Van Wezel v. Wyckoff. VAN WEZEL v. WYCKOFF and others. THE statute of limitations does not run in favor of heirs, during the three years next succeeding the granting of letters testamentary or of administration on the estate of their ancestor. A creditor of the ancestor, who is entitled to maintain a suit against heirs in respect of the real estate descended to them, may have a decree against the proceeds of such real estate where the same have been paid into court upon a sale of the property under an order or decree of the court. A subsequent suit against the heirs, in behalf of all creditors, will not affect a suit already instituted by a creditor in his own behalf, unless an order of the court be obtained directing him to come in under the former proceeding. A solicitor for a non-resident complainant, in whose behalf security for costs has been filed, by a surety who justified ex parte, is a competent witness presumptively, although he testifies before the time for excepting to the surety has expired. February 11; May 25, 1846. THE bill was filed in August, 1840, against the heirs at law of John Wyckoff, late of Gowanus, in the county of Kings, deceased, to compel the payment of a promissory note made by him, dated July 2, 1834, and payable thirty days after date to James Buchanan or order. It appeared that the note was signed by the intestate, and was indorsed by J. C. Buchanan, for the payee. It was proved that J. C. Buchanan was the agent of the payee, and always acted for him and represented him in his absence. The witness who at that time was attorney and counsel for the payee, had also seen a power of attorney under which J. C. B. acted. It further appeared that after the note became due, a suit at law was commenced against the maker, in the complainant's name, in the supreme court in August, 1834, and after an inquest had been taken it was discovered that the maker died previous to the inquest, and the suit was abandoned. The note was mislaid, and did not come to the notice of the complainant's solicitor for several years. The complainant did not reside in this state while the suit was pending. Van Wezel v. Wyckoff. The foregoing facts were proved by his solicitor, who was ob jected to as an incompetent witness on the ground that he was liable for the costs of the suit: In answer to which it was shown that on the day previous to his examination, a bond to the defendants as security for their costs, in the penalty required by the statute, executed by a surety who justified, was filed with the clerk of the court. The objection was nevertheless persisted in, on the ground that the defendants had nineteen days left in which to except to the surety at the time the solicitor was examined, and his liability for costs continued until the security was perfected. The examination was taken subject to the ob jection. It was further shown that the personal assets of John Wyckoff were insufficient to pay his debts, and the same had been duly administered. That he left four heirs, to whom a large real estate descended, which was afterwards sold in a partition suit, and the share of the youngest heir, John Wyckoff, who is an infant, was paid to the clerk of the court, to be invested for his benefit. The three other heirs received their portions. While this suit was pending, Jacques Smith, a creditor of the intestate, filed a bill in behalf of himself and other creditors, against the heirs, in which a decree was made in September, 1842, for the payment of creditors whose demands were established before the master on the reference in that suit. It did not appear that the complainant had any notice of that suit, or of the proceedings under it. The adult defendants joined in an answer to the bill in this cause, and the infant John Wyckoff, by his guardian ad litem also put in an answer. The defendants set up the statute of limitations, and other grounds of defence. Van Wezel v. Wyckoff. THE ASSISTANT VICE-CHANCELLOR.-The motion to strike out the testimony of Mr. Muloch must be denied. At the time he was examined, he was presumptively relieved from his liability for the costs. Security for costs had been filed, and the obligor in the bond had justified. It is true that there were nineteen days remaining in which the defendants might except to the security, but the preliminary justification shows in the absence of rebutting evidence, that the exception would have been fruitless. In the analogous case of special bail in the courts of law, it is the practice to allow other bail to be substituted on the trial, so as to enable the defendants to use the bail originally put, in as witnesses; and the possibility that on an exception, the new bail may be found insufficient, does not render such witnesses incompetent. (Leggett v. Boyd, 3 Wend. 376.) Upon the merits of the case, I think the proof of the note and of the complainant's title to it, is sufficient. The authority of J. C. Buchanan to make the indorsement, is proved by his acting as agent, independent of the testimony as to the written power. But if this were otherwise, the objection to the parol evidence was not made in season. Administra The statute of limitations is not a valid defence. tion on the estate of the defendant's ancestor, was granted in October, 1834. The complainant could not sue the heirs, until three years after that time, and during this period, the statute did not run in favor of the heirs. (2 R. S. 109, 53; Butts v. Genung, 5 Paige, 256; Leonard v. Morris, 9 ibid. 90.) I do not find any proof in support of the objection that this debt was not presented to the administrators upon their advertising for claims. If this were proved, it would avail nothing, as the administrators did not have assets enough to pay all the other debts. As to the suit of Jacques Smith against these heirs, in behalf of all the creditors, the decrees were made in 1842, and probably the suit had not been long pending. At all events, there is no pretence but that this suit was commenced first. It does not appear that the complainant knew of Smith's suit, and if the defendants desired to save expense, they should have moved the Arnold v. Gilbert. court to compel him to come in and prove his demand under the decree in that suit. The complainant is entitled to a decree against each of the heirs, for one-fourth part of his debt and interest and costs of suit. The proportion payable by the infant, will be paid by the clerk out of the funds of the infant in his hands. And the costs of the guardian ad litem must be paid out of the same fund. Decree accordingly, ARNOLD and others v. GILBERT and others. A TESTATOR, having a very large real estate, after some minor bequests in his will, gave to his wife for life, in lieu of dower, one-third of the net rents of his real estate, so long as it should remain unsold. He gave to each of his five sons, five thousand dollars, payable out of the sales of his real or personal estate; the legacies to two of whom, G. and W., were to be invested in stock or on mort gage, the interest paid to them for life respectively, and after their deaths to their respective children, and if either should die without a child living, his legacy was to go to the three other sons and the survivor of G. and W., and the latter's share to be placed in the trusts provided subsequently. To another son, E. he gave the income of three thousand dollars for his life; the fund to be raised out of his real and personal estate; and after his death to be divided among the five other sons. To the widow of a deceased son, T., he gave the interest of ten thousand dollars, during her widowhood, the fund to be raised from sales of his real estate and invested, and afterwards to be divided among T.'s three daughters. To two of those daughters, there was a further legacy of a thousand dollars each. All the residue of his estate, the testator devised and gave to his executors in trust, to receive the rents thereof, and immediately after his death to sell enough of the real estate to pay his debts; to pay one-third of the net rents to his wife; to pay the interest on the respective legacies, and the annuity to E., out of the rents; that they should and might, from time to time, proceed to sell any part or all of his real estate; the sales to be made with as little delay as the good of the estate would permit, to the extent of investing the several funds, and paying the legacies before provided; and one-third of all sales to be invested, and the interest paid to his wife for life. And in further trust, that upon a sale and final distribution, there should be an estimate of all remaining, and the surplus, including the fund of which E. was to receive the income, and the funds for the use of his Arnold v. Gilbert. wife for life, was to be distributed whenever, as soon, and as often as could be done, to the close of his whole estate and its concerns. Of this surplus, one seventh was to go to each of three sons absolutely; another seventh to his son G., and another to his son W. The two latter were to be invested, and the interest paid to each for life, and at the death of either, to their respective children : But if either died without children living, the amounts coming to them, or either of them, were to revert back to and become an integral part of the testator's estate, and be divided between the three sons first named and the survivor of G. and W., or to the children of the latter taking a parent's share: And if one of G. and W. survived the other, his interest was to be limited to the survivor for life, and after his death to be divided as before provided. As to the other twosevenths of the surplus, the interest of one was to be paid to the testator's daughter H., and of the other to his daughter F., so long as they respectively remained widows; upon their death or re-marriage, respectively, F.'s share was to go to her lawful heirs as in cases of intestacy; and the share of H. was to revert back and merge in his estate, and become part thereof, and be divided between his five sons and his daughter F.; but F.'s part was to go to her use while a widow only, and on her death or re-marriage, was to go to her children or grand-children, as before provided as to her seventh; and the portions of the sons, G. and W., in the seventh part of H., were to be under the same limitations and uses as before provided in respect of their several seventh parts of the surplus estate. The will also contained powers to lease lots for terms of years, to repair and rebuild, and to exchange gores and irregular pieces of land. In a suit by the children of the testator's son T., to set aside the will, on the ground that the trusts were illegal; Held, 1. That the provision for the widow of the testator in the real estate, under the will, was to be regarded as a trust of real estate at the death of the testator, and not to be deemed as converted into personalty. 2. That the shares given to F., G. and W., arising from the seventh part of H., in the third of the real estate from which the widow was to receive her income, were inalienable during three lives in being, and the trusts thereof were void. 3. The same was held of the limitations of the two seventh parts of G. and W. in the same third part. Held further, that the testator did not intend a general distribution, until after the death of both his widow and his son E.; during whose lives, the power of alienation and the absolute ownership were therefore suspended; wherefore, 1. The whole of the seventh designed for H., that for F., and the two sevenths for G. and W., were each and all suspended for three or more lives in being, and were all void trusts. 2. That the trusts of the will, being so far void as to overturn the main design of the testator, the overthrow of the residue necessarily followed; even if the latter were not involved in the fate of the void trust devise to the executors. 3. That the gift to the widow of T. was valid; but the daughters of T. must relinquish their legacies, on coming in as heirs at law. 4. That the legacies of five thousand dollars to the five sons, must fail for the same cause; and also, because they were dependent on the void trusts of the will, and those to G. and W. formed a part of the trusts declared void. |