The Chancellor.
The account before the master was taken under an order of the 23d of February, 1816, made upon the petition of the defendant. There was no suit then pending, and the order was granted for her greater security and indemnity as executr x; it was not intended to be, and could not be, binding upon the infant plaintiffs, so as to exclude them, on coming of age, from calling her to account. But though it was an ex parte order, yet as the father of the infants attended before the master, as their guardian, during the whole protracted progress of the taking of the account, it does not seem to be necessary to open the account any further, than to correct such errors as have now been pointed out, on the part of the plaintiffs. I shall accordingly notice such objections as have been well taken, ar<d state the principles upon which the account is to be restated.
1. In the first place, the defendant is not entitled to dower in the undivided third part of the Union store and landing, which was purchased by her husband, Peter Tappen, of the executors of Israel Smith, deceased. This purchase was made fay the husband in If91, for 2,500 dollars, and he never paid any part of the consideration money ; and on the 24th of April, 1793, the defendant and George Clinton, as executors of Peter Tappen, sold that right to John Mott, for the same sum, and his bond and mortgage to the executors of Smith was taken and received as a substitute for the debt which Tappen owed them on the original purchase. Whether the defendant has any subsisting right of dower against that property, in whose hands soever it may now be, is not the question before me, though I apprehend, that her deed as executrix, without any mention or reservation of that dower, $ould be a bar to such a claim. The only point now is, whether she has any claim in equity against the plaintiffs, for the estimated value of such a right of dower, supposing it to have existed before the deed to Mott; and there does not'appear to me to be any colour for such [512]*512cidim. The heirs of Tappen received no benefit whatever froto that sale. The entire proceeds of it were applied to extinguish the debt due from Tappen ,• and if the plaintiffs were to be charged with any portion of that dower, it would be a charge upon them without any equivalent or consideration. Nothing could be more unreasonable and unjust.
The agreement of the 17th oí October, 1799, signed by the parent of the plaintiffs, was never intended to apply to such a case, but to cases where the proceeds of the sale belonged to the heirs as beneficial property, capable of being applied to their maintenance and education! They never meant to be charged with an equitable dower in the proceeds of any sale, when their ancestor owed the whole original consideration for the land, and the sale was made purposely to extinguish that debt, and left the purchase without any use or benefit to the heirs.
But the defendant is entitled to dower in all the other lands and real estate, whereof her husband died seised in his own right, or in the proceeds thereof, if sold. I say, in his own right, for, as I shall show hereafter, he did not die seised in his own right of the real estate acquired by purchase from the commissioners of forfeitures, under the act of the 22d of March, 1788. She is, therefore, entitled to dower in the proceeds of the sale of another third part of the Union stove and landing, to G. B. Evertson, to be •computed according to the rule prescribed in the agreement above referred to, of the 17th of October, 1799. The claim upon those proceeds must be confined to the sale of the real estate, and not extended to the sale of the vessels, and other personal property, (if any,) belonging to this store and landing, and which were sold together with the real estate, and for one aggregate price. And the value of the dower is to be computed, according to the value of the property at the death of the husband, and not accord[513]*513ing to its increased value afterwards, by reason of beneficial improvements made thereon. The defendant being executrix, and having the whole property in her possession, it was her own fault, and not that of the heirs, that the assignment of dower, if she wished it, was not made presently after her husband’s death. She ought not to profit by such delay of her own, at the expense of the infant heirs.
execu(rix se^subjec/to ,a mortgage, to the mortgage, and property: Held, that she was liabie to account to the heirs, for the proceeds ; but she, as the widow, was entitled to her dower, subject to a rateable contribution towards the extinguishment of the mortgage
Devise to the Executrix,°ofthe ^s0enaof Ji’?5 the pl^na^oAhe Held> lhat she was not accountable to the heirs lor the property' “„Sf°profi-seiof the real estate of which the testator wa«< seised, at the date of his will, but only for the use of his after acquired real estate; and that she was to be allowed so inn- h of the rents and profits, as were applied by her to the payment of debts, after the. personal estate had been applied for that purpose, and exhausted.
[513]*513The defendant being chargeable, as I shall presently show, with the proceeds of the land in the Hardenbergh patent, she is likewise entitled to dower in these proceeds, under the agreement already mentioned. But the dower in this case must be taken, subject to an equitable contribution, towards the extinguishment of (he mortgage upon that land to the state treasurer, existing when her husband became ° . the purchaser of an undivided moiety of that lot. To r J ascertain the amount of her contribution, as dowress, we must, according to the doctrine or rule in the case of Swaine v. Perine,
2. The defendant is not accountable for the use of the personal estate left by her husband at his death, nor for the use of the real estate he owned, at the date of his will, as the use of all this was given to her by the will, nor for the use of the real estate purchased by her husband, as the confiscated property of Bartholomew Crannel. Btit she is to r * s be held accountable for the use of the residue of the real estate, and for the proceeds of sales of the residue of the real estate, and she is to be credited for the appropriation [514]*514of the rents and proceeds of that residue, towards the payment ot debts remaining due, after the personal estate had been duly applied and exhausted. And, in order to show such due appropriation, she must of necessity account foi the amount and disposition of the personal estate. She is likewise to be credited for all reasonable expenditures in the reparation and improvement of the residue of the real estate as above mentioned.
An executor or buy in land of ihe testator, on a sale under an incumbrance, for his own benefit.
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The Chancellor.
The account before the master was taken under an order of the 23d of February, 1816, made upon the petition of the defendant. There was no suit then pending, and the order was granted for her greater security and indemnity as executr x; it was not intended to be, and could not be, binding upon the infant plaintiffs, so as to exclude them, on coming of age, from calling her to account. But though it was an ex parte order, yet as the father of the infants attended before the master, as their guardian, during the whole protracted progress of the taking of the account, it does not seem to be necessary to open the account any further, than to correct such errors as have now been pointed out, on the part of the plaintiffs. I shall accordingly notice such objections as have been well taken, ar<d state the principles upon which the account is to be restated.
1. In the first place, the defendant is not entitled to dower in the undivided third part of the Union store and landing, which was purchased by her husband, Peter Tappen, of the executors of Israel Smith, deceased. This purchase was made fay the husband in If91, for 2,500 dollars, and he never paid any part of the consideration money ; and on the 24th of April, 1793, the defendant and George Clinton, as executors of Peter Tappen, sold that right to John Mott, for the same sum, and his bond and mortgage to the executors of Smith was taken and received as a substitute for the debt which Tappen owed them on the original purchase. Whether the defendant has any subsisting right of dower against that property, in whose hands soever it may now be, is not the question before me, though I apprehend, that her deed as executrix, without any mention or reservation of that dower, $ould be a bar to such a claim. The only point now is, whether she has any claim in equity against the plaintiffs, for the estimated value of such a right of dower, supposing it to have existed before the deed to Mott; and there does not'appear to me to be any colour for such [512]*512cidim. The heirs of Tappen received no benefit whatever froto that sale. The entire proceeds of it were applied to extinguish the debt due from Tappen ,• and if the plaintiffs were to be charged with any portion of that dower, it would be a charge upon them without any equivalent or consideration. Nothing could be more unreasonable and unjust.
The agreement of the 17th oí October, 1799, signed by the parent of the plaintiffs, was never intended to apply to such a case, but to cases where the proceeds of the sale belonged to the heirs as beneficial property, capable of being applied to their maintenance and education! They never meant to be charged with an equitable dower in the proceeds of any sale, when their ancestor owed the whole original consideration for the land, and the sale was made purposely to extinguish that debt, and left the purchase without any use or benefit to the heirs.
But the defendant is entitled to dower in all the other lands and real estate, whereof her husband died seised in his own right, or in the proceeds thereof, if sold. I say, in his own right, for, as I shall show hereafter, he did not die seised in his own right of the real estate acquired by purchase from the commissioners of forfeitures, under the act of the 22d of March, 1788. She is, therefore, entitled to dower in the proceeds of the sale of another third part of the Union stove and landing, to G. B. Evertson, to be •computed according to the rule prescribed in the agreement above referred to, of the 17th of October, 1799. The claim upon those proceeds must be confined to the sale of the real estate, and not extended to the sale of the vessels, and other personal property, (if any,) belonging to this store and landing, and which were sold together with the real estate, and for one aggregate price. And the value of the dower is to be computed, according to the value of the property at the death of the husband, and not accord[513]*513ing to its increased value afterwards, by reason of beneficial improvements made thereon. The defendant being executrix, and having the whole property in her possession, it was her own fault, and not that of the heirs, that the assignment of dower, if she wished it, was not made presently after her husband’s death. She ought not to profit by such delay of her own, at the expense of the infant heirs.
execu(rix se^subjec/to ,a mortgage, to the mortgage, and property: Held, that she was liabie to account to the heirs, for the proceeds ; but she, as the widow, was entitled to her dower, subject to a rateable contribution towards the extinguishment of the mortgage
Devise to the Executrix,°ofthe ^s0enaof Ji’?5 the pl^na^oAhe Held> lhat she was not accountable to the heirs lor the property' “„Sf°profi-seiof the real estate of which the testator wa«< seised, at the date of his will, but only for the use of his after acquired real estate; and that she was to be allowed so inn- h of the rents and profits, as were applied by her to the payment of debts, after the. personal estate had been applied for that purpose, and exhausted.
[513]*513The defendant being chargeable, as I shall presently show, with the proceeds of the land in the Hardenbergh patent, she is likewise entitled to dower in these proceeds, under the agreement already mentioned. But the dower in this case must be taken, subject to an equitable contribution, towards the extinguishment of (he mortgage upon that land to the state treasurer, existing when her husband became ° . the purchaser of an undivided moiety of that lot. To r J ascertain the amount of her contribution, as dowress, we must, according to the doctrine or rule in the case of Swaine v. Perine,
2. The defendant is not accountable for the use of the personal estate left by her husband at his death, nor for the use of the real estate he owned, at the date of his will, as the use of all this was given to her by the will, nor for the use of the real estate purchased by her husband, as the confiscated property of Bartholomew Crannel. Btit she is to r * s be held accountable for the use of the residue of the real estate, and for the proceeds of sales of the residue of the real estate, and she is to be credited for the appropriation [514]*514of the rents and proceeds of that residue, towards the payment ot debts remaining due, after the personal estate had been duly applied and exhausted. And, in order to show such due appropriation, she must of necessity account foi the amount and disposition of the personal estate. She is likewise to be credited for all reasonable expenditures in the reparation and improvement of the residue of the real estate as above mentioned.
An executor or buy in land of ihe testator, on a sale under an incumbrance, for his own benefit.
Theestate of to‘béasoidaCMd to‘ t™hi incumbrances^ ”nd the residue lo pay ereditors of C., and the surplus in trust for V\e wife of T., and T. purchased in the whole estate at one bid, and prevented the creditors of C. from bidding-» by assuming to pay their debts, and stifled all competition at the sale, so that the real value of the estate at the auction, could not be ascertained,nor whether any surplus remained in trust for the wife; and T. continued to hold the estate exclusively as his own, until his death : Held, that the wife, who was. executrix of T., was entitled to consider the land, ov so much of it así, remained unsold by T. for Ihe pajrment of the debts of L\, as her own, discharged from any claim of . the husband or his heirs.
[514]*5143. The defendant is to he charged with the proceeds the sale of the land in the Hardenbergh patent to P. and H. Ruggles. She purchased in this land at the sale under the mortgage, in order to deliver her husband’s interest in that estate, which he had left at his death, from that incumbrance. Her husband, at his death, was seised of an equity of redemption in an undivided moiety of that lot; and she was his executrix with large powers as a trustee) and was the natural guardian of his infant children. It is impossible to permit such a trustee to buy in, under that incumbrance, for her own benefit. The principle of equity, on this point, is too well settled to be questioned ; and the proof in the case is, that she bought, in her representative character, as executrix. She paid the purchase money, or what is the same thing in effect, she redeemed the mortgage, with the assets belonging to the estate. The evidence of this consists in the declarations which she made to George B. Evertson, and who appears to be a competent witness, and on the settlement which took place between her and Governor Clinton, her co-executor, and from whom she, in the first instance, borrowed the money to make the purchase. She signed the account in which that loan is charged to her as executrix.
4. The defendant is not accountable, because she is entitied, in her own right, to all the real estate, dot owned by her husband before that lime, and purchased by him in conjunction with Gilbert Livingston, in 1788, or the for-felted estate of B. Crannel. The act of the 22d of March? [515]*5151788, entitled, “ An act directing the settlement of public accounts, and for other purposes therein mentioned,” authorised and directed the sale of the confiscated estate of Bartholomew Crannel, in the town of Poughkeepsie, and the payment of the proceeds of the sale to Gilbert Livingston and Peter Tappen, in trust, to discharge incumbrances on the estate, and to reimburse themselves for expenses in buildings and repairs, and to hold the residue in trust, to pay the creditors of Crannel; and the overplus of those proceeds, if any, to bold in trust for the benefit of their wives Catharine Livingston and Elizabeth Tappen, in equal shares. It is in proof, that Livingston and Tappen purchased in, themselves, the whole esta'e, so sold, atone bid, and prevented the creditors of Crannel from bidding, by assuming beforehand to pay all the debts; and that they stifled all competition at the sale, so that the real value of that estate, at auction, could not be ascertained, nor whether any surplus, or what amount, would have remained in trust for their wives, if the sale had been left to have been made under the usual competition. It is impossible to know what amount of surplus the wives would have been entitled to; and I think'the husbands cannot be permitted to derive any benefit by their interference, and the uncertainty which they produced, to the prejudice of the cestui que trusts. They elected, afterwards, to hold the estate so purchased in, as entirely and exclusively their own, and have destroyed all means of ascertaining the residuary interest of their wives. They have so confounded and mixed up that interest with their own, that a discrimination cannot be made; and upon just principles of equity, the wives are entitled to consider the land as theirs, discharged from the claims of the husbands.
It might have been deemed proper, that the amount of the debts so assumed by her husband, should have been charged1 to the defendant, for there never could have been any surplus-[516]*516without the previous payment of those debts. But it appears, that Livingston and Tappen sold parís of that real estate so purchased in, to near 3,800 dollars, to discharge the debts of Crannel; and the remainder of that real estate, remaining unsold at her husband’s death, may well be considered as the proper residuum which was held in trust for the defendant.
The wood lot, of which so much was said by the witnesses, was included in the sale and deed given by the commissioners of forfeitures under the act, and purchased in by Livingston and Tappen, and was part of the trust property.
The defendant does not appear to me to be precluded from setting up her title to this property, as cestui que trust, under the act of the legislature, by the manner in which she has treated the property, since her husband’s death. She was in possession of it, and not anticipating any controversy between her and her children, she may not have deemed it material to assert' that title affirmatively. But when it does become material, she is not precluded or barred from asserting her title, either by the lapse of time, or by her silence, so long as she has not devested herself of her title by any legal act or deed.
The decision on this point renders it unnecessary to examine into the validity of the claim set up by the defendant to a part of the estate held under the purchase from the commissioners of forfeitures, as being derived from her. mother, the wife of Crannel. I have no difficulty, however, in saying, that the claim is entirely destitue of foundation. Crannel acted as owner, for twenty years and upwards, before he left the state ; and from that fact, and the removal and dispersion of the papers, during the revolutionary war, there is ground to presume a deed to him, and that the same has been lost or destroyed. That same property was confiscated and sold as his property, and treated as such by [517]*517Livingston and Tappen, with the knowledge and acquiescence of the defendant and her sister,- Mrs. Livingston, down to the death of Peter Tappen, in 1792. This property was appraised, after the revolutionary war, as the sole and absolute property of Crannel, when he left this state, and it was so designated and pointed out as his property, by. Livingston and Tappen; and Crannel, in the life time of his wife, received compensation from the British government, on the foot of that appraisement. It is too late now for the defendant, as one of the heirs of Crannel, and as widow of Tappen, to set up a title to that property, as heir to her mother. And if this claim had any force or colour, yet the right of Trientie, the Wife of Crannel, was clearly barred by the statute of- limitations of the 28th of March, 1797, which bárred all claims against forfeited estates, not asserted in five yearsand Trientie, when that act was passed, was alive and a widow.
Compound interest is not allowed in favour of a trustee.
An executrix who charges her children, as infant heirs, with board, &c. must allow them for the value of their labour and services.
In reviewing the accounts, all charges and disbursements by the defendant, for reparation or improvement of the property so purchased, as the forfeited estate of Crannel, are of course to be disallowed; and she, also, is not to be charged with the rents and profits received by her from that land.
5. The annual rests, and the consequent allowance of compound interest to the defendant, must be omitted. This mode of computation is sometimes resorted to, in order to meet the profits, which the trustee may have made out of the trust property, and will not disclose; but it certainly cannot be allowed in favour of a trustee.
6. Allowance must likewise be made in favour of the plaintiffs, for what shall appear to the master to have been the value of the labour and services of the mother of the plaintiffs, while she lived in the family with the defendant '; and this charge will form a reasonable set-off, as far it [518]*518goes, to the charge for board and clothing of the plaintiffs’ mother.
7. The defendant must be directed to deposit with the master, her books of accounts, documents, and original entries, relating to the matters in controversy, for the inspection of the plaintiffs, under the master’s direction, and according to his discretion as to the time, mode and extent of the inspection, and the nature and kind of accounts, documents, entries and vouchers, to be so deposited.
8. In all other respects, the account already passed upon, and allowed by the master, is to be taken as correct, unless the plaintiffs shall be able to point out and satisfy the master of further mistakes therein; and so far as they shall be made to appear, they are to be corrected.
I shall direct a reference to a master, with special directions, according to this decree.
Decree accordingly.
Ante, p. 482.