ALBANY,

Again; the act of 1790 does not affect this case, because P. E. died before 1783, and the act of 1803 does not affect the August, 1818. title of his brother, Theophilus, because his father died in 1799.

T. E. took the land on the death of P. E., as heir to his deceased brother. There were no intermediate heirs, and the act of 1803 has no effect on the case, as the father died in 1799. T. E. has always been the heir at law of the deceased soldier. Why then refer the seisin back, in order to change the descent? This case is different from any that has yet been presented to this Court, relative to the rights of deceased soldiers. The case of Jackson, ex dem. Austin and others, v. Howe, (14 Johns. Rep. 405.) is the only one that has any bearing on the present case. All the other cases are very distinguishable from it. The Court will always favor the heir at law, and there was no period of time from the death of the soldier, that his brother, T. E., was not his heir.

SPENCER, J., delivered the opinion of the Court. It is scarcely necessary, after so many decisions upon the points arising in this case, to do more than briefly state the facts, and refer to the cases decided.

Peter E'sworth, the patentee of the lot, of which the premises in question are a part, was an officer, in the revolutionary war, in .the line of this state, and as such entitled to a grant of bounty lands: the patent to him was a fulfilment, on the part of the state, of the engagement to give the lands. *He died in May, 1781, and by his will duly executed, he devised to his father, William Elsworth, all his real and personal estate whatsoever, and wheresoever, and constituted his father executor. The will authorized the executor to sell and convey the real estate. The plaintiff's title is derived under a sale by the executor, and no objection is made to the plaintiff's title, if William Elsworth became seised of the lot, either under the will, or as heir to the patentee.

Peter Elsworth died without issue, leaving his father and a brother, Theophilus: the defendant has deduced a regular title under him, if he was seised as heir of the patentee.

In the case of Jackson v. Howe, (14 Johns. Rep. 406.) Jackson v. Phelps, (3 Caines, 62.) and Jackson v. Winslow, (2 Johns. Rep. 80.) this Court decided, that by the act of the 5th of April, 1803, the titles to the military bounty lots were vested in the officers and soldiers, at the time of their respective deaths, without reference to the period of issuing the letters patent.

It follows, then, that Peter Elsworth was seised of the lot when he died, and might devise it. But the act regulating descents, adopted by the act of the 5th of April, 1803, in reference to these lands, would also vest the lot in William Elsworth, as heir to his son, the patentee; for the lot was not held by bona fide purchasers or devisees under Theophilus, on the 5th of April, 1803.

The lessors of the plaintiff, Eliza Evertson and Sarah Roose

SMITH

V.

VAN DURSEN.

[* 345]

ALBANY, velt, are the devisees, and also the heirs at law of Cornelius C August, 1818. Roosevelt. The adverse possession at the time of his devising, though it invalidates the devise, does not prevent the descent. Judgment for the plaintiff.

JACKSON

V.

FERRIS.

[ * 346 ]

The testator

directed, that in

*JACKSON, ex dem. ELIZABETH HUNT, against FERRIs.

THIS was an action of ejectment for land in the town of case of a defi- Flushing, in the county of Queens. The cause was tried before ciency of his Mr. J. Van Ness, at the Queen's circuit, in June, 1817.

personal estate,

some of his real

sold for the pay

The plaintiff's lessor claimed the premises as the only child estate should be and heir at law of Gilbert Field, who died in possession, about ment of his 28 years before the trial. After the death of her father, she debts: he then married Thomas Hunt, who died in 1812. The defendant personal claimed as purchaser under a power of sale contained in the to his will of Gilbert Field, executed the 20th of February, 1788, and and appointed the material parts of which are as follows:

devised his real

and

estate

wife for life,

her and another

person his ex

ecutors.

alone undertook

testator having

property in his

"In the first place, I will and order that all my just debts and funeral charges be paid by my executors, hereinafter named, The widow out of my personal estate. If there should not be enough of the execution of my personal estate, I will and order some of my real estate to be the will; and the sold, for to pay my debts Item. I give and bequeath unto my disposed of all wife, Hannah, the use of all my estate, both real and personal, his personal after the payment of the debts as aforesaid, during her natural lifetime, and dy life; and, after her decease, I give and bequeath all my estate, ing indebted, the both real and personal, unto my daughter, Elizabeth Field, her and conveyed heirs and assigns, forever," &c. The testator appointed his part of the real wife and Jesse Farrington his executors; but the former only that the power undertook the execution of the will, and on the 19th of July, was well exe- 1790, conveyed the premises to John Fowler, through whom ecutrix alone. the defendant claims.

executrix sold

estate: Held,

cuted by the ex

(a)

[ * 347 ]

The testator, before his death, gave all his personal property to his daughter, who took away almost the whole of it when she married, leaving only some trifling articles with the widow. The testator, at the time of his death, owed some debts, though it does not appear to what amount: there were, however, his physician's bill, and some other small debts due from him, for the payment of which, with his funeral expenses, the premises in question were sold. *The testator also owned another lot in Flushing, which had since been sold by the lessor of the plaintiff.

A verdict was taken for the plaintiff, subject to the opinion of the Court, on a case in which the above facts were stated.

Burr, for the plaintiff, contended, that the power to sell was a naked power; or, at most, a power to sell on a certain con(a) Vide Jackson v. Given, 16 Johns Rep. 167

ALBAN

JACKSON

V.

FERRIS

tingency, before the happening of which the executors could not exercise the power. It should have been made clearly to August, 1818 appear, that there was a deficiency of personal assets, and that it was necessary to sell some part of the real estate, before the widow undertook to sell. The existence of debts, and the insufficiency of the personal assets, was a condition precedent; and, unless proved, there was no authority to sell. It belongs to the purchaser to ascertain the fact at his peril. (Dike v. Ricks, Cro. Car. 335. Culpepper v. Aston, 2 Chan. Cas. 221. 223. Sugden, L. of Vend. 343, 344. 1 Caines's Cas. in Error, 15.)

Brinckerhoff, contra, said, that the subject of the execution of a power given to executors to sell under a will, had lately been so fully discussed in the Court for the Correction of Errors, that it was unnecessary to repeat the arguments, or to examine the cases which had been cited. They were all to be found in the report of the case of Franklin v. Osgood, (2 Johns. Chan. Rep. 1 S. C. in Error, 14 Johns. Rep. 527. 560.) He contended, that it was a power coupled with an interest, and was well executed by the widow of the testator, as sole acting executrix. (Powel on Devises, 301. Caines's Cas. in Error, 15. Co. Litt. 113. a. 181. b. 236. a. 292. a. 2 Ch. Cas. 115. 220. 223. 2 Vern. 302. 568. 2 Ves. 590. Powel on Devises, 291. 294. 310.)

YATES, J., delivered the opinion of the Court. The principles which governed the decision of Franklin v. Osgood, in the Court for the Correction of Errors, (14 Johns. Rep. 527.) and of Jackson v. Burtis, in this Court, (Id. 391.) are *applicable to, and fully decide, the present case. The case of Lessee of Zeback v. Smith, (3 Binney, 69.) is also in point.

The testator, in the case before us, gives the. power to sell to his executors without naming them, which shows that the authority intended to be given was virtute officii, and it being a power to sell for the purpose of paying debts, the exercise of it was necessary to effectuate his intention. (Pow. Dev. 297. 307. Cro. Car. 382. Cro. Eliz. 26.) Besides, it is a power coupled with an interest. The wife, by the will, has a life estate in the premises. In short, the power contains all the requisites to show that it must have survived, and that it could not have been exercised by any person not an executor. The widow at the time of sale was the sole acting executrix; and by the statute, (21 Hen. VIII. ch. 4. sess. 10. ch. 47. s. 10. 3d of March, 1787. 1 Greenl. ed. Laws, 389, 1 N. R. L. s. 11. p. 364. 367.) (a) where any of the executors renounce or refuse to act, the rest may execute the power. There can, therefore, be no doubt that the executrix, who alone qualified, had a right to dispose of the property, and the indebtedness, to authorize the disposition of it, sufficiently appears. The testimony clearly (a) 2 R. S. 109.

[* 348]

VOL. XV.

ALBANY,

M'DONALD

shows that the testator, before his decease, gave all his personal August, 1818. property to his daughter; and that he was considerably indebted, at least for his physician's bill, and other small debts, with his funeral expenses. This is enough; and the property having been sold for its full value, at the time, there is nothing to affect or invalidate the sale made by the executrix. The defendant is, therefore, entitled to judgment.

V.

HEWETT.

Judgment for the defendant.

[* 349]

Where, after a

sale of goods,

some act

*M'DONALD against HEWETT.

THIS was an action of trover for a quantity of timber. The re- cause was tried before his honor the chief justice, at the Alban ̧ circuit, in October, 1817.

mains to be done by the ven

dor before de- The plaintiff produced in evidence the following writing or livery, the prop bill of sale:-" Stillwater, March 16, 1816. William M'Donald

erty does not

dee, but contin

(a)

ment, which sta

the plaintiff was

vest in the ven- bought of John Neilson, junior, 100 sticks timber, consisting ues at the risk partly of oak, pine, hemlock, and elm, lying on the east side of of the vendor. Hudson river, in the town of Easton, Washington county; also The plaintiff 150 sticks timber, consisting of oak and pine, lying on the bank and A. entered of Hudson river, in the town of Stillwater. The said William into an agree- M'Donald is to pay for the same at the measurement in the ted that the city of New-York, when the said timber is delivered and inplaintiff had bought of 4.a spected; and, also, is to pay the fair market price in the city of certain quantity New-York, when delivered. The said John Neilson has conof timber, which tracted, and does agree to deliver the same on or before the to pay for at the first July next; and, also, the said John Neilson, jun., agrees that measurement in the amount of the said timber shall be endorsed on his notes, which the city of NewYork, when it the said William M'Donald holds against him," (describing and inspected; them,)" and if the said timber amounts to any thing more than the and also to pay said notes, the said William M'Donald is to pay the overplus to the fai market the said John Neilson, jun." The defendant was employed by York, when it Neilson to take the timber to New-York, and on his arrival the plaintif also there, it was demanded of him by the plaintiff, but he refused agreed, that the to deliver it, and left it with the father of the plaintiff, who sold amount of the it on the plaintiff's account.

was delivered

price in New

was delivered:

timber should

be endorsed on

notes which he

The defendant, during the course of the trial, moved for a held against A., nonsuit, on the ground that there had not been such a sale to and if it exceed the plaintiff as would enable him to maintain this action; and

ed the amount

of the notes, the

plaintiff should pay the balance to A.: it was held, that this agreement was executory, and did not vest the property in the timber in the plaintiff, who, therefore, could not maintain an action of trover against a third person for the conversion of it.

(a) Vide Russell v. Nicoll, 3 Wendell's Rep. 112. v. Webster, Ibid. 259. Rapelye v. Mackie, 6 lbid. 250. 7 Wendell, 404.

Outwater v. Dodge, 7 Cow. Rep. 85. Jennings
Barns v. Graham, 4 Ibid. 452. Ward v. Shaw,

afterwards, on the ground, that the action could not be maintained against the defendant, he being only the servant and agent of Neilson, and that, in fact, there was no conversion by the defendant; but the judge, in both instances, *denied the motion, and a verdict was found for the plaintiff, subject to the opinion of the Court.

Huntington, for the plaintiff. As between the plaintiff and Neilson, there was such a contract of sale and transfer of the property in the timber, as would enable the plaintiff to maintain trover. There is a bill of sale, importing a consideration, and a sufficient memorandum in writing within the statute of frauds. The agreement shows that a sale has been made. (Bac. Abr. Bills of Sale. Shep. Touchst. 224. 1 Comyn's Dig. 411. Agreement. (A. 2.) 2 Com. Dig. 138. Biens. (D. 3.) 1 Bl. Com. 443. 2 Comyn on Contracts, 210. 7 East, 571. Bull. N. P. 35. 2 Saund. 47. n. b.)

The next question is, whether trover will not lie against the defendant, under the circumstances of the case. The defendant knew that the plaintiff had purchased the timber of Neilson. All persons who direct or assist in committing a trespass, or in the conversion of personal property, are in general liable as principals though not benefited by the act. (1 Chitty, Pl. 67. 2 Saund. 47. i. Bull N. P. 41. 6 Term Rep. 300. 1 Bos. & Pull. 369. 2 Esp. N. P. Cases, 553. Bac. Abr. Trover (E.) 2 Saund. 47. e. f. 2 Str. 813. Thorp v. Burling, 11 Johns. Rep. 285. Bristol v. Burt, 7 Johns. Rep. 254. Murray v. Burling, 10 Johns. Rep. 172. 175.)

In Perkins v. Smith, (1 Wils. Rep. 328.) it was held, that trover lies against a servant who disposes of the property of another to his master's use. (S. P. Stephens and others v. Elwal, 4 Maule and Selw. 269.)

T. Sedgwick, contra. The only question is, whether the property was transferred to the plaintiff. It is an agreement containing mutual stipulations and conditions, not an absolute bill of sale. The agreement is signed by both parties, which is not the case in an ordinary bill of sale. The price was to be paid at a future day. This was an executory contract. In De Fonclear v. Shottenkirk, (3 Johns. Rep. 170.) where there was an agreement for the sale of a slave, and the defendant was to take him on trial, and while with the defendant, the slave ran away, it was held that the defendant was not liable for the loss, it not being an absolute sale.

*Again; a servant is not liable in trover: he is not bound to decide on the right of ownership, on the property being claimed or demanded by a stranger. A demand and refusal are only evidence of a conversion. There was no actual conversion in this place. (Bull. N. P. 47.) A servant is not answerable for negligence, but his principal only. (Lane v. Cotton, 12 Mod.

ALBANY,

August, 1818.

M'DONALD

V.

HEWETT.

[* 350 ]

[* 351 ]