1837.

Wood

V.

Vandenburgh.

estate of the decedent was not sufficient for the payment of that debt, but they took it also charged with the payment of the legacies, six years after the death of the father, according to the terms of his will, as I have before stated. By the will of the decedent, taken by itself, these legacies which are directed to be paid to his father's legatees, would as general legacies be liable to abate rateably with the legacy for the support of negro Tom and for the education of Jacob Ryersdorf, if all the legacies in respect to the decedent were mere gratuities or bounties. But as he was to take the property, devised to him by his father, charged with the payment of these first mentioned legacies, there was, so far as related to that fund, a valuable consideration for this testamentary gift of the decedent. Those legatees, therefore, take their legacies as purchasers; and they are only liable to abatement as between themselves. (See Heath v. Dendy, 1 Russ. Rep. 543; Davenhill v. Fletcher, 1 Blunt's Amb. 245, note 2; 2 Will. Law of Ex'rs, 839.) The sum of $500, out of the proceeds of the property released to the executors by the father of the decedent, must therefore be set apart and securely invested for the payment of these legacies at the expiration of six years after his death; and the interest or income thereof, in the meantime, must be disposed of as a part of the funds of the estate, for the payment of debts and other legacies not before provided for.

As the support of the parents and unmarried sister and of negro Tom, exceeded the income of the estate, exclusive of the $500 and interest for the education of J. Ryersdorf, there was no interest or income to be paid over to the decedent's parents, for life, beyond the amount of the provision for their support. The next question which arises, therefore, is, whether the nephew, Jacob Ryersdorf, was entitled to a second legacy of $500, payable out of the residuary estate of the decedent after the death of the father and after the nephew shall be of age. And upon a comparison of the several claims of this will, I am satisfied that the testator intended that his nephew should have two legacies of $500. The legacy for his education was to draw interest

1837.

Wood

V.

from the time of the settlement of the estate, or the investment of the proceeds thereof: that is, from the expiration of one year after the death of the testator, which is the time allowed by law for that purpose. And the principal Vandenburgh. of that legacy was to be paid when the legatee arrived at the age of twenty-one or sooner, if necessary, even if the testator's parents should then be living. But the other legacy is made payable out of the residuary estate of the de cedent, after the payment of all other legacies and claims. thereon except those in favor of the residuary legatees. And by the terms of the will, this last legacy of $500 was not to be paid until after the death of both of the testator's parents, and when the legatee should have arrived at lawful age. It was a vested legacy, but payable in futuro; and which does not carry interest until after the time appointed for its payment. This last legacy of $500 must therefore be paid out of the residuary estate, if any such there shall be; and if paid before the time appointed for that purpose by the will of the testator, the interest thereon until that time must be discounted. Whatever remains of the estate after that must go to the residuary legatees of the decedent, according to his will; subject, however, to the directions herein before given as to the election of Catherine the unmarried sister, between the one-sixth of the residuary estate and the provision for her support after the death of her father, according to the agreement of the decedent.

As it was proper for the executors to take the opinion of the court in relation to the various and entangled equities of the several defendants, arising out of this very complicated trust, their costs, and the costs of the guardians ad litem of the several infant defendants, must be paid out of the funds in the hands of the executors. And a decree must be entered according to the preceding decision and directions; which decree must also declare that the defendant Heartt has no claim upon the estate as a creditor. If practicable, the consequential directions to the executors upon the coming in and confirmation of the master's report should also be contained in this decree; so as to save to

1837.

German

V.

Machin.

the estate the unnecessary expense of bringing the case before the court upon any equities reserved. I understand that Gilbert Vandenburgh, the father of the decedent, has died since the argument of this cause; and as the whole of the subject of this litigation survives to the other defendants, there must be an order suggesting his death and directing the cause to proceed against the other defendants alone. The general decree in the cause will then be entered, leaving out his name in the title, or naming the other defendants as his survivors.

GERMAN US. MACHIN.

Where the testator devised a part of his real estate to his descendants, charged with the payment of an annuity to his widow, and devised and bequeathed the residue of his estate to her during her widowhood, with power to sell the same for the payment of debts or for her own use during widowhood; Held, that as there were no debts requiring the sale of the real es. tate devised to the widow, she was only authorized to sell the reversionary interest therein for her own support in case the income thereof, and her annuity, should be found insufficient for that purpose.

To entitle a party to a specific performance of an agreement for the sale of real estate, the contract must be certain in its terms and mutual in its character.

The rule of the court of chancery that parol contracts for the sale of real estate are taken out of the statute of frauds by a part performance of the parol agreement, ought not to be extended to new cases which do not come clearly within the equitabie principles of the previous decisions on that subject.

Where a bill in chancery is filed for the partition of lands of which the com. plainant is a tenant in common of the legal title, the defendant may set up in his answer, as a defence to the suit, an equitable title in himself to the whole premises.

But where the defendant in a partition suit, in addition to the defence of the suit and a dismissal of the complainant's bill for partition, wishes for affirmative relief on his part, by a decree for a transfer to him of the legal title to that part of the premises which is vested in the complainant, he must file a cross bill, and must also set up the same matter in his answer as a defence to the original bill of the complainant.

The provisions of the revised statutes do not authorize a submission to arbitrators of a claim in fee to real estate, under an alleged agreement by parol to sell and convey such estate.

The possession of one tenant in common is prima facie the possession of the other. And if the defendant in a partition suit wishes to avail himself of the defence that the premises were held adversely to the complainant at the time of the filing of the bill for partition, the answer must contain a distinct allegation of the fact.

Where exceptions to an answer for impertinence were unnecessarily prolix in setting out the matter excepted to at length in the exceptions, the chancellor refused to allow the complainant her costs of the reference, although she succeeded as to all the exceptions referred.

1837.

German

V.

Machin,

THIS case came before the court upon exceptions to a January 23. master's report, upon exceptions to the defendant's answer for impertinence. The bill was filed to obtain partition of lands in which the legal estate was in the parties in equal proportions, as tenants in common of a reversion in fee after the death of their mother, who died a short time previous to the filing of the bill. Most of the exceptions depended upon the validity of the defence set up in the answer of the defendant, in which he claimed the equitable title to the whole premises under a parol agreement with his mother in her lifetime, and in pursuance, as he alleged, of a power contained in the will of his father, under whom both parties derived their legal title to the premises. The master decided that a defendant in a partition suit in this court, who admitted the legal title to be in the parties as tenants in common as stated in the bill, could not in his answer set up an equitable title to the whole premises as a defence to the suit; but that he must resort to a cross bill. He therefore allowed all of the exceptions to the answer, and the defendant took three exceptions to the report, embracing in three separate classes the whole of the exceptions allowed by the master.

J. Rhoades, for the complainant.

M. T. Reynolds, for the defendant.

THE CHANCELLOR. The first exception for impertinence covers a part of the answer which sets out a parol agreement between the parties to submit the controversy beVOL. VI.

37

1837.

German

V.

Machin.

tween them in relation to the lands in question to an arbitrator for his decision thereon. I do not understand this submission as stated in the answer to be a submission to the arbitrator to make a partition of the premises according to their legal rights; but a submission of the claim of the defendant to the whole premises under the alleged agreement with their mother, which appears to be the whole subject of controversy between these parties. The submission of such a controversy, therefore, was one not allowed by the provisions of the revised statutes, as it was a submission of a claim of the defendant to the whole of the premises in fee; and it would not have been binding upon either party even if it had been in writing. The defendant's counsel supposes that the statement of this submission, and of the revocation of it, is material, on the ground that it might have an influence upon the court in deciding the question as to the general costs in the cause. If I am right, however, in supposing this was a subject which could not be legally submitted to an arbitrator by parol, a refusal to proceed on such a submission would furnish no reasonable ground for giving or withholding costs in a case where the costs rested wholly in discretion. This, however, is a suit for partition founded upon a legal title, and if the complainant succeeds in her claim to the whole of the undivided. moiety of the premises, the costs must be apportioned between the parties according to their respective interests in the premises, except such costs as may be occasioned by the defendant's unfounded claim to an equitable title to the whole land. This exception to the answer was therefore well taken, and the first exception to the master's report must be overruled.

The master was wrong in supposing that a defendant in a partition suit in this court could not set up in his answer, as a defence to the suit, the fact that he was in equity entitled to the whole premises of which partition was sought by the bill. The defendant must unquestionably proceed by cross bill, if, in addition to the denial of a decree for partition and a dismissal of the bill, he seeks full and affirm