Hall v. Fisher.

decree must also direct that Calvin Fisher execute and deliver to the plaintiffs an instrument in writing, under seal, covenanting that he has done no act, nor suffered any to be done, whereby the premises in question have been incumbered or the title thereto affected or impaired, except the act of conveying the premises to Henry Fisher on the 5th of April, 1843, and the act of conveying the same to Charles Miller on the 16th of August, 1847. And the decree must declare that the plaintiffs are entitled to the rents and profits of the premises since they relinquished to the defendants or any of them, or were deprived by them or any of them, of the possession thereof. And it must direct a reference to take an account of such rents and profits. The decree must direct that the defendants Miller, Clark, Tyler and Artcher pay to the plaintiffs their costs from the beginning of the original suit; and that if Miller is compelled to pay such costs to the plaintiffs he may have a remedy over for the same, against Clark, Tyler and Artcher. The decree must reserve to the plaintiffs the right to enforce, by any other suit or suits, any claim which they may have against the representatives of Henry Fisher, or against Calvin and Austin Fisher, or either of them, for rents and profits of the premises in question received by Henry Fisher during his life, or by Calvin and Austin Fisher, or for any waste committed by them or either of them, after the plaintiffs relinquished or were deprived by them, or by any one or more of them, of the possession of the premises.

The decree must also direct that the plaintiff's pay to Calvin Fisher his costs down to and including those of putting in his answer to the original bill.

ALBANY SPECIAL TERM, July, 1850. Harris, Justice.

BECK executor, &c. and SEWELL vs. MCGILLIS and others.

Aliens are incapable of taking by devise, any interest in real property, in this state. But this disability does not extend to personal property.

Neither the marriage of a female with an alien husband, nor her residence in a foreign country, will constitute her an alien, so as to prevent her taking real estate in this state by devise.

A testator, by the first clause of his will, gave to his daughter E, McG., certain real and personal property, subject to the limitations and powers in trust therein specified, for her sole and separate use, during her natural life. He then appointed her husband a trustee "to take possession of all and singular the property devised to her, and to receive the rents, issues, interests and profits thereof, and to apply the same to her use, during her natural life, as she should direct." Held, that Mrs. McG. took a life estate in the property specified, in her own right, and that no valid trust, or power in trust, was vested in her husband.

And where, by the codicil to the same will, real and personal property were given to Mrs. McG. to be held by her subject to the like restrictions and limitations, and subject to the same powers in trust as specified in the will; Held, that Mrs. McG. took an absolute life estate in the property given her by the codicil.

Where, after the execution of a will, the testator sells and conveys a portion of
the real estate therein devised, receiving payment of the purchase money for a
part thereof, and taking the bond of the purchaser for the price of the residue,
secured by a mortgage upon the land, such sale and conveyance amount to a
revocation of the devise.

And if such bond and mortgage are owned by the testator at the time of his
death, and are not effectually disposed of by his will, their proceeds when
collected, are liable to distribution according to law.
After the execution of a will, and during the life of the testator, a mortgage exe-
cuted by B. and therein specifically devised to E. McG., was foreclosed. Upon
the foreclosure sale the mortgaged premises were purchased by S., who exe-
cuted a new bond to the testator, for his debt, secured by a new mortgage
upon the same premises. Held, that by this change in the security, the legacy
was adeemed; notwithstanding that after the death of the testator there was
found, among his papers, a memorandum in his hand-writing declaring the
S. bond and mortgage to be but a renewal of the B. bond and mortgage, and
that it was his intention that it should pass to E. McG. under his will.
Distinction between the ademption and the satisfaction of a legacy.

If a specific legacy does not exist, at the death of the testator, it is adeemed.
And this rule prevails without regard to the intention of the testator, or the
hardship of the case.

Beck v. McGillis.

Under a bequest of "all moneys" that the testator should die possessed of, the legatee is entitled to the cash, using the term in its popular sense, which the testator, at the time of his death, has in his possession or deposited in bank, and to nothing else.

A bequest of “all bonds and mortgages for sales already made, or which may be hereafter made for lands in the county of W." cannot be construed to embrace contracts for the sale of such lands, where no deeds had been executed.

THE Complaint in this cause stated that William Caldwell, late of the city of Albany, departed this life on the 1st day of April, 1848, after having made and published his last will and testament, in writing, in due form of law to pass real and personal estate, bearing date the 29th day of March, 1841, and also a codicil thereto in like form, bearing date the 29th day of December, 1841; which will and codicil were in force at the time of the testator's death. The will contained these provisions.

"First. I give, devise and bequeath to my daughter Eliza, the wife of John McGillis of St. Johns, in the province of Lower Canada, advocate, the following described property, subject to the limitations and powers in trust hereinafter specified a lot and the buildings thereon, on the south side of State-street, in the ward of the said city, bounded north by the said State-street, west by the ground of Isaiah and John Townsend, south by Norton-street, and east by the ground of Christian Miller, subject to a mortgage executed by me to the Albany Insurance Company, for two thousand six hundred and fifty dollars, the amount remaining due to that company for the stock thereof hereinafter mentioned; also a lot and the buildings thereon, situated on the east side of North Pearlstreet, in said city, between State-street and Maiden Lane, bounded west by North Pearl-street, east by James-street, being the same property now in the occupation of Seth Hastings; also a lot in the ward of said city, in what was formerly called "the Colonie," on the west side of Broadway, which lot was formerly occupied as a garden, and under lease to Andrew Kirk; also my mansion house in the town of Caldwell, Warren county, and state aforesaid, with the grounds attached, about thirty acres, now occupied by my agent, Seth C.

Beck v. McGillis.

Baldwin; also I give, devise and bequeath to my said daughter Eliza, a certain bond executed to me by Charles Chapman of the city of Albany, together with the mortgage accompanying the same; a certain other bond executed by James L'Amoureux of said city, together with the mortgage accompanying the same; a certain other bond executed by William Radley of said city, together with the mortgage accompanying the same; a certain other bond executed by Jesse Buel of said city, together with the mortgage accompanying the same; also a certain contract executed by Daniel Gifford of the city of Albany, and the moneys due and to grow due thereon; also a certain contract executed by James Ferguson, and the moneys due and to grow due thereon; also fifty shares of stock in the Albany Insurance Company, five shares of stock in the Delaware Turnpike Company, together with the interest due on the bonds, contracts and stock aforesaid, and all the rents due at the time of my decease on the above described real estate, and all moneys that I shall die possessed of; also a certain other bond executed by John Baird, together with a mortgage accompanying said bond, on the Lake House property at Lake George, and the interest due upon the same. To have and to hold all and singular the property both real and personal above described, to my said daughter Eliza, during her natural life, for her sole and separate use, as is hereinafter more particularly provided; and from and after her decease, I give, devise and bequeath said property to her husband, the said John McGillis, if he shall survive her, for and during his natural life; and from and after the decease of both my said daughter and her said husband, I give, devise and bequeath the remainder or fee simple in said property to the lawful issue of my said daughter then living, in such relative proportions, (if such issue consist of more than one person,) as they would by the laws of the state of New York have then inherited or taken the same from her, in case she and they were then native born citizens of said state, and she had then died intestate, lawfully seised of said property in fee simple. To have and to hold the said remainder in said property to the said issue of my said daughter; if

Beck v. McGillis.

such issue consist of one person only, to him or her, his or her heirs and assigns forever; but if such issue consist of several persons, to have and to hold the same to them, their heirs and assigns forever, in the proportions above provided for.

And whereas, in the preceding devise I have given a life estate to my said daughter Eliza, in the property therein devised, and declared my intention to be, that the same shall enure to her sole and separate use during her life, which intention may be defeated unless I appoint a trustee to take charge of said property during the life of my said daughter, and thereby secure its enjoyment to her for her own separate use, free from all claims and liabilities to which it might otherwise be subject; and whereas, I consider the said John McGillis, the husband of my said daughter, to be a suitable and the most proper person to be appointed a trustee for the purpose aforesaid, I do therefore hereby constitute and appoint him a trustee for my said daughter, to take possession of all and singular the property above devised to her, and to receive the rents, issues, interests and profits thereof, and to apply the same to the use of my said daughter, during her natural life, in such manner as she shall direct; and in case any of the principal of the securities for the payment of money included in the preceding devise, shall be paid to the said trustee during the life of my said daughter, or if he survives her, during his life, he shall reinvest the same in as safe and secure a manner as the same was invested, prior to such payment, and the same shall after such reinvestment be held subject to the same trusts as before.

Second. I give and bequeath to my said son-in-law, John McGillis, my wardrobe or wearing apparel; also all articles intended for my personal use contained in my inner office at Caldwell, on Lake George, together with my skiff or small boat called the Emerald, used on said lake, with its appendages, to have and to hold the same to the said John McGillis, as his absolute property.

Third. I give and bequeath to William Hugh Caldwell, son of my said daughter Eliza, my gold snuff box and gold watch, and my silver shaving box.