the trustees under the will of Mary Clarke or not, did not vest the whole estate in fee in Thomas B. Clarke.

2. That the authority given by the said acts to the trustee to sell, was a special power, to be strictly pursued.

3. That the orders set forth in the case were not authorized by, and in conformity to, the said acts of the Legislature, and are to be regarded, not as the acts of the Court of Chancery, empowered to proceed as such in that behalf, but as the doings of an officer acting under a special authority.

4. That the Chancellor had no competent authority, under the acts, to order or allow such sale or conveyance of the estate by the trustee, as is stated in the case, on any other consideration than for cash paid on such conveyance.

5. That the deed executed by Thomas B. Clarke to George De Grasse, for the premises in question, being upon a consideration other than for cash paid on the purchase, is not valid.

6. That it is invalid for this reason also, that it was not approved by the Chancellor, or by a master in chancery.

7. That Mr. Clarke, having previously mortgaged the premises in fee to Henry Simmons, had exhausted his power over the subject, and had not competent authority to sell and convey the same to De Grasse.

8. That the subsequent conveyance of a part of the premises, as set forth in the case, made by George De Grasse, did not render the title to that part, of such grantee or his assigns, valid against the plaintiffs.

In support of these positions, the plaintiffs make the following points:––

First Point.–The acts of the Legislature changed the equitable life estate of Mr. Clarke into a legal estate, but they did not give him the legal estate in remainder. His power over the remainder of the children was a statutory power, and, like all such powers, to be strictly pursued, and when once executed was exhausted.

I. Whether even the trustees appointed by the will took a fee is not certain. In Clarke v. Van Surlay, 15 Wend. (N. Y.), 442, it was conceded that 'the legal interest in the property under the will was in the cestuis que trust.'

It is a general rule in the construction of devises, that trustees take no greater estate than is necessary to support the trusts, whatever words of inheritance may have been used. Stanley v. Stanley, 16 Ves., 491; Doe v. Simpson, 5 East, 162; Doe v. Nichols, 1 Barn. & C., 336; Doe v. Needs, 2 Mees. & W., 129; Water v. Hutchinson, 3 Dowl. & Ry., 58; Hill on Trustees, 240.

II. But if the testamentary trustees took a fee, their estate, when devested, did not pass to Mr. Clarke alone. It passed to him and his children; to him for life, and to his children in fee. The reasons are,––

1. There is no language in any of the acts expressly giving the fee to him. On the contrary, the expressions seem carefully chosen to avoid that conclusion. He is 'authorized and empowered to execute and perform every act, matter, and thing, in like manner, and with like effect, that trustees duly appointed under the said act might have done.' (Sec. 2 of second act.) This is language appropriate to a power, not to a conveyance. It clothes him, not with the estate, but with a power in trust. The word 'trustee,' used in reference to him, has not of itself force enough to give him the fee. He was, both in popular and in legal phrase, trustee of a power. He was to have the proceeds invested in his name as trustee. (Sec. 3 of second act.) The expression is not so strong as that in the preamble of the second act,–'whereby the said real estate became exclusively vested in the said Thomas B. Clarke and his children.'

The fee not being expressly given to Mr. Clarke, if he took it at all, he took it by implication. But a fee by implication is never allowed, except where it is necessary to the purposes of the trust; and here it was not necessary, for everything which he was to do could be done under the power as well, and far more safely to the rights of the children.

2. To give Mr. Clarke the fee for the execution of the trust, would involve this absurdity, that it would suppose a conveyance by him after his death. The testamentary trustees, if they took the legal estate, were to convey to the children at Mr. Clarke's death. That is a sufficient reason why he was not, and could not be, put in the place of those trustees.

3. If the fee was given to Mr. Clarke, at the passing of the second act, it must either have been then taken out of the children to be vested in him, or it must have been in abeyance since the passing of the first act. That discharged the trustees under the will. (Sec. 1 of first act.) If, then, the children were not vested with the fee, it remained in abeyance. But abeyances are not favored, nor are they allowed by construction or implication. Com. Dig., Abeyance, A. 3; Catlin v. Jackson, 8 Johns. (N. Y.), 549.

If, however, as we contend, the fee was then in the children, there was no reason for taking it out, and vesting it in the father. To do so would, besides, have been open to grave constitutional objection. It would have exposed the estate of the children to a peril, for which there was no necessity, real or supposed.

III. If Mr. Clarke was not vested with the legal estate in remainder, he was clothed with a statutory power,–a common law authority, as defined by Mr. Sugden. 'A power given by a will, or by an act of Parliament, as in the instance of the land-tax redemption acts, to sell an estate, is a common law authority.' 1 Sugd. on Powers, 1.

A power is to be strictly pursued. Doe v. Lady Cavan, 5 T. R., 567; Doe v. Calvert, 2 East, 376; Cholmeley v. Paxton, 3 Bing., 207; Cockerel v. Cholmeley, 10 Barn. & C., 564; 3 Russ., 565; 1 Russ. & M., 418; 1 Cl. & F., 60; 2 Sugd. Pow., 95, 197, 198, 330, 331, 413.

And a statutory power in particular. Rex v. Croke, Cowp., 26; Collett v. Hooper, 13 Ves., 255; Richter v. Hughes, 2 Barn. & C., 499; Proprietors of Stourbridge Canal v. Wheeley, 2 Barn. & Ad., 792; Lessee of Calisle v. Longworth, 5 Ohio, 370; Smith v. Hileman, 1 Scam. (Ill.), 324; Sharp v. Spier, 4 Hill (N. Y.), 76; Williams v. Peyton's Lessee, 4 Wheat., 77; Thatcher v. Powell, 6 Id., 119.

The leases under ecclesiastical statutes in England are instances. Bac. Abr., Leases, E. 2; Cro. Eliz., 207, 690.

Wherefore, not having pursued his authority, Mr. Clarke conveyed nothing by his deed.

IV. A statutory power once fully executed is exhausted. 'An authority once well executed cannot be executed de novo.' 3 Vin. Abr., p. 429, § 42; Palk v. Lord Clinton, 12 Ves., 48; Barnet v. Wilson, 2 Younge & Coll., 407; 1 Sugd. Pow., 359.

Therefore Mr. Clarke, having once fully executed his authority by a mortgage to Simmons, could not execute it again by a conveyance to De Grasse.

Second Point.–If, however, Mr. Clarke were to be deemed vested with the legal estate in remainder, he was disabled from alienation, without the consent of the Chancellor. (Sec. 3 of second act.)

If he took the fee, he took it qualified, and with a restricted power of disposition. The general rule of law, that he who has the legal estate can convey the legal estate, was modified in his case. It might have been so modified by deed at common law. M'Williams v. Nisly, 2 Serg. & R. (Pa.), 513; Burton on Real Property, 11, note; Doe v. Pearson, 6 East, 173; Perrin v. Lyon, 9 Id., 170. The private acts of the Legislature, whence he derived his right, were laws repealing to that extent the general law. M'Laren v. Pennington, 1 Paige (N. Y.), 102; Hibblewhite v. M'Morine, 6 Mees. & W., 200; Myatt v. St. Helens Co., 1 G. & D., 663; Earl of Lincoln v. Arcedeckne, 1 Collyer, 98.

There is now a general law in New York, that a conveyance by a trustee, in contravention of the trust, is void. 1 Rev. St., 730, § 65. This is but an extension to all cases of the principle established for this case by these private acts.

Instances of restricted powers of alienation, imposed upon the fee, are not uncommon. The case of Indian lands is a familiar instance. See also Prince's case, 8 Co., 1.

The consent of the Chancellor was interposed as a check upon Mr. Clarke. The first act did not prescribe it for the trustees to be appointed by the Chancellor; but when, by the second statute, the tenant for life was authorized to act, the consent of the ...


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