ment for his indemnity from the maker of
two notes which he had undersigned, sold
the maker's property on an execution
thereon, and received the proceeds in the
promissory notes of the purchasers of such
property; Held, that he was in equity a
trustee of the last mentioned notes for the
holder of the cbligations upon which he was
surety. And that on his transferring such
notes, in payment of a precedent debt of
his own, or as security for such a debt, the
transferee could not retain them as against
the prior equity of the principal creditor, on
the faith of whose debt they had been rea-
lized. The latter has the prior and supe-
rior equity, and it must prevail over the le-
gal title.
id.
expressing her desire to prevent such a con-
troversy after her death, and directing the
bonds to be cancelled on G.'s executing a
discharge of all demands to his father's
executors and to each of his brothers aud
sisters; and if he should refuse, then the
bonds were to be made a set-off against any
such demands, but they were never to be
put in suit against him. The bonds and
writing were in D.'s possession at her death,
and there was no evidence of their having
ever been out of her possession, or of any
formal delivery of the writing by her.
Held, in a suit against her administrator,
that the bonds should be delivered up to G.
on his executing the discharges specified in
the writing signed by D. Brinckerhoff v.
Lawrence,
400
2. Also that the instrument could not be sus-
tained as a donatio mortis causa, nor on
the ground of an appointment, or as a di-
rection to her legal representatives; but
that it was rather the discharge or forgiv-
eness of a debt.
id.
5. This was held in the case of a bank,
which discounted the trust notes, and ap-
plied the proceeds on a subsisting indebted-
ness, but without relinquishing any security
or property. And also in respect of a judg
ment and execution creditor, who received
such notes in payment, without notice of
the trust; but who did not discharge his
judgment or execution, or prove that he re- See MORTAGE, 12, 21 to 25; 28, 51 to 57;
linquished any lien or security in the trans-
action.
6. The wife of J. W. being seised of lands,
joined him in executing three several mort-
gages to secure his bonds for money lent.
Before his death, his attorney, with means
furnished by him, paid the mortgagees, and
took an assignment of the bonds and mort-
gages, to S., who soon after gave J. W. a
certificate that he held them in trust for J.
W. and subject to his order and control.
Held, that J. W. was the principal debtor, and
his wife's lands stood in the relation of a
surety for his debt. And that after the as-
signment and certificate, the securities be-
longed to him in equity, and the lands were
thereby discharged from the lien of the
the mortgages.
Held also, that one who subsequently pur-
chased the mortgages of S. in good faith
and without notice, could not enforce them
against the widow of J. W. and her heirs.
Fitch v. Cotheal,
CAPITAL STOCK.
See CORFORATION, 14 to 25.
CAVEAT EMPTOR.
See MORTGAGE, 21 to 25.
CHARITIES AND CHARITABLE
USES.
1. Charitable uses were bestowed in England,
and were recognized by law, before the
Norman conquest; and they were always
fostered and protected by the common law.
They were subject to the jurisdiction of the
7. So of a bequest for the relief of such indi-
gent residents of the town of Flushing, as
the trustee or trustees of the town for the
id.
time being should select.
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10. Where in bequests for such purposes, the
name of the legatee is defectively describ-
ed, extrinsic evidence is admissible to show
what society or corporation was intended
id.
by the testator.
11. Various facts admitted in aid of constru-
ing a will and ascertaining the objects in-
tended by the testatrix in her bequests for
charitable purposes, viz. that the testatrix
was a member of a society claiming the
fund; she was attached to a specified sect or
denomination; she had in her life made do-
nations to such society; she was a corres-
poudent of its officers, and had taken a
warm interest in its particular objects; her
deceased husband had exhibited such inter-
est, and had made similar gifts personally
and by his will; as his executrix, she had
transmitted the latter; and that there is no
other like society or institution.
12. An abbreviation of the name of the socie-
ty intended, does not vitiate the legacy;
and resort may be had to a prefix applied to
another society, and occuring in the same
sentence, to complete the designation. id.
13. Where a bequest is given to a seminary
or charitable institution by name, which is
only a descriptive name of a particular in-
stitution or charity established and conduc-
ted by an incorporated college or society;
it is a valid legacy to such corporation to
be applied in respect of the institution de-
id.
signated.
14. So held upon a bequest to a theological
seminary, which was an institution estab-
lished and conducted by the synod of the
Dutch Church; and also on bequests to the
boards of missions, which were established
and conducted by the same Synod.
15. On the construction of a will, legacies to
the Treasurers of the following societies,
Am. Bible, Tract, Synods Board of Mis-
sions, Domestic Missions, N. Y. Coloniza-
tion and Seaman's Friend;" were held in-
tended for The American Bible Society,
The American Tract Society, The Gene-
ral Synod of the Reformed Protestant Dutch
Church, The New York State Colonization
Society, and The American Seaman's
id.
Friend Society.
16. Two Lutheran churches or religious soci-
eties, each owning temporalities, though
of unequal value, entered into an agree-
ment for a union, to remain forever as one
body, congregation or society, by a new
name expressing such union; and by which
their estates were to be consolidated for the
common use and benefit, and the charge of
their estates and concerns was intrusted to
officers to be chosen out of the united con-
gregation; with other provisions showing
an entire union and consolidation into one
body; and the agreement also provided that
out of the property, the ancient church of
one of the constituent societies should be
rebuilt on the site where its ruins stood, for
the use of the united congregation as soon
as circumstances would admit.
The united body was immediately afterwards
incorporated by the name agreed upon,
and after twenty years, the corporation sold
the site of the ancient church, and never
rebuilt it.
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In a suit brought by persons claiming to be 19. Where a church claiming two legacies, as
corporators in the united church, and to be
in part the representatives of the ancient
congregation which owned such site, to
compel the corporation to build and endow
a church in pursuance of the terms of the
union: Held, amongst other things,
1. That all the property of the two churches
became vested in the incorporation.
2. That the management and control of the
same vested in the trustees as a distinct
body, and to the exclusion of the elders and
deacons.
3. That the same vested in the corporation as
an individual body or unit, in trust for the
maintenance of the faith, doctrines and dis-
cipline of the Evangelical Lutheran Church;
and not for the benefit of the two former
congregations connected together for cer-
tain purposes. The existence of both was
merged in the union. Cammeyer v. Unit-
ed Lutheran Churches,
186
to which the executors entertained doubt,
received the same from the executors, and
executed to them a bond and mortgage for
the amount, payable in three years; but
which were given solely for their indemni-
ty: it was held, after the lapse of twenty-
six years, that the residuary legatees could
not enforce the mortgage, although the
church was not entitled to receive the lega-
cies so paid by the executors.
1. Commission is not limited to a compensa-
tion or per centage on the receipt, payment,
or transmission of money, or its equivalent.
It is an allowance to a factor, broker, agent,
or other person who manages the affairs of
others, for his services therein; and is usu-
ally ascertained by a per centage on the
value of the property sold or amount of the
business done. Stevenson v. Maxwell, 273
17. B. having purchased a church edifice at
a public sale, in his own behalf, conveyed
it to an incorporated Lutheran Church,
(which had another place of worship,) for a
consideration equal to three-fourths of its
value, on certain express conditions, of
which one was that divine service therein
should be in the English language. After 2
a trial by the grantees in the maintenance
of such service, which did not prosper, B.
released them from all the conditions, ex-
cept the one requiring it to be used as a
Lutheran Church. Held,
1. That on the execution of the deed there
were no cestuis que trust in existence or in
expectancy; but that it created a charitable
use, the fund for which flowed from B. and
the corporation, as donors, and the latter
were almoners of the charity.
2. That persons coming to worship in the edi-
fice, acquired no rights, beyond the period
Under a decree for an account of joint ope-
rations in real estate, the master was direc-
ted to allow no commissions. Held, that
this excluded an allowance for superinten-
dence and management of the joint proper-
ty.
id
COMMISSIONERS OF ESTIMATE
AND ASSESSMENT.
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2. W. was the accommodation indorser of his
son N., on a note to B., payable at the
complainant's bank, on the 31st July. By
an error of their clerk the note when left
for collection, was entered as due 31st Au-
gust, and was not presented for payment
at its maturity, nor any notice of its non-
payment given. N. was aware of there
being a mistake at the bank as to the time
when the note would fall due; but to pro-
vide for its renewal in case it should be pro-
perly presented, he prepared a new note
for the same amount dated 31st July, and
his check for the discount, and left the same
with his partner who was the notary of the
bank, to obtain his father's indorsement on
the note, and renew the old note if it were
presented on that day. W. on the 31st
July called on the notary and indorsed the
new note, but nothing was done with it.
B. claimed the amount from the bank on
the neglect to charge the indorser, and the
bank paid B, and then sued W. on the old
note. W. defended the suit. Some months
after, two large mortgages of W. to the
bank, on distinct parcels of land, fell due,
and W. desired an extension of payment.
The result was an agreement, by which W.
paid about one-third of N.'s note, and exe-
cuted a new mortgage to the bank for the
amount of the two former, payable at a
future day, and embracing both parcels of
land. Held, that the mortgage was not
usurious.
id.
CONCEALMENT.
See CONFIRMATION, 3.
1. The executors, under a will which directed
a conversion of the real estate of the testa-
tor, and a distribution of the proceeds equal-
ly among his children; made a sale which
was alleged to be invalid by the heirs of
one of the daughters of the testator who
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R. by his will, gave two legacies to a
church, one of which was valid, and the
other being specific was adeemed. He
gave all his residuary property to two sis-
ters, who resided in Ireland and who never
visited this country. The executors, with-
out fraud or collusion, in 1812 paid both le-
gacies to the church and took from the
church a bond and mortgage for their in-
demnity. In 1817, M. one of the sisters,
filed a bill here against the executors for a
account; and an account was taken by a
master in 1822, pursuant to a decree. The
payments to the church appeared in the
executors accounts, and were allowed to
them by the master. The master reported
the sum due to B. the other sister, as well
as to M., and the decree directed payment
to them respectively; although B. was not
represented in the suit. It also directed
the executors to sell the real estate when-
ever required by B. and M., and to pay
them the proceeds. M. received the amount
decreed to her In 1832 B. and her hus-
band filed a bill here against the surviving
executor for an account; which suit was
continued by B's administrators; and in
which a decree for an account was made;
restricted to the basis of the account taken
in M.'s suit in 1822. The master report-
ed in B.'s suit, and in Feb. 1835 a decree
was made in favor of her administrators,
and also in favor of M.'s administrator,
who had come in before the master. In
1835, B.'s administrators filed a bill to com-
pel payment of the sum decreed to B. in
M.'s suit in 1822; and the suit was set-
tled on payment being made. In 1834, the
heirs and legal representatives of B. and
M. filed their bill against the surviving ex-
ecutor of R. praying the benefit of the de-
cree in M.'s suit; and that he might sell
the real estate and carry that decree into
effect; and in 1836 a decree was made ac-
cording to the prayer of the bill. During
all these proceedings, the bond and mort-
gage of the church were unknown to B..
and M., their representatives and legal ad-
visers; they were not produced or men-
tioned in the suits; but they were not in-
tentionally concealed or suppressed.
In a suit in 1842, by the administrators of B.
and M., to have the benefit of the bond and
mortgage; or to compel the church, or R.'s
surviving executor, to refund the legacies;
it was held, that the ignorance of M. and
B. of the bond and mortgage was not ma-
terial; the executors being liable to ac-
count to them irrespective of those securi-
ties. That M. was barred by the account-
ing in 1822. And that B by adopting it
in the subsequent proceedings, was preclu-
ded from questioning its correctness. Also
that B. was barred by her suit in 1832 and
the decree thereon.
id.
See COMPROMISE, 1, 2.
MORTGAGE, 6 to 9; 21 to 25.
See AGREEMENT, 3.
PARTNERSHIP, 1.
TRUSTS, III.
WILL, II; III.
See AGREEMENT.
BANKING ASSOCIATIONS.
See CORPORATIONS, 21 to 24.
MORTGAGE, 36, 63, 64.
See EQUITABLE CONVERSION.
2. An abbreviation of the name of the society
intended, does not vitiate the legacy; and
resort may be had to a prefix applied to
another society, and occurring in the same
sentence, to complete the designation. id.
3. Various facts admitted in aid of construing
a will and ascertaining the objects intended
by the testatrix in her bequests for char-
itable purposes, viz. that the testatrix was
a member of a society claiming the fund:
she was attached to a specified sect or
denomination; she had in her life made
donations to such society; she was a cor-
respondent of its officers, and had taken a
warm interest in its particular objects; her
deceased husband had exhibited such inte-
rest, and had made similar gifts personally
and by his will; as his executrix, she had
transmitted the latter; and that there is no
other like society or institution.
4. Where a bequest is given to a seminary or
charitable institution by name, which is
only a descriptive name of a particular in-
stitution or charity established and conduct-
ed by an incorporated college or society;
it is a valid legacy to such corporation to
be applied in respect of the institution de-
signated.
id.
5. So held upon a bequest to a theological sem-
inary, which was an institution established
and conducted by the synod of the Dutch
Church; and also on bequests to the boards
of missions, which were established and
conducted by the same Synod.
On the construction of a will, legacies to the
"Treasurers of the following societies, Am.
Bible, Tract, Synods Board of Missions,
Domestic Missions, N. Y. Colonization and
Seaman's Friend;" were held intended for
The American Bible Society, The Ameri-
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