1 N.Y. 298, Dodge v. Manning

Citation:1 N.Y. 298
Party Name:CORNELIA DODGE, Appellant, v. RALPH MANNING, HARMANUS BECKER, and ALEXANDER BOYD, Respondents.
Case Date:April 01, 1848
Court:New York Court of Appeals

Page 298

1 N.Y. 298

CORNELIA DODGE, Appellant,

v.

RALPH MANNING, HARMANUS BECKER, and ALEXANDER BOYD, Respondents.

New York Court of Appeal

April 1, 1848

Page 299

[Copyrighted Material Omitted]

Page 300

COUNSEL

N. Hill, Jr., for appellant.

M. T. Reynolds, for respondents.

GRAY, J.

One of the reasons, if not the principal one, assigned by the Chancellor for a decree dismissing the bill as to the respondents, is, that the legacy to recover which the bill was filed, had been paid; and this conclusion is supposed to be justified by the lapse of time and the evidence of one of the witnesses. If I do not misapprehend the effect of the will, no presumption of payment can be derived from the lapse of time. It is true that according to one clause in the will the legacy became payable in one year after John B. Borst attained his majority, which was in 1820; but it was directed to be paid by Borst "out of the estate" given to him, and on looking at the whole will it is entirely clear that he was not to have the estate until the death of his grand-mother, the testator's widow, which did not occur until 1832. It seems to me, therefore, that the legacy did not become due until the period last named, and it is not pretended that the time which elapsed between that period and the filing of the bill, would warrant in the slightest degree a presumption of payment.

Page 301

As to the evidence taken on this point, we are all of opinion, that there was nothing in it to justify the conclusion at which the Chancellor arrived.

The decision of the Vice Chancellor charged all the defendants with the payment of the legacy and costs, without any discrimination founded upon the equitable right of the respondents to insist, that the defendant, John B. Borst, and the real and personal estate of the testator in his hands, should be first charged, and that a resort should not be had to the estate purchased by them, until the remedy against Borst should first be exhausted. In this respect I am of opinion that the Vice Chancellor erred. It is true, that by the provisions of the will, the legacy in question became an equitable charge upon all the real estate devised to Borst, of which that purchased by the respondents respectively, at the master's sale, is a part. But the devisee, by accepting the real and personal estate devised and bequeathed to him, became personally liable for the...

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21 practice notes
  • 173 N.Y. 43, Conkling v. Weatherwax
    • United States
    • New York New York Court of Appeals
    • 6 janvier 1903
    ...Weatherwax, and he became primarily liable therefor upon accepting the devise of the land. ( Brown v. Knapp, 79 N.Y. 136; Dodge v. Manning, 1 N.Y. 298; Kelsey v. Western, 2 N.Y. 500; Gridley v. Gridley, 24 N.Y. 130; Redfield v. Redfield, 126 N.Y. 466; Larkin v. Mann, 53 Barb. 267.) The pers......
  • 101 S.W. 69 (Mo. 1907), Bunel v. Nester
    • United States
    • Missouri Supreme Court of Missouri
    • 11 avril 1907
    ...Vechten, 73 N.Y. 13; Oliver v. Platt, 3 How. 333; Story's Eq. Jur., secs. 1258; Shepherd v. McEvers, 4 Johns. Ch. 136; Dodge v. Manning, 1 N.Y. 298. "The principle to be deduced" is "that where the trust fund has consisted of money and been mingled with other moneys of the tr......
  • 126 N.Y. 597, McArthur v. Gordon
    • United States
    • New York New York Court of Appeals
    • 2 juin 1891
    ...of Missions, 102 N.Y. 99, 106; Price v. Palmer, 23 Hun, 504, 507; 2 Perry on Trusts, § 576; Harris v. Fly, 7 Paige, 421; Dodge v. Manning, 1 N.Y. 298.) The enforcement of the judgment will not take the fund out of the hands of the trustee. (1 R. S. 729, § 60.) It is over fourteen years sinc......
  • 38 A. 489 (Pa. 1897), 505, In re Mitchell's Estate
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • 11 octobre 1897
    ...7 W. & S. 407; Shaw v. McCameron, 11 S. & R. 252; Bright's Appeal, 100 Pa. 602; Little v. Hager, 67 N.C. 135; Dodge v. Manning, 1 N.Y. 298; Decker v. Decker, 3 Ohio 157; Nellons v. Truax, 6 Ohio 98; Powers v. Powers, 28 Wis. 659; Greville v. Browne, 7 H.L. Cas. 689. Charles G. Brown......
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21 cases
  • 173 N.Y. 43, Conkling v. Weatherwax
    • United States
    • New York New York Court of Appeals
    • 6 janvier 1903
    ...Weatherwax, and he became primarily liable therefor upon accepting the devise of the land. ( Brown v. Knapp, 79 N.Y. 136; Dodge v. Manning, 1 N.Y. 298; Kelsey v. Western, 2 N.Y. 500; Gridley v. Gridley, 24 N.Y. 130; Redfield v. Redfield, 126 N.Y. 466; Larkin v. Mann, 53 Barb. 267.) The pers......
  • 101 S.W. 69 (Mo. 1907), Bunel v. Nester
    • United States
    • Missouri Supreme Court of Missouri
    • 11 avril 1907
    ...Vechten, 73 N.Y. 13; Oliver v. Platt, 3 How. 333; Story's Eq. Jur., secs. 1258; Shepherd v. McEvers, 4 Johns. Ch. 136; Dodge v. Manning, 1 N.Y. 298. "The principle to be deduced" is "that where the trust fund has consisted of money and been mingled with other moneys of the tr......
  • 126 N.Y. 597, McArthur v. Gordon
    • United States
    • New York New York Court of Appeals
    • 2 juin 1891
    ...of Missions, 102 N.Y. 99, 106; Price v. Palmer, 23 Hun, 504, 507; 2 Perry on Trusts, § 576; Harris v. Fly, 7 Paige, 421; Dodge v. Manning, 1 N.Y. 298.) The enforcement of the judgment will not take the fund out of the hands of the trustee. (1 R. S. 729, § 60.) It is over fourteen years sinc......
  • 38 A. 489 (Pa. 1897), 505, In re Mitchell's Estate
    • United States
    • Pennsylvania Supreme Court of Pennsylvania
    • 11 octobre 1897
    ...7 W. & S. 407; Shaw v. McCameron, 11 S. & R. 252; Bright's Appeal, 100 Pa. 602; Little v. Hager, 67 N.C. 135; Dodge v. Manning, 1 N.Y. 298; Decker v. Decker, 3 Ohio 157; Nellons v. Truax, 6 Ohio 98; Powers v. Powers, 28 Wis. 659; Greville v. Browne, 7 H.L. Cas. 689. Charles G. Brown......
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