Stevens vs. Ruggles et al.

sound construction of this clause is, that it applies to so much of the estate of the deceased person, whether it be an undivided moiety or the whole, as is without a known heir or representative; for as to such portion of the estate, the deceased, in the very words of the statute, died, "leaving no known heir or representative within the United States." A co-heir or co-tenant is in no just sense the heir or representative of the deceased thereto. The case is equally within the mischief of the statute, whether the deceased be the owner of the whole, or of an undivided portion of the estate; and whether his unknown heir take the whole, or an undivided portion of it by descent. In each case, the object is to preserve the estate in the possession of the town treasurer for the benefit of the rightful owner, whenever he shall appear.

The only real doubt upon the words of the statute is, whether a person, who dies leaving heirs or representatives within the United States at the time of his death, who afterwards remove from the United States, and leave no representatives behind, is within its purview. In strictness of construction, the words seem limited to cases, where there is no known heir or representative of the deceased left within the United States at the time of his death. Perhaps it is not easy to enlarge that construction by implication, so as to reach all the mischiefs arising from subsequent events.

In the present case, it does not appear from the state of facts, what has become of the devisees and immediate heirs of the estate of T. T. Taylor. They are said long since to have removed abroad. Whether they are now living, does not appear. The fair presumption from the lapse of time may be, that all of them have died since their removal, and that thereby a descent has been cast upon their own heirs. If so, then as these last heirs are unknown, the case would be fairly within the reach of the statute to the extent of the three quarters now claimed.

Stevens vs. Ruggles et al:

The statement is not sufficiently precise to enable the Court to draw such a conclusion with absolute certainty. The case must, therefore, be determined upon the first ground; and for want of any title in the demandant, his right of recovery must be limited to one quarter part of the demanded premises.

Judgment accordingly.

PARDON BROWNELL vs. ELISHA DYER.

If a right of way be limited to particular purposes, and there yet be a covenant, that the same way shall be kept open and free of incumbrances, the grantor has no right to put a fence on the same, or in any other manner to obstrust the same way.

CASE for disturbance of a right of way ten feet wide. Plea, not guilty.

At the trial it appeared, that the parties respectively claimed title to the premises on each side of the way, as privies in estate of Benjamin Eddy and John Young, between whom an indenture was made on the 18th of September 1794, under which the right of way was claimed. The indenture was, in substance, as follows, viz.-"This indenture made, &c. between Benjamin Eddy, &c. of one part, and John Young, &c. on the other part, witnesseth, that the said Benjamin Eddy for the considerations hereafter mentioned to be kept and performed by the said John Young, will, on or before the 1st day of May next, lay open the following strip or piece of land off the westerly side of his house-lot, on Westminster street in said Providence, bounded and described as follows: beginning, &c. And the said Benjamin Eddy for himself, his heirs, executors, administrators, and assigns, doth hereby covenant to and with the said John Young, his heirs, &c. that the said strip of land (which was seven feet wide) shall from and after the said 1st day of May next forever be kept open,

Brownell vs. Dyer.

free and clear of any buildings, or other encroachments, for the mutual benefit of the said parties and their assigns; and the said John Young, on the other part, for himself, for the considerations above mentioned, to be kept and performed by the said Benjamin Eddy, covenants and engages to lay open the following strip of land off the easterly side of his house-lot on said Westminster street, bounded and described as follows, beginning, &c.; and the said John Young for himself, his heirs, &c. covenants to and with the said Eddy, his heirs, &c. that from and after the 1st day of May next, the said described strip of land, three feet wide, and extending northerly from said street eighty feet, shall forever after be kept open for the mutual use and benefit of the said parties and their assigns, clear of any buildings, or other encroachments.

In testimony whereof," &c.

To this agreement there was added the following memorandum, signed by said Eddy and Young.

"N. B. "T is to be remembered, that the mutual benefit expressed in the above indenture, respecting the seven and three feet of land, is to be considered as follows, viz. that each party has liberty for suitable jetts and window-frames to the houses, over it; that said Young has only liberty of passing and repassing occasionally for repairing and other special purposes, and for light and air to his buildings; said Eddy has the use of the seven and three feet for passing and repassing as a gangway at all times, and light and air, or other uses, not obstructing Mr. Young's privileges above described."

It appeared in evidence, that in July or August last past, the defendant, who claims under Eddy, put up a fence on the line of his land, and extended the fence the whole length of the way, leaving only three feet next to the plaintiff's estate (which was Young's) open. In front, upon the street, he also erected a gate.

The principal question at the trial was, as to the true construction of the terms of the indenture.

Brownell vs. Dyer.

The cause was argued by Whipple for the plaintiff, and by Thomas Burgess for the defendant.

BY THE COURT. The true intent of the indenture is, that there shall always be kept open for the benefit of the parties, free of buildings and encroachments, a way of ten feet. Neither party is at liberty to narrow, or enclose any part of the space so agreed to be left open. It is true, that by the memorandum Young has not a general right of passage for all purposes, but a limited right only "of passing and repassing occasionally for repairing and other special purposes, and for light and air for his buildings." But this use does not narrow the effect of the covenants in the indenture to have the way kept free and without incumbrances. On the contrary, the very object of the parties in respect to this limited right of way is best attained by a free 'passage, not only for repairing, but for light and air. The fence was, therefore, wrongfully erected by the defendant.

Verdict for the plaintiff.

UNITED STATES US. WILLIAM HUNTER.

Where the assignee of an insolvent debtor recovers a demand, and expenses are incurred thereby, the latter are a charge on the fund, and the right of priority of payment of the United States attaches on the residue.

The United States are not bound to contribute, pro rata, for the sum due to them.

THIS

HIS was a bill in equity, upon the coming in of the answer to which, and a hearing thereupon, the case was by an interlocutory decree of the Court referred to a master at the June Term last. And now, at the present term, the master made his report. That part of it, which related to the question hereinafter raised, was as follows:-"I find and report, that the claim of the

United States vs. Hunter.

United States on the two judgments set forth in the pleadings, amount on the 15th day of November inst. to the sum of $5064.17; that the said William Hunter received from the treasury of the United States, on the claim set out in the pleadings, $8158.81; from which sum I have deducted $1386.04 for the said Hunter's services, commissions, and expenses, in preferring and prosecuting the claim before the board of commissioners, and for receiving the money from the treasury of the United States, leaving a balance in his hands of $6772.78, subject to the claim of the United States.

The defendant contended at the hearing, that the United States were bound to contribute towards the expenses, which had accrued in recovering the money, in proportion, as their debt bore to the whole amount recovered by the defendant from the United States on the claim in question; and that the same should be deducted from their debt. But I have decided, that the expenses should be deducted from the gross amount recovered on the claim; and that the priority of the United States attached on the residue, from and out of which they were entitled to receive their debt in full, if sufficient remained for that purpose.

Upon the coming in of the report, the defendant insisted, by way of exception, on the point respecting contribution, which he had contended for before the master, and which was overruled by the master.

Robbins for the defendant, and Greene (District Attorney) in support of the report.

STORY J. The Court are of opinion, that the master was right, and therefore overrule the exception. The expenses of recovering the money are first to be deducted from the gross proceeds received by the defendant, as a charge thereon. The neat amount, after all deductions, is that alone, which he is compellable to distribute; and to that the right of priority of the United States attaches. That is the fund, from which they are