Brady v. McCosker — 1 How. App. Cas. 480

Majority

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Brady, appellant, agt. McCosker, an infant, &c., by his next friend, respondent.

Headnote

Questions discussed.

1. Whether the original bill of complaint, filed in the court below by Thomas McCosker, was multifarious, by praying that the will of John McCosker, the younger, be set aside, because of incompetency and undue influence, and also praying that if said will be held valid, that partition- be made of the real estate ?

2. If jurisdiction in equity can be entertained in any case of a bill of complaint filed by an heir at law to set aside the will of his ancestor for alleged incompetency and undue influence, whether it must not only be where there not only exists a legal impediment to his obtaining redress at law, but where such impediment has not been created b'y his act, or that of his ancestor 1

3. Whether any impediment existed to the right of Thomas McCosker to bring ejectment, such as would create jurisdiction in equity over this case ?

4. Whether John Andrew McCosker, the respondent, who filed the bill in this case, in the nature of a bill of revivor and supplement, being devisee of his father, Thomas McCosker, (who filed the original bill,) and a defendant in the original suit, could revive it, until a decree had been made giving him an interest in its continuance.

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5. Whether John Andrew McGosker was prevented by any legal impediment from bringing a suit in ejectment ?

6 Whether James T. Brady was improperly made a party to this suit ?'

This was an appeal by James T. Brady from a decision of the chancellor, affirming the decision of the vice-chancellor of the first circuit, overruling a demurrer to the complainant’s bill.

John McGosker, the elder, died on the 26th of March, 1889, seized of certain real estate in the city of New-York, particulary described in the bill of Thomas McGosker, hereinafter mentioned, leaving his two sons, John McGosker, the younger, and Thomas McGosker, his only children and heirs. By his will, made in 1$34, he directed his executors, one of whom died in his life time, and the other two afterward refused to accept the trust, to take possession of his real and personal estate, except such as was bequeathed to his wife, and to sell the personal estate and to rent the real estate, and to receive the rents thereof for five years from the time of his death, and apply the same to the payment of his debts and the annuities specified in his will, and to pay over the balance to his son John after the expiration of the five years. He then devised the whole of his real estate, after the expiration of the five years, except a house and lot in Houston-street, which he subsequently disposed of in his life time to his son John during his natural life, with remainder to his issue in fee, and in case his son John should die without issue, then the real estate should go to the heirs of his brother Thomas, who was then residing in Ireland. The testator then gave to his son John an annuity of two hundred dollars, to be paid quarterly during the five years. He gave a similar sum to his son Thomas during his natural life, to be paid by the executors quarterly during the five years, and after that time by his brother John or his heirs. This will was duly proved as a will both of real and personal estate, and letters of administration with the will annexed were granted to J. McGosker the younger. At the time of the death of J. McGosker the elder, his only descendants then living were his two sons named in his will, and his grandson, the complainant in the present suit, who was the only child of the testator’s

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son Thomas. Thomas McCosker, the brother of the testator, and whose heirs were made the residuary devisees, by the terms of the will, in case of the death of John McCosker, the younger, without issue, was still alive, and had several children and descendants then living, but he and 'they were all aliens and incapable of taking real estate by devise or descent in this state. And he and they continued to be so incapable at the time of the death of John McCosker the younger, who died in 1843, without issue and unmarried, and without having sold his interest in the real estate of his father, leaving his brother Thomas, and his nephew in the present suit, surviving.

On the 12th of March, 1844, within five years after the death of his father, Thomas McCosker, the son of John McCosker the elder, filed a bill in this court before the vice-chancellor of the first circuit, against the complainant in the present suit, and against Maria L. Brady, J. R. Brady, and J. T. Brady, who are the defendants in the present suit, stating the before mentioned facts. That bill also stated, that in February, 1842, John McCosker, the younger, leased one of the lots in New-York, of which his father had died seized, to C. Maas, for three years from the first day of May, 1842, at an annual rent of five hundred dollars, and that the assignee of Maas was in possession of fhat lot under such lease, and was paying rent therefor to R. Martin, as agent for whoever was entitled to the same; and that the residue of the lots, of which John McCogker, the elder, died seized, were in the hands of numerous occupants, as tenants thereof, and from whom the rents could not be obtained without the constant attention of some person having all the powers of a landlord to collect the same. That bill further stated that the personal estate of the testator was all disposed of by John McCosker the younger, who, at the time of his death, did not leave sufficient personal property to pay his funeral expenses ; and that the complainant in that bill, upon the' death of hi$ brother, became entitled to one-half of the real estate of which the testator died seized, as one of the heirs at law of his father, and to the other half thereof as the heir at law of his brother. That bill further stated that

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defendant, J. T. Brady, propounded to the surrogate of New-York, for proof as a will of real and personal estate, an instrument in writing, -dated in June, 1842, purporting to be the will of John.McCosker the younger, and to have been executed in the presence of two subscribing witnesses, and to dispose of his property as follows: “ First, I direct that my debts and funeral expenses be paid as soon as possible after my decease. Secondly, my brother Thomas is entitled, under my father’s will, to an annuity of two hundred dollars during his life; I give him in addition an annuity of five hundred dollars during life, and direct that after his death the same amount, that is, five hundred dollars, be annually, paid to his son John Andrew for life. Thirdly, I give and bequeath to the Roman Catholic Orphan Asylum of the city of New-York, whatever he its corporate name, five hundred dollars. Fourthly, I give, devise, and bequeath the residue of my estate, real and personal, to John Ricker Brady and Maria Louisa Brady, as tenants in common for ever. Fifthly, if my said brother, Thomas McCosker, or his son, after my decease, shall commence any suit or proceeding to destroy or impair this my will, or any provision or intention thereof, his right to any share or interest in my estate shall thenceforth cease and determine, anything hereinbefore contained to the contrary notwithstanding. Lastly, I appoint Robert Martin and James T. Brady, executors, &c.” That bill further stated that Martin refused to act as executor, but that the other executor named in the said pretended will claimed to act as such executor; that. Thomas McCosker, the complainant in that bill, opposed the proof of the instrument propounded before the surrogate as the will of John McCosker the younger, and that the question of its validity was still pending and undetermined before the surrogate. That bill further stated, that in consequence of the doubt thrown upon the title of the complainant therein by the said pretended will, his friends, in his absence, and without his knowledge or consent, united with the said J. T. Brady, assuming to act as the friend of the claimants under that pretended will, in requesting Martin to assume the control and management of the

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property, and to receive the rents, as the agent for whoever might be entitled thereto, and that he accordingly assumed such agency, and was continuing to act and to receive the rents of the property as such agent; and that all the objects of the trust term of five years, created by the will of John McCosker the elder, had been satisfied, except as to the annuity of his son Thomas. That bill further charged that John McCosker the younger was, in consequence of intemperate habits and an impaired intellect, under the influence and control of the defendant, James T. Brady, who was his attorney and agent, in relation to the management of his property and the collection of his rents, &c.; and that Brady took an improper advantage of his situation to procure the said pretended will to be made in favor of his own brother and sister, who were in no wise related to John McCosker the younger, either by blood or,marriage; and that this alleged will was wholly void; and that he died intestate. That bill further stated, that the lands in question were worth about three thousand dollars a year; that no part of the complainant’s annuity had been paid to him since his brother’s death, except the one half of the rents of the property which he had received from Martin; that the residuary devisees named in the' pretended will were destitute of property; that neither of them was in the actual possession or occupation of the lands in question, or any part thereof, by themselves or tenants, or in the receipt of the rents or profits. The complainant in and by that bill claimed and insisted that the said pretended will was a cloud upon his title, and that it should be declared void by a decree of this court, and that the residuary devisees named therein should be perpetually restrained from asserting any claim to the lands in question under the same; and in case it should be decided to be a valid will, that such complainant was entitled to be paid the arrears of his annuity under the will of his father, and also the' annuity of $500 given to him by the said pretended will of his brother. He also insisted, that in the case last supposed he was seized of one undivided half of the lands in question by descent from his father; and that the residuary devisees in the will of his

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brother were each seized in fee of one quarter thereof under such will, subject to one-fourth of the $200 annuity given to him for life by the will of his father, and to one-half of the $500 annuity given to him by the alleged will of his brother; and that no other person was interested in the said lands, except the assignee of the lease for three years given to Maas. And thereupon prayed for an answer without oath; and that a receiver of the rents and profits of the premises might be appointed to take charge of the same pending the litigation ; and that the pretended will of John McCosker, the younger, might be declared void, and might be decreed to be delivered up and cancelled, &c.; or in case the same should be held to be valid, that then a partition might be made in such a manner as to protect the equitable rights of the assignee of the lease given by John McCosker to Maas; and that provision might be made for the payment or security of the annuities to the complainant in that bill, and that he might have such further or such other relief in the premises as the nature of the case might require, &c.

The several defendants in that bill being served'with process of subpcena, appeared therein; and John Andrew McCosker, the complainant in the present suit, and Maria L. Brady, being infants, put in general answers by their respective guardians; and the defendant, J. T. Brady, demurred to the bill. J. R. Brady put in an answer, in which he admitted that John McCosker, the elder, died seized of the lands in question, and that he devised the same in the manner stated in that bill; that the complainant in that suit was the sole-heir at law of his father and brother; and that the contingent limitation over the lands in question, by the will of John McCosker the elder, to the heirs of his brother Thomas, then residing in Ireland, was void. But he denied that the complainant in the present suit was a son of the complainant in that suit, or that the complainant in that suit was entitled to the lands in question, or tb any part thereof, by descent or otherwise. He also denied that the alleged will of John McCosker the younger was invalid, but insisted that it was valid, and vested in him and his sister a good title to the whole of the lands in question. A replication to

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that answer was filed; and a receiver of the rents and profits of the lands in question was appointed under the order of the vice-chancellor made in that suit in April, 1844; and the tenants were directed to attorn and pay over the rents and profits of the premises to such receiver. Before any further proceedings were had in that suit, the complainant therein died.

In October, 1844, John Andrew McCosker, who is still an infant, filed his bill in this cause, hy his next friend, before the same vice-chancellor, stating the filing of .the bill in the before mentioned suit, the charges and allegations contained therein, the prayer thereof, and the proceedings in that suit, and the subsequent death of the complainant therein as before mentioned. The bill in the present suit further stated, that all the matters stated in the said bill of Thomas McCosker were true; that by the will of the said Thomas,. he devised all his real estate to the present complainant,—in which devise was included all the right, title, and interest of the said Thomas, the father of the present complainant, in and to the lands in the former bill mentioned ; and that the matter of proving the said pretended will of John McCosker, the younger, was still pending before the surrogate, and undetermined. The bill in this suit further stated, that by the death of Thomas McCosker the former suit abated; but that the complainant in the present suit was advised and believed that he, as such devisee, and as sole heir at law of the said Thomas, was entitled to have the said pretended will óf John McCosker, the younger, annulled and cancelled, and declared void, &c., as prayed for in the original bill; or in case the same should be decreed to be valid, then that he, as such devisee and heir of the said Thomas, was entitled to a partition of the premises, and to have the annuity of $500 secured to him; and that if such partition could not be had in this suit, that he was entitled to have and receive one-half of the rents and profits of the premises in question from the time of the death of the said Thomas McCosker. He therefore prayed for the relief thus claimed; and that he might have against the defendants in the present suit the benefit and advantage of the original suit; and that he might have

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such further and additional relief, or other and different relief, as should be agreeable to equity.

James T. Brady demurred specially to the whole bill as follows:— 6

1. That the said complainant hath not, in and by his said bill, made or stated such a case as doth or ought to entitle him to any such relief as is thereby sought and prayed for from or against this defendant.

2. That the said bill of the complainant being exhibited as a bill of revivor, is improperly so filed; the suit which it is designed to revive having absolutely and totally abated by the death of Thomas MeCosker.

3. That the said bill of the said complainant, being filed by the said complainant as heir at law and devisee of the said Thomas MeCosker, prays for a partition of certain real estate mentioned therein, although the said complainant is therein stated to be an infant, under the age of twenty-one years, for which reason he is incompetent to pray for or obtain such relief.

4: That the said bill of the said complainant prays for an account of the rents and profits of certain real estate mentioned, therein, which accrued before the decease of the said Thomas MeCosker, although the said complainant is not stated to be a personal representative of the deceased, nor in any way entitled to such an account in this suit. And because of this prayer in the said bill being united with a prayer for an account of the rents and profits to accrue subsequently to the death of said Thomas MeCosker, the said bill is multifarious.

5. That it appears by said bill of complaint, that the same is exhibited by the said complainant against this defendant and John Biker Brady and Maria Louisa Brady for several distinct matters and causes, in many whereof, as appears by the said bill, this defendant is in no way interested; and by reason of such distinct matters, the said bill is drawn out to a considerable length, and this defendant is compelled to take a copy of the whole thereof; and by joining distinct matters together which do not depend on each other, the proceedings in the

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progress of said suit will be intricate and prolix, and this defendant put to unnecessary charges and expenses in matters which in no way relate to or concern him.

6. That the said bill of complaint does not set forth any facts entitling the complainant to any decree against this defendant.

7. That the said complainant, in and by his said bill of complaint, claims in different and inconsistent capacities, and for different and inconsistent reliefs; the said complainant claiming thereby, upon different states of facts, under and against the last will and testament of John McCosker the elder, and under and against the last will and testament of John McCosker the younger, and praying that on one set of facts in said bill stated and contained, the will of the last named John McCosker may be declared void,—and in the event of its being sustained, for relief founded upon its validation.

Wherefore this defendant demands the judgment of this honorable court, whether he shall be compelled to make any further or other answer to the said bill, or any of the matters and things therein contained; and prays to be hence dismissed, .with his reasonable costs in this behalf sustained.

The cause was brought to a hearing on the 30th day of January, 1845, before vice-chancellor McCoun, who ordered that the demurrer be overruled with costs, and that the defendant answer the bill within thirty days.

On the 9th March, 1846, the cause was heard on appeal before the chancellor, who affirmed the order of the vice-chancellor with costs. (Reported 1 Barb. Ch. R. 329.)

James T. Brady then brought an appeal from the decision of the chancellor to the court for the correction of errors— -which, by operation of law, was duly transferred to this court.

John B. Stevens, Attorney, and

Edward Sandford & James T. Brady, Counsel, for appellant.

First. The original bill of complaint filed in the court below was multifarious.

1. It prays as against the four defendants therein named,

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(to wit: John R. Brady, Maria Lousia Brady, James T. Brady, and John Andrew McCosker,) to have the will of John McCosker the younger set aside because of his alleged incompetency, and of pretended undue influence. (Johnson v. Johnson, 6 J. C. R. 163; Mulock v. Mulock, 1 Edw. 14 ; Pomeroy v. Pomeroy, 1 J. C. R. 606.)

2. It also prays that if the will be held valid, partition may be made of the real estate of which John McCosker the elder died seized, on the ground that the defendants John R. Brady and Maria Louisa Brady, as devisees of John McCosker the younger, would be tenants in common with John Andrew, of the last mentioned real estate, and as such entitled to one equal undivided half part thereof. (Story’s Equity Pl., secs. 254, 271, 284, 530; Colton v. Ross, 2 Paige, 396; Lloyd v. Brewster, 4 Paige, 537; Fellows v. Fellows, 4 Cow. 682 ; 1 Milne & Craig, 603 ; Cooper Eq. R. 30; 2 Anstr. 469.)

Thus relief is prayed of two kinds opposite in character, on two states of facts utterly inconsistent with each other, and irreconcilable. ( 2 Mason, 200-1; 5 Connt. 86, 91; 1 Saxton, N. J. 31, 55.)

3. The complainant also prays relief in different capacities and rights. First, under his father as devisee of John McCosker ; second, against the will of the latter; third, as legatee of John McCosker the younger; and fourth, in direct opposition to his will.

4. The bill prays inconsistent reliefs against the defendants, one of whom has no interest in the case as presented in one aspect. It is quite clear that James T. Brady is not a proper party to the partition branch of this suit. (West v. Randall, 2 Mason, 181; Stuart’s heirs v. Coulther, 4 Rand. 74 ; Coe v. Turner, 5 Cow. 86 ; Boyd v. Hoyt, 5 Paige, 65; Marselis et al v. Morris Canal Co., Saxton’s Rep. 31; Murray v. Hay, 1 Barbour, 64; Farquharson v. Pitcher, 2 Russ. 87; 1 M. & S. 355; 1 H. Bl. 110-14; 1 Saund. 207, note 2.)

Bill double aspect where different facts tend to same result, or entitled to same relief, “sggg.

Second. The answer to this objection of multifariousness sug

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gested in the opinion of the chancellor is founded on error both in fact and in law.

A. Toward the conclusion of his opinion the chancellor says:

“ And as the bill contains no allegations or statements which will entitle the complainant to a decree for partition in any event, the mere prayer for a partition in an event contemplated by such prayer only does not render the bill multifarious.”

The bill contains, exclusive of the mere formal parts, one hundred and twelve folios. The will of John McCosker the elder closes at the 19th folio. The description of his real estate occupies six folios. A lease to Caarsten Maas is fully set forth with an allegation or suggestion at folio 40, that “ in case a partition should be prayed as in the said original bill conditionally prayed for, the said demised premises could conveniently be, and in equity ought to be assigned to John Riker Brady and Maria Louisa Brady, or one of them.” Then follows a statement of the supposed interest of Thomas in his father’s estate by descent. Then follow averments respecting the alleged incompetence of John the younger, occupying (exclusive of his will) about fourteen folios. Then the will is declared (at folio 67) to be wholly void. At folio 75 the original complainant claimed to have annuity paid under his father’s will, and to have secured on the real estate of John the younger the annuity given in his will. From the 76th to the 85th folios are contained passages relating exclusively to the partition aspect of the suit, and the prayer for partition or sale embraces from the 90th to the 94th folio.

It will be seen, therefore, that the multifariousness is not found merely in the prayer for relief, but that so much of the bill as relates to the partition is distinct and separable from the other parts of it, and composes a large portion of the bill.

B. The chancellor’s remark that the bill is in no respect “properly framed” for a partition, rests exclusively on the fact that the bill alleged the will of John McCosker the younger to be absolutely void, and thus shows that John R. Brady and Maria Louisa Brady have no interest in the estate. This (at

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folio 67) is merely a conclusion' or averment of law upon the facts respecting the supposed incompetency of the testator, and the fraud alleged to have been practised upon him, most of them stated on information and belief. The will might be sustained, and then there would seem to be no impediment to a partition, unless the objection of multifariousness should be successfully urged at the hearing. There is no pretence that the bill (apart from this averment) does not contain' every statement necessary to justify a decree for partition, if John Biker Brady and Maria Louisa Brady were tenants in common with the complainant.

C. The fact that a bill of complaint which confessedly seeks to present two opposite cases, states one of them imperfectly, does not exempt it from objection for multifariousness.

This objection is designed to prevent confusion and prolixity, and is a rule of pleading peculiar to the court of chancery. The reason of the rule is equally applicable, whether both cases be well stated or not. (Story’s Equity, ut supra.)

D. An exception to the bill for the impertinence of the passages condemned by the chancellor as wholly inappropriate would not have been successful. The complainant could have insisted before the exception master that he meant to claim a partition, and not to proceed on the other branch of the suit. The master could not in that event have stricken otit matters appropriate to a bill for partition because other allegations were set forth, inappropriate to such bill. Such an objection would have to be presented on demurrer. No exception could be taken except to the averment that the will of John McCosker the younger was void. If this exception were taken, the complainant could repose on that part of his suit which sought to set aside the will to which the averment would be appropriate. In no event could the master, before deciding on the exception, compel the complainant to elect on which branch of his case he should proceed, and this conclusively shows that the objection of multifariousness could only be presented by demurrer.

E. The demurrer to the whole bill for multifariousness was proper. The defendant was entitled to a bill free from multi

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fariousness, without incurring the hazard of determining before he demurred which of two cases was the better stated.

F. In this connection it is proper to state that the vice-chancellor decided that the bill was a bill for partition, and as such was properly filed; and that this court had confessedly no jurisdiction to entertain a bill filed by the heir at law for the mere purpose of setting aside a will; that the bill in this case contained the proper averments for a bill in partition, and that an infant might’file such a bill, the revised statutes not having introduced any new rule on this subject.

Third. The chancellor having determined that the bill of complaint in this suit is to be regarded as a bill filed by an heir at law to set aside the will of his ancestor for alleged incompetency and undue influence, there is no jurisdiction of such a suit in equity. (1 Story’s Equity, 194, 243, 421-2, 671, n ; 1 Fonb. Eq. 293, notes a, x ; Bowen v. Idley, 6 Paige, 46; Colton v. Ross, 2d id. 396; 4 Vesey, 66; 26 Wend. 132 ; 3 Br. Part. 362; 1 Vern. 76; 2 Atk. 324, 424 ; 3 Meriv. 126, 171.)

Fourth. If jurisdiction in equity can be entertained in any case oí' a bill so filed by the heir to set aside a will, it can only be where there not only exists a legal impediment to his obtaining redress at'law, but where such impediment has not been created by his act, or that of his ancestor. If this view be correct, the supposed obstacle to bring ejectment arising either from.the trust term created by the will of John McCosker the elder, or the lease executed by his son to Caarsten Maas would not confer jurisdiction in this case. The heir would have a remedy at law only impeded by what is in legal contemplation his own act,"and could only proceed to perpetuate the testimony, reserving the action of ejectment until either the trust term or the lease expired.

Fifth. No impediment existed to the right of Thomas McCosker to bring ejectment such as would create jurisdiction in ' equity over this case.

1. The trust of five years contained in the will of John McCosker the elder was absolutely void, first in directing the

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payment over of moneys to Thomas and John; and second, in directing an accumulation of rents and profits not authorized by law.

2. If the trust were valid, yet the fee descended subject to the execution of the trust, and if Thomas had any estate in the land, it was a legal estate between him and all persons not claiming under him or the trustee. He could, therefore, at any time before a trustee had actually taken possession of the property bring ejectment. (Siglar v. Van Riper, 10 Wend. 414 ; 2 R. S. 306, sec. 25; 1 R. S. 722, sec. 47, 2d ed. 723, sec. 61; sec. 55, subd. 4; Jackson v. Leggett, 7 Wend. 377 ; Jackson v. Bakeman, 2d Wend. 570; 16 Wend. 152 , 156,161, 170.)

3. The^lease to Caarsten Maas was void, if either the trust were valid, or John McCosker the younger were only tenant for life; and as between Thomas and Maas, the latter was wrongfully in possession, and could have been sued in ejectment. (Ludford v. Barber, 1 T. Rep. 86.)

4. Even if Maas could not have been sued, it does not appear from the bill that the tenants of the other premises had any such exemption. And the validity of the will could have been tested in a suit for any part of the estate.

5. The bill does not allege that the complainant can not bring ejectment, nor suggest that the lease or trust creates any difficulty or confers jurisdiction. The court can not therefore know, that there is not a reason, despite of all contained in the bill, why neither of the supposed obstacles would bear an ejectment.

6. Thomas McCosker avers in his bill that he is in possession of the estate.

7. The objection here taken should be favored, because, by the proceeding at law the defendants who make the objection are entitled to two trials, of one of which this suit would deprive them. And even though two trials should be had, the proceedings a,t law would be more rapid and less expensive. At law, James T. Brady could not have been made a defendant, which is a good legal reason why it is his right to have this objection strictly enforced.

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gSgP1 Bill sustained on ground of impediments, but now all were removed, and so no ground for this bill. “IS®

Sixth. Although the bill of complaint filed by John Andrew McCosker has been denominated by the chancellor an original bill, in the nature of a bill of revivor and supplement, yet he concedes that its substantial effect is to revive and continue the original suit. ' If, therefore, there were no jurisdiction in equity of that suit, this suit can not be maintained.- And whether there were or were not, if John Andrew McCosker could have maintained ejectment he is not entitled to relief in equity.

Seventh. John Andrew McCosker was not prevented by any legal impediment from bringing a suit in ejectment.

1. The trust- term which was supposed " to obstruct his father’s right at law had expired, and its purposes were satisfied before John Andrew had filed his bill.

2. „ Although a receiver had been appointed in the original suit, it does not appear from the bill that he had done any act in virtue of his office, nor that any tenant of the premises had attorned to him. He had not, therefore, possession of the property so as to exclude John Andrew McCosker, if the latter owned the fee. (1 Barb. Pr. 678.)

3. The receivership expired with the original suit, unless John Andrew prayed to have it continued; and if he so prayed, he could not thus, by his own act, create at once an impediment to his legal right, and jurisdiction in equity.

4. At all events, the receivership could, on application in behalf of John Andrew, have been discharged.

Eighth. The original suit absolutely abated by the death of Thomas McCosker. John "Andrew McCosker being devisee of his father could not revive the suit, and being a defendant in the original suit, could not revive it at least until a decree had been made giving him an interest in its continuance.

1. John Andrew can not claim to have filed this bill as heir at law of his father. That character is merged in the character of devisee. (2 Barbour’s Ch. Pr. 26; Souillard v. Dias, 9 Paige, 393; 2 Barb. Ch. Pr. 41.)

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Ninth. James T. Brady was improperly made a party to this suit, and as to him the bill should be dismissed.

The chancellor assigns but one reason why James T. Brady wras “ a proper though not a necessary party to the suit,” viz., that he is charged with “ obtaining a will in favor of an infant who could not properly be charged with the costs of the proceedings to set it aside,” and therefore he “ might be personally charged with costs in case the claimant should succeed.” (Mitf. 160; Smith v. Stow, 3 Madd. 10; 2 Story’s Eq. S. 1499; Kitch v. Dalton, 8 Price, 12; Taylor v. Rochfort, 2 Ves. Senr. 284; Coton v. Lutterel, cited in Dixon v. Parker, 2 Vesey Senr. 223; Le Texier v. Margravine, of Auspach, 16 Vesey, 164; Bowles v. Stewart, 1 Sch. and Lef. 227.)

To this the appellant answers :—

1. The bill is in favor of one infant and one adult, so that there is a defendant against whom a decree for costs could be made.

2. No decree for costs against James T. Brady is prayed for in the bill.

3. A party claiming no interest and affirming no right to the suit in progress, or its subject matter, cannot be made a party defendant merely that in case the persons in interest proved to be infants or irresponsible he might be charged with the costs.

4. James T. Brady claims no interest in the suit or its subject matter. If he procured the will to be made, the devisees claim to have it carried into effect, and they alone are the parties to _ litigate a suit to set it aside.

5. The chancellor, in suggesting that James T. Brady being a proper party to so much of this bill as seeks to set aside the will, should not have demurred to the whole bill, impliedly admits that as to all other parts of the bill said Brady is improperly made a party, and thus shows that his objection to its multifariousness is clearly well taken.

6. The counsel for the complainant below insisted that James T. Brady was a proper party, first, for the reason stated' by the chancellor in his opinion; second, because he had control of the paper directed to be delivered up; and, third,

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because being an executor he should be required to answer whether there was sufficient personal estate of John McCosker the younger to satisfy the $500 legacy.

As to the second of these alleged reasons, the appellant answers:—

A. James T. Brady had no control over the will when this suit was commenced. The bill shows that it was in the possession of the surrogate, before whom the contest of its probate was then progressing.

As to the third alleged reason appellant says :—

A. This reason not being referred to by the chancellor, it is fair to presume that he did not consider it tenable.

B. James T. Brady never was appointed executor, and is not nor could he have been described in the bill as executor.

C. As the suit is adjudged by the chancellor to be merely cognizable for the purpose of trying the validity of the will of John McCosker the younger, there is no pretext for any argument against James T. Brady, founded on the idea that the legacy of $500 can in any way be considered in this suit.

Tenth. The order of the chancellor should for the reasons above stated be reversed.

Jgigf” James T. Brady in reply to respondent’s counsel. Appeal is not too broad, p. 32, only one order made, and my appeal is only from the whole of that. No such question ever started before. (1 Bari. Pr. 406, 413.) Answer to the petition of appeal waives any formal defect in it. Will construe appeal as applying to the particular case of the party appealing. (3 Paige, 478; 1 Barb. R. 610, 483 ; 8 Paige, 548.)

No jurisdiction in chancery for bill by heir at law to set aside will of his ancestor, unless defendant submits himself, or there is an overruling necessity from impediments in the way of a trial at law. Not proper at this time to extend jurisdiction of chancery.

Impediment must be such as to render it impossible to proceed at law, and then the special case must be stated on the face of the bill. Not left to be made out by reasoning. (13 Ves. 298.)

p. 497

Not a word in the bill to show they meant to proceed on the grounds that the heir could not sue at law.

Strange bill. Vice-chancellor held it good for partition. Chancellor held it good to set aside a will. And now no one can tell what sort of a bill it is. Counsel who drew it is here differing from the chancellor and vice-chancellor.

Affirms he has title and holds, and is in full possession. Defendant is not in possession. Then says will is a cloud on his title.

Bill is that he has the whole estate, including seisin and possession, and only complains that we have got a paper which may alarm some one about their title.

Widow must elect within one year whether provision in lieu of dower. (1 R. S. 741, §§ 13, 14.)

Lease to Maas. Made either by tenant for life and ended with his death, or it is a lease under the trust—trust void—and besides, if valid, he had no authority to make it. Not good for half—on their theory lease by one tenant in common of the whole estate with no authority from the other would be good. Suppose valid—lease by'their ancestor—took estate subject to lease—no impediment in way of heir; might sue, distrain, &c.

Van Doren v. Mayor of Brooklyn, chancellor approves decision of court of errors.

Story’s Equity, § 431, form of demurrer.

Double aspect when the title to relief is the same—but the kind of relief in doubt.

Nothing to show the receiver has ever acted in any way—not a proper party to this bill.

Charles O’Conor, Attorney and Counsel for respondents.

First. Thomas McCosker, the original plaintiff, was entitled to relief in equity upon the facts stated in his bill.

1. The whole premises were subject to an unexpired trust term; part of the premises was subject to an unexpired lease ; and the pretended devisees were not in possession. Any of these three circumstances would prevent an ejectment, and entitle the plaintiff to relief in equity. (Pemberton v. Pember

p. 498

ton, 13 Vesey, 299, not in point, but cited for principles; Jones v. Jones, 7 Price, 666; 3d Merivale, 131; 1 Scho. & Lefr. 430; 2 Vesey, Jr. 286; Ambler, 429; 1 Atk. 540; 1 Chilly’s Eq. Dig. p. 1055, title Practice, Injunction 16; Armitage v. Wadsworth, 1 Maddock, 189; Meserole, v. Brooklyn, 8 Paige, 209, .not reversed by 26 Wend. 137 ; Briggs v. French, 1 Sumner, 505; 1 Vesey, Jr.; Plumber v. May, 2 Sch. & Lef. 369.)

2. The premises were in a peculiar condition. They were held by persons not claiming under nor yet adversely to any of the parties. A receiver was therefore necessary to prevent irreparable loss, and the case was consequently a proper one for the action of a court of equity. (Powis v. Andrews, 3 Bro. P. C. 505; 6 Vesey, 172; 2 V. & Beames, 87, 96; 3 Atk. 406; Calvert on Parties, 86, 2, 3,16, note 4.)

Second. If the alleged will of John McCosker the younger should be adjudged to be valid, a partition would be proper; and the bill was not -rendered multifarious by the prayer' for this alternative relief. (See 1 Barbour’s Ch’y Rep. 338, and cases there cited.)

Third. When John Andrew McCosker, the present plaintiff, acquired his title to the premises, they were in the ‘possession of a receiver appointed by the cóurt of chancery. No ejectment, or other suit at law, could be maintained against such receiver, and equity alone could give relief. (2 Sim. $• Stw. 96; Edwards on Receivers, 12; 2 R. S. 185, §§ 118-19; 1 Banl. Pr. 344, Boston ed.)

JfüP" Chancery would give as, many new trials as the ends of justice might require—would follow the analogy at law, and give at least two trials. Court-will direct ejectment to be brought. Story Eq. § 440. °©g

Fourth. The defendant James T. Brady is a proper party defendant, in every aspect of the case.

1. If he fraudulently procured the pretended will of John McCosker, the younger, as alleged in the bill, he is chargeable with the costs of setting it aside. (Bowles v. Stewart, 1 Scho.

p. 499

& Lefr. 227; 1 Russ. 449; Mitford’s Pl. 161; 2 Story Eq., § 500; Calvert on Parties, 230.)

S8F° Said we should have prayed for costs against Brady. General prayer enough, especially as plaintiff is an infant.

No objection in demurrer that we have not prayed costs against him—but looks the other way. (1 Mil. Pl. 213.) =g3S.

2. He has the possession and custody of the pretended will, and may be decreed to surrender it.

3. He is named executor in the pretended will; and in case the prayer for partition should be entertained, he is a necessary party to the inquiry whether there are any personal assets to pay the $500 annuity. (Ram on Assets, 86; 1 Simons, 79; 7 Paige, 421; Ram on Assets, chap. 6, § 4, and cases cited; Bootle v. Blundell, 19 Vesey, 494.)

4. Being one of the parties to the previous suit in which the receiver was appointed, he was a necessary party to this suit.

5. As a merely incidental party, not personally interested in the disposition of the property, he has no right to object to the forum chosen by the principal parties for the decision of the controversy.

SiF° Is likened to misjoinder of counts at law. In a court of equity is question of convenience—in discretion of the court, 1 Milne & Craig, 603; 4 Cowen, 710, closing remarks of Golden ; 2 Howard, 642 ; 3 do. 411; 5 do. 132, may be taken at hearing by the court—not the party.

But the chancellor says our prayer for partition is nugatory; if so, then clearly not multifarious. (4 Paige, 537.)

Demurrer for multifariousness must specify. (2 Anst. 472; 1 Ban. Pr., Perkins, 655.) ”ü¡sH

C. O’Conor for respondent.

Devise to John, Jr., for life, remainder in fee to his issue. As John, Jr., had no issue on death of old John, the remainder in fee descended to his two sons, John and Thomas.

Thomas left John Andrew his heir at law.

John, Jr., left a brother Thomas in Ireland.

Either the trust term was good, or John, Jr., owned in fee one-half of the estate, and so lease good for half—and in either

p. 500

case there was an impediment in the way of a suit at law, at the time the original bill was filed.

2 R. S. 67, § 66. Effect of proof as a will of real estate. Trust term good, but trust void—proper to go into chancery to have it declared. James’s case and Lorillard case.

That for accumulation I admit was void, because for an adult. 1

To pay debts—doubtful whether that good.

For annuities—good.

22 Wend. 483 , one good trust enough.

We say annuity, there being no personal estate, was a charge on the land; and Brady as executor of will of John, Jr., is necessary party to answer how it was as to there being personal property. All annuities depend on a single life—that of Thomas—or at most Thomas and Catherine, the wife, and so only two lives.

Annuity to John only for time executors shall hold—though less than five years—“during five years” qualified by what follows.”1311 ,

Decision.—Decree affirmed. For affirmance : Gardiner, Ruggles, Jones, Wright and Johnson. For reversal: Jewett, Bronson and Gray.

Note.—The court, Gardiner, J., delivering the opinion, held, that it is the established doctrine of a court of equity, that it will not assume jurisdiction to set aside a will for fraud, or on the ground of the testator’s incompetency, where there is a perfect remedy at law, and where the objection to the jurisdiction is taken in season.

That the impediment which constitutes the inadequacy of the legal remedy must be stated in the bill'. And if it relates only to a part of the real estate embraced in the will, it would seem to be sufficient to confer jurisdiction.

That the trust established by the will of John McCosker, the elder, (for live years,) was valid; and that the whole estate in law and equity was vested in the trustees. If the trust (which had not expired) was within the statute, ejectment would not lie for any part of the premises; if it was not, then it could not be maintained against the assignee of Carston Maas, or against Martin the agent or receiver, by the complainant, who claims as to all the interest in controversy through John McCosker, the lessor. Therefore, prima facie, an insuperable obstacle to a recovery at law was presented.

That the complainant succeeded to the rights of Thomas McCosker to relief

p. 501

in equity, and was entitled to continue the original suit, if it was properly commenced.

The complainant claimed as devisee through his father; he therefore could not file a bill of revivor, but could only have the benefit of the original proceedings, by bill, in the nature of a bill of revivor and supplement.

The objection, that the complainant being a defendant in the original suit, could not revive it until after a decree giving him an interest in its continuance, would be valid, if he sought to revive as a defendant; but he claims the benefit of that suit by virtue of his succession to the right of his father, as plaintiff. This distinction is sufficient to sustain the bill

The bill states that the whole legal and equitable estate was vested in trustees, or in the court of chancery, that the assignee of Maas was in possession of the house demised to him, and also who were the actual occupants of other parts of the real estate, therefore an averment, by the complainant, that “ he then held and was in the lawful possession of said premises,” was inconsistent with other parts of the bill, as to the possession and occupation of the premises, unless it be taken as a formal legal conclusion from the facts previously stated, which must be considered its proper signification.

The bill alleges that the complainant is entitled to all the real estate by inheritance from his father, and John McCosker the younger, and prays for partition. And also, that the will through which alone the defendants claim title to any part of the property is null and void, and prays that it may be set aside. There was no misjoinder of actions; for the bill was not properly framed for partition. Partition implies an interest in different persons in the property to be divided. Therefore, the bill was not multifarious, and must be treated as single.

James T. Brady was a proper party to the bill. He was liable for costs. Maria L. Brady, the infant defendant, ought not to be charged with costs in any event.

The demurrer being to the whole bill, it could only be sustained by establishing a misjoinder of actions, or parties, to which species of multifariousness it was alone adapted.

If the bill was defective in praying for a partition, or contained irrelevant matter unconnected with the case properly presented, the demurrer should have been confined to the parts really objectionable and not extended to the whole bill. It was therefore properly overruled by the chancellor.

Reported 1 Comstock, 214.

Cases cited

Fellows v. Fellows 4 Cow. 682 N.Y. p. 489
Mayor of Brooklyn v. Meserole 26 Wend. 132 N.Y. Sup. Ct. p. 492
Siglar v. Van Riper 10 Wend. 414 N.Y. Sup. Ct. p. 493
Jackson, ex rel. Walton v. Leggett 7 Wend. 377 N.Y. Sup. Ct. p. 493
Darling v. Rogers & Sagory 22 Wend. 483 N.Y. p. 500