The New York Herald Newspaper, July 14, 1854, Page 6

Ovurt of Common Pivas, Gumseve meresy OF Tus WiLL OF JULIA BROWN Degnion by Hen. Judge benny ‘ie Derts Me Mahon for od trator ewncred of Rath 8 Harrison asst. Thome’ Bi. Al- den.— This suit (which ie ove of a number pending Defwecn caine poy \ swore ‘bond a: mortgage ge. oa for d street, bought of Mrs. Harrison; ws 1 leaving a’last will aad. testament A ing & wil testamen' ‘wherein she devised her property to her children, meking her husband, the Jate John Harrison, ber executor, That such will was made in pursuance @f @ power reserved for that purpose in a marriage | are rl ye was entered into by and between testatrix, Jobn Harrieon and one Kipp. em the death ef the tesiatrix, which took on @etoder 10, 1848, the will was proved, and letters testamentary were issued to John Harrison, who re- turned an inventory wherein be alleged he lield the Ben. sought to be recovered, a8 executor. layriaon died on the 10th March, 1850, execvior, tnat after the deuth the defendant, without soy warrant of law, took po:scssion of the property and dlaimed it aa hie own. The defence set np was thet the will ani mga BL. a Teaeting De ie 3 » notwi age ment, belonged to Jon Harrison, as bis own ee not as executor, and that the de- t bad a will of John ap- Palting “Lim executor, and devising hie re- siduary estate ants the defendant, and that he pecans entitled Cap eld aa! sapaee was mad up, the t to the t#o sons of the estatrix, and vos to her danghter, (wile of Piuuwed,) to whom b was willed; aud that he, she defendant, * 4s agent fur one son and bad parchased i e ~ ia his motner’s estate. Lefendaut aso denied that he bad taken the bons and moitgage and papers sought tu be recovered of him. The cau-e was tried about a year since bo- tere Justice Woodruff, and aterwards last fall aor- eon Jor veverul days at » oa Jength before his joner, by Mr. M Mubon aod Mr. Loek wood for pluin- wT, ane hy Mr. Mathews for defenes, After & thorough invesvigution of the oase, bis Honor delivered the following aa hia con- clusion of law and fact on the ave. He eund the following facts, mamely:—That on be 24th of April, Ie44. Ruth 8. Rathbone, being asingle woman, made the will above referred to. Phat on the 24th of October, 1544, she evtered into gm agreement with Elizabeth Orbora te sell to ber Mo. $5 Leonard street. Sbe wen before ber mar- kage, and some time in December, 1844, mate a sonic), wherein she devised the proceeds of that hoase to her daughter; and on the L4th December, i644, in cope mpiation of marriage with Joha Har Fiaon, she enters into a maciage settlement witu ber intended husband und cog Kipp, wuerein. her roperty Was settied te her private nse, and the ong will and codicil was ratified aad contitm- @d,, and adopted as a testamentary paper under eaid contract; and on the 17th December, 1444, the riies were Inarried. On the 3d of March, 1846, m. Harricen entered into an agreement with Frances C. Sage to sell ber 55 Leonard, street, Mrs. Osborne having failed (by death,) to complete her ahem and on the ist of February, 1548, Mra. n conveyed to Miss Sage the houre in ues: fuon, ano tock buck | parcha:e money bond and mortgage for $10,000, (one of the Aepet Saen to be recovered in this suit.) This bond and mort gage were execuied to Kipp, the trustee ander the setlement, On the Ist of Oct ber, 1848, Mra. Har- rison died, without any other testamentary paper han the one above referred to. On the 30th Ocwhber, 1845, the pluintif’ having married her @pughter, presented ber will, above referred tw, for probate. Citation were issued, next of kin @ited. No one opposed the probate, and on the Sth mer, 1846, tue will and codicil were proven. op the 4th January, 1849, the defendant, act- img as attorney for executor of her will, co! d Mae iatcrest ou the boud and mortgage above re- ferred to, dne on lst November, 1848, and pari it ever to the executor. On tie sth Pebsuury, 1°49, Betters testamentary were issued on Mrs. Hargivoa’s will to Mr. Harrwon, by the Sorrogate of New York, Appraisers were appoiated, of whom de- feadant Was one. Aa inventory was made out and worn to by tbe execator, and filed in the Surro- office in March, 1542. At,this time the execu- , Jno. Harrison, had become possessed, as a soa- tor, of the property above referred to, which be beuged to the trustee uni the seitlement, and ‘Were returned by the executor in his invenvory. Ov tae Sth Deceiver, 1640, the cefendant coltected some interest then accraing on the bond, and gave P-eipt as attorney for the executor, John Husti- wen thé executor, died on 10th Marob, 1850, lesving evil, wherein he left certain specific legacies, and gave the residue of bis extete wo the defendant. Ou ‘er before the death of Harrison, tne defendant bo- Game posseased of the property daimed in thts suit, and the same remaired in bis possession until the @ommencement of this evit. Ou the 23d of March, 2800, plaintiff wee appointed administrator and eekigendim a Mre. Harrison, and demauded @f the defendant the property in question, ex Bibiting to him his anthority to receive the pro ty. Defendant refused to deliver tho same up. After maxing this demand, and prior to the 4ch of March, 1950, the bese was appointed by the Bapreme Court of Mrs. Harmson’s estate, in place of M:. Kipp, who thereupon executed assign- ments to the plaintiff for the property in qaeation, which wore bad aud rooted withont any fraud whatever. The plaumtjff then commenced this auit ageing: the defendan® After the suit was com- d, the dcfendynt waa appointed collector of Harrison's estate, his wiil bel ix contest, bat same was afterwards proven, and letiers testa- mewtary granted. On the 2let of April, 161, plai ‘$B wee permitios to compromise Van Dyke's note me bond by the Surrogate. While the ruit was Pending, viz., on the Lith Joly, 1852, lette s of ad- minwirater, with will annexed, were granted to plaintiff, and the action was thea conti wedin the name of the plaintiff, in his vewly ecqni ed charac- ter. And before this canse was trica, levers testa mgd on John Harrison's wi! Biovdcnt, On the 24th of August, wait was commenced, Samacl U. H the legauiees under Mr. Harrison's w fendant jiis agent and attorney business, and his brother Cheries, » 7 ope of the legaters, for the consideration of one chousand @oliars sold out his interest in his mother’s estate fo the defendant. : On Weomesday hix Honor delivered Ue iollowing opimion and decuion:— ‘ Per curiam, Woopacrr, J—My conclasions of taw, from the foregoing facta, are as follows:— Firet, ‘That in and by the instraments above re- ferred te, as the last will and testament of Roth 5. bone, (afterwards Harrisou,) and the o tictl rete, conmdered irrespective of the ma) .age gettlement, agreement ani the trusts thereis ex- pressed, and also irrerpective of the subsecvent marriage of the aaid Ruth, the real estate therein mentjoned passed directly aud by virtue thereof to the devisees therein named, and that ne trast or aay in or over the same was vested in the execu- therein named, a3 wustee or otherwise, and no eet whatever wee to be done by him in res thercie to these instrumeate into fall effect. ‘That as w the personal estate therein mentiones— including, of course, the fand to be set apart and invested tor the benefit of Lucy Ann Harrison in the eoptingency contemplated by the codicil, to wit, the fulfilment by Elizabeth O.borne of her agreemen: fer the pure! of the house No. 55 Leonard street —the mpc — tee Vo o< e Vi will and codicil)—tiret, for ta Oo of the debia and legacies; and second, wpen and for the execution of the trusta the sby declared, to wit, tie sale of the property, the collection of debts doe, and the investment of the and payment of the income to arise tiere- to Samuel ©. and Chartes T. Harrison, d ving lives respectively, and in respect to the ‘an @irected to be invested for the said Lucy An, t) gaffer her to draw the interest thereon daring be meteral tife, and -y the desth of these benofi- dar .e8 reapecti y over the same aa in such will and codicil ‘That this personal pro- and ali the trasts, powers, and duties vested such executor, or upon him io reapect hereto, vested in and were devolved upon him as or, and £s executor only, and notip the char- ef a trustee, apart from such representative That by virtue of the settlement the A btbeade and cate te Bol mon In contained, the suid instrument, so ea- and tertainent, und the codicil thereto, , in legal effect, incorporated in, or annexed , 80 that they became and were a valid decta- of the treats upon which the former property held by the said Kipp, and an effectaai ap- t of So pevperty both real and per- in the ith whould die in the life- intended dusband, without making appointment or disposition thercuf, That consummation of the said intended the very event in completion of whieh settioment was eutered into, did not in manner alter the effect of the eaid last will and 1 im thie reepect. They remained intent of the said marriage settlement valia ctual, as snch appointment of the property weyed and to the trustee. Whether ender the direction to the trastee (Kipp) in Merrisge settlement to convey, amign and ‘wansier the property, real and , ia con fir with soy Seen, limitations or Cel wept, y the sai Renth 8., ani in default otner , then to the person or persons named in ‘tie aforesaid last wil! an! codwil, renu nactral weyanhes or transfer hy th any to give Tol legs! ‘ Hh +6 44 He re i vue t ee ee a Eee LE A cE EI EL: Rs EE TA RL EERE TOE es” EE CEI I lO IE ee BEE ond codiel Veese iperruments ex 10 | to hia suceeocion to the powers and duties ef the FR LI ord ee Sig yl ing og te im such will and mintoterrd. Seortee, samin\strascr, pan the dont af Acad Bath booed ee 2) Wed. 430, ane P.O. in errer, 25 mu. ‘to be done by the sald Kipp, beyond the mere acts Se Nev eeme retsite/ ana trae of transfer. al material to the oon- garners of eames 04 presery: pees, par ae bed the nighte of the, patties ia eae Umea of spectal cx vested death of 1 raged became Roth dee ah twe directions contained ia | lect, receive and be tt ees gd such Jast will.and codicil, and whether au acwal | aswuch for that purpose to this sui. In conveyance of the real estate embraced in the trusta one aspect of the claim made by the administrator ‘Was or was pot necessary to vest the ons named | ad coll.to maintain oar action ies. Se pesperey a0 as in last will and , it is not ne- | even more clear; and the defendant aa ceseary for the purposes of this case to inquire. | to the bond and mort, of Frances 8, Sage, the The delivery of the personal property in conformity | said Ruth 8. Harrison died intestate, and that John the directions contained in the marriage set- Harrison in virtue of his marital rights heoame en- tlement, to the person who was appointed to receive | titled to it abeolutely for his own use, (subject the same tend ce porate and his actual } to the payment of debts. If that were conceded possession t! and exercise of acts of control eet the right ef the admiuiscrstor ad ‘over the same, and hia callopsion as appropriation call. (pending @ coutrovermy in regard to the ap- of the same, sufficiently invested the him, pines) en se now,) to sue whetber any assignment or transfer in writing was | for and recover the bond and mortgage from a third executed by Kipp ofnot. Indeed, it might perinpe | person who bad no title thereto, be better suid teat auch actual posseamon and oon- Seventh.—It follows Lyne ore sive gn trol are sufficient to warrant the inference of an ac- pa vorey hyarr gaa as an ad coll., in teal sennpter b; saicobe i to vest — _ pr is wait er peer pypeote col ye arene the ie. as it may, vested equi- | 0! iministrator de ts RON GRmr0, ty on the death of the said’ Rath 8., and the delivery whic cape, the suit has been revived in his of the personal property thereupon, sufficiently con- | name, is entitled to recover the personal y ferred the legal title thercto, and in my opimon, aa | in the complaint mentioned, forming the effectually as if an actua) assignment in writiug hud trust estate, 60 far as the eame was in hande of been made, And again, after taking such the defendant at the time of the death of the said elite naeetin neler Cietimies | GOR) ce nh eet a bore ming under ly ne not ath, titte nidr wee tothe Sldeanottngania Eighth—This case has been thus far considered appointment, but the answer of the defendant here- | upon the view which I conclude te be the correct in distinctly avers an actea! conveyance and trans- | 001 of the settlement agreement, fer by Bolomon Kipp, the trustee, to John Harrison, | viz.: That whatever conveyance may have been ip obedience to the provisions of the necessary to vest the title to the reel estate held by tement agreement, and thorefore as against this | Kipp, as trustee, it was sufficient, in respect to the defencant, such a transfer may for the purpose of co estate, that Jotin Harrison received it and this case be assumed. d it, made |, and exercised con- Third, That the exevation and delivery of the | trol over it, and that im shia he acted as executor bond and mortgage by Frances C, Sage, to the trus- | a4 above stated, And the case has also been con- tet ander the murriage sewlement, with the coucur- | idered a this further view of the marriage rence oi the said Rutn §., had the effkct of subject ‘ettlement, which, though not without some ing the said bond and mortgage, and the moneys ec: | tion, 1 also conclude to be correct, viz.: that the cmed thereby, to the op: rations of the provisions of | duties of the trustee, folomon Kipp, ceased with that instrument then in being (to wis, the said Jast | the deeth of the sald Ruth S. Harrison, and she will and codicil). 16 was a conversion of @ por' of the real entate hela by the said Kipp as trostee, into persona) estate. The saia Ruth 8. by the pro- visions of the marriage vettiement, had power to ef- fect said conversion, and to direct the proceeds, or any part thereuf, to remain in the hands of the said trustee, and she did no more than this. Ne assent of John Harrison was necessary to subject those proceeds of a sale of a portion of the trust estate to tuanafer by him of the property to the person named pte ly tors said jest will and codicil, that he (Solomon Kipp) was not the person who carry into execution the provisions of thove instro- ments. Under these views the ap) new trustee, so far as the pers property was copeerned, Was wholly unneccesary, and thus far it bas been so cons: 4; and it conferred upon the present plaintiff no beter tithe than he had without the operation of tl e marriage settlement, or the ap- | such appointment, and without an assigoment or pointment by which the ultimate disposition of the | transfer to him by the said Kipp, for the trust estate was to he governeé. This hond and mort | reason that the er of Kipp over the personal gage was in no sense after acquired property, in re- spect Lo which a new a tment by the sald Ruth 8, was necessary, and therefore if it were concluded as insisted by the defendant's counsel, that in re- spest to property after the myerey es & Lew eppoint- ‘uent nmst be made by the said Rath, or in default thereof the eame must be deemed her property unsp- estate had ceased, hie trust been hoe amb and the property had passed into the hands of Jobn Har rison, notbing remained to be done by hi: tee of the persopal estate, and there was neither ti- tle nor trust in him to be transferred. Bat if the ti- tle to the-personal property remained in Svlomoa Kipp until he executed a formal instsament of trans- pointed, and at ber death subject to the marital mghts | fer in writing, or if (assome of the language of the oi John Harton, and passing to him as her eval | marriage sett! it would at first seem to indicate) Teprerentative tor his own use, and without ac- | Solomon Kipp ia to be deemed by force of the mar countability to any one except her creditor, there: | riage settlement, 9 substituted trustee, appointed fore, (in accordance with our statute reguiating the | (in default of any hone pe eager or Aisposition) rights of a hneband over the property of his de- | in the place and the executor in the aai ceased wife, 2 Rey. Btat. 76, sec. 29) this bomd and | last will, to perform the trasts contained in the lat- mortgage la not fall into that condition. By the | ter, then, andj in either event, the appoiatment of mere conversion of real estate into iy, While | the plaintiff as trustee in the place stead of Bo- it was continued in the hands of the trusteo, {t was | Jomon Kipp, and the conveyance and transfer of pot withdrawn from the of the trust or > devolved up the then existing aj tment relat! But on the other boud and mor ‘ing thereto. }, if it be conceded that this , by reason of this entire change in pe bn pee pro nd in to be deemed, seer acqu’ property, or ‘were conceced (a6 insisted by tee defengant’s counsel) that the con- veyance to Frances C. Sage was iteel! an iat ment by the said Ruth of the house and ot No. 56 Leonard street to the said Sage, which defeated the will and codicil so tar as related to that property, the result would not be different, for the power of the said Ruth, under the said marriage settlement, further to aj it the ultimate disposition of the ee on OG an e 1) Wi omourrence of “the aid ath, was even in that view of the case, an adoption of all of the provisions of the man setilemeat and the existing appointment, (to wit, the will and coaicil,) as effectual as if the ssid Rath ry a new vppointment. in form, directed the said Kipp to hoki the same for the purpose vv named in the will and codvcil referred to. Whether by the conversion of the house and lot No. 55 Leonard street into personal estate, the making anddelivery of the bond und mortgage by Sage to the trostee, had the effet to change the ultimate destination ‘herous trom Lucy Aun to the twe song, it is not necessary to decide; and, therefore, whet cr its ultinmaie disposition by the trustee Kipp, or bv John Tlarrison, as execator, or the present plaint |, is to he in confommity with the directions cont. od fa ihe codocil; or whether (the sale to Etizaveth O+ borne having failed,) the same id under the general distnbution contained in the will iu regard Vo persougd property, does not effect the decision of the prevent case; it is sufficient to decide tuatst remained subject to the trusts and to the appoift- mort made by the will and codicil, which soever of them may, when that question arises, be beid to govern it. If the provisions of the codicil be deem- td applicable to any conversion of that house and lot into personalty in the bands of the trustee, Kipp, and the sale an tea re Rage be di a substitution for the contemplated sale and cOuvey- one ang cage omy Ang beneficiary was in oe Teqi & Corresponding amon’ de inv for ber benefit, and ifsuch pry deen ed a revocation of the devise made of the house ani lot, and also of the direction contained in the sod!- cil, then Samuel C. and Charles T. !arrison ms require that the proceeds, with the o!ver personal estate, be invested for their benefit, ji.) in either aspect of that question, the jntment contained in the will er the codiell ap to it and will goy- revisions of ov ern it. Fourth—That although, by the statute, a will made by a Married female ia to »» deemed revoked by her subsequent marriage, Rey. Stat., 64, sec. 36.) such subsequent m cris does not operate to prevent an instrament, 6» :outod before the marriage, and established bythe marr! ave settlement, from taking effect upon the property settled, according to the very terms of the set - ment Heelf. By the marriage settlement in ths ense, John Harrison and all thore claiming under him are excluded, By the covenauts ovntained therein, he and his heirs, execators, and adminis. trators were bound to the seid last wilt ant codicil to be proved as such; and, therefore, by in. eh ee to acquiesce in all the legni resules woich jow trom their ful asthe last will oud testament of the deceased, whether siricily and technically a last will or not, they ate to be dectied such, 60 iar as the orequitatle rights of John Harrison are effected by them; and, in a Court of er especially, neither he nor bis represe’ tative be permi in the face of hia expresa esve- nant, to deny to them their appro rinte ¢ ect assuch, And again, whether nly or ter ni cally alast will and testament or not, the «sid willand codicil were, ag before suggested, a valid appointment, and were testamevtary in thcir charactes, and an appointment testamentary or in the natore of @ last will and testament in whieh the dnties to be performed are euch 28 roperly appertain to the character of an executor, whether made and adopted by a marriage settie- ment before marriage, or made in pursnamce of tbo Maitiage settiement after marviage,) is appropri- avery proved as a testamentary aisporitton, (at least #0 far as personal estate is aflected by it,) and when the will of the said Rath was 6o proved in conformi- ty with the express covenants contained in the mar riage settlement itself, it a6 d Harrison and bis re; ntatives in effect iu equity, and, as I think at law, the last will and testament of the deeedent as truly as if she had not married. Still, further, John Harrison, fully competent to protect wt his rights, legal and equitable, did, in contormity with his express covenants, suffer the said instrument to be proved as the last will sad testament of the decedent, and accepted keene Peigy yt and assumed to act as executor. By this I thick he wal eee and that his reore- seutaiives are prectuded, trom insisting upon the merely tecbuical objection shat he was not executor of a will, but trustee under an appointment, and as a consequence of their pr ions, and ~ eS eS ta oe Harneon, at and be- fore his 5 operty re- ceived by him (which sank’. tan Ht tee trast estate,) as executor, with the powers and snb- ject to the respoumtbitities of the character under and in conformity with the provisions of the said last will and proved before the Sur- Togate and adopted by him as such; and if in virtac of his marital ri he could lawfully claim that these instrumenta, by reason of the marriage, had lost their original character, he hed named auy such ciaim and voluntasily established tem, notwith- stanoing any intirmity thereio (if any) arising from the fact of the of on aceeaem, somes both at law and in ganity he wes bound to execute them as the last will testament of bis deceased wie. Ffth—Jobn Harrison, thus holding the said per- sonal property as executor, having died, letters of adminjstration de bonis non, with the will annexed, would confer upon the administrator, and did, when granted, confer — the plaintiff berein, all the rights and powers in res, ‘to such pro. perty, which were vested in the Harrison . virtte of enid wil? and codicil; and the tide to suc property, therefore, to the tiff, aul to the performance of the trusts, daties and tions (:emaining upperformed) in those instruments contained. Whatever denbt may exist in respect to tho powers of the administration de bonis non, with the will annexed, over the real estate of the doce. dent, ander the provisions of our atatnte, (2 Rey, a the property by Kipp to the plaintiff Gn the miter tie acteal title ta the property, and Telation thereto, and he is entitled to recover the property upon very ground. Although I have ret bee be ae aes at ge Marriage set nt rea} pec ia cearee incicate a design that the trustee, ws himeelf to apprupriate the se de! will and codicil. bea a ney thet “if the said arty of the first depart this life in the Kipp shall pay over, assigs,and transfer the anid ‘trust, moneys, funds, se , and premises, and auch part or ports thereof ively, a3 ehu!! ve then unapplied wnappointed and andisposd of, after answering the trusts and reinbe- the aforesaid will and testament above referred to, cr to sugh person or persons, a6 are named in the in this clause be iutended the beneticiaries provided for in the will and codicil, viz., the children of the cone, and their Jawiul issne or heirs at law, who ore uitunately to receive the principal, then clearly and ie an active trust, which, the appointmear of the plaintif® as trustee in ‘his etead, and the tee, bas, together with the title to the property, de- volved upon the plaintiff, : ps jons above eighthly clothed him with an active trustto be performed in not adopted the construction last intimaced, is expre! in terms wi » spp) to the Uses and pur; a tod in 8 rt fn ime of ber in husband, that then the esid interest, and annual production, and payments, or fore contained, to the person or persons named in codicil thereto annexed.” If by person or decedent, who are to receive the interest and in- the trust comerred upon Kipp is still subsisting, tranater of the property to him by such former tras- Ninth—In view of the su; ggesti made, J deem it materia! to state my further con- cingion in relation to the effect of the appointment made by the Supreme Court of this State above re ferred to, and which was claimed by the defendant's counsel on the trial, to be inoperative for the want of parties. That court had juriediction of the sub- ject matter, it had the plaintiff who wes interested therein as administrator, and also husband of his presence ms that wife, a beneticfary, and the truxtee, in ite and juriediction, and satisfactory allegation the of cestui que trust in being, were out of the State, ite order wos therefore operative and effec- tual, so far aa the parties before the coart wer: con- cerned; and a conveyance by the trustee in vbedi- ence to order passed the legal title, and char,- ed the new trustee, (so far as snch trusts remained to be executed.) is sufficient to enable the new trastee to maintain his title te the property it- self, when the other cestui que trust seek to bold the former trustce responsible for their interest in tne trast estate. It = materia] to inquire whether they were in fact nt from the State, and how far be could be relieved from responsibility by a Santen eee ese Eee - ord — ind persons. p egane ing paseod the title, theretoreas against the preseut defondant—if chere is anything in the sug-estions eignthly above stated--the appointment was valid, nor in it cfuct, ee because the conveyance was made |) the plainti?’ as administrator. tranater of the title was made, and os against this defendant the title * Lise be teaetgen oa per ptaay i ates e ga surptusage, or tl i tiff'may be said to hold the property charged with such t! ; as according to the true con: of the instrumenta under which it is held, , sperly appertain to the title, there is no defeat i. tide rea Sn erpetan ip tee rae ; PR it it ap, the replication, and by the proofs, that the Pisin hes in fact, though since the commencement of this action, comprom’ +d and dizcharged the bond and note of Blecolers 5 Ven- Ayko, he is not entitied now to any decree which shat! 1d the defendant to the payment of auy money on that acconnt, st most (in the absence of any proof that there has been any Joss to the trust fond by rea- son of the illegal witbhol thereof by the defend- ant,) ihe Court should only direct that be given be Pe nied of bei cancelled. in respect to the bond and mortgage of Frances C. Sage, how in the bands of the ver, herein the docree will provide that it be delivered to the plaintiff, together with any moneys coliected thereon by the Reveiver, after allowing to the Receiver hisexpenres and com- missions. In respect to the interest money collect d DI the defendant on the Sth day of Dee., 1849, whi ia the only money which appears by the proofs to have cowe to his hands not shown to have been paid over to the executor, John Harrison, there is no claim in the plaintifi's complaint to this money nor tnet the defendant hes it in his hands. It is there. fore not nece to soy how far the agent or at fang Pa an executor is liable to his successor 14 the office, for moneys received in such agency. The eomphaint is for the before mentioned bonds, mori gaxe and note, and for certain papers, rece! vis, vouchers, beoks of account and documents. ta only satisfactory proof that the def-ndant is in pow session, relates to the bonds and mortgage of Rage, cea my bond and a Sie cerns Vandyke, al- ough it of proy and sapdry noter of one Britton, were at one time in possession of t2¢ late executor, and the defendant in one of his letters makes a general admission that he has all the papers, et isnot enough t this to charge come to nt with anything pot.ehown to have oe uit a ere vee le papers exeontor, which the letter refers, ; Finally.—I find nothing in the case to worrant ony claimn by the defendant to any commiseions or Yo any lien upon the land and mor in question, for services or expenses ponders or pad aa the agent or attorney of the late executor; such former executor could give no such lien if any euch ser- vices were rendered or expenses incurred. 1 do not, therefore, perceive that there is any occasion for ordering an account between the parties, Ican only regard the defendant, however sincere he may have been in believing that he was not pound to @eliver the property, asa wrong-doer. The de- cree should therefore award the bond and a and direct its delivery to him by the receiver as above atated, and award to the peri? his costs, with an aliowance of two hundred and fifty dollars. Fatat AccivExt—On lest Monday morning, while the hands were at work in an exvavation ou the railroad in the vicinity of our city, the banks waddeniy caved in and overwhelmed six negroes and two mules with the carts attached. Four angro mep and a mule were instantly killed, avd the tw» other boys hurt. We understand thet two of the men killed belonged to Gol. Strong, who was working the contract, ene 6 Mr. Bay, and one to Mrs PeingAledern (4 FINANCIAL ANDO COMMERCIAL. MesnY HMARKBT. Tuunensy, July 18-6 P. The failure of Mr. Jehu F. Purdy, & leading broker, whe bes been far some time a large buyer of stocks, was announced at this merning’s beard, and by threwing a quantity of steck om the market for peremptory sate, still further depressed ite tone. As compared with yes- terday merning’s board, Erie fell 1, Reading 23, Nica- rages %, Hudson River 1%, Cumberland %, New York Central 3. After the board the decline continued. The foreign nes was interpreted in the street as belag more warlike; and notwithstarding the tssprovement in the British money earket, and the increase of bullion ia the Bank, it was thought that the Asia’s advices were on the whole unfavorable to financial prospects. The second Doard bears signe of this gloomy feeling. At the close Erie wae offered at 56, Reading at 09%, Norwich and Wercenter at 61, Steaingtem st 68, Hudson River at 50s, New York Contra] at 97, Canton at 23%, Gamberland at 88%, Nicaragua at 22. Meney is stil very plentiful om prime securities. The Danks whieh reesived trom Count Almonte threeand a half millions to Joan, are exercising the utmost caution. ‘They refuse to lend om mocks, and demand short prime meeaatile ‘4 This io very searce in thie dull sea- saat the tty Lat chidka vie cttagent’rale oh presen, observed fa released, it fe probable that o large portion of the meney received frem the Mexican Minister will remain idke im the banka. At the present rate of ox- change on England, it is not Mhely that large shipments of specie will be made; and from fuurteen to difteen willions of specie wil) probably appear in ext week's dank statement. Were it not for the failures which are #0 frequently occurring here smong stook operators, and the fear ef some oesurring iu Europe im eonse- quenee of the war, provement in the market would be inevitable; as it is, we see no siga of better prices at present. Gen. Wm. Ayres, from Harrisburg, Pa., it now in the ity of New York. Theobdjest of hin visit le to draw the attention of the citizens of New York to the above con- templated railroad. The,, Legislature of Pennsylvania uring their last session passed an act incorporating a company to eonstruct a railroed from Harrisburg to Hamburg, a distance of Arty miles, This company is just about to open books and organise their company. The road from Hamburg toKaston is more than helf made as this time—there connecting with the New Jersey Central yoad. The completion of thisroad will shorten the dis- tanee frem Harrisburg to New York some ferty miles, and give New York # connection at Harrrisburg wtih the great Centra] Pennsylvania road. It will also connect with the Cumberland road, leading through the rich valley of Qumberknd te Hagerstown, in Maryland; also comnect with Harrisburg amd Balti- wore, the travel of which in winter, when the erosaiag of the mouth of the Sasquehanns is bad, will come up dy the way of Harrisburg to New York, and will also connect with the Sunbury and Erie, of which the travel and trade must come from the Sasquehanua ata grvie three feet to the mile. Instead of crossing the broad mountain by Pottaville, the connection with the Oumber- land and Hagerstown will form a portion of what ‘will be the great Southern Reilroad from New York to Easton, Hamburg, Harrisburg, Chambersbarg¢, Hagers- town, Martinsburg, Winchester, Staunton, Knoxville, ke., to thefarSeuth. A glanee at the map will show the advantage of this route over ali others. Gen. Ayres ig at the Astor House. ‘The Bank of England returns for the week ending 24th June show an increase of bullion amounting te%700, 508, and a decrease of discounts of £196,340. Compared witb last return, it gives the following result — Poblie deposits..£4,862,805 Increase ‘Other deposits. 10,114,388 Decrease Rest... sees sees 623 On the other othe: Gov’s. securities £9,851,260 Other securities 15,584,007 Increase Notes uncampl’d 7,518,700 Increase. The sixth weekly statement of the Boston Banke is as follows Deporits. Cirew'n. SarM Sac 96.766 Lee SI9GIB BG 44 65001 377 2% 213 430 179 9 1 e888 S538 : iH SEERTE eRe3258 g2588 Bs eens ‘ay eH & ee £ ei . aya 4 BEees ETERS #8 a roses 5 3 Be Pt SEEEE pikes Fe3 a = este Si28 3 82 er r EP 4 95 Ber 5 “e me ‘3 glass =: 5 5 2 3 ee RESRE SEzzNeTE z &, os ae ead Sereheys = Seeoge SezSRSHEEY rt sf rt 5 an iSze: ees 85 2588S55= Se mye! en 28s E3 3 ea Se setts HEGES , at eye i PESSERERERUERESEESEBY BEERERETESESREZSEES IES i & yes Beeez : | - 90,796,925 ‘Total . The statement of the previous week an follows —— 49,116,087 2,889,025 12,788,006 9,159,450 the present comperes with that of July 3, Cane: Bae Tworease. Dev?se. $30,762,802 $30,706,025 $34,093 — 8,177,870 6,848,480 871,110 $444,591. + 18,188,196 12,788,605 — - 8,090,089 9,158,459 1,069,970 $68,222,547 59,542,469 1,319,022 103,044 49,220,001 49,116,087 ~ Due by banks. 8,952,760 10,004,104 1,140,034 Bpecie....... 2,644,533 2,839,025 194,402 Total .,....$60,817,204 62,047,876 1,230,582 The following statemente show the condition of the Manufacturers and Farmers’ Bank ef Wheeling, the | $1000 Kentuch, Monticello Bank, at Charlottesville, ana the Merchants’ | 9000 Erie Inc ba. Bank of Virginis, all of thet Btate,on Ist July inst. :— ee sien : ry Statement of the condition af the Manufacturers and 3000 H Rtv tet 10 be Farmers’ Bonk of Savin. with corres- | 9000 MichSouthn be 964, 10 ponding stotemeni at July 1, 1868. 6600 WICHRR be..¢ Tl 80 Asseta- 1854. 1853. 16 ahs Bk Com’re.23 100 5 Cleve ‘Virginio bonds,.....++++-+++- $278,025 00 $800,000 00] “gam Exch Bk... 102 22 Premiums paid on same. 18,012 65 18,948 7) | 54 Met: tan Bk. 100-10 Benbing buuse, 5,696 35 6,782 07 | 95 Corm Exch Bk.s3 08 100Zrie Krpenses for six months, ia- 10 Commonw'ith Bk 90 735 cluding salaries and postage = 1,710 27 1,974 90 | 95 Del & Hud Cana) 110% 100 Protest account. 10 69 97L 5 Dk aAmerica...b3 104 400 Foreign bills $4,445 37 69,021 56 | 25 Dd 10550 Domestic bills discounted 69,608 80° 65,986 18 | 469 a 11% 900 Due by Commonweslth of Vir- 00 28% 100 ginia, interest om bonds.... 8,190 75 8,814 47 | 309 23% 60 Due by Eastern bapks and 400 “a 180 DAMDETA. ees cecese eee 4,904 54 | 200 x 80 Due by Western banks and 60 2” 6 bankers, + 0,783 38 2,919 70 | 96 22% 200 nm ed by Btate of Virginia. 12,550 00 = 10,350 00 Conte antes of tenis of har : too ae dense. States, including cheeks... 8,007 30 7.811 00 | 900 30 Nor&kWor pe 51 Old and ever... cee eee ees 46,541 97 = 61,617 82 | “a9 Reading RR.... 70% Tots. fe $524,655 19 "$500,198 61 | 3° = fo: 3 70% is is 2 ee Re Capital stock all paid in, 4 . Neten in pitculaton, fee... 69 oo : Interest account aud exchange 100 wen fe ag bes to: Copesttor rs: 658, % bas = e wre. } Contingeat Fund % = oo nes Teale. i a6 ee ita A ry) stement of the Condition of the Monticatlo Bank, Char 0 HS Va., on the Ist day of July, 1854. rH + $150,000 00 r+ 25,281 50 86 Due to depositors. 42,660 72 56% Duo on certificates of deposit. 18,300 00} 399 b6 Discount and interest account. es > 7 s 2,908 7 | ?¢8 # 6; 27 oe ‘Tavnsoay, July 13—6 P.M. { Arnms.—To dey’s sales reacted 100 bola. ot steady 246,07: Buraverorre —Flour was depressed. The day's sales conisted of 9,200 bble inferior State at $5 26 a $5 50; a, 94 | ordipary to shoice State at $6 a $7; mined to fancy Wes tern at $6 6234 » $7 02%; and Lome a poly 4 ate prices. were $00 bbls. Boutnern bought @: fall figures. Rye Sour was inactive. 100 bbls, orn meal reslised $375 per bol. Wheat was in re pes oes in . bo included 2,600 prnne * 00 ime Ohio St $1 90; 7,600 Weatern redat’ $1 a net ty sus 3,000 Labe at $140. Acout 3,000 bushels rye at $117. Rate and Western cate were ts guhaequmtet Sic. a bbe. pet bushel. Corn wason the ceoline. Sales transpired of 68,000 bashels at 61c. 8 66¢. for unsound; Gb. a Ue. for Western mixed; and 70c. for round yol- how, pex bushel Corren —The market was dull, and we have only to notice light transactions, among which were 260 begs of Rio at le. » 11 Ke. Corton —The market was tolerably brisk with fair sales, indicating an advance of about Wd. since the re- enipt of the Europe's news. Frnants —Rates to Liverpool continued steady with N. H. MARSIN, rote oifering. about 5,000 a 6,000 bbls. flour wore en- GENER HylRISON, @aged at 2s. 1 iid. for ammall cart, and the wat JOUN WOOD, Jn, ie. Bo., and about 12,000 6 16,000 bushels © bs 4 Wor? ed inship's haew at 14,, ay ep chencnine 1 Pang suet) Grategeveneny atte Ae State securities deposited with Trea- sores of tbe Commanwesith. 334,407 86 Premiums paid oo sane, ‘20, * Soran: Amount ef domestic bills of exchange, purchased during quarter ending Bth Jane, Idd st rates yf. ing irom 0 per cont w i per cent ... apace Am0unt of same, rvld ot rates varying from 0 per cent 1 per cent, au wawe time (269,913 90 A)) the debts are belived to Amgar ative Statement of the ‘Conse Que Merchants? Bank of Virygrnta on the lst July, 1854, with the same om Lit July, 1653:— 1868. 1854. . Increase. Capit’ stock paid in $212,031 52 $376,300 00 $164,248 49 (irculation , After the sdjournment of the board, the following | bonds sud stocks were sold at auction by A. H. Nicolay:— | $3,000 Fhushing Railroad first moriguge, int. added..724¢ | 6,000 do do ¢o do 71 | 110K +10 5,F00 80,000 @o do 8,000 do. do eo 6,000 Toledo. Norw. & Cleve. RR. 1st mort. + 164,675 00 275,303 00 121,223 60 24,240 07 120,281 04 104,660 31 4,210 26 8,620 78 4,256 47 81,160 75 Bv,687 92 888 17 184,825 00 334,497 86 179,872 86 10,187 00 20,485 72 10,408 6,901 61 2.049 65 BAHL Davi K. EDLEY, Preskient. JESSE HARE, BAMUEL M’CORKLE, WM. H LANGHORNE, 8 GARLAND. do do 1,600 Peru & Incisn: 5,000 Chicago & Rock 1600 4 jo S000 Mich. Southern RR., Jackson Branch ginal share da ua. ori; 3 ao Ssusticce New York and =e <o lo New York and Savannah Steam Nav. Co... do a do 0 Grocers’ Btesm Buger Refining ‘Aw, Waite Zinc Ue, por do ao da RR. RR. do Seeses a go 0 do share of $5, Thefollowing dividends have been declared :-— L. Inland Fire Insurance $5 per share, ay ea demand. tpn a8. do, 8 per cent . daly 15. Heme 0, do, 8 do. do. Suly 17. Artic do. do. 7 do, do. July 16, Ina. Co of N. Ai 3 do. do. on demand. merics, Mevhattan 6. lnstiturion, 8 de. ($500 &under, July 17. | E. R. Cavinge Institution, 5 Do. eu. 4 Planter’s Bk of Union Bk of Tennernee, Commercial Bauk of N J. ao Teanocsre$d per abare, 4 30 do... do.) July 17. do. (8500 & over,) July 17. payable " Jaly 15. per cent. 4 Saly 16. do. to creditors, on demand. Te. &R & C&A. RR GO en! able July 17. Old Colony Iron Company Foe re z of Teuston, Ma: Park Mills at Ware! ‘Taunton Copper Ce. Lean Cot & Mactii 10 Foundry & Machine Co..10 P tf, COs ee e110 30 cont. 80 pies Sees It is said that the Sixth Avenue Railrosd wil pay a dividend om the let of August, and thet it will be de- clared as seon a8 the directors can be got together. We have received the following card from the Cleve- end and Tolede Central Railroad Company.— To TrR ‘Boxy ‘the Bourd AND BTocKHOLDERS: of Directors of in view Railroad Company, trurt of all rai ment New Yonx, July 12, 1854, — the Clevelind and Toledo of the almost universal dis- lroad scourities caused at the pros nt me- recent well known developemen: duty which they owed to their steck and felt it to bes dnoklers to caufe an examination to be made into the issucs of the stock and bonds of the company. They gentlenen whose names are subscribed to ti e@ examinaticn. They have this veetigation, the result of which is repertol he certificate, Gay concluded their in ‘their certificate. addition, that the annual sented tothe steckbol-ers at their annual meeting the first Wedresday of this month. dered the re; with the reporta ‘Treasurer, page een and » seme will be pul as soon it is intended shall be appended to for the press, The bond and those reperts detailed Meved, satisfactory miormation respecting stated in avd map, which can be wil iu the company. to make tb uested the Proper to state, directors The stoon! it fe be. aflaire 8 F. VINTON, Railroad Co. and the President Cleaveland and Toledo We, the rectors of the Cleve! te ths io. this day ou: uded e carefal and thorough feaues Of the same, 1nd have found the donde to be correct. having beem requested by the di- and italireaé Coupany to make’: «xamination of their books and papers relative © «f the stook and bonds: of the company, ba’ exam! ot i unchanged. nia, tinues dull at about 45e. foot Veh ports en privete terme. Hay —About 1,000 b. les were sold for at O5c.. Hors —Tthe demand was very limited year’s: aaa Othe. ante. pe Inox.—Bales of 160 tons Scotch pig were made at $10° 60 s $41.50 per ton Liwt.—Hockland was inactive, at 87 dc. for commom avd $1 for lump, per bbl. a About 100 hhds. tart Qube were sold at C. told ‘Whale, pperm and olive ruled quiet a! prices, é Te. & 80c. Bales were made of 6,000 gallons linseed, at per gallon, Lard was unchanged. Provisions —Pork was more valuable. The salew amounted to 750 bbis., at $1160 » 612 for moss, anit $10 25 a $10 50 fr prime, at the rates, per bbl. There were likewise nold 300 casks at 63%¢ a 7ke for hams, Gc for light sien, and 4Xc. & 6%c. for shoulders, per Ib.; with bbls. tard, at Bc. avs,c perlb, and 170 bbls. beef at former rates. We noticed nothing vew in butter or cheese. Rick —The sales embraced about 250 tierces, at $3 75: a $4 12 and $4 31. 8ve4n.—The market was inactive without im epg ee ae rt in Me. @ BKC. . § Row Orlear om terms not , ana 50 do. =< moe e terms, with 220 boxes brown Hewana, at b3¢c.. a 6c. Wimexny.—The day’s transactions embraced 450 bbis,. Jersey, Ubio and prison, at 273¢c. @ 28c., and 100 do, drucge, at 27 4¢. a 27%Xc., pergallon, calves $32 $.2 10872 Sheep ba—3, 908 45 to $9; by lot $255. 8236, $29. has declined, and will eontique that grare fed breves are comivg in. enlvon rel) quick and well O14 she bers, but the buyers set the price. WSVERT.NKMBATS GKNEWES EVERY DAY HANDSO*R FUbNISHKY HOOBE TO LET—-ON Lexingion arenes sat SU 100 pas gana Alsoagen- - ter! thre wenty Ma $710 also jonre on Turty third Wye » pumber of Apply to & B KINSHIMRE, 519 Fourt avenue. fr to 10, and 8 to 7 o'clock THR RY HOUSE TO LET~(FURNISHED)— ull in @ ploa-ant logation; eontaing gas ang® harks, me y furnished threaghout, For fu:- | eee address M. ELLIOT, Union square Post, 1 ne GOUD THREE STORY HOUSE T, Best pide of the town $50 ie Earalased, bi oo BREAN KOOMS TO LET.—THE OLD-BSTAB- ed and iar degvers joented = 205 Senety hove been fu vacgeastel ef : Crap iam ee particulars, inquire of A. JAMIN, on tha a GH1H AVENUE.—TO LAT, THE NEW STORE, NO 572 sight ween Fortioth and Fi atroate Apply to JUHIN A. CORMACK, 706 Weet corty- pply x, ‘eat Zorty: OUSk TO LET—FURNITURE AND FIXTURES FOK sale.—J¢is sicusted very near Broad: Cana? street; the house copteins in ail twel: | kuown =< been long e-tabli.! most proitabie bars in the city. brendway, TO LET—CONTAINING ABOUT TWENTY rooms, niselv furuiened throughout with all the modera: pled ao &: rexteurant and lodging ceatve of business at of jare for way. ousE Breadway, below Chamb talc. & street; lense a1 KICHARUS, 307 Broad FRICES TO LET—IN THE NEW BULi ‘Nastau strert, between Johu ton streets, ait mechanical bu: Deleg woll PERRIS, 62 Nassae street, LDING NO. 81 NLY $8 PER MONTH.—TO LET—S8TORE No. 153 Prince et 8 with s room the re r, aad le Good stand for apy ligh A es et tok sotntes asd onsen fi Also los of toys, » D8, &e. Apply a8 Cas ‘sere jROOKLYN— iNT, IN B con’ Tyee] Roe TO LeT, WITH TWO CLOSETS, IN THE NEAT wo story house ho. G2 Laureve street tvo doore son h ef Broome et moders & Possession oly. Ap- ply on the prewiee, TORE ee OR a bd +OoR a Pay. wiser Arsen Bt roe! on premises, to eo, SLCRLES, ow BH woRiNee RO 1 Newsau Ss goa, REST ont five 1 o-ms, kitoben Ox® TO RENT—& VERY DESIRABLE LOCATION with fzaures, Ae. for sale. apply at 17! Mowery. PENCE 10 LET —a NRAT COTTAGR, Ko. im good order, wits table, conch Busse, aed - ber uatifal gades, well stooced vik trees 1 a3] descriptions, vegeabice ¢0 Tarra fe an ¢3 jane well of a the The loestion, # healthy and peasant my afew minutes waik several tases daily. rendering ib ons of the most convenient a mon daily, rb one convenient and comt-rtable residevcrs around tbe cits, Rent $100 for the season inquire of CHAS. H. NaNRY, om the prem: peo, ob Dail’s Farry 3 i) ah uM gh eg UrPss rant Of bag ne Ht WwEsT vonth street onsisti reom aad entry bedr om, to's small family only. Root $176 PURT MONYOUTH HOTEL, iT N. J) The hotel will be ins LET—TBE PPaCiOUS STORK AND BasEMENT cere kt ng hundred toes ia depih, tod Pree Same PRICE, 200 Hudson st. 0 LAT—a FOUR STORY MOUSB courtyeeny furnished in the vicinity of na gan, on lone Senate’ space of ht ph Ne the sdvertier 2 We is owt of town. Inquire T° LET—a NEAT STORE AND BACK ROOM, IN the Bowery, between Grand and corms riseene Re jeu! wi bal Al eiasnbaegeer ahh atten ates neces 4 LaT- aes, ty rooms Siled with 7 eee W. RICHARDS, 361 Stondwas. Se ee yeh PY am C 7 snd suitable for s larg: power press piecing ectatlishmeat, prase tu pied Ughk Apply wo OULR Rel Basa sh T Hedeon River the premises. Inq Te SEP eT eR On t Ry hfe receeerites table Ne. 143 Gees: heat (t} losete. i. t and ear Houston Nene a ences. Peesession is agest 2 a court, (43 Wall sireet ) TS LET OR. R BalB-AN OLD ESTABLISHED aon wns ban been is the vaioee or seve will earn as ar. Price $4,000, Yor parvieulars 0, BL BowEe 20S. Sr Senske sarees. : 0 MITE’S REW ETHIOPIAN OPERA HOUSR—TWO eplondid st: ries to let or lense fur manufasterios of @ A eg ry hen sho deen ond music seld at the ndimone sida to kenest peek MTEESCOLD & TROMPEON, role acento, 641 Breodway. premise UPURIOR 7 OCTAVE $890 ROSEWOOD PLO. Aihecee eee street, oP. ~) tows mew MARIE JULIE GUY, ELRYR DR vre, har cemowod her dream sbiog oot 4 Amity steed, corner ol Woomar, where stil continue t: ase ber utmost endesy r rook Snel) bance her with “hele costom Ladiet ape