Charles Williamson and Catharine, His Wife, Plaintiffs v. Joseph Berry

• Citation: 49 U.S. 495,8 How. 495,12 L.Ed. 1170
• Parties: CHARLES A. WILLIAMSON AND CATHARINE, HIS WIFE, PLAINTIFFS, v. JOSEPH BERRY
• Decision Date: 01 January 1850
• Court: United States Supreme Court

49 U.S. 495

8 How. 495

12 L.Ed. 1170

CHARLES A. WILLIAMSON AND CATHARINE, HIS WIFE, PLAINTIFFS, v. JOSEPH BERRY.

January Term, 1850

THIS case came up from the Circuit Court of the United States for the Southern District of New York, on a certificate of division in opinion between the judges thereof.

It was an action of ejectment for one third of eight lots of land in the city of New York. Mrs. Williamson was the daughter of Thomas B. Clarke, being one of three children who survived him, the other two being Mrs. Isabella M. Cochran and Bayard Clarke.

In the year 1802, Mary Clarke died, leaving a will, from which the following is an extract:——

'Item, I give and devise unto the said Benjamin Moore and Charity, his wife, and to Elizabeth Maunsell, and their heirs forever, as joint tenants, and not as tenants in common, all that certain lot of land number eight, in the said thirteenth allotment of the said patent, containing one hundred acres; also that part of my said farm at Greenwich aforesaid, called Chelsea, lying to the northward of the line herein before directed to be drawn from the Greenwich road to the Hudson River, twelve feet to the northward of the fence standing behind the house now occupied by John Hall, bounded southerly by the said line, northerly by the land of Cornelius Ray, easterly by the Greenwich road, and westerly by the Hudson, including that part of my said farm now under lease to Robert Lenox; also all my house and lot, with the appurtenances, known by number seven, within the limits of the prison, and now occupied by Thomas Byron; to have and to hold the said hereby devised premises to the said Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and to the survivor or survivors of them, and the heirs of such survivor, as joint tenants, and not as tenants in common, in trust to receive the rents, issues, and profits thereof, and to pay the same to the said Thomas B. Clarke, natural son of my late son Clement, during his natural life, and from and after the death of the said Thomas B. Clarke, in further trust to convey the same to the lawful issue of the said Thomas B. Clarke living at his death in fee; and if the said Thomas B. Clarke shall not leave any lawful issue at the time of his death, then in the further trust and confidence to convey the said hereby devised premises to my said grandson Clement C. Moore, and to his heirs, or to such person in fee as he may be will appoint, in case of his death prior to the death of the said Thomas B. Clarke.'

On the 2d of March, 1814, Thomas B. Clarke presented a petition to the legislature of New York, stating the will; that the trustees had signed a paper agreeing to all such acts as the legislature might pass, and requesting to be discharged from the trust; that Clement C. Moore, the devisee in remainder, had also consented to such acts; and that the estate could not be so improved and made productive as to answer the benevolent purposes of the testatrix. The prayer was for general relief.

On the 1st of April, 1814, the legislature passed an act, entitled, 'An act for the relief of Thomas B. Clarke.' It recited the facts above mentioned, and then provided, in the first section, 'that it shall and may be lawful for the Court of Chancery, on the application of the said Thomas B. Clarke, to constitute and appoint one or more trustees to execute and perform the several trusts and duties specified and set forth in the said in part recited will and testament, and in this act, in the place and stead of the said Benjamin Moore and Charity, his wife, and the said Elizabeth Maunsell, who are hereby discharged from the trusts in the said will mentioned. Provided, that it shall be lawful for the said court at any time thereafter, as occasion may require, to substitute and appoint other trustee or trustees in the room of any of those appointed in this act, in like manner as is practised in the said court in cases of trustees appointed therein; and such trustee or trustees so appointed, are hereby vested with the like powers as if he or they had been named and appointed in and by this act.'

The second, third, fourth, and fifth sections prescribed minutely what should be done by the trustees, and authorized them to sell and dispose of a moiety of the estate, and invest the proceeds in some productive stock, the interest, excepting a certain portion, to be paid to Mr. Clarke, and the principal to be reserved for the trusts of the will.

The sixth section was as follows:——

'VI. And be it further enacted, that in every case, not otherwise provided for by this act, the trustees appointed, or to be appointed, in virtue thereof, shall be deemed and adjudged trustees under the said will, so far as relates to the premises mentioned and described in the recital to this act, in like manner as if such trustees had been originally named and appointed in the said will; and they shall, in all respects, be liable to the power and authority of the Court of Chancery for or concerning the trusts created by this act.'

It did not appear that any proceedings took place under this act.

On the 1st of March, 1815, Clarke presented another petition to the Legislature, stating that Clement C. Moore, the contingent devisee, had released all his interest in the property to Clarke and his family, whereby the petitioner and his infant children had become the only persons interested in the estate. He stated also, that he had been unable to prevail upon any suitable person to undertake the performance of the trust.

On the 24th of March, 1815, the legislature passed an act supplemental to the 'Act for the relief of Thomas B. Clarke.' This act being a very important part of the case, it is proper to recite it.

'An Act supplemental to the 'Act for the Relief of Thomas B. Clarke,' passed April 1, 1814.

'Whereas, since the passing of the act entitled 'An act for the relief of Thomas B. Clarke,' Clement C. Moore, in the said act named, by an indenture duly executed by him, and recorded in the office of the Secretary of this state, and bearing date the 21st day of February, in the year 1815, hath, for the consideration therein expressed, and in due form of law, released and conveyed unto the said Thomas B. Clarke, his heirs and assigns, forever, all the estate, right, title, interest, property, claim, and demand whatsoever, of the said Clement C. Moore, of, in, and to the real estate mentioned in the said act, whereby the said real estate became exclusively vested in the said Thomas B. Clarke and his children. And whereas the said Thomas B. Clarke hath prayed the Legislature to alter and amend the said act, particularly in relation to the interest of the said Clement C. Moore, and the execution of certain trusts in the said act mentioned, therefore,——

'I. Be it enacted by the people of the state of New York, represented in Senate and Assembly, that all the beneficial interests and estate of the said Clement C. Moore, or those under him, arising or to arise by virtue of the act to which this is a supplement, or by the will mentioned in the said act, shall be, and the same is hereby, vested in the said Thomas B. Clarke, his heirs and assigns; and so much of the act to which this is a supplement as is repugnant hereto, and so much thereof as requires the trustees to set apart and reserve a certain annual stipend out of the interest or income of the property thereby directed to be sold, for the purpose of creating and accumulating a fund at compound interest, during the life of the said Thomas B. Clarke; and so much of the said act as requires the several duties therein enumerated to be performed by trustees, to be appointed by the Court of Chancery, as therein mentioned, be, and the same is hereby, repealed.

'II. And be it further enacted, that the said Thomas B. Clarke be, and is hereby, authorized and empowered to execute and perform every act, matter, and thing, in relation to the real estate mentioned in the act to which this is a supplement, in like manner and with like effect that trustees duly appointed under the said act might have done, and that the said Thomas B. Clarke apply the whole of the interest and income of the said property to the maintenance and support of his family, and the education of his children.

'III. And be it further enacted, that no sale of any part of the said estate shall be made by the said Thomas B. Clarke, until he shall have procured the assent of the Chancellor of this state to such sale, who shall, at the time of giving such assent, also direct the mode in which the proceeds of such sale, or so much thereof as he shall think proper, shall be vested in the said Thomas B. Clarke as trustee; and, further, that it shall be the duty of the said Thomas B. Clarke annually to render an account to the Chancellor, or to such person as he may appoint, of the principal of the proceeds of such sale only, the interest being to be applied by the said Thomas B. Clarke, in such manner as he may think proper, for his use and benefit, and for the maintenance and education of his children; and if, on such return, or at any other time, and in any other manner, the Chancellor shall be of opinion that the said Thomas B. Clarke hath not duly performed the trust by this act reposed in him, he may remove the said Thomas B. Clarke from his said trust, and appoint another in his stead, subject to such rules as he may prescribe in the management of the estate hereby vested in the said Thomas B. Clarke as trustee.'

On the 28th of June, 1815, Clarke presented a petition to the Chancellor. It recited the will and the two acts of the Legislature; stated that he had a large and expensive family and no means of maintaining them except from the rents and income of the devised property, which were then and always had been insufficient for the purpose; that he had been compelled to resort to loans and incur debts; that he had borrowed, in order to meet the...