During the progress of the cause it was insisted that the Statute of Limitations was a bar. If I am right in my conclusions, this view cannot prevail, since it has been declared many times that the statute is not a bar to trusts of this character. Besides this view, it may safe ly be said that Mr. Rusling not only stood in the relation of trustee, but also that of bailee; for he took this money to hold or to invest for Mrs. Rusling and to pay her the interest, it not appearing that any stipulation was made as to the length of time he should hold it; nor does it appear that she ever made demand for the money. I cannot conclude, therefore, that the statute has any application to this case. See Boughton v. Flint, 74 N. Y. 481, 482.

I am brought now to the declarations of Mrs. Rusling, made long after she placed the money in the hands of Mr. Rusling, made five or six years after she borrowed the $900 of him, which she repaid without requiring him to account for the $1,000, and nine or ten years' interest then due thereon, and made three or four years after the execution of the last will of Mr. Rusling.

Mrs. Rusling is a most highly respectable lady, and in every way worthy of credit; but it is difficult, according to the ordinary rules applicable to such cases, to disbelieve the other witnesses, and for the court to say that two who appear to be truthful and to be disinterested are less worthy of credit than one who is much more advanced in years and whose recollection would be much more likely to be influenced or be clouded by her interest. I must, therefore, conclude that Mrs. Rusling said that she had given the $1,000 to her husband for the sake of peace.

In so deciding I do not forget that one of the witnesses produced by the defendants said that Mrs. Rusling told her that she had given Mr. Rusling $1,000 to put out at interest for her. But it cannot be overlooked, as stated above, that two other witnesses very distinctly stated that Mrs. Rusling told them repeatedly that she had given Mr. Rusling the $1,000 for the sake of peace.

But whether, as between husband and wife, this ought to be regarded as sufficient to discharge the husband from his trust, under the circumstances, is not clear to my mind, nor will I now pause to determine,-because of another view of the case, which must necessarily be considered. Mr. Rusling not only recognized this claim, in his first will, but (as I understand the testimony) distinctly did so to two of the witnesses between the years 1870 and 1876. And, in my judgment, although he did not name this particular sum, he recognized some claim of Mrs. Rusling against him, in his last three wills: one made in October, 1873, one in December, 1874, and the one which was proved

The bequests referred to were the $2,000, payable one year after his death with interest, and the interest on $4,000 payable during her lifetime. The testator declares this to be in lieu of dower, which all understand to have a certain definite meaning and application, and also in lieu of any other claim, which certainly must be understood as referring to something in the mind of the testator besides dower. It was aimed at an object. It was not an idle, careless, meaningless expression, interjected at random. The court cannot disregard it. If it be possible, every word and phrase must be assigned to some purpose. And the fact appearing that Mrs. Rusling once had this just claim and there being no certain proof that it was ever satisfied or extinguished, the expression in the will or any other claim" will be applied to it; the court will say that the testator thereby intended to recognize this claim.

I cannot escape the conclusion that some indebtedness must have existed and been recognized by the testator, which awakened in his mind and called forth this expression, just as certainly so as her right of dower prompted him to expressly provide and guard against her making claim therefor and also taking the legacies.

But the question remains: Did Mr. Rusling intend by the gifts made to discharge this claim? Both as to the general rule of law in such cases and the exceptions thereto there is no controversy. The general rule is stated, in Van Riper v. Van Riper, to be that a legacy will be presumed to be in satisfaction of a demand against the testator. Circumstances may arise, or facts may appear on the face of the will, showing a different intention. The intention of the testator is to govern. 1 Green, Ch. 1, 3, and cases there cited.

A devise of land cannot be taken in satisfaction of a debt. If the testator declares that all his debts and legacies shall be paid, it is regarded as sufficient to overcome the presumption that he intended a legacy to be in satisfaction of a debt due from him. The presumption is likewise overcome, if the amount of the legacy be less than the debt, or, if the debt be unliquidated, or the legacy be not given to the creditor, but to a third person. See Van Riper v. Van Riper, 1 Green, Ch. 1; Reynolds v. Robinson, 82 N. Y. 103; Boughton v. Flint, 74 N. Y. 476; Chancy v. Wootton, Select Cas. in Ch. 44 and note at the end of the case found in 13 Eng. Ch. 118.

In Phillips v McCombs, 53 N. Y. 494, it was said: "The debt being due and the legacy being payable two years after the testator's death, no legal presumption arises upon the face of the will that the legacy was intended as a payment of the debt." Now, what appears upon the face of this will to guide me in this matter? The testator does not say that "All of my just debts and legacies shall be paid," but says "All my just debts if any I have." The $2,000 given was payable in one year after the testator's death.

These expressions, and the one above quoted

declaring the bequest and that the annuity | should be in lieu and in bar of dower or any other claim, are the only expressions which can aid me in ascertaining the intention of the testator, under the rules above presented. The $2,000 given was at the date of the will considerably in excess of the amount of principal and interest due at the date of the will, and also at the death of the testator, from which time the legacy drew interest because of which it became impossible for the debt and interest to be equal to the legacy. This I think takes the case out of the rule laid down in Phillips v. McCoombs, supra.

And it seems to me that the direction that the bequests in favor of his wife shall be in lieu of dower or any other claim takes it out of the rule established in many of the cases, that where the testator directs that all of his debts shall be paid the presumption is that it was not his intention that a legacy should be in satisfaction of a debt; and it gives to the defendants in this case the benefit of the general rule. It seems to me it would not have been stronger if the testator had said that the bequests made to her were intended to be "in payment and discharge of any and every debt, claim or demand that she now has against me. "It will strike the mind of everyone that this case is not within the exception to the general rule which provides that when the testator says that his debts and legacies shall be paid; for in this case he only directs that his debts be paid, if any he have. Edmunds v. Low, 3 Kay & J. 318, 321; Lead. Cas. Eq. 777.

In this work I have found a more complete and useful analysis of the whole subject than elsewhere. See pp. 774, etc. 820, etc.

I conclude that the testator was indebted to Mrs. Rusling at the time of making his last will; and that by his bequest therein of $2,000 he intended to satisfy and discharge such indebtedness. And the creditor, Mrs. Rusling, having accepted such bequest, she was not justified in filing her bill to enforce her claim. The bill must therefore be dismissed, with costs. I will so advise.

Charles BARCLAY, Admr.,

v.

Samuel C. COOPER.

1. Where a bill is filed by the administrator of a decedent for an account of her interest in an estate, and for a discovery of her personal property, held by defendant, and to restrain him from expending that property in improvements upon the joint real estate, and it appears that defendant had made several settlements and paid the balance found due from him thereon and offered to make a further settlement which was refused, and that complainant could have got all the information he desired as to the property by inquiring of defendant who had not refused to give it, and that defendant did not contemplate any expenditures upon the joint real estate except those which he was constrained to make by the municipal authorities,—held, that defendant

2.

should not be required to pay the costs of the suit.

Where it was agreed that defendant should manage an estate in his hands for the interest of those concerned and should not charge for his services, should make annual settlements and should pay no interest for balances in his hands, and a settlement was made on that basis and defendant tendered a further settlement; held, that he should pay no interest up to the time of the settlement nor since, as he was always ready to pay the money to the complainant.

3. Land bought in under foreclosure proceedings by the defendant in trust for himself and the others interested in joint mortgages which were foreclosed, before the death of complainant's intestate, and which purchases were necessary to protect the interest of the holders of those mortgages and which land remains unsold, is to be regarded as real estate and not personal in the accounting of defendant with complainant of the personal estate of his intestate, who was interested in the mortgages.

4.

Land conveyed to defendant after the death of complainant's intestate in satisfaction of a mortgage thereon given to defendant and complainant's intestate and others, in order to save the expense of foreclosure proceedings, which conveyance was taken by defendant in trust for those interested in the mortgage, must be regarded as personal property; and complainant is entitled to an account in respect thereto, and defendant to an allowance of taxes paid by him thereon.

The case is stated in the opinion.
Mr. H. A. Drake, for complainant.
Mr. H. M. Cooper, for defendant.

Runyon, Chancellor, delivered the following opinion:

The complainant was the husband of Ellen C. Barclay, deceased (who was one of the daughters of Joseph W. Cooper, deceased), and he sues as her administrator. Her father died in 1871. By his will and the codicil thereto, after making provision for his widow (who is dead), he gave all the residue of his estate to his four children, Samuel C., Mary E., Ellen C., and Walter M. The executors were the widow and the two sons Samuel and Walter. They all proved the will and codicil.

Walter died in 1882, intestate and without issue. Letters of administration upon his estate were issued to his brother Samuel, the defendant. Ellen was married to the complainant in October, 1882. She died intestate about one year afterwards, leaving one child who is still living. The estate of Joseph W. Cooper

appears to have been managed by the defendant. Upon Walter's death each of the three surviving children was the owner of one third of the property. Up to the death of Ellen, Samuel managed the estate in the interest of and for all three and without charge to his sisters for his services, under an arrangement that he should not charge for his services, should make annual settlements and should pay no interest for balances in his hands. After Ellen's death he continued still to manage it in like manner, with (as he says) the consent of the complainant. The bill is filed for an account of Ellen's interest in the estate for a discovery of her personal property held by the defendant and to restrain him from expending that property in improvements upon the joint real estate. The parties made a settlement in January, 1884; and in pursuance of it the defendant paid the complainant about $33,000, for his deceased wife's interest in the assets of the estate of her father, except the property held jointly and her interest in Walter's share. There was a settlement of her interest in Walter's estate in July, 1884. In the fall of that year the complainant told the defendant that he would like to have the whole matter settled up, and the latter replied that it was his custom to settle the matters of the estate with the members of the family at the first of the year, that he had always done The complainant did not object to waiting until that time.

80.

On the first of January following the defendant was ready to settle, but on account of the complainant's illness the settlement was deferred and it took place on the 5th of March following. The defendant paid the complainant upon that settlement $11,179.09, the amount found due. At that time the defendant stated that he would be ready to settle again upon the first of the next year, and he says the complainant made no objection. On the first of January, 1886, the defendant was ready to settle with the complainant for all moneys received and paid out during the preceding year, and tendered himself ready to do so to the complainant's attorney, who refused to make the settlement. The attorney, indeed, says that the defendant, after the bill had been filed (it was filed December 4, 1885), told him that the settlement which he desired to make upon the first of January would be made only in case this suit should be withdrawn or the matters in controversy in it settled: but he also says that on or about the first of January the defendant called at his office with his book (his account book) in his hand, and then stated to him that he was ready to settle according to his custom at the beginning of the year for the moneys which he had collected and paid out during the year. In October preceding, and before the bill was filed, the defendant stated to the attorney that he would settle on the first of January as he had been accustomed to do ever since he had acted as trustee in the management of the estate.

The case shows no unwillingness on the part of the defendant to account to the complainant. If, as the former testifies, the latter made no objection to his proposition made on March 5, 1885, to settle again upon the first of January succeeding, the filing of the bill was not necessary to get an account.

On the first of January, 1886, the defendant offered to account. The complainant could have got all the information he desired in reference to the matters involved in the transactions of the defendant in the management of the estate by inquiring of the defendant. There is no evidence of any refusal whatever to give him any information for which he asked. The defendant swears that after the death of his sister, the complainant's wife, he explained to the complainant everything in regard to her personal estate and the securities belonging to it, and that when he handed to the complainant the bonds (held by her in severalty) in his possession belonging to her estate he and the complainant went over the defendant's book, page by page, to see whether the indorsements upon the bonds corresponded with the defendant's book, in which he kept a memorandum of all mortgages and of the time up to which interest was paid, and that the complainant saw all the mortgages which the defendant had belonging to the joint estate or to the complainant's wife. He also says that at one time he showed the complainant his plans of the real property, and his way of keeping books in reference to that property, and gave him such information upon the subject as would enable him in case of the defendant's death or disability to understand the whole matter.

It may here be remarked that the complainant says that in the settlement made in March, 1885, the defendaut declined to pay over his, the complainant's, share of the principal of the joint mortgages that he had in his possession, on the ground that there were expenses of the joint real estate to be met, and he had assumed to meet them. The defendant could not reasonably have been expected to pay over any of the principal of those mortgages to the complainant at that time. The mortgages belonged to the defendant, his sister, Mrs. Kaighn, and the estate of the complainant's deceased wife, and the principal had not been collected.

pur

The complainant's attorney says that the defendant said to him that he declined to make a settlement with the complainant as administrator, relative to the personal property (referring to the joint mortgages) of the complainant (as administrator) in his possession; and that he intended to retain it in his possession for the pose of meeting out of the income thereof the expenses for improvements and repairs upon the real estate, in which the complainant and his child were interested. He says also that the defendant said that he ought to retain that personal property for the purpose stated for his protection, or in justice to himself, or that he ought to be allowed to do so for his protection; but the defendant never in fact refused to account for the money and property in his hand.

The complainant admits that when he solicited the defendant to become his surety upon his bond for $5,000, as administrator, he said to the latter that he considered the taking out of the letters a mere form, as there were no creditors and there was practically nothing for an administrator to do as such, that what there was to do, could be done as well without letters of administration as with them, and that he expected that the affairs of his wife's estate would go on just as they had gone on theretofore; that is, that the defendant would continue

possession, and possession was given to them by Joseph J. Allen, of all the property which she had placed in the custody of Joseph.

A receipt which they signed shows that one of these securities was a bond and mortgage of the said Peter C. for $150, a bond of one Pierce for $275, a note for $20, a note for $344, upon which had been paid $284.30, a note of the said Peter C. Morton for $78.26, another of his notes for $50 and another for $47.68, and a note of John L. Morton, $506.64, together with other evidences of indebtedness. Peter C. and John L. held these papers by virtue of their power of attorney until the 12th day of May of the same year (1879), when one Clark Newman, who had been invited to the house of Ann Morton either by Peter C. or John L., to transact some business for her, came there and indorsed on Peter C. Morton's bond, as follows: "May 12, 1879, record of Peter C. Morton, satisfaction in full for principal and interst on the within bond, in consideration that the usual interest on the amount of the said bond be paid to me when demanded," to which she made her mark.

On the bond given by Pierce to her to secure the payment of $275, she indorsed as follows: "May 12, 1879, for a valuable consideration I do hereby transfer to Peter C. Morton and John L. Morton all my right and interest of, in and to the within bond, and for the equal benefit of the children of their brother, Joseph A. Morton, deceased; they to receive the one third part thereof, reserving the interest that may accrue thereon during my lifetime if I choose to demand it;" and signed it by her mark.

On the note of Joseph J. Allen, which was for $352.86, she made a similar indorsement transferring and assigning it to the said Peter C. Morton but without any reservations of interest to herself whatever.

She made a like indorsement on the note of John L. Morton, expressing satisfaction for the principal thereof, which was $506.64, reserving the interest thereof yearly to Peter C. She assigned another of his notes, reserving the interest which should fall due. She also assigned a note of $200 to Peter C. and John L. for the use of themselves and the children of their brother Joseph. Several other notes were indorsed by her, in a similar manner. Enough has been given to show the true nature of the transaction. The instruments so indorsed were all delivered to Peter C. and John L. Peter C. at once caused his mortgage to be canceled of record.

As I understand the testimony, Ann Morton thus surrendered to Peter C. and John L., her nephews and stepchildren, for their use and the use of the children of one of their brothers, all of her estate, reserving nothing to herself except the interest on the principal due upon the bond and upon three of the notes. She took nothing from them to show any liability upon their part to pay her such interest, should she demand it. The complainant, the administrator of Ann Morton, files his bill, alleging that this transaction of May 12, 1879, by which said instruments were transferred to Peter C. and John L., is fraudulent and void; both upon the ground of undue influence and incapacity. There is evidence showing that the mind of Ann Morton had failed very greatly, that her

memory was very perceptibly impaired, and that recent sickness had greatly prostrated her. These things are so manifest in the case that if it should be concluded that she was not incapable of contracting, the conclusion cannot be avoided that she was most easily subjected to undue influence. In such case, if such influence was exerted, it was clearly fraudulent in the law. In considering this question of undue influence, we must take into account the relation of the parties and the manner in which they had been living. Ann Morton, being old and at best feeble in mind and body, living in the same house with her nephew and stepson, Peter C., naturally felt a sense of dependence upon him, if not subjection to his will. The testimony shows that he had many business transactions with her; and I think it is a striking fact, a fact which shows either great mental imbecility on her part or great control on the part of Peter C. and John L., that, after having placed all her securities in the hands of her brother, who seemed to be competent and worthy, in less than a month she executes a power of attorney to Peter C. and John L. to collect them and to take charge of them, without ever having herself demanded them of him personally. But what is more significant still is the fact that in about one month after they get possession of all of these papers, as her attorneys, they procure Clark Newman to come and have her transfer them all to them for their own and their nephews' absolute use and control, excepting the interest of a portion only, delivering up to them every voucher and taking no evidence of her reserved rights. She thus makes herself penniless. Who in a reasonable state does thus?

But the defendants say that, although this be all true, although she reserved nothing, although she surrendered all evidences of indebtedness and took no proof of any claim against them, she had a right so to do, and insist that the law will uphold the transaction, until the complainants cither establish mental incapacity or undue influence. In other words: upon both branches of the case, it is urged that the burden is upon the complainant. As to mental unsoundness, considered independently, this is so; but whether so or not in this particular case, as to undue inflence, I think the complainant has sustained the charges made.

There is proof that Mrs. Morton had said that she intended to give her estate to the children of her husband by his former wife; but there is no proof that she ever undertook in any manner, except by will, to dispose of her estate, until she made this assignment to Peter C. and John L.: and this disposition was not made until they obtained the absolute possession of all her securities, under the pretense of acting as her attorney.

I conclude that when an aged person of weak mind and of rapidly failing memory makes an unconditional assignment of and transfers, by delivery, all of his or her estate, to those who live with him or her, reserving only the interest on a few small sums of money, and taking no voucher for such reservation, the transaction is void in law, unless it is shown that such person was entirely free from undue influence.

I come to this conclusion because it seems so plainly most irrational to suppose that any per