Third. The balance of the fund in]
the hands of the trustee, after a
proper allowance for his services,
must be paid to A, and the notes
surrendered to him. Lanning v.
Administrator of Lanning,
228
10. Under a declaration of trust: "1.
To pay to A. M., or to her order,
such dividends as may be declared
by said bank during her natural
life. 2. At her decease, to pay the
same to S. V., or to her order. 3.
After the decease of said S. V., then
to transfer the said stock to A. M. V.,
for her sole use and benefit," held,

such mortgage, and the land sold
being subject to two other mort-
gages in which the cestui que
trust had an interest, will be
declared, in equity, to enure to the
benefit of the cestui que trust. Ib.

See CESTUI QUE TRUST.
CORPORATIONS, 8.
DEED, 12.
WILL, 4, 9.

usury.

USURY.

The mortgage stands as a
valid security for the amount ac-
tually advanced, and no more. Ad-
ministrator of Auble v. Trimmer,

242

that the interest of A. M. V. vested 1. The withholding a part of a loan
at the creation of the trust. Exec- in violation of the agreement of
utors of Whitehead v. Stryker, 278 the parties, does not constitute
11. It is the recognized law of this
state, that a trustee, in the exercise
of his duty as trustee, cannot be-
come the purchaser of the property
of his cestui que trust. The rule
applies, as well where the sale is 2.
made by a sheriff or master, as by
the trustee himself; and in the
latter case, whether the sale was
made by the trustee, of his own
authority, or under a judicial order
or decree. Staats v. Bergen, 297
12. A trustee is not relieved from his 3.
incapacity to become a purchaser
at the sale of the real estate of his
cestui que trust, by the fact that the
legal estate therein is not in him,
Ib.

13. Where the subject matter of the
trust is in controversy, all the trus-
tees must be made parties. Sayre
V. Sayre,
349
14. The mere fact that the title to
trust property is deposited in trus-
tees, will not deprive the grantor 4.
of his control over it, if his rights
are not limited, or in some way
qualified, by the deed.
1b.

15. A trustee will not be permitted to
derive any profit from the use of
the trust funds in his hands. Staats
v. Bergen,

554
16. It is the universal rule, that a
trustee must not put himself in a
position in which he will be tempt-
ed, from the influence of self-inter-
est, to take advantage of his cestui
que trust.
Ib.
17. A purchase of land at a sheriff's
sale, by a trustee, on a bill on a
mortgage held by him in trust, his
bid not being sufficient to pay off

While it is the duty of the court
to maintain the law against usury,
and carefully to prevent its evasion,
it will not enforce its severe penal-
ties, without evidence entirely sat-
isfactory and free from doubt. Bar-
calow v. Sanderson,
460

Where usury is set up as a defence
to the foreclosure of a mortgage,
it must be satisfactorily proved by
a clear preponderance of evidence
in its favor. If the defendant
swears to it himself, and the plain-
tiff denies it by his evidence, in
the absence of other proof, there is
no preponderance of evidence in
defendant's favor, and the usury
is not proved. Dissenting opinion
of VAN DYKE, J.
Ib.

Where, however, the defence was,
that the mortgage was usurious, by
reason of the complainant's having
exacted from the defendant notes,
amounting to $5100, as a bonus for
a loan of $20,000, and that the only
consideration for the notes was the
loan; and the complainant, in his
evidence, admits the giving and
receiving of the notes, and that he
neither paid, nor did the defendant
receive, anything for the notes, but
contends that the notes were given
on account of another transaction,
and not on account of the mort-
gage in question, the burthen of
proof, that the notes were given
and received in another transaction,

1. A testator, by his will gave and
bequeathed as follows: "I give
and bequeath to Susan K. the sum
of $10,000, to be paid to her on
her reaching the age of sixteen
years." Held, that the legatee
takes a vested interest in the legacy,
liable to be defeated by her death
before reaching the age of sixteen 5. A testator, by his will, devised as

Held-That M. D. takes one-eighth
of the estate, and not one-eighth of
a share, more than the other lega-
tees; the remainded to be equally
divided between the three. Tuttle
v. Howell,
176

follows: "I do give the residue of
my real estate to my children, share
and share alike, but the shares
which may fall to my sons, George
and Michael; I do give to them
only during their natural lives, and
after their death, to go to their 9.
children, share and share alike, and
if any of their children shall die:
before their father, leaving children,
then the children to take their
father's or mother's part. George
died leaving no issue. Held-

1. George and Michael, the de-
visees for life as well as the other
children of the testator, take several,
not joint interests in the residuary

estate.

2. The estate of each tenant con-1
tinues during his life, and upon his
death, goes to his children. If he
have no children, the devise over
fails, and as to that reversionary in-
terest, the testator died intestate.

3. The remainder of the share de-
vised to George, vests not in the sur-
viving children of the testator, but
in his heirs-at-law. Vreeland v. Van
Ryper,

133

6. Where, by the residuary clause of
his will, after numerous specific de-
vises of portions of his real estate,
a testator directs all the residue of
his estate, both real and personal,
to be divided into equal shares or
parts, which he gives and be-
queaths to his children and grand-
children, it is fairly to be inferred,
that the testator designed that the
entire residue, real as well as per-
sonal, should be sold, and the pro-l
ceeds distributed among the resid-
uary legatees. Executors of Van-
ness v. Jacobus,

153

7. A direction by the will, to divide
the residue of the testator's lands
will not be construed technically
as a devise, where the testator has
expressly directed the executors to
sell the lands not devised. Ib.
8. A testator gave the residue of his
estate, real and personal, in trust
to receive the rents and income,"
and to pay over the net interest
and income in three and one eighth
parts, to wit: one-third part to my
daughter C. H., one-third part 10
my daughter S. B., and one-third
and one-eighth parts to my daughter|
M. D."

A testator, by his will, ordered and
directed as follows, viz: "I do
hereby appoint and declare my ex-
ecutors, hereinafter named, to be
trustees of all property, estate, or
interests, herein given or devised
to any of my children, or that any

of

my children may be entitled to
by virtue of any provision in this
my last will, during the life of such
child (excepting the life estate in
the mansion-house devised to my
son) with full power to retain all
such property in their hands unsold
and undivided, until after the year
eighteen hundred and sixty-seven,
and I do authorize my said execu-
tors to sell or convey all or any
part of my real estate, and all real
estate that may be purchased by
them, &c. Held, that the power of
sale extends to any and every part
of the testator's estate, and not to
the trust estate only. Bacot v.
Wetmore,

250

10. An express disposition, though
probably involving an oversight
or mistake by the testator, cannot
be controlled by inference which is
not necessary and indubitable. Ib.
11. The first provision of a will was
a direction to the executors to pay
off all debts. Among other gifts,
the testator gave to his daughter-
in-law the sole and exclusive use
of all the rents and profits of a
certain farm, known as the "Bid-
dle farm," to be held by her from
the time of his decease until the
25th March, immediately preceding
the time when his grandson, J. S.,
should arrive at twenty-one, with
a proviso that the daughter-in-law
should release to his executors all
claims she might have against his
estate. From the 25th day of
March, before designated, the Bid-
dle farm was devised to testator's
two grandsons. By a residuary
clause, the testator gave all the
residue and remainder of his estate
(undisposed of) to his four daugh-
ters, subject (in the language of
the will) only to the payment of

The

all just claims against me on note]
or book account, funeral charges,
testamentary and incidental ex
penses, and commissions."
estate was indebted to the daugh
ter in law by bond, in the sum of
$5000, which she refused to re-
lease, and consequently did not
take the term in the Biddle farm
left to her, held-
First. That the term in the Biddle
farm was not specially appropria
ted to the payment of the debt due
to the daughter in law.
Second. That this term passed under
the residuary clause of the will.
Third. That, in the payment of debts,
it was to be considered as a part
of the personal estate, and, by the
terms of the residuary clause, was
made subject to the simple contract
debts. Shreve v. Shreve,
12. As a general rule, a direction by
a testator that all his debts shall
be paid, will serve to charge such
debts on the realty. But where
the direction is that the executors
shall pay such debts, such effect
will not be produced.
Ib.

487

13. A debt due by specialty is, pro-
prio vigore, a burden, equally,
upon specific legacies and lands
devised.
Ib.
14. The testator directed his trustees
to pay over the income of his es
tate in three and one-eighth parts,
to wit: one-third part to his daugh-
ter, C. H., one-third part to his
daughter, S. B., and one-third and
one eighth parts to his daughter,
M. D. Held, that M. D. was en-
titled to one-eighth more of the
whole estate than either of her sis-
ters, making ten twenty-fourths for
M. D., and seven twenty-fourths
for C. H. and S. B., each. Howell
V. Tuttle,
15. The testator also directed, in case
of the death of either daughter,
without children, that his trustees
should pay the income arising
from his estate, in the proportions
aforesaid, to his surviving daugh
ters, stating his intention that the
share of such daughter should sink
into, and constitute a part of his
estate in the hands of his trustees,
and the income arising therefrom,|

540

be divided among his surviving
daughters in manner aforesaid.
Held, that if C. H. should die
without children, her share would
be a part of the whole income,
and M. D. entitled to one-eighth
more of the whole than S. B, and
not to one-eighth more of the
whole, and one-eighth more be-
sides, than S. B., of the share of
C. H.
Ib.
16 The same rules apply to the dis-
position of the principal sum un-
der this will.
Ib.
17. The testator, in 1846, devised his
farm to his daughter, Lydia, wife
of N. E., during her natural life,
and, after her death, to her chil-
dren, subject to certain charges,
and also, if she should be dispos-
sessed of the farm in any way or
manner whatever, that his execu-
tors should take charge of her es-
tate, and rent out the land to the
best advantage, and pay over to
her the rents and interest money
yearly, and her receipt, and hers
only, should be sufficient for the
same. Held, that there was a
legal estate in the wife, limited
upon the contingency of disposses-
sion, subject to the marital rights
of the husband till then, but when
that occurred, a trust estate be-
gan in the executors for the rest
of the life of the wife, to her sole
and separate use. Emery v. Van
Syckel,
564
18. The husband alone obtained let-
ters testamentary. Judgments
were recovered against him by his
creditors, and his interest in the
farm was sold by the sheriff to
Van Syckel; the court enjoined
Van Syckel from proceeding in
ejectment to recover possession,
upon the ground that the dispos-
session, in equity, occurred at the
delivery of the deed to Van Syckel,
and that from that time N. E., the
husband, was in possession, as
trustee, for the sole and separate
use of the wife.
Ib.

WITNESS.

See EVIDENCE, 6, 9, 14, 15, 16.