Arnold v. Gilbert. The purposes for which the trustees were to sell and receive the interim rents, aside from the legacies to the children, and the general distribution, have been accomplished long since; and there is nothing in the way of declaring, that subject to those purposes and the exercise of the power given therefor, the real estate descended to the heirs at law, and that the next of kin were entitled to the personal property of the testator. Of the specific legacies, that to Mrs. Jane Gilbert is distinct from the void trusts, and her receipt of it is not inconsistent with the breaking up of the will at large. But the legacies to her daughters, must be relinquished upon their coming in as heirs and next of kin. (Hawley v. James, 16 Wend. 62; Thompson v. Carmichael's Executors, 1 Sand. Ch. R. 387.) I have concluded, with some hesitation, that the legacies given by the sixth section of the will, must also fail. They are payable out of the sales of the real and personal property. The parties are all to take as heirs, on avoiding the trusts, and must therefore waive the legacies. Besides, so far as they are to be made out of the real estate, they are dependent on the void trust, and two of them form a part of the subordinate trusts which cannot be sustained. The devise cannot be maintained as a power in trust, in respect of these legacies, if it be void as an express trust. (Hawley v. James, 16 Wend. 174, 175, per Bronson, J.; 1 R. S. 728, §§ 55, 58.) The acts of the trustees under the will, should be confirmed, and in the account to be taken, they should have all just allowances, including compensation for their services. The valid powers of sale, were probably sufficient for the protection of bona fide purchasers. The payments made upon the legacies or bequests which are avoided, may be adjusted between the respective heirs in the account. The case of Hawley v. James, (16) Wend. 62, 182, 274, 278,) furnishes a precedent for the proper decrec, in this and many other particulars. There must be a decree declaring these principles, and directing the trustees to account before a master. The complainants costs throughout, and the costs of the other parties in the suit while pending in this circuit, are to be paid out of the estate. Hetfield v. Newton. On recurring to the answers, I find that the want of parties is set up by way of demurrer. No point of this kind was made at the hearing, but it is manifest that there should be other parties brought in, before an effective decree can be entered. The administrators of Ephraim Gilbert, Mrs. Hunt, and Antoinette Gilbert, respectively, are necessary parties. The bill states that the two former died without issue, and it shows that the heirs of all three are parties. It should also appear that they died in testate. A supplemental bill may be filed to remedy these omissions. HETFIELD V. NEWTON and others. WHERE a defence of usury is interposed to the foreclosure of a mortgage, by the purchaser of the equity of redemption, the complainant cannot overcome it by proof that the lands were conveyed subject to the mortgage, unless his bill sets forth the execution and terms of such conveyance. Application was made to D. for a loan to be obtained from his father-in-law H. D. negotiated the loan for $2600, and on taking the mortgage, gave his notes for $600, of the amount; but the loan was all advanced by H., to whom the mortgage was given. D. took a mortgage to himself for $300, for his trouble in doing the business. In a suit by H. to foreclose his mortgage; Held, that D. was a competent witness for H. Application for a loan was made by parties in Western New York, to D. in New Jersey, they expecting D. to obtain the same from H., or some other person there They offered to give D. $300, for doing the business and delivering them the money. D. obtained the loan of his father-in-law, H., took the money to the parties in Western N. Y., received their mortgage to H. for the loan payable with interest, and took a mortgage to himself for the $300. Held, 1. That D. was the agent of the borrowers, and not of the lender, in negotiating the loan. 2. That after the loan was agreed upon, he was the agent of both, in perfecting it and taking the mortgage therefor. 3. That the lender was not affected by the agreement of the borrowers to compensate D., and that the mortgage to the lender was not usurious. In the defence of usury, the proof must strictly sustain the allegation made in pleading. So where in an answer, the usurious agreement was stated to be, that H. was to advance the borrowers $2000, and D. was to give them his notes, one Hetfield v. Newton. for $150, and one for $450, making the $2600, for which the security was given; and the proof showed an agreement by which H. was to advance $2052, iu cash, and $548, in the notes of D., one for $414, and the other for $148; it was held a fatal variance. March, 7; May 27, 1816. THIS was a bill to foreclose a mortgage for $2600, on lands in East Bloomfield, in the county of Ontario, dated April 1, 1840, and executed by Morris Newton and Darius Newton, to the complainant. Amanda Newton was made a defendant, as having some title or interest, to or in the equity of redemption. The testimony showed that the lands were conveyed to her, subject to the mortgage. The Newton's put in an answer, stating that in the spring of 1839, M. and D. Newton applied to one Harvey Dayton, a sonin-law of the complainant, (the two latter residing in New Jersey,) for a loan of $2000, or $2500, offering to him all his expenses. and an extra compensation of $300, beyond the legal interest, for the use of the money. That in the winter of 1840, the negotiation was renewed, and the complainant assented to the terms proposed; upon which Dayton in his behalf, came to East Bloomfield with $2000: That they wanted $2600, and Dayton pro posed to furnish the $600, out of his own funds. And that finally it was agreed between them and Dayton, that the complainant should advance the $2000; Dayton should give them his two notes, one for $450, and the other for $150; the Newton's should secure the aggregate, $2600, by their mortgage on the lands in question, bearing interest at seven per cent.; and that they should execute another mortgage to Dayton for $300, on a village lot in Seneca Falls, for the usurious interest or compensation stipulated for the loan of the $2600. The answer then set forth the execution of this agreement on both sides, and it insisted that the mortgage for $2600, was usurious and void. Issue being joined on this answer, both parties proceeded to take testimony. Dayton was produced as a witness by the complainant, and was objected to by the defendants, on the ground that he was interested in the event of the suit. The facts upon which the objection turned, will be found in the opinion of the Hetfield v. Newton, court. His testimony was taken, subject to the question as to its admissibility. There were several witnesses examined in respect of the alleged usury, and the testimony was in some degree conflicting. It is deemed unnecessary to state it in detail, and the summary in the opinion delivered, will suffice for a proper understanding of the points decided. J. R. Van Rensselaer, for the complainant. E. Foote Jr., for the defendants. THE ASSISTANT VICE-CHANCELLOR.-The deed to Amanda Newton, which would probably preclude her from the defence of usury set up in the answer, is not admissible under the pleadings, for any other purpose than to show that she has an interest or claim in the equity of redemption. The complainant to avail himself of the deed, against the attempted defence, should have set forth the pretence of usury, and charged the execution of the conveyance to Amanda Newton subject to the mortgage, and her assumption to pay it. The first great struggle on the part of the defendants, is to exclude the testimony of Harvey Dayton, on the ground of interest in the event of the suit. 1. It is argued from the evidence of Cory, that a part of the $2000 loaned in cash, belonged to Dayton. The manner in which this witness connected Dayton's conversations with the loan to Newton, does not appear satisfactory to me. He states that his own application for money, was after Hetfield sold his farm, and that it was two or three years prior to his examination, which would bring it in 1842 or 1843. The loan to Newton was consummated the first of April, 1840, and on the defendants hypothesis, was in negotiation nearly a year before. The conversations related by Cory, undoubtedly had reference to the money Hetfield received for his farm. On his first examination Cory could not tell to whom Dayton said the money went, nor whether he stated the person's residence. Even when a leading question was put, with Newton's Hetfield v. Newton. name at full length, Cory was unable to answer. When a lead ing question as to the place was put, he came up to that point so far as to say it was in Western New York. On being recalled, after a few day's interval, he not only recollected Newton's name, but associated Dayton's conversations with the name of Newton, as if the two things had never been dissevered in his mind. Considering the great discrepancy as to the time, the manner in which the witness's recollection was obviously screwed up to the point, the statement in the answer and the virtual concession throughout the residue of the defendants proof, that the $2000, at all events, belonged to Hetfield; I must say that Cory's testimony does not make out Dayton's interest in any part of that sum. 2. It is next said, that $600 of the sum in the mortgage, was furnished by Dayton, and belongs to him. The $600 is in fact $548, and for that amount Dayton gave his notes to Newton. He said he would pay them, and the notes were paid, and the receipt shows presumptively, that Dayton paid the note of $148. On the other hand, the mortgage, given to Hetfield alone, and acknowledging the whole consideration as proceeding from him, is a circumstance of weight. And I think the defendants have proved by Ira R. Peck, in the admissions of Hetfield which they called out to show Dayton's agency, that Hetfield furnished money to the full amount of the mortgage. In considering the question of Dayton's interest, his own testimony is of course to be left out of view; as the point must be determined on the evidence upon which the objection was made to his examination. Some other circumstances bearing upon his interest, will be noticed in examining the case on the merits. It is sufficient to say here, that the defendants have not made out his interest in the $600, so clearly as to exclude him for that cause. 3. The last ground of objection, is Dayton's avowed ownership of the mortgage for $300, which mortgage, it is said, must stand or fall by the result of this suit. I do not perceive how this suit is to affect it at all. If Dayton seeks to enforce it, a decree in Hetfield's favor in this suit will |