
    Moses and others against Murgatroyd, Administrator, &c.
    
      July 3d.
    An administrator, or trustee, who resists a claim, and litigates bonajide, from a conviction of duty, and where no intentional default is made to appear, will not, under the circumstances of the case, be charged personally with the costs ; but they must be paid out of the assets of the intestate.
    On a rehearing the court refused to alter the decree before given in the cause, (see ante, p. 119.,) except as to the payment of costs by the administrator.
    And the court refused to order the costs of the adminstrator of the mortgagor, on the sale of premises mortgaged in fee, to be paid out of the proceeds in this court.
    ON a rehearing against the decree of the 29th of August last, in this cause, (ante, p. 119.,) the objections to that decree were, 1. Because it was decreed that the amount of the moneys in the hands of Charles Wilkes be paid to the plaintiffs, under their demand, founded on the assignment ofthel2thof February, 1806, mentioned in the pleadings; whereas those moneys arose out of the proceeds of the cargo of the shi p Emperor, under the two assignments of the 20th of December, 1805, and the 12th of February, 1806.
    2. Because it was decreed that the defendants should pay cos ts.
    It was, also, urged, on the rehearing, that the costs of the administrator, relative to Lawrence's mortgage, ought first to be paid out of the assets resulting from the mortgage, and tiie residue only be distributed.
    
      T. A. Emmet and Wells, for the defendants.
    
      Harison and Hoffman, contra.
   The Chancellor.

It appears from the pleadings and proofs, that S. G. Ogden made three assignments of property to Samuel Murgatroyd. The first assignment was on the 20th of December, 1805. That assignment has not ® been made an exhibit, or an object of proof, for the defend-seems not to have placed any reliance upon it as a matter of defence ; and, therefore, the precise terms of it do not appear. But, from the incidental notice taken of it in the cause, it appears to have been an assignment of a quantity of coffee on board the ship Emperor, and arising out of some old debt due to Ogden from the government of Hayti. This first assignment was not made by Ogden, nor accepted by Murgatroyd, as a special security for any particular debt: but was intended as a general security for advances and responsibilities made or incurred by Murgatroyd on account of Ogden. The next assignment was made on the 20th of February, 1806 ; and though, like the former, it was general in its terms, yet it has been shown and decreed to have been made and accepted as a special security for Murgatroyd'1 s endorsement of the notes stated in the bill. This assignment was of 100,000 pounds of coffee, or other goods of equal value, (or to the value of 20,000 dollars,) on board of the said ship, being the returns of the outward cargo. The third assignment was of the freight of the ship ; but as no part of that freight ever came to the possession of the assignee, it becomes of no consequence in the present case.

The ship, with her cargo, arrived at New-Yorlc; and it has been ascertained, under an arbitration acceded to by the parties, that of the proceeds of that cargo, consisting of coffee, cotton, and sugar, the sum of 16,270 dollars and 50 cents came to the hands of the defendant, under the two assignments, without distinguishing whether those proceeds came to hand under the one or the other assignment, though it admitted that a considerable part of the coffee was to be placed to the account of the second assignment. After deducting from those proceeds the amount which had been paid on two of the notes mentioned in the pleadings, the sum of 11,150 dollars and 50 cents was placed in the hands of Mr. Wilkes, to abide the decree in this suit.

Upon a consideration of the case, under all its circumstances, it appears to me that the administrator cannot be permitted to protect part of the coffee against the operation of the second assignment; and that the whole amount of the moneys in the hands of Mr. Wilkes was justly applied, by the decree, to the payment of the notes mentioned in the bill.

The amount of coffee claimed, in this case, falls short of the quantity specified in the second assignment; and it does not appear that the coffee, laden on board, had any distinguishing mark to designate from what particular source it arose; and the proceeds of it seem never to have been discriminated as belonging to different objects, either by the assignee or his administrator. The coffee must have been, originally, confounded in one entire parcel, and as yielding one entire sum, to be appropriated, generally, to the indemnity of the intestate, for his engagements on behalf of Ogden. This is'the necessary conclusion to be drawn from the case, as the first assignment is not even made an exhibit in the cause; and the distinction now set up, on the rehearing, appears not to have been made by the intestate, nor relied on as a material point of defence by the defendant. The first assignment created no special trust in the intestate. It was made for his indemnity at large against existing and future advances and responsibilities for Ogden; and when the intestate accepted of a second assignment of coffee, on board of the same ship, to a precise amount, and to meet the demands of particular creditors of Ogden, a slight variation in the description of the source from whence the coffee proceeded seems not to be sufficient to justify the assignee in disregarding his trust. The safer and better rule is to preclude this recent pretension as dangerous to the fidelity and security of the trust; and which pretension the intestate, and his representative, may be considered as having successively waived by their own conduct. In construing the instruments, we are to look to the rights of the parties, as they stood when the second assignment was made and accepted. The two assignments were the acts of the same parties; and as the second charged the intestate with a special trust, we ought, if possible, to give it full effect, and, if necessary, to make all the coffee on board subservient to that trust, to the specified amount, without inquiring how much proceeded from one source, and how much from another. That addition cannot well be considered, under the peculiar circumstances of this case, as an essential part of the description. The great object and substance of the contract was coffee to a certain amount. The intestate accepted, and assumed to apply to the discharge of particular debts, 100,000 pounds of coffee, or to the amount of 20,000 dollars ; and he ought not to be heard in his allegation, that he has coffee sufficient, but that he chooses to apply part of it to other purposes, according to his own discretion, because he can now undertake to show that part of his coffee was purchased from another source, or with other proceeds than those mentioned in the assignment. Admitting the fact to be so ; yet while no particular rights of third persons are concerned, (and none were when the second assignment was made,) the specification of the quantity will control the residue of the description, and cover Avhatever coffee he may have had on board to that amount. Suppose there had been coffee enough on board, but all of it the result of the Hayti debt, would the intestate have gone clear of his trust? That cannot be admitted. As the parties were competent to bind, by this second assignment, all the coffee on board, and as they intended to bind 100,000 pounds of it, the intestate must, on every sound construction, be ansAverable, under his trust, for that quantity of his coffee onboard, without beingpermittedtorestonthe question, (immaterial in this case,) how, orwithwhatproperty,heprocured it. It lies not in his mouth to impair or defeat his trust, by such a refinement, in his own favour; and, especially, ought he to be precluded, if no such discrimination was lceptup from the. time of the acceptance of the assignment, through all the stages of negotiation and dispute, down to the final hearing the cause. And, if the second assignment will cover all the coffee on board, to the extent of the quantity specified, there can be no doubt that it limited and controlled the general terms of the first assignment, by designating the special purpose to which the cargo was, in the first instance, to be applied. The first assignment became subservient to the special trust, created and assumed by the second; and the assignee cannot be permitted to dissipate that trust, by setting up the general and prior assignment made for his own benefit at large.

Another objection to the decree is, that costs were awarded against the defendant, and this objection is much more embarrassing to me than the other. I feel the weight due to the consideration, that the defendant stands before the court as an administrator merely, not as a party to the original trust; and that the trust rested in parol proof, and did not appear on the face of the assignment, so that the defendant might not have considered himself as bound to regard any mere verbal information of it. As far as the assets of the intestate are concerned, they are justly chargeable with costs; but I feel reluctant in fixing upon the defendant a wilful or improper resistance to the claim set up in the bill. On the other hand, it appears that he'had admitted the trust, and promised to pay the notes. What precise information he had to justify these admissions, does not appear. Perhaps, it was an admission inconsiderately made; and that he, afterwards, deemed it his duty, as trustee for all the creditors, to resist a claim inconsistent with the terms of the assignment. Shall an administrator make such resistance at his perjl, and be charged with costs when no wilful or intentional default is made satisfactorily to appear; I am by no means persuaded that the defendant did not act according to what he deemed his duty, when he confessed the judgment, and when he defended this suit; and, unless I am so persuaded, it is, perhaps, the safer course to exempt an administrator, under all the circumstances of such a case as this, from being charged personally, or, in other words, punished with costs. r

I am of opinion, then, that the decree, so far as it awards costs against the defendant personally, be corrected, and no further. I shall not direct that the costs of the administrator, before the surrogate and in this court, be first paid out of the equitable assets arising^ from Lawrence's mortgages. He voluntarily abandoned the surrogate’s order, and I see no equity that entitles him to aid for those costs, or for costs arising in this court.

Decree accordingly.  