Carter v. Bloodgood's Executors.

Mr. Powell says, it is now settled, after some fluctuation of authority, that where property is given to a plurality of persons, with a devise or bequest over in certain events, of the shares of dying objects to the survivors, the word "survivors" is construed others, so that as well those who die before, as those who survive the objects in question, are entitled; provided of course, that their deaths did not happen under circumstances, which subjected their shares to the operation of the limitation over. And he puts the case of a bequest over to the survivors, on one dying under twenty-one years of age; the share of one so dying, he says, will vest in the persons surviving, and in the representatives of those who have previously died, after having attained that age. (2 Powell on Devises, by Jarman, 723.)

Such was the decision, by Lord Eldon, in Wilmot v. Wilmot, (8 Ves. 10,) and it has the sanction of Sir William Grant's opinion expressed in strong terms, in Barlow v. Salter, (17 Ves. 482.)

In Harmon v. Dickinson, (1 Bro. Ch. Ca. 91, and note 1,) which is cited as supporting this doctrine, the bequest was to two persons, and when the second died without issue, there was no person answering the description of "survivor," except the children of the other legatee, who had died previously. This must have been the ground of Lord Thurlow's decision, because in the same year, (1781,) in Ferguson v. Dunbar, (3 Bro. Ch. Ca. 469, note,) where under a similar will, there was a surviving legatee, as well as children of one who had died before the legatee whose share was in question, he decreed the whole to the surviving legatee. The case of Aiton v. Brooks, (7 Simons, 204,) was like Harmon v. Dickinson, in the circumstance above stated.

On the other hand, in Crowder v. Stone, (3 Russell, 217,) the bequest after two life interests, was to the testator's nephew, and four nieces equally, but in case of the death of either of them without lawful issue, before their shares became payable, then the share of such decedent should go to, and be equally divided, between and amongst the survivor and survivors of them, share and share alike. M. one of the nieces, died in 1797, leaving issue, and another niece G. died, in 1802, without issue. Lord

Carter v. Bloodgood's Executors.

Lyndhurst held that the representatives of M. took no interest in the share of G. (And see Winterton v. Crawfurd, 1 R. & Mylne, 407; Ranelagh v. Ranelagh, 2 M. & K. 441; and Leeming v. Sherratt, 2 Hare, 14.)

Indeed, Mr. Jarman, in his recent valuable treatise on wills, says the rule is now settled, that the word "survivors" when unexplained by the context of the will, must be interpreted according to its literal import. (2 Jarm. on Wills, 609, 619.) And this seems to be the result of the English authorities.

Tested by this more restricted rule of construction, I think the context, and the other provisions in the will of Mr. Bloodgood to which I have already referred, do explain the meaning of surviving children, in this clause of the will, to be "the others;" that is, his own children living, and the children of his deceased children. And that he intended by his residuary bequest, to put each branch of his family, on a footing of exact equality, giving life interests to his children, and the capital to their respective issue, per stirpes.

The bequest over to the grand children, in the shares of the children who die without issue, is raised by implication, from the same provisions in the will, which establish the testator's intention to make an equal distribution of the residue. (See 1 Jarm. on Wills, 499, 500.)

There is another rule in the construction of wills which leads me to the same conclusion.

The governing principle, is the intention of the testator, and when that is apparent upon the whole will taken together, the court must give such a construction, as to support the intent, regardless of grammatical rules, and sometimes by supplying words and limitations. As instances of inserting words in order to equalize estates, where the testator has expressed uniformity of purpose, thereby effectuating the intention, as collected from the context, I refer to Langston v. Pole, (2 Moo. & Payne, 490,) and Doe d. Wickham v. Turner, (2 Dow. & Ryl. 398.)

Ip Pand v. Bergh, (10 Paige, 140, 152,) the testator devised certain lands to his son Abraham, other lands to his son Philip, and other portions to his five daughters, and he gave some lands to the two sons jointly. His will then provided, that if one of

Carter v. Bloodgood's Executors.

his sons, or if both of them, should die without issue, the testator thereupon gave the part or share, so devised unto either of them, unto the surviving son, and the five daughters in equal portions forever. And if both the sons died without issue, their shares were to go to the five daughters. Philip survived the testator fifty years, and then died without issue; Abraham and the five sisters, having died in Philip's life time, leaving isThe question was whether Abraham's issue should inherit one sixth of Philip's share. The Chancellor, on the evident intention, derived from the will, held that they should; and construed the will, as if the words "or the son who has died and left issue, who are then living," had followed the words "unto the surviving son" in the will itself.

sue.

These authorities warrant me in construing this will as if the words" and the issue of such of my children as are then dead, such issue taking their parent's proportion," had followed the expression "surviving children," in the clause in question. This gives effect to the undoubted intention of the testator, as it is exhibited by the whole will, and does no injustice to any of the objects of his regard; and I adopt it without hesitation.

The former decree accords with the result of my examination of the bequests, but I am not informed of the particular grounds upon which it proceeded.

As to parties, my impression is, that Thomas T. Bloodgood ought to have been a party in his individual as well as his representative capacity, and that the other grandchildren of the testator, if any there be, should also have been parties.

The bill may stand over to make these persons parties, and the question of costs will be reserved. If the complainant desire it, there may be a declaration of his rights, as against the executors and the other defendants.

Hanley v. Carroll.

HANLEY, Trustee, &c. v. CARROLL and others.

WHERE two successive mortgages were executed to a married woman, on premises in which she had a right of dower, and were afterwards assigned by her and her husband to the trustee of her separate estate, previous to which, and before the second mortgage was given, she and her husband entered into possession of the premises, and continued in possession until the trustee proceeded to foreclose the mortgage;

Held, 1. That the husband before the assignment, was the mortgagee, jure mariti, and thus became mortgagee in possession.

2. That no notice of the assignment being given to the owner of the equity of redemption, the latter was entitled to treat the husband as mortgagee in possession, during the whole period.

3. That the clear rents and profits which the husband received, or ought to have received, must be applied to the reduction of the mortgage debt.

Where a mortgagee, having a right of dower in the lands mortgaged, enters into the lands after the money is due, the entry will be deemed to have been made as mortgagee.

The revised statutes relative to Uses and Trusts, do not apply to a marriage settlement of personal property creating no future interests.

February 14; February 28, 1846.

THE bill was filed, January 16th, 1845, by Henry Hanley, as trustee of the separate estate of Eleanor Pinkerton, a married woman, against James Carroll an infant, Pinkerton and wife, Ann S. Bond, and others. The facts were as follows:

This James

Eleanor P., formerly Carroll, with her husband James Carroll, executed à mortgage to Ann S. Bond, on a house and lot in the city of New York, of which Carroll was seised. This was the first lien on the premises, and was undisputed. Carroll died in 1834, leaving a son James, his only heir at law. In 1838, Eleanor, the widow of the deceased, was married to Pinkerton, having first executed with him, an ante-nuptial contract providing for her separate use and control of her property, in which the complainant Hanley, was the trustee. On the 9th of August, 1841, James Carroll executed a mortgage on the house and lot, to Eleanor Pinkerton; and on the 14th of September, 1843, he executed to her another mortgage on the same premises. Previous to this, and in 1843, Pinkerton and his wife

Hanley v. Carroll.

entered into the possession of the house and lot, and occupied the same from thence until the hearing of the cause. On the 20th of September, 1844, Pinkerton and wife assigned the two mortgages of James Carroll, to the complainant as trustee. In May, 1844, James Carroll the second, died intestate, leaving the defendant James Carroll, an infant, his only heir at law.

The guardian ad litem, of the infant, set up in his answer, that Mrs. Pinkerton had been in possession and received the rents and profits ever since the death of her first husband, and insisted, that the amount of the rents should be set off against the two mortgages held by her trustee.

The cause was heard on the pleadings and proofs.

J. T. Brady, for the complainant.

The complainant is entitled to the usual decree, referring it to a master to compute the amount due on the several mortgages in the bill of complaint mentioned, and for a sale of the mortgaged premises, &c.

The matter of defence set up in the answer of the guardian. ad litem of the infant defendants, is inadmissible in this suit because,

1. The remedy is perfect, (and exclusively,) at law.

2. The personal representatives of the deceased James Carroll, and not his heir at law, are the proper parties to demand the account prayed for.

3. The claim proposed to be set off is unliquidated, and cannot be ascertained by calculation. (2 R. S. 103, § 43, 278, § 32.) It is not therefore a proper subject of set off to the mortgages. (Jennings v. Webster, 8 Paige, 503; and see Chapman v. Robertson, 6 ibid. 629; Holden v. Gilbert, 7 ibid. 211.)

4. It is not against the complainant in this suit, but against one of the defendants. It is Pinkerton's sole liability. The cestui que trust is not liable for the rents. Her separate estate might just as well be subjected to any other debt of his.

In no event, can the infant claim the rents and profits of the premises, prior to the death of his father.