Judd v. Bushnell

Daggett, J. The general question presented is as to the sufficiency of the bill. To this four grounds of demurrer are relied on. 1. It is not alleged, that the superior court, to which the bill was brought, had jurisdiction. This depends on the allegations in the bill, tested by the 10th sect, of the act, Title 21. Courts. “ The superior court shall have jurisdiction of all suits for relief in equity, wherein the value of the matter or thing in demand exceeds the sum of 335 dollars.” The object of the bill is to obtain from the defendants certain sums of money alleged to be due to the plaintiffs from the defendants, under the will of Ezekiel Jones. They allege, “ that their shax-es amount, with principal and interest, to the sum of 700 dollars, and that they are without any adequate remedy at law.” It is difficult to see the force of this objection, when compared with the above recited allegation. Is not the value of the matter or thing in demand more than 335 dollars ? In Pitkin v. Flowers, 2 Root, 42. and in Newtown v. Danbury, 3 Conn. Rep. 553. it was decided, that if the value of the matter or thing in demand is averred in the bill in a suit in chancery, or in the declaration in an action at law, to be of the requisite amount, this is sufficient to give the court jurisdiction, though the value proved on trial should not be of that amount. It is said, however, that, in Griswold v. Mather, 5 Conn. Rep. 435. this court held, that “ on a bill in chancery for the conveyance of the legal title to mortgaged premises, the jurisdic [210] tion of the court is determined by the value of such premises an{j tjjat tjje game doctrine prevailed in Watson & al. v. Wells, 5 Conn. Rep. 469. in a suit “ for confirmation of a defective under a mortgage deed.” The principle established, in those cases, does not bear at all upon the point now under consideration, because it was very properly admitted in argument, and has not been denied, by any member of the court, that whatever estate Augustus Bushnell took under the will, if it was a conditional or trust estate, (the great question on the demurrer,) he was bound to pay the plaintiffs the apprized value of the estate devised; and this apprized value is averred in the bill to be 652 dollars, 50 cents. As then, by the concession of all parties, if the bill has merits, the plaintiffs are entitled, under the will, to more than 335 dollars, and have so expressly alleged, the supreme court had jurisdiction; and this objection, therefore, is without force. 2. The defendants insist, that the plaintiffs have remedy at law, if there be any remedy. This remedy, it is said, is on the bond given by Bushnell, as executor, to the judge of probate. Waiving the question whether a bond could furnish the remedy sought, or adequate remedy, it does not appear, that any bond was given; but it is averred, that Augustus Bushnell was and is insolvent. Moreover, if the views of the plaintiffs are correct, that the estate devised may be followed into the hands of the purchasers with notice, then a court of law could furnish no adequate or proper remedy; for the defendants, the purchasers under Augustus Bushnell, must either satisfy the claims of the plaintiffs in proportion to their interest in the land purchased, or surrender it to the plaintiffs as sought in the bill; and, in either case, a court of chancery alone could do justice to the parties. 3. It is objected, that here is a misjoinder of parties plaintiffs, and also of parties defendants. This again depends entirely on the principal question, what estate did A. Bushnell take under the will ? If it be an estate in trust, or upon condition that he should pay the plaintiffs that to which they are entitled under the will ; and if these purchasers are to be affected by that trust or condition ; then the objection vanishes. This opens to us the question on which the sufficiency of the bill must turn, viz. 4. What estate did Augustus Bushnell take under the will of Ezekiel Jones ? Three executors are named as devisees of [211] certain lands of the testator, about which the question arises. One of them died before the testator, viz. William Chapman. Another, Benjamin Chapman, resided abroad, and has never accepted the trust or acted under the will. Augustus Bushnell alone assumed the trust imposed. These being the facts, the counsel for the plaintiffs contend, that Augustus Bushnell took only one undivided third part of the lands devised agreeably to the doctrine of the Court of Errors in Treadwell v. Bulkley, 4 Day 395. and therefore, they urge, that Bushnell could convey nothing in severalty, according to the case of Griswold v. Johnson, 5 Conn. Rep. 363. On this part of the case, an idea has been suggested, which, perhaps, removes any supposed difficulty from that source. It appears on the bill, that the whole land devised by the will to the three executors, has been, by a decree of the court of probate, distributed to Augustus Bushnell, and the decree remains in force. Can then this court collaterally regard it otherwise ? Must not that decree be revised, if at all, on an appeal to the superior court, according to the provisions of the statute in relation to decrees of the court of probate ? As the question may be decided without reference to the ideaRhus suggested, a further consideration of it is waived. Considering the cause to depend on the same question as though Augustus Bushnell were the sole devisee, I enquire what estate did he take ? The rule is undoubted, that if a person gives lands to another by will, with a direction that the devisee shall pay a gross sum out of it, the devisee will take an estate in fee, without any other words. Though the rule is generally applied to questions whether the devisee take an estate in fee or for life, yet it governs in this case. The operative words of the will on this point, are : “ And after the foregoing disposition, my other estate, being appraised according to law, one fourth of the same, as per inventory, shall be retained and holden in the hands of my executors, who are hereby ordered and directed to pay over annually to my said daughter Hannah, the interest of said fourth, during the minority of her children, at the expiration of which, said executors shall pay over said fourth, at inventory prices, in money, into the hands of said children, as soon as they shall come to full age, in equal proportion ; who shall, thereupon, obligate themselves to pay annually the interest of such part as may fall to them, to their mother, during the term of her natural life.” As then the de212 visees were to pay a gross sum in money, to be ascertained by an appraisal of the land, an estate in fee was given. 6 Cruise’s Dig. 253. But was the estate conditional or absolute ? If the former, it may be pursued into the hands of bona fide purchasers with notice. If the latter, the conveyances were good, and Augustus Bushnell was only liable personally to the plaintiffs. It seems, the' testator had four daughters, Caroline, Lydia, Ethe-linda and Hannah. The first provision of the will in relation to these, his only children, is, that the three former daughters were to receive 117 dollars each, tó make them equal to Hannah. Then he directs, that one fourth of his estate shall be holden, by the executors, to pay, in manner above stated, to Hannah, the other daughter, and her children. One of these children, viz. Hannah, has received her share under the will. The other two children, Jehiel and Enoch, with their mother, Hannah, are the plaintiffs. The other three daughters were the wives of the three persons named as executors, and to whom all the rest of his estate was given. The object of the testator is apparent; he intended to make all his children equal sharers in his estate ; but in relation to Hannah, who had three children, her share was limited to her life, and was then to belong to her children. The will also shows an intention, that the fourth part devised to the executors, for the benefit of Hannah and her children, should be retained, and holden by the executors ior that purpose ; and by the rules of law, this intention is to govern. In the case of Wheeler v. Walker, 2 Conn. Rep. 196. the doctrine on this subject of a conditional fee, devised by will, was fully considered by the court. “ The words, which constitute a condition, may be various. In particular words there is no magic.” The words, paying’ to pay, so that he pay, constitute a condition. The words^used by the testator, in this will, are, the fourth part “ shall be retained and holden in the hands of my executors, who are hereby ordered and directed to pay,” &c. Again, “ said executors’"shall pay over,” &c. Had the devise of the lands been to them, to pay, or they paying, or so that they pay, or they paying thereout, or to pay thereout, there could be no doubt. It seems to me, that the words here used, taken with the context, are equally strong to show a condition. But let us look at other cases. In Jackson d. Townsend v. Bull, 10 Johns. Rep. 151. Kent, C J., says: “When [213] the charge is on the person, the devisee takes the estate, on condition of paying the charge ; and if he die in the life-time of the testator, the charge ceases ; and if he refuse to accept and perform, the devise is void, and the heir may enter.” In Glen & ux. v. Fisher, 6 Johns. Ch Rep. 33, 35. the Chancellor recognizes the doctrine, and adds : “He, who accepts a benefit under a will, must conform to all its provisions, and renounce every right inconsistent with them ” In Jackson d. Ruggles v. Martin, 18 Johns. Rep. 31. 35. Ch. J. Spencer quotes the decision in 10 Johns. Rep. with approbation. In Cowper 841., in the latter part of the case of Doc v Fylder, Lord Mansfield observed, that in the cases in which a fee is inferred, because the devisee was charged with the payment of a gross sum, “ the doctrine began when the modification of uses was by the way of condition ; and charging a devisee with the payment of a gross sum, was looked upon as a condition, the nonperformance of which, amounted to a forfeiture of the estate : The direction was to pay a sum of money by way of condition, and the heir enters for condition broken.” But another difficulty occurs upon the construction, contended for, by the counsel for the defendants. If the charge be not on these executors in respect of the estate in their hands, they take only a life-estate. Such is the doctrine of Chancellor Kent, in 10 Johns. Rep. 157. and 6 Johns. Ch. Rep. 33. before cited ; also in 4 East 496. 5 East 87. In view of these authorities and the will in question, I am satisfied, that the estate devised is a fee, upon the condition that the devisees performed the directions of the testator in relation to Hannah and her children ; and that it is within the power of a court of equity to compel such performance against the executor Bushnell, and purchasers with notice ; and, therefore, the demurrer must be overruled, and the bill holden sufficient. Peteiis andLANMAN, Js. were of the same opinion. Hosmer, Ch. J. dissented. Brainard, J. was absent. Demurrer overruled.