Rogers v. Cruger

7 Johns. 557

Opinion

Yates, J.

The following questions arise in this case; 1. Whether the infants were properly before the court of chancery so as to be bound by the decretal order of the 21st May, 1804, confirming the appraisement; 2. If they were properly before the court, whether the setting aside that order, as to all the respondents, was fit and proper on the ground of mistake in the appraisers; surprise on the respondents ; or imposition or fraud of the complainants. I shall not, on the first question, take up all the proceedings, and examine the merits of every objection in detail. This would be an unnecessary task; many of them, being mere matter of form, were curedby subsequent acts, and others not noticed in season, were waived; but shall content myself in selecting suchas appear of sufficient weight to have influenced the chancellor in granting the order, as to the infants, from which the party has appealed.

From the manner in which this cause was first commenced, it appears that the rules of the court of chancery have not been strictly adhered to by either party; but the interest of infants being implicated, it required the proceedings to be conducted with the greatest care and vigilance, to secure the effect of the application to the court, and in every step connected with their rights, to have committed them exclusively to the ¡direction of the chancellor, whose duty it is to protect those rights in every stage of the cause.

On an examination of the letter of attorney of Elizabeth Toxvers to John Nixon and David Walker, it does not appear that they were authorized to answer in chancery ; it is confined to the management of her proportion of her father’s estate; and if even it had contained sufficient power for the purpose, the joint signature of John Nixon & Co. is improper, and the answer could derive no legal authenticity from it; but the signature of Mr. Hopkins, as solicitor, (she residing in foreign parts,) might legalize the answer in the view of the court, if, at that time,. the letter of attorney had not been virtually revoked by her intermarriage with Alexander Maitland. She could not be called upon to answer by a wrong name, or be made a party without her husband, who became entitled to her proportion of the personal estate by the marriage; those parties, consequently, never were in court, and I cannot discover in what manner the suit could have been revived against her infant children; yet this was done, and the order entered for that purpose is founded on a suggestion, that Betsey Towers, one of the defendants, answered the bill, after which she died, and that Ann Towers, Peggy Towers, Catharine Towers, and Mary Towers, were her only children and heirs, and that she had no executor or administrator, or other representative, except the said children, when in truth Mrs. Maitland, named in the order Betsey Towers, had left Francis Claxton, William Mitchell and William M'Cormick, her executors and the guardians of her children; and though they were not made parties, still, as executors, they retain their remedy for the personal estate left by her* The doctrine contended for, on the ground of want of information of their marriage, and subsequent death of Mrs. Towers, cannot, in this instance, be countenanced. It may with propriety be applied to acts of colonial governments done in the mame, and after the death of the sovereign, previous to information of his death; for as those are acts in the preservation of which the community are interested, sound policy requires that rights thus obtained should be leftin the undisturbed possession of the claimants. This appears to me to be the ground of the decision at the circuit, in the ejectment cause in Ulster county, cited by the appellants’ counsel, when a patent thus granted, after death of King William, was produced as evidence of title; . but I think the impropriety is evident of extending that rule, under the circumstances already mentioned, to the infant children of Mrs. Maitland.

It is an unquestionable rule that infants cannot bind themselves by their own acts, or by consent, even by guardians, unless it be rendered manifest to the chancellor that they would be benefited by it. Several of the other respondents were infants when the proceedings, in many instances, were by consent. The investigation of those, however, may become unnecessary, from the result of the discussion of the second question proposed, which I shall therefore proceed to examine.

Whether the setting aside of the order of the 21st of May, 1804, was fit and proper as to all the respondents on the ground of mistake in the appraisers; surprise in the respondents; or imposition or fraud of the complainants.

It is alleged that the appraisement of Rose-Hill farm, containing ninety-two acres of land, subject to a lease during the lives of Mr. and Mrs. Gates, at 50,000 dollars, and the land opposite, at 2,500 dollars, is inadequate * to the real value.

The persons appointed appraisers of this property stand before this court unimpeached. The charge of imposition or fraud cannot be attributed to them.

If the amount is inadequate, they have been mistaken in the value, and it must be deemed an error in judgment, to which a rigid adherence to theoretical calculations, as to the value of encumbrances, without due regard to the advantages of situation, has, per - haps, in no small degree contributed.

From the testimony before us, it appears that the highest unencumbered value of Rose Hill farm, agreeably to the calculations made on the principles supposed to have been adopted by the appraisers, was about 91,000 dollars, making a difference of upwards of 4-9ths for the two lives, the one aged 63, and the other 75, with which it was encumbered; far exceeding any amount I can possibly conceive the real existing difference to be. This system of calculation will unquestionably,. I think, admit of an age in human life to which an estate may be subjected, nearly, if not equal in value, to the fee-simple, which would render the reversion not worth any thing, a position wholly inadmissible, and at war with common sense. It cannot reasonably be imagined that the incumbents would have charged 41,000 dollars to extinguish their interest in the premises : I am persuaded it would be nearer the true value to estimate it at half that amount. In that case; the unencumbered valuation would be 70,000 dollars, instead of 50,000 dollars; and yet this is a sum, from the testimony before us, certainly below its real value; but, independently of the offer made by the respondents of 100,000 dollars, compare it with the average of nearly all the sales in evidence, and it falls short a considerable sum; but take those made by John Hone, about 600 yards farther from the city, on the same road, at a price exceeding an average of2,000 dollars per acre, and it will be found, after a reasonable deduction for the encumbrance, to be grossly inadequate, and that too at a period of a few days previous to the date of the order of the 21st of May, 1804, and at a time when the appointment was subject to the rule of reference to a master, a circumstance tending to show the situation of the respondents, although doubtful, yet ignorant of the real value of this estate, and at that time reluctantly assenting to the appraisement, under a mistaken supposition that the valuation, although low, was more correct than it really appears to be. And I cannot resist the impression on my mind that they were, in some measure, influenced by the peculiar situation in which they were placed, after the refusal of the appellants to relieve the necessities of some of them, as appears by the testimony of James Palmer, jun. or make a partial division of the estate, without "their consent to the will, the appointment, and Mrs. Rogers’s choice, as stated in the correspondence of Bertram P. Cruger, one of the respondents, and the appellant, William Rogers. I am not prepared to say that Mr. Rogers, on this occasion, was actuated by fraudulent designs, or any other motives than a desire to coerce the division of the estate, acquainted with the value of Rose-Hill, and subject to the feelings too frequently produced by family disputes ; but I do not hesitate to declare, that in the right of his wife, as sole acting executrix of Nicholas Cruger, his conduct was not warranted by the will.

The testator ordered his executors to pay each of his children their separate shares, on their arriving to the age of 21 years, and to allow sufficient for their education and support during infancy. This refusal, therefore, to say the least, was illegal, and must, in some measure, have induced a compliance with the confirmatory order, and, consequently, in its operation, have been oppressive to the respondents; and I think it may be denominated a species of fraud, attended with stronger circumstances than are requisite to constitute the third kind enumerated by Lord Hardwicke, in the case of Chesterfield v. Jansen. (2 Ves. 155.) The respondents certainly, by their counsel, at the earliest period, evinced a doubt or dissatisfaction in relation to the appraisement, or why, only" eight days after filing of the report of the appraisers, enter this rule of reference to a master, whereby each party should be at liberty to except to all or any of the valuations contained in it, touching which the master might examine witnesses, apd also inquire into the whole' amount of the estate, together, with the amount and particulars of the property elected by the appellants. As this rule was by the consent of the counsel on both sides, and the report, of the master thereon must have been intended to assist the chancellor in the completion and ultimate confirmation of the appraisement and election, it became equally the duty of both parties to cause this report to be made; and the neglect or omission of the counsel of the respondents cannot be construed into such an unqualified acquiescence, as to vest the property so elected by the widow in her. It still remained open to objections, and the appointment subject to impeachment, on the grounds, now taken by the respondents, and could not be deemed complete, until the investigation and report of the master, and confirmation of the chancellor had taken place; In that imperfect state it continued, until the order by consent of the 21st of May, 1804, was entered, to which, it appears, the respondents, under the peculiar circumstances already mentioned, assented. The ■ pase of Pursey v. Desbowoerie (3 P. Wms. 315.) is in some measure applicable, where a daughter of a freeman of London accepted of a sum of money, as a legacy, in - extinguishment of her orphanage part, and executed a release', though she was told she might elect which she pleased; yet it was held, if she did not know, she had a right first to inquire into the value of the personal estate, and the quantum of her orphanage part, before she made her election; and this was so material that it might avoid the release. ...

I cannot think that the subsequent acts of some of the respondents to obtain a partition under the statute, can be considered a sufficient confirmation of the appraisement and election, so as to vest the property in Mrs. Rogers; but admitting for a moment, that the property elected, by.her had vested at the time, of such election, and that on an investigation before a master, it had been found to exceed one third, either by mistake in the appraisers, or otherwise» would Mrs. Rogers retain that property, and the children be obliged to accept of a pecuniary compensation for the difference? This course would be wholly subversive of the testator’s intention expressed in his will; whereby the amount, of such part or parts of his estate,real and personal, or either, as she might choose, is so limited, that on a fair and equitable valuation or appraisement of the same, the part or parts she shall so choose, shall not exceed together the value of one third of his real or personal estate. Such appraisement and election, therefore, could not vest the property, nor could the order of the 21st of May, 1804, under the peculiar circumstances of this case, remove the necessity of a reference to a master bv the chancellor, for the purpose of enabling him to effect a fair and equitable division of the estate, between the widow and the children, according to the true intent and meaning of the testator. It is consequently on the ground of a mistake in the appraisers, and ignorance and surprise on the part of the respondents, that, in this view of the subject, they will be entitled to relief. The result of my opinion, therefore, is, that the order of the 18th of September, 1807, setting aside all the proceedings whatsoever against Elizabeth Towers, the mother of Ann Towers, Peggy Towers, Catharine Towers, and Mary Towers, who are infants, and setting aside all the proceedings in this cause against the other defendants, subsequent to their putting in their answers to the bill of reversion, which comprehends the appraisement, is correct, and ought to be affirmed.

Van Ness, J.

In the consideration of this cause, the following are the leading and important questions which are presented for decision;

1. Can the decree or order of the 21st May, 1804, and the proceedings upon which it is founded, be set aside, on the ground of fraud, mistake, or irregularity, as against all the respondents, or any of them ?

2d. If the proceedings are regular, as to some of the respondents, but defective as to others, are the whole thereby vitiated ?

1. The discussion of the first question, in my view of the subject, is the most important in the cause. It involves a construction of that part of the will upon which the rights in severalty of the appellants depend, and that construction being once ascertained, it will be found to have an almost controlling influence upon every question that arises. To the correct decision of this point, the following parts of the will are necessary to be stated, and particularly attended to, viz.

“ I order and direct my executors, herein after mentioned, to make a full and perfect inventory of my estate, as soon after my death'as with decency and convenience it can be done.

“ The. rest and residue of my estate, both real and personal, I will and devise in manner following, that is to say, I give, devise and bequeath one third part thereof to my beloved wife, Ann Cruger, and to her heirs and assigns for ever; and it is my will that my said wife may, if agreeable to her, take the said one third part thereof out of such part or parts of my estate, real and personal, or out of either of them, as she may choose, so that on a fair and equitable valuation or appraisement of the same, the said part or parts she shall so choose shalhnot together exceed the value of one third of my said real and personal estate, as above devised and bequeathed to her. , ' 1

“ I again devise and bequeath the remaining two third parts of my estate, both real and personal, to my children, sons and daughters, as well those of my first marriage as those of my second, (they being all equally near and dear to me,) to be divided, share and share alike.

“ It is my will that my said executors, as soon after my death as my said wife shall choose, assign and convey to her the one third part of my estate, real and personal, as herein before devised and bequeathed to her, and in manner and form as is therein mentioned.”

In the construction of wills the intention of the testator must always prevail, and that intention is to be collected from the whole will, “ ex visceribus testamenti,” and, if possible, full effect is to be given to every part of it. It is, perhaps, needless to remark, that when a will appears to have been legally executed by a person of sound mind and discretion, the distribution which the testator makes of his estate must take effect, however unreasonable or improvident such distribution may appear to be. Courts of justice are to expound, not to make, wills. The right which every man has to dispose of his property after his decease, in such manner as he thinks proper, is founded in wisdom and good policy, and is secured by the laws of this and every other civilized country.

The will in question was executed about nine years before the testator’s death, and when most, if not all his children were infants. By that part which I have just recited he directs, and as the first act to be done after his decease, that an inventory of all his estate should be made by his executors. And here I will take occasion to remark that the appellants were competent to make this inventory, without the executors who refused to act; and this was equally proper and necessary, whether the appellants did or did not exercise the right of election given by the will.

The testator then devises to his wife (one of the now appellants) a third part of bis estate, real and personal, and gives to her the right to take the same out of such part or parts of the estate, real and personal, or out of either of them, as she might choose, so that on a fair and equitable valuation, or appraisement of the same, it should not exceed the value of one third of the whole. It is further provided, in relation to the property elected, that as soon after the testator’s death as the election should be made, that the executors should assign and convey the property elected. The remaining two thirds of the estate is devised to the seven children: but it is to be noted that no conveyance is directed to be made by the executors to them. Under these devises, immediately upon the death of the testator, one third part of the real estate vested in the widow, and the residue in the children, the title ’ _ thereto not being intercepted by any trust devise, directly or indirectly, to the executors. But in relation to the widow’s share, she had a right, as soon as an inventory was completed, to convert the interest she held in common with the children into an estate in severalty, and thus, by her own act, to acquire a new interest, and to do what was equivalent, as between her and them, to an actual partition; and this, by virtue- of the will, she had the uncontrolled power and right to do, without the aid or concurrence of the executors; for as no interest or property of any description was vested in them, they could communicate none to the widow. Her rights were derived from the provisions of the will itself, independent of the executors, who could neither modify, control, or abridge them, and .who had no other agency in the transaction than to cause an appraisement to be made, and to see that the part or parts of property elected by the widow did not exceed one third part of the value of the whole estate.

The testator intended to facilitate the exercise of this right of election, as far as he could, and never designed that it should be embarrassed or delayed, much less defeated, by reason of the infancy of his children. One great and important object of the testator was, (for reasons with which we have nothing to do,) to secure to his wife the means, if she saw fit to use them, of separating, according to her own will and pleasure, her part- of the estate from that of the children. It is .highly probable, however, that the testator supposed an appraisement would be made previously to the making of the election.

The counsel on both sides have supposed that the knowledge of the appraisement would have given the widow an undue advantage. I cannot, I confess, perceive any important advantage this would have given her; but however that may be, of this I am well satisfied, that it was never the intention of the testator that it should be concealed from her. How was she to limit her election to one third of the whole appraised value the estate, if she had not the means of knowing the whole amount of that value ? She would by that measure be obliged to grope, as it were, in the dark, without knowing, had her views been ever so pure and upright, whether the property elected would exceed or fall short, of the amount to which she was entitled. If she exceeded that amount, how was it to be reduced ? If she fell short, how was she to make it up ? In the latter case, there might probably be no difficulty, but in the former, delays, embarrassments, and disputes might arise, which, before they were terminated, might defeat the election altogether. The will clearly supposes the election was to be one single act. It will be seen, upon a moment’s reflection, that if the appraisement had been submitted to the widow, the election would have been (as it was the wish and desire of her husband it should be) a plain, simple and easy operation. She would then have known to what extent she might go, and shape her election in such a way as to preclude all delay, and, what was of infinitely more consequence, all dispute. Whether I am right in this or not, does not essentially interfere with the conclusion I am about to draw, from what I have before said.

I have already remarked that the right to make the election accrued at any time when the widow chose to exercise it, after the death of her husband. I have also endeavoured to show that the election having been made, the effect of it would be to convert the estate of the widow in common with the children, into an estate in severalty, and that independently of the executors, who, as they never derived any interest from the will, could impart none to the widow. A necessary consequence from these positions, if they are sufficiently established, is, that a conveyance from the executors was not necessary to the completion of the widow’s title. I consider the conveyance from the executors in the light merely of a further assurance, and as affording the evidence that the election had been duly and fairly made; and not as conferring upon the widow any new or additional right. But admitting, that to vest in her the legal estate, a conveyance from the executors was requisite, nothing is clearer than that she had a certain and indisputable equitable interest, which chancery would at all times have recognised and enforced, upon her application, by directing a conveyance to be executed. It will be seen in the sequel, that whether the estate derived from the election was a legal' or an equitable one, the consequences will, be the same. It is necessary now to examine, whether the appellants have exercised this right of election in such manner as to acquire a vested interest in pursuance of it.

By reason of the refusal of the executors to prove the will, and to take upon themselves the execution of any of the powers thereby vested in them, there was no person who could cause a valid appraisement of the estate to be made, or to execute any writing by which the widow could preserve the evidence of her election, and acquire a proper assurance of hen title, in virtue of her election, if that were required. It became necessary for these purposes, and for these purposes only, to resort to the court of chancery. In pursuance of an arrangement made between the widow and some of the adults, and by the advice of able and learned counsel, an amicable suit was agreed to be instituted, wherein the appellants were to be the complainants, and the children of the testator were to be the defendants. This proceeding was for the benefit of the parties, who all had an equal interest therein.

The bill was filed accordingly, and the defendants answered it. The bill states all the material facts relating to the premises, which are admitted by the defendants. The regularity of these proceedings is for the present not noticed. That forms another point in the cause which I shall consider hereafter; For the present I will consider them as regular.

The appraisement contemplated by the will was completed, (but by order of the court was not made known to any of the parties,) and was filed on or about the 20th May, 1803. The election by the appellants was filed on the IPth May, in the same year, designating the parts of the estate chosen by her.

In consequence of the refusal of the executors to act, the execution of the powers and trusts contained in the will devolved upon the court of chancery, (for a trust is never defeated for the want of a trustee,) and that court was, to all intents and purposes, substituted in the room of the executors.

The appraisement, therefore, having been made by competent authority, and the election having been filed, the title became vested in the widow, and, in my opinion, absolutely; but, at all events, in such a manner as to entitle her to a conveyance, or such other writing, as would be competent to render her title complete. It has been insisted upon, and not without effect, that inasmuch as it was unknown whether the property designated in the election, did or did not exceed one third of the value of the estate, that the election was not perfect until the court of chancery should previously examine into that fact, and that until the election should receive the sanction of the court, it Was not complete.

Upon the fullest reflection I am satisfied, that the validity of the election cannot depend upon that circumstance. I have before observed, that the difficulty arising from the contingency that the property elected might exceed one third of the appraised value of the estate, is created by the order of the court directing the concealment of the appraisement from the appellant; a measure never contemplated by the testator, but which, if contemplated, could never affect the validity of the election. If the title was never to vest until the chancellor confirmed and sanctioned it, the consequence would be, that the widow might be driven to make several elections, and thus, contrary to the fair interpretation of the will, delays would be incurred, which might defeat the election, and disputes and litigation would be engendered, which the testator studiously endeavoured to avoid. The election could therefore never be avoided on this ground. What effect a gross and palpable mistake in the valuation of the property would have had will be examined, when I consider another point in the cause.

Before dismissing this point, I will briefly state a few-other considerations which occur to me on the subject of the election.

The part or parts of the property elected by the widow, the will provides, shall not, upon a fair and equitable valuation thereof, exceed one third part of the estate. Hence it has been inferred, that until an appraisement was made, the right of election did not attach, but that, at all events, no estate was acquired under the election, until it should be confirmed by the trustees. But the very terms of the will import that the election might be made the moment after the appraisement was completed; and if so, the exercise of the right necessarily vested the estate, and this is of the nature and essence of the right, in all cases where an estate is to be acquired by election. The appraisement which was requisite to be made in order to determine whether the part elected did or did not exceed the value of one "third of the estate, is a matter of subsequent arrangement and inquiry, but can never operate to defeat or devest the estate which had been already actually acquired, on making the election, unless on the ground of fraud. The right of the widow to the property elected, (or, in other words, her estate in severalty therein,) began by the election. She was bound by that election; and if she was bound, nothing is clearer than that the children were bound also. The election fixed and ascertained her separate interest, and cannot be set afloat by any question about the appraisement, which might subsequently arise. For these reasons my opinion is, that upon principles of sound construction, and according to established rules of law, the widow acquired a vested legal estate, but, at all events, an equitable estate in severalty, by virtue of her election, and as a necessary result, the estate thus acquired became vested the moment the election was filed.

I have taken some pains on this part of the subject on account of its very great importance in forming a correct opinion on the remaining questions in the cause.

I will now, as briefly as the nature of the case will permit, proceed to consider whether the decree of the 21st of May, 1804, can be set aside on the ground of fraud, mistake, or irregularity in the proceedings on which it is founded.

And first, as to fraud. On this part of the subject, I will detain the court but a few moments.

Fraud is never to be presumed. It is always to be made out, either by positive proof, or by the disclosure of such facts and circumstances as are irreconcilable with good faith and the principles of morality. Many things may be illiberal, reprehensible, and, perhaps, even dishonourable, which will not in legal signification be deemed fraudulent, so as to avoid a contract. The evidence to make out the charge of fraud against the appellants, principally relied upon, is, that large sums of money in the hands of the appellants, due, as is contended, to the respondents, was improperly and oppressively withheld whereby they were forced to assent to the order in question by an undue and illegal advantage which the appellants took of their necessities.

Undoubtedly, if this charge was supported, their consent to the order would not be obligatory upon them. But after all that has been so ably urged upon this sub» ject, I look in vain for such evidence in support of the charge, as a court of justice is bound to demand. I can see a want of courtesy, and of a spirit of accommodation. I can perceive a good deal of that acrimony and hostility which controversies of this kind seldom fail to produce ; but I cannot perceive the formation of a deliberate plan to drive the respondents into an agreement, which nothing but their necessities, occasioned by the improper conduct of the appellants, could have induced them to accede to. They were entitled to large and liberal fortunes under the will in question, and in addition to which they inherited a very large estate, which did not pass under the codicil, on account of a defect in the execution of it. It is impossible for me to believe that, under such circumstances, the necessities of the respondents induced' them to submit to the terms of this order, or any other terms which were not reciprocal and proper.

Has there been such a mistake in the valuation of the Rose-Hill estate, as that the respondents can be relieved on that ground ?

I have, in the former part of my opinion, endeavoured to show, that the election vested the estate elected in the appellants, and that, as they were obliged to abide by that election, the respondents were equally bound to acquiesce in it. The election, was made, and consequently the estate vested, on the 17th of May, 1803.

The value of Rose-Hill, at that period, and at no other, is, then, the proper subject of inquiry. The will clearly points to that event, as the time in reference to which the valuation of the estate was to be made. Indeed, this is a point which ought to have been conceded, because it is too-plain to be controverted.

What, then, was the value of Rose-Hill on the 17th of May, 1803 ?

If the respondents are to be relieved on the ground of a mistake in the valuation, at the time I have just mentíoned, it is not because of a trifling inconsiderable inequality, for then a man would never know when he was or was not bound by his contract.

In the language of a wise and upright judge, who understood this doctrine, (Lord Thurlotv,') u there must be an inequality so strong, gross and manifest, that it must be impossible to state it to a man of common sense, without producing an exclamation at the inequality of it.” And he adds, “ The principle then is loose enough-looser than I wish to be established in a court of justice.”

I do not mean to go very fully into the evidence as to the value of Hose-Hill, at the time, when, according to my opinion, it ought only to be inquired into, to wit, on the 17th of May, 1803.

Three sworn appraisers, men of integrity and competency, have respectively testified, (for in that light the court are to consider their appraisement,) that in the month of February, 1803, they considered Rose-Hill, subject to the life-estate of General Gates and his wife, to be worth 50,000 dollars. There is no evidence, neither do I know that it is pretended, that between the months of February and May, there was any change in the value. This testimony must then be taken as establishing the value, until it is completely done away by other counter testimony; not by testimony which leaves the matter in doubt, but by such as to establish unequivocally that the appraisement of Messrs. Isaac Low, Abijah Hammond, and John Lawrence, is grossly and manifestly inadequate.

The testimony relied upon is, 1. That arising from the aflidavits of some of the respondents. 2. From the sales made of other property in the vicinity of Rose-Hill, co-temporary with the appraisement! and, 3. From sales made posterior thereto.

The affidavits of parties injudicial proceedings are to be received with great caution. I doubt very much whether in this case they ought to be received at all. But, taking them into consideration, what do they prove ? As far as I can understand them, they furnish no other evidence than that the respondents have a sincere and perfect belief that there has been an undervaluation of this property, a belief founded, in a great degree, however, upon sales made some considerable time after the election had been filed.

The evidence arising from the sales made about the time of the appraisement, and the offer made by Titus to Kip, in 1802, is equally uncertain and inconclusive.

The evidence derived from the sales, afterwards, and near the time of the order of the 21st May, 1804, a year after the election, is inadmissible except in the point of view in which I shall presently consider it.

It is a rule as well settled as any that can be stated, that when a contract is made for the sale of real or personal property, without fraud, and which is obligatory on both parties at the time, that no change in the subsequent value of it, can be alleged by either party, for the purpose of rescinding it. If it depreciates, nay, if it be absolutely destroyed by conflagration, earthquake, or in any other way, the purchaser must pay the stipulated price, if its value is increased by the discovery of mines, the founding of a village or city, or by any other means, which occasion an appreciation in the value, no matter to what extent, the vendor is bound, on receiving the consideration money, to execute a conveyance. This is a maxim in our law, known to every man, and it would be trifling with the time of the court to cite cases in support of its existence or reasonableness. The sales made subsequent to the election, about the time of the order of the 21st May, 1804, and afterwards, undoubtedly prove that at that period there had been a most rapid and unexampled rise in the value of property general^, in the neighbourhood of the city of New-7 ork. Whether, however, the astonishing prices for which property has been selling there, furnishes us conclusive evidence of the intrinsic value of the property, time only can unfold.

The difference between the appraised value of Rose-Hill, and the probable increased value of it, in the spring of 1804, may, perhaps,in a greatdegree, be accounted for, from natural as well as adventitious causes. The yellow fever raged with great violence in the autumn of 1803. The prosperity of our country producing a most rapid increase of population, wealth and commerce, are circumstances which of themselves would explain the reason of the difference. At any rate, the sales I have last mentioned can never afford that kind of evidence xvhich can countervail the testimony of the three appraisers.

But there are other considerations of great weight on this part of the subject. During the whole of the period which intervened between the filing of the appraisement and the making of the order of the 21st May, 1804, the respondents had an opportunity of excepting to the appraisement. They, however, did not except to it. In this interval of time, also, according to the evidence of Mr. .Benson, negotiations were carried on between the counsel of the parties, and with the privity of the respondents, which finally terminated in the agreement contained in the order last mentioned, in all which he says “ he never heard a complaint, suggestion, or intimation, that any parcels or articles of the estate had been appraised too high or too low.” Mr. Harison testifies to the same effect. After the appraisement, and for a long time thereafter, the respondents acted upon the order of the 21st May, 1804. They received property under it to a very large amount. They proceeded to take measures for making partition of that part of the real estate which fell to their share in consequence of the election and order-. I cannot but consider after all this, that they are bound (I mean the adult respondents at least) by the appraise.™ ment.

I come now to that part of the case whi he most difficult, and which presents the only questions about , f , _ ' ^ „ which 1 think there is much ground tor a difference of opinion. I mean the regularity of the proceedings in the court of chancery, which terminated in the decree or.order of the 21st May, 1804. And here in common with this court and the parties, I have reason to lament the unavoidable absence of three of my learned brethren, by which we are deprived of the benefit of that aid which their experience and wisdom is so eminently calculated to afford.

I shall in delivering my opinion on this part of the case, notice but a few of the many exceptions which have been insisted upon. Those not mentioned are to be considered either as having been sufficiently answered, or waived.

At the time of filing the original bill and answer, which was the 18th May, 1801, the respondents, Bertram Peter Cruger, Henry N. Cruger, Nicholas Cruger, and Betsey Towers, were of age. The respondents Catharine Cruger, Polly Cruger, and Sarah Cruger, were infants. Catharine became of age the 7th May, 1802, and married the respondent William Bard, in October thereafter. Mary was of age on the 24th September, 1803, and was married to the respondent, Henry Cruger, jun. in August, 1802. Sarah Cruger, married to William Heyward, is yet an infant. All the adults, except Mrs. Towers, it is agreed, were regularly before the court. For the purpose of expressing my opinion, it is material only to consider whether the children of Mrs. Towers were improperly made parties to the suit, and whether Mr. and Mrs. Bard, and Mr. Henry Cruger, jun. and Mary his wife, were so far parties on the 21st May, 1804, as to be bound by the order entered on that day.

First, as to William Bard and his wife, and Henry Cruger, jun. and his wife.

William Bard, and Henry Cruger, jun. became interested in the cause, in consequence of the irrespective marriages with two of the daughters of the testator.

In no case where a feme sole is a party defendant, and marries pending the suit, does the suit abate at law ? It proceeds as if she remained a feme sole. In equity it is necessary that the husband be made a party; sometimes he is made so by the mere order of the court, on suggesting the marriage; he may be made a party also by inserting his name in the proceedings; and there can be no doubt, if his name is thus inserted, with his consent, and he afterwards acts in the progress of the cause, in consequence thereof, in the character of a party, that he is bound by the decree and orders that shall be made. If a party, after an irregularity has taken place, consents to a proceeding, which, by insisting on the irregularity, he might have prevented, he waives all exceptions to the irregularity. This is a doctrine long established and well known. Consensus tollit errorem is a maxim of the common law, and the dictate of common sense.

On the 23d February, 1803, after the marriage of Mr. Bard, (but when his wife was still an infant,) and Henry Cruger, jun. whose wife was then of age, they for the first time appear in the proceedings. They then united in a petition to the chancellor for certain purposes, which it is not necessary here to mention,, but which related to this cause. This was then their own act, and can be considered as done by them in the character of parties only. The court of chancery proceeded to make an order upon this petition, thereby considering them as parties, and they not objecting to such order, waived all exception, afterwards, as to the form in which they were made parties.

On the 21st May, 1804, when all the respondents, except Mrs. Heyward, and the children of Mrs. Towers, were of age, the order was made for confirming the appraisement and election, and discharging the reference to the master, and for other purposes. This order was made by consent, which the adults at all events were competent to give. In the title of the cause on this occasion the names of William Bard and wife, and of Henry Cruger, jun. and wife, appear as parties. From this I think the conclusion necessarily results, that if any irregularity existed in the proceedings previously to the 21st May, 1804, that the adults, voluntarily consenting to this order, waived them, and that the order was obligatory as to them, to the same extent and in the same manner, as if'no irregularities had ever existed. I consider then that the only remaining question on this part of the subject is, whether the infant children of Mrs. Towers were ever regularly made parties.

Much has been said with respect to Mrs. Towers never having been regularly and legally a party. I pass over what has been urged on that subject, as not material, in my apprehension of the question relating to her infant children.

After the appellant, Ann Cruger, intermarried with William Rogers, the suit abated. It could be continued only by filing a bill of revivor, and this was the course pursued. At this time, Mr. Maitland and his wife were both dead, and of course were no longer parties. The infant children of Mrs. Towers, residing without the United States, succeeded to the interests of their mother, at least as to the realty, and, to be bound by the order of the 21st May, 1804, must have been parties to it. To make them so, the complainants proceeded under the provisions of our statute. And the question is, whether they were, in virtue of this proceeding, regularly brought into court ?

I have just stated, that after the marriage between the complainants, the whole suit abated, and a bill of revivor became requisite to continué it. To this bill it was necessary the respondents should answer, which (except the children of Mrs. Towers) they did. This was, in one sense, an original proceeding. The comjjlainants have proceeded against the children of Mrs. Torvers, as if the original suit had not abated by the marriage between the appellants. But the answer of Mrs. Towers, admitting it to be good, was in a suit where Mrs. Rogers, then a feme sole, was the complainant. That answer can never •“ be deemed and taken as and for the answer” of her infant children, pursuant to our statute, in the revived suit, wherein both the appellants were complainants. This case is, therefore, not within the statute, and the children of Mrs. Towers consequently were not parties. But admitting the case to come within the statute, there is another objection to this proceeding. I cannot admit that our statute extends to the case of infants; nor do I believe that in any case, the answer of a deceased defendant can be made the answer of the representatives, provided such representatives are infants. The statute provides, that the rule or order to revive a suit against the representatives of a deceased defendant “ shall be served on the adverse clerk;” and unless “ they shall, vvithin eighty days after such service as aforesaid, appear and put in their answer, or signify their disclaimer of the suit, and the. matters in controversy therein, the plaintiff or plaintiffs may cause their appearance to be entered, and in such case the answer of the deceased person shall be deemed and taken as and for the answer of such representative, Or other persons interested by the death of such person.” Now the answer of the deceased is to be taken ás the answer of the representative, provided certain things are not done. This can relate only to adults who are competent to perform those things. It is a fundamental rule of the court of chancery, that infants" are not to be prejudiced by any laches which is not waived, after they become of age; and it is, therefore, that infants cannot be bound under a proceeding upon this part of the-statute, which does not in its terms extend to them. The children of Mrs. Towers were therefore never parties to this suit in any shape whatsoever ; and, consequently, are not bound by the order of the 21st of May, 1804. To what time the proceedings as to them ought to be set aside, might, if it were material to the appellants, present another question; but as there can be no use in modifying the order appealed from in this respect, it is unnecessary for me to consider it. The appraisement was made after their mother’s (Mrs. Maitland’s) death, and after that fact was known to the appellants. Not being parties .to the suit, they are not bound by the appraisement, and the appellants, as to them, must hereafter proceed as they shall be advised. But, in order to support the proceedings against.the infants, it has been urged that the petition presented by the guardians, on the second argument of the application for a rehearing, ought to have been acted upon by the chancellor. In this petition they offer to waive all the irregularities.. The answer given, to this by the chancellor appears to me to be satisfactory. The offer was coupled with certain reservations, which rendered it difficult, if not impracticable, to be carried into effect. But there is another, and to my mind, a satisfactory answer. The chancellor, as the paramount guardian of all infants, is not bound to make any order in the case of infants, which is not for their benefit. I am not prepared to say, that any order which could be made upon this petition would be for their benefit, under all the circumstances of the case ; 1 therefore lay this petition out of the question.

But, although the proceedings as to the infants are irregular, it. by no means follows that they are not obligatory upon the other respondents, who, in the making .the order of the 21st of May, 1804, were of age, and regularly-, as I hive endeavoured to show, before the court. And this brings me to the last 'material inquiry involved in this cause. . ,

What effect will the defect in the proceedings against the infant respondents have upon those against the respondents, which are regular ? On this part of the subject I shall be very brief; for I take it for granted, that very little need be said to show, that in every point of view, the order of the court below, setting aside the proceedings against the adult respondents, cannot be supported. In most cases, all the persons who may be affected by a decree of the court of chancery, must necessarily be made parties. There are cases also where although they may, yet it is not absolutely necessary that they should, all be made parties.

Whether the children of Mrs. Towers are of the one or the other description, is not material, for, in either case, the result will be the same, and equally tend to show most dtijfconstratively that this part of the order appealed from ought to be reversed. Let us suppose for a moment they (the children of Mrs. Tozvers) were necessary parties before the order or decree of the 21st May, 1804, could be made, what ought the chancellor in this case to have done ? Most obviously, he should have told the other respondents they ought. to have made that objection at the time when that order was about to be entered; and although he might have permitted them to urge this defect on the petition for a rehearing', they ought not, by their own omission, to be placed in a better condition than they were in at the time when the order was entered. Suppose this objection had been urged at the time the order of the 21st of May was about to be entered, what would then have been the duty of the chancellor ? Certainly not to set aside all the previous proceedings against the adult respondents. "He would have suffered the cause to stand over for want of parties, and then the complainants (the ¿now appellants) might have pursued the proper course to bring them into court | "and this is the invariable practice of the court' of chancery, even . upon the final hearing of the cause.

_ On the other hand, if the children of Mrs. Maitland might have been made parties, though they were not necessary parties, it is certain that the omission to make them parties could, in no possible manner, vitiate the proceed-against the adults. That part of the order appealed from, therefore, ought to be reversed.

Much has been said in the course of the argument to prove, that in consequence of the delay which took place in making the assignment of the stock which fell to the share of the respondents, they have suffered a heavy loss, by reason of the depreciated, value of it; and it has been insisted that the respondents' are entitled to some relief from this court -on that ground. This is a minor question in the cause, but which, notwithstandingjPequires some consideration. The administration of this estate, in relation to the personal property, is yet before the chancellor. If, on the closing of this transaction, on the final liquidation of the accounts, this should be considered a valid claim on the part of the'respondents, (and on this I give no opinion,) the chancellor, upon a proper application, is competent to enforce. it. To do. the respondents justice in this respect, it is surely not necessary to set aside the order of the 21st of May. The non-performance, on the part of the appellants, of that order, can never be a ground for vacating it.

I have, I am sensible, consumed much of the time of this court in giving my reasons for the opinion I have formed in this cause. But the importance of the decision about to be pronounced, and the very great responsibility which attaches to all who participate in that decision, render it necessary for me to detain the court a few moments longer.

If the order of the 21st of May is set aside, as'it respects the children of Mrs. Towers only, and is permitted to stand as to the other respondents, there can be no difficulty in the consequences which will flow from it. The election as to all the respondents being established, the rights of the parties can be easily ascertained, and will admit of but little room for future controversy,, if the parties are disposed' to peace. The question as to the value of Rose-Hill will be open to inquiry, as between the appellants and the children of Mrs. and the interest of all the respondents in the property not elected by the appellants, will remain in the same state, as if the whole of the order of the 21st of May were established.

There are many other important considerations which might be urged against setting aside the order of the 21st of May, 1804, which I forbear to mention. Mrs. Hey-ward is no party to the petition for a rehearing, neither is she a party now before this court. This circumstance has not been without its influence in producing the opinion I have formed.

I am, therefore, of opinion, that such part of the order appealed from, as directs all the proceedings purporting to have been had against the children of Mrs. Towers, to be set aside, be affirmed, and that the remaining part of the said order relating to the proceedings against the other respondents, be reversed.

Kent, Ch. J., Thompson, J., and Spencer, J., were absent.

Clinton, Senator. This cause has derived importance, not only from the magnitude of the property which it involves, but from the long and animated discussions, the eloquent appeals, and the learned researches, which have been exhibited in this place. After an attentive hearing and mature deliberation, we are now called upon to pronounce our- decision.

Nicholas Cruger, the former husband of the female appellant, and the father and grandfather of the respondents, died possessed of a large estate in houses and lands, money and stock, of various descriptions. He left six children by. his first marriage, and one by his second. Four of the children had arrived to full ave, and three . ° were. infants, when the proceedings upon which this appeal is founded were commenced. By his will, dated several years before his death, he left one third part of his estate, both real and personal, to his .wife and to her heirs and assigns for ever; and he directed that his wife might, if agreeable to her, take her third out. of such part or parts of his estate, real and personal, or out of either of them, as she might choose, so that, on a fair' and equitable valuation or appraisement of the same, the said part or parts so chosen, by her should not together exceed one third of his said real and personal estate. The remaining two thirds were given to his children, to be divided among them, share and share alike, to be paid on their severally arriving at the age of t\yenty-one, and the income of the proportion of the minors was to be applied, during infancy, to their support and education, and to be paid to them, or for their use, either annually or otherwise, as occasion or their necessities . might require. The wife and three friends of the testator were appointed his- executors, with full power to sell and convey his real estate; and his executors were di- ' ■ rected, as soon after his death as his wife should choose, “ to assign and convey to her the one third part of his estate real and personal, as before devised and bequeath- ■ cd to her, in manner and form as is therein mentioned.”

The friends of the deceased declined to act as executors, and the administration of the estate fell to the widow, who took upon herself the trust. The persons thus. appointed to apportion the estate under the will, and with full power over the subject, having refused to serve in that capacity, serious difficulties arose, as to the.allotment of the widow’s share. Three of the heirs were infants, and one of the adults, Mrs. Towers, was in a foreign country. An arrangement among the devisees and legatees would not only be inconvenient, as it respected the absent one, but in relation to the minors, it would not be binding. Under these circumstances, the female appellant called to her assistance counsel learned in the law, who advised her to institute an amicable suit in chancery, for the purpose of appropriating to herself her share, and of silencing all future controversy. The suit was instituted. In its progress through the court, the parties became hostile. The proceedings became complicated, and were spun out to a great length, and hearing after hearing, order after order, and decree after decree, having taken place, we are now to decide upon an appeal from an order of the court of chancery, which has set aside all the proceedings in the cause against the infant children of Elizabeth Towers, one of the heirs, and all the proceedings against the other respondents, • subsequent to the putting in their answers to the bill of revivor.

The cardinal point of controversy is the valuation of a part of the estate known by the name of Rose-Hill, and a lot in its vicinity. The improper- motive, and the incorrect conduct charged against the appellants, and the irregular proceedings alleged to have taken place, are all exhibited with a view to operate upon that subject; and in order to present auxiliary inducements to the court, in case of too low an estimate of that property, to allow the respondents to come in and divide it, according to its real value, with the appellants. In order to decide properly on this controversy, it will therefore be necessary to inquire,

1. Whether the property at Rose-Hill and in its neighbourhood, was really fixed at too' low a price ?

2. If it was, whether the respondents are concluded by any subsequent acquiescence, or any proceeding in the cause; this court taking into view the infancy of some of them, the conduct of the appellants to others, and any irregularities that may have occurred in the manaeement of the suit.

In determining the value of Rose-Hill, it is of primary importance to fix upon the period of estimating it; and in order to do this with propriety, it is necessary to retrospect to the will. The trustees, if they had acted, undoubtedly have been at liberty, at any time before the allotment to the widow, to have calculated the value of the estate. Indeed, it would have been their incumbent duty, if a sudden and extraordinary rise had taken place in the value of any portion of the property, to have revised and corrected their valuation, at the very moment, when they were about executing the conveyanee to the widow, under the will. Suppose, for instance, that they had compiled a schedule of the estate, had appraised the value of the parts, had estimated Rose-Hill at 50,000 dollars, and, on the 20th of May, 1804, had given directions to. counsel to have the writings made out for their signature, on the next day, (the day on which the election and appraisement were confirmed by the chancellor,) and suppose that when, on the eve of executing the conveyance* it was satisfactorily established to them, that the land at Rose- Hill was greatly undervalued, and that it was worth 100,000 dollars; is there a man who hears me that would hesitate to say, that it was not the duty of the trustees to throw aside the writings, and tó make a new appraisement ? The proceedings in chancery were instituted with a view to remedy the evils that resulted from the declension of the trustees^ The chancellor stood in their platje. He was to make an equitable allotment under the will, and at any time before he made it, or, in other words, confirmed the appraisement and election, it was proper and obligatory on him to correct the valuation, and to see that it was fair and just. In deciding on the' value of Rose-Hill, the proper era to select is the 21st of May, 1804. The time in which the appraisement was made is not the time to govern us. The appraisers were not necessary, under the will. The chancellor himself ought to have made the valuation. The regular course of the court would, indeed, have been to have directed the master to report a schedule of the estate, and the value of the several parts, and then, after the election of the widow, to have ferréd the subject to the master, and on his report to have examined the whole case, and to have confirmed or annulled" the election, as equity should prescribe. The appointment of appraisers was a substitute for the master, who would unquestionably have called in well informed men, and have taken their opinion, under oath, of the value of the property. But as the chancellor considered the appointment of commissioners as the most eligible mode of informing his conscience, I certainly do not object to the measure; but I contend that when the appraisement was exhibited to the chancellor, and he was called on to decide on its merits, that the 21st of May> 1804, the period he Was so called upon, not the 7th of March, 1803, the date of the appraisemeiit, was the proper time at which to calculate the value of the property.

It is not correct to say that the value must be considered as definitively established, at the time of the election; that previous to it, the widow was a tenant in common, with the heirs, but that the election severed the estate, and made her a tenant in severalty of the property elected. The admissions of the appellants themselves contradict this position. In the decree of cqnfirmation of the 21st of May, 1804, entered by the consent of the parties, the sanction of the court to the validity of the election was deemed essential. If, previous to the confirmation, and after the election, any public calamity had occurred which would have diminished greatly the value of the property selected, it would have been competent for the appellants to come in and protest against the confirmation. For instance; if an earthquake had swallowed up the place, or if an inundation of the ocean had swept it away, it would be hard and unjust to tie down the appellants to their selection. In like manner, any extraordinary rise in the value of the lands ought not to be confined to them; but the loss should fall on the estate generally, and the advantage be dispensed in the same way* Before confirmation'the party is not bound. This principle is recognised in the case Ex parte Miner. (11 Ves. 559.) A person purchased an estate before a master, and presented a petition to have the report of the master confirmed; but before any order was made, a barn and stable, part of the premises, were destroyed by fire. The lord chancellor decided, that the loss should not fall on the vendee, but that it should be deducted from the purehase-rhoney, upon the ground that no right or interest passed in the property, until confirmation. The election, in this case, was in the nature of a purchase or investment of1 a certain interest, springing out of the will in certain lands, and the appellants could obtain no permanent interest, until the court gave to their selection the stamp of its authority. A question, however, of very considerable importance, presents' itself, in relation to the nature of the confirmation of the ¿1st of May, i 804. The decree states, that the writing purporting to be the election by the appellants, of the several parcels, qr articles, as the one third part of the estate devised to the female appellants by. the testator, shall be deemed to be confirmed; but to remain in the hands of the master, subject to the further order of the court. And the whole domplexion of the decree evidently shows that something ulterior was to be done, that the final settlement Was postponed, and that the court reserved to itself the right of modifying, of changing, or of setting aside the arrangement, as long as matters in controversy, or for adjustment, remained before it.

The Eose-IIill farm contains ninety-two acres, and has a spacious house and suitable out-houses. It is less than one mile from the paved streets of the city of New-York, f J and about three miles from the City Hall. It is washed on one side by the waters of the East River, and is bounded on the other by the great post road, which, after proceeding a few miles, spreads itself in three directions; one to Hell-Gate ferry, which communicates with Long-Island, and the remaining two routes tp Harlaem Bridge and King's Bridge, the only avenue to the continent. In point of situation and aptitude of conversion into town lots, for the accommodation of the citizens of New-York, « it is unequalled. The extension o'f Orchard-street, as has been for a long time contemplated, and has been commenced by the corporation, through the lands pf Stuyvesant and others, and this farm, will enhance its value beyond all conception. A person, called upon in May, 1804, to estimate the value of Rose-Hill, ought to have calculated, not its value in gross or in mass, as it would bring under the hammer, without any favourable terms of credit, and not well husbanded or managed; but he would have taken into, consideration its favourable position, its propinquity to the city, the sales of the neighbouring lands, the intended extension of Orchard-street, and the immense price which the place would, bring, when converted into town lots. He would also consider, that the great augmentation of the value of property, on the island of New-York, did not arise so much from any extraordinary visitation of Providence, as from fixed and continually operating causes. An immense mass of population was confined within a narrow strip of land surrounded by the waters of the Hudson and East Rivers. This mass was invigorated by industry, enriched by commerce, animated" by enterprise, and- was progressing with a-rapid and unceasing step. It was breaking with irresistible force through the limits in which it had been confined, and was extending itself, with astonishing celerity, into all parts of the country-

The rise of land in the vicinity of the city was then as certain as t^ie extension of the city, and as its increase of inhabitants. This population was not only augmented by natur£\l increase, but by. crowds of strangers from, France, from Great Britain, from Ireland and the West' Indies, who took refuge in o.ur peaceful clime from the ravages of war and the oppressions of despotism. The commercial and enterprising genius of New-England also perceived that New-Tork was destined by nature to command the commerce and to be the great store-house and emporium of two-thirds of the United States, and to that place her sons resorted from all quarters, and prospered, That dreadful pestilence, which exhibits death in its most terrific forms, had visited the city in the summer and autumn of 1803, had compelled its inhabitants to retire from the scene of agony and horror, and had inculcated a general impression, that to obtain safety in future, it was necessary to, retire in season into the country.

In order to illustrate the predominance and influence of that opinion, it is only necessary to say, that in 1805, when the yellow fever again appeared, the commercial and exposed parts of the city were immediately and ge» '■ nerally evacuated, the citizens having purchased or procured, in season, places of retirement and safety ; and; that when it prevailed in-1798, owing to the neglect of this salutary precaution, the ravages of the disease were dreadful. The sales at Kip's Bay, which took place on the 16ih of May, 1804, five days before the confirmatory •decree in this cause, exhibit, in the strongest point of view, the operation of the causes I have just mentioned, on a favourable local situation, and after a visitation of yellow fever, Kip's Bay, where the lots sold are situated, is near half a mile further in the country, and the land sold on an average at a sum exceeding 2,00Q. dollars an acre. Rose-Hill, if divided into, lots, would certainly have brought more. Exclusive of streets it would pro» duce at least a thousand building lots, which, at the low rate of 250 dollars a lot, would amount to 250,000 dollars. The sales of Bridgen’s property by the master, on the 5th of August, 1803, produced, on an average, 530 dollars per acre; but the situation is not so favourable; some of the parcels were large, and it is probable that the title was suspicious. But this is not a contemporaneous transaction. It took place nine months before the confirmatory decree. The testimony of Titus relates to June or July, 1802, when he states that he could have purchased at Kip's Bay for four hundred pounds an acre. The subsequent sales by Hone show the rapid rise of prices after that period. The fact of the appraisers valuing Union Hall, which is six miles out of town, and not one fourth as valuable per acre as Rose-Hill, at 625 dollars per acre, shows, demonstratively, the little reliance that can be reposed in the estimate. The circumstance that it was encumbered with the lives of General and Mrs. Gates, is, no doubt, a great deduction from its value. The general was, at the time of the appraisement, seventy-five years old, and is since dead, and his lady was sixty-three. To allow seven years for the falling in of the two lives, and 2,0Q0 dollars per annum for the estate, would be 14,000 dollars, which, added to the 50,000 dollars, would make 64,000 dollars, a sum totally inadequate, at the time, even when the appraisement was made. I reject the calculation of Dr. K. as an absurdity on the face of it. He claims for the tenants for life upwards of 41,000 dollars. His calculation is founded upon an arbitrary hypothesis. He assigns no sufficient reasons; and, from a letter read in court, (which is not in the printed case,) it appears, when called upon by the appellant for an exposition of the grounds of his calculation, that he wraps himself pp in mystery, exacts blind and implicit confidence, as the price of ten years’ study and profound meditation. The mysteries of his calcula-^ 'ions, like the Eleusinian rites, are to be concealed from vulgar eyes, and it is sufficient for him to say, Hoc'volo, stc jltl)eoi sit pro ratione voluntas. No man who knows any thing about the situation of Rose-Hill, but would be perfectly convinced that 25,000 dollars would be a great and exorbitant price to buy out the present incumbent. Upon a view of the whole case, from a personal know» ledge of the property, from a comparison with other and contemporaneous sales, and from a careful retrospect to the srur'ion of real property, at that period, I have no question but that Rose-Hill was greatly undervalued by the appraisers, and that between that period and the time of the confirmatory decree, it had greatly increased in value. When some of the respondents, afterwards, offered to pay 100,000 dollars, on a short credit for Rose-Hill, subject to the encumbrance of General and Mrs. Gates's lives, they did not offer its value. At that price they would have made a most lucrative bargain.

But allowing all possible force to the inadequacy of the price, it becomes now an important inquiry, how far a circumstance" of that kind can have'weight in this court. The respondents^ it will be said, have all declared their consent to the election. The infants are bound by the "acts, of their guardians, the adults by their own stipulations, and the records of chancery rise up in judgment against them. It is well established, that in making a bargain, a mere inadequacy of price will not, alone and unsupported by other circumstances, be sufficient to set aside a contract. The case of Heathcote v. Paignon (2 Pro. Cas. 167.) "speaks this language. This was an application, to set aside an annuity, where there was 23 per cent. clear profit, with a certainty of the principal being secure, and where the terms were such, as to show evidently the distress of the party. The lord chancellor in pronouncing his opinion in this case, said, “ if mere inadequacy is the ground, it should seem that it was scarcely sufficient, but there is a difference between that and evidence arising from inadequacy ; if there is such inadequacy, as to show that the person did not under* ytand the bargain he made, or was so oppressed, that he was glad to make it, knowing its inadequacy, it will show a command over him which may amount to fraud. If the transaction be such as makes overreaching on one _ ° side, and imbecility on the other, it puts the parties in :such a situation as to show that it could not have taken place without superior powers on the one side over the other.” And an able commentator, (Powell on Contracts, 156.) in remarking on this case, says, “that the circumstances which furnished evidence of the seller’s having been distressed, and that his distress was taken advantage of in this case, seems to have been the buyer’s having been acquainted with the seller’s want of money, and his having enthralled him, (the seller,) by suffering him to contract a debt, by which means the buyer had him so far within his power, as that he might have distressed him, on his non-compliance with his own terms.” The reporter of this case adds, in a. note, that in a case in the exchequer, in 1787, (Griffith v. Spratley,) the lord chief baron determined, “ that there was no case where meré inadequacy of price, independent of other circumstances, had been sufficient to set aside a transaction.” In the case of Gwynne v. Heaton, (1 Bro. Cas. 1.) Lord Thurlow observed, “ that to set aside a conveyance on that ground solely, there must be an inequality, so strong, .gross, and manifest, that it m.ust be impossible to state it to a man of common sense, without producing an exclamation at the inequality of it.” Applying the spirit or principle of these cases to the cause lefore us, we are led to this conclusion, that the parties a:e concluded, or estopped by their own agreement or ccnsent, in the court of chancery, if no other objection cat be brought forward than the low price of Rose-Hill. But it is to be observed, that slight circumstances connected with great inequality, will induce a court to interfere and correct the evil. In the case of Pope v. Roots, (1 Bro. P. C. 370.) it was held that “ inadequacy of price alone is not, when all parties are informed respecting that about which they are contracting, a sufficient ground fot á court of equity to refuse to give its sanction to a contract, unless the consideration be inadequate in a degree that will warrant the court to conclude fraud, from the internal evidence the transaction itself furnishes} yet it is a strong inducement to a court of equity, to seize upon any other ground that the case may furnish, which coupled with that, may warrant it to interfere against the inadequacy.” And in the case of Morse v. Éoyal, (IS Vesey, ST'S.) the lord chancellor declared, “if the court can discover that some advantage has been taken, some information acquired, which the other did not possess, though it is not to be precisely discovered, inadequacy, without going to the length of requiring it to be such as strikes the conscience, will go a vast way to constitute fraud.”

If, therefore, any strong circumstances can be presented to this court, which can be connected with the low price of Rose-Hill, we can have no hesitation in decreeing in favour of the respondents.

And, 1. It is alleged, that the appellants, probably, obtained information of the’ appraisement of Rose-Hill, and regulated their selection accordingly, which gave them an unjust advantage over the respondents. Mrs. Rogers had,' under the will, an unrestrained right of selecting one third of such of the property as she chose. In the exercise of this right, she ought not to invade those of others. The ap‘ praisers "were not sworn to secrecy. They were onh sworn to a faithful execution of their trust. The objeit of the appraisement was to enlighten the chancellor, ipt to inform the parties, and all that Mrs. Rogers could expect under the will, was the liberty of selecting her'favourite objects, without any reference to, or knowhdge of, the specification of the value. If, therefore, she was informed of the appraisement, and regulated her Selection by the undervaluation of a particular article, not by a just ecxercise of the right of choice, she had an undue advantage, which ought not to be tolerated. The necessity of arresting an inference of this kind was so obvious to the appellants, that they have come forward with testimony. Their own oaths in this case would have silenced all suspicion; but the mode in which their testimony appears, creates an irresistible conclusion against them. Loro and Lawrence, two of the appraisers, declare that they did not disclose to the appellants or to ahy other person or persons, except to themselves, as associate appraisers, the value affixed by them to the estate of the testator, or any part thereof. Hammond, the other appraiser, testifies that he never divulged the value affixed by them to the estate of the testator. This latter deposition only goes to an immaterial point. The disclosure of the total value was nothing. The substantial matter was a divulging of the value of the parts, which enabled Mrs. Rogers to compare them, or some of them, together; to select those that xvere valued loxv, and to reject those that were estimated high. This omission or silence is emphatically expressive. The affidavits of the appraisers were all written by the same hand, and taken on the same day, and before the same master. It is of no consequence where the affidavits xvere taken, whether in West-Chester or in Niew-Tork. A material fact is omitted, xvhich enforces a belief that Hammond did disclose the appraisement of Rose-Hill, by which means it reached the appellants; and it will not ansxver to talk about honour or refined sentiment on this occasion, if th<T" party deems it essential to establish a fact, and fails hi the attempt. If the court consider it also important, the failure must recoil, xVi'th double force, against him. In justice to Mr. Hammond, it is proper to state that his affidavit is by tid means incompatible with a disclosure of the value of Rose-Hill. In the mode in xvhich the charge of knowing the value has been met and repelled, I must eonclude that it is really well founded.

á. It is charged to the appellants, that they unjustly withheld the property of the respondents,-xvhich had great influence in inducing them to close with the apPraisement) whereby their interests Were sacrificed. The appellants, in relation to all the heirs of Nicholas Cruger; were in direct opposition. It was their interest to go beyond the third allowed in the will, and the interest of the heirs to prevent it. This hostility of inte1 rests rendered the position of the appellants peculiarly delicate,' because to it was superadded the character of trustees, which invested them with the possession and management of the whole estate, and which enabled them to withhold supplies from their opponents, and to exercise a control over their will. As trustees they were possessed of two-thirds of the estate, and in their own right they held the other third. If, therefore, to augment their own shares, they made use of their power as trustees, they stand without any claim to the favour of the court of equity.

Perhaps, it cannot be emphatically said that advantage was taken of the necessities of distressed men. Whether the wants of the heirs were real or factitious, whether they originated from a desire ofxexhibiting themselves in expensive life, or proceeded from an intention of supplying their families with necessaries, we shall not now undertake to ascertain. We know that they were desirous of obtaining possession of the property bequeathed to, them, and that it was withheld, until they acquiesced in the election of Mrs. Rogers. We also know that they supposed it necessary for the support of their families ; that Mr. Bard applied to the agent of the estate, and was refused; that Mr. Henry Cruger, jun. applied to Mr. Rogers in person, and was refused 3 that both the appellants gave the agent a general direction not to make any more advances, that Mr. B. P. Cruger applied in writing to Mr. Rogers, and was refused, until a final settlement should take place 3 that they did not receive . any money for nineteen or twenty months, and were so pressed that two of them had to horroxv money, and that tip bn ther assent to the decree of the 21st of May, 1804, an arrangement- was made for satisfying their wants; that Mr. Bard, for the first time, received money, in the following June, and that Mr. H. Cruger, jun. also participated; and that the ground which Mrs. Rogers took, in protesting against a partial settlement, was abandoned ; that the very decree went upon the ground of a partial distribution; and that it actually took place, when his object was accomplished. He also knew that Mrs. Rogers, during her widowhood, had divided the cash in bank, without incurring risk or any responsibility; that Mrs. Henry Cruger, jun. was an infant, and that it was expressly enjoined on the trustees to support her in her minority; and any of his counsel could have told him, that he run no hazard in making advances to the children, within their proportions. Although I am far from saying that any systematic design of coercing the heirs was meditated by Mr. Rogers, and am disposed rather to attribute the interruption of supplies to that high state of feeling and irritation which unfortunately attends family-quarrels ; yet it is sufficient to know that this dispute, with whatever views it was managed, and from whatever cause it originated, had the effect of operating unduly upon some of the respondents, and of hastening or producing their compliance, without a full and fair view of the ground on which they stood.

3. It is obvious that great irregularities have taken place in the management of this cause ; that the rights of infants have not been protected with that circumspection 'which the law requires, and that, particularly, one of the heirs, Mrs. Towers, and her orphan children, have been unduly and irregularly brought before the "court.

The original answer of Mrs. Towers was signed by a solicitor, without any authority. He was so conscious that he had brought her surreptitiously into court that, he obtained the signature of one of her attorneys, John Nixon, who had been, together with David Walker, appointed jointly to manage the ordinary business of the estate, and who had - no authority to bind her by an answer in chancery. Mrs. Towers also had intermarried with Mr. Maitland, at the time of filing the bill, which was exhibited against her as á feme sole. The suit had also abated by the intermarriage of the appellants, before the heirs of Mrs. Towers had been brought in, and the order for the revival of it against her children was irregular, and could not apply to them. When-the confirma-, tory decree of the 21st of May, 1804, was entered, Sarah Cruger, and the children of Mrs. Towers, were under age, and their interests were sacrificed, by consent of the other parties, without affording the court an opportunity of examining the merits, on the report of the master, to whom it was referred to report, or stating t® the court, whose peculiar province it is to protect the rights of infants, the true situation of the case.

In 11 Ves. 563. it is decided, that a commission must go to take the answer of an infant out of the country, and that it cannot be put in on motion; and we are told (2 Fonblanque, 239.) “ that guardians are appointed in chancery,, where such appointment is necessary for the purpose of protecting the infant’s general, interest, or for the pur, pose of sustaining a suit, or for the purpose, of consenting to the marriage of the infant, and that a guardian, cannot be otherwise appointed, than by bringing the infant into court, or his praying a commission to have guardians assigned him.”. None of these prescriptions have been obeyed; the .rights of the infants have been compromitted in every stage of the proceedings, by a species of legal hocus-pocus ¡ and it is now peculiarly our duty to redress their injuries, and restore them to their' inheritance. In setting aside the proceedings against them, we must also embrace those against the adults : the interests of all the heirs are identified, as against the appellants.

. Lastly, ifi our view of the whole case, although it is proper to consider and respect the intentions of the testator, yet. we ought to bear in mind that Mrs. Rogers « took under the will more than she was entitled to by the policy of our laws. If Mr. Cruger. had died intestate", her interest in the realty would only have been for life, and certainly he never intended that she should go beyond her third, as given by the will. He left seven children ; three unmarried young ladies under age, and. a widowed daughter in a foreign land. Each of these children would be to the widow comparatively poor. Pa - rental affection, the strongest feeling of the human heart, the sacrament of nature, implanted by the deity in our bosoms, for the preservation and perpetuation of the species, is always awake and watchful over the destinies of our offspring; and it is not improbable that the last-dying injunction of the testator was to guard with sacred care the inheritance and the fortunes of his children, and when on the bed of death, if his eyes were at any time diverted-from another world, to the immense possessions that he was about to leave, the only consolation he could derive from the view, must have been the conviction, that his enterprise and industry had transmitted’ the blessings of affluence, and the advantages of fortune, to this, wife and orphan children.

Without attending to the question, whether the right of transmitting- our acquisitions to our children is a right derived from the laws of nature, or founded on the positive institutions of civil society; whether as occupancy is the origin of exclusive property, the right in a state of nature does not- cease with the possession,, and determine with the life of the possessor, and his acqtiisidons lapse into the common and undivided property of the human race,, subject to the control, and liable, to the enjoyment, of the first occupant; without - attending to these inquiries, which are well calculated to command our attention, and arrest our curiosity, we cannot but convinced that every sympathy of nature, every dictate of policy, and every injunction of, religion, rise up, and declare in favour of the. rights of inheritance. . The-man who would leave hi§ children destitute, and bequeath his estate to strangers, must be a monster in the scale of moral estimation; and although our law will not annul a will on account of a violation of those ties, which bind a parent to his child, yet it will, with avidity, embrace any circumstance that operates against his injustice, either by imputing derangement to his intellect, or supposing him the victim of fraud, and the dupe of imposture. An unequal or unfavourable distribution is liable,, in degree, to the same objections, and the law will avail itself of every opportunity to support the rights of inheritance, and in all cases of doubt, decide in favour of the children against claims that may be set up by the widow beyond her dower, and the third part of the personal estate. The intention of the testator is always to be understood, to be under the government of his duty; and unless he at once, and most palpably, throws aside, the feelings of a parent, and renounces the obligations of a man, he is to be supposed to possess, to cultivate, and to obey them. The appropriation to the female appellant under the will, although her conduct was no doubt a Course of exemplary affection and fidelity, was far too liberal, considering that the testator had seven children; that four of these were females, three under age, and the other a widow with four orphan children in a state of infancy. This disproportion ought most certainly not to be encouraged, and the wound permitted to run into gangrene, by taking from the children, in the execution of the will, and adding to the gigantic portion of the appellants. Every consideration of justice revolts at this measure: and I feel a peculiar pleasure, that in forming r _ _ r ° and pronouncing this decision, my feelings as a man are in perfect harmony and correspondence with the clearest dictates of my understanding, after an attentive, an impartial, and a laborious examination of the merits of this cause.

The majority of the court concurred in this opinion; and it was thereupon ordered, adjudged, andDECREED, that the petition of appeal exhibited by the appellants be dismissed, with costs, to be paid to the respondents by the appellants; and that the record and proceedings brought here by the said appeal, be remitted to the court of chancery, to be proceeded on according to law.

Appeal dismissed,

"fÍND OP THE CASE IN ERROR.