
    Woods and others v. Moore.
    Where it is clear that there was an intent that specific property should pass by a will, it will be held to pass, notwithstanding a misdescription of the property, so long as there is enough of correspondence to afford the means of identifying the subject of the gift.
    Thus, where a testatrix devised two lots of land, describing them, which lots she had sold and conveyed previous to mating the will, and then held bonds and mortgages thereon for the unpaid purchase money, it was held, that the bonds and mortgages passed to the devisee.
    (Before Oakley, Ch. J., and Dues and Paine, J. J.)
    April 8;
    May 10, 1851.
    The bill in this cause was filed in the court of chancery, on the 24th day of April, 1847, by James H. Woods and his infant children by his deceased wife, Mary S. Woods, against Clement C. Moore. It set forth that, on the 6th day of April, 1802, Mary Clarke, then of the city of New York, widow, made her will, by which she appointed her son-in-law, Rev. Benjamin Moore, and Charity his wife, their son, Clement C. Moore, Elizabeth Maunsell, and Thomas B. Clarke, her executors and executrixes. After large devises and bequests to Rev. B. Moore and his wife, and to C. C. Moore, and devises in trust for the benefit of other grandchildren, the will contained the following paragraph:—
    “ Item. — I give and devise unto the said Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and to their heirs forever, as joint tenants and not as tenants in common, all that house and lot of ground situate in Hague-street, in the city of New York; also, all that lot of land situate in the patent of Kayaderosseras, and lying on the Mohawk River, in the possession of one Northrup; also, the lot of land situate in the said patent in the possession of Hacaleah Foster; also, seven hundred and fifty-one acres of land, lying in the twenty-third allotment of,the patent aforesaid ; also, six hundred acres divided into farms, now leased to different tenants, on the counterparts of whose leases I have indorsed the name of Samuel Clarke, so as to designate the farms included in this devise of six hundred acres; to hold the same to the said Benjamin Moore, and Charity his wife, and Elizabeth Maunsell, and to the survivors or survivor of them, and to 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 Samuel Clarke, a natural son of my late son Clement, during his natural life, and from and after his death, in the further trust and confidence, to convey the same in fee to such lawful issue of the said Samuel as he may leave at the time of his death ; and if the said Samuel shall die without leaving lawful issue living at the time of his death, then in the further trust to convey the same in fee to the said Clement Moore, son of the said Benjamin Moore, and to his heirs in fee, or to such person as he may by will appoint, in case of his death prior to that of the said Samuel Clarke.” The testatrix gave her residuary estate to the five children of her son Clement, and to Clement Moore. She died on the 23d day of July, 1802.
    The bill further stated, that the testatrix, at the date of her will, and for a long time previous thereto, and thence until her death, except as thereinafter mentioned, was seised and possessed in her own right, in fee simple absolute, of the real estate described in the will as all that house and lot of ground situate in Hague-street, in the city of New York; also all that lot of land situate in the patent of Kayaderosseras, in the possession of one Northrup; also the lot of land situate in the same patent, in the possession of Hacaleah Poster; also seven hundred and fifty-one acres of land, lying in the twenty-third allotment of the same patent; also six hundred acres, divided into farms, now leased to different tenants, on the counterparts of whose leases she had indorsed the name of Samuel Clarke.
    That all the executors and executrixes in the will named, except Elizabeth Maunsell, duly qualified, and took upon themselves the administration thereof, and received letters testamentary thereon, and that Benjamin Moore and Charity his wife, and Elizabeth Maunsell, immediately after the death of tbe testatrix, accepted all tbe trusts in tbe will mentioned, including the trusts respecting the real estate above described, and took possession of the seven hundred and fifty-one acres of land, lying in the twenty-third allotment of the patent of Kayaderosseras, and of the two hundred and fifty-two acres and one-quarter of an acre of the six hundred acres, divided into farms, so specifically devised to them; and after the death of Samuel Clarke, conveyed the same seven hundred and fifty-one acres, and two hundred and fifty-two acres and one-quarter of an acre to the children of the same Samuel Clarke hereinafter named.
    That Mrs. Clarke had at the time of making her will, and on or about the first day of May, 1801, sold and conveyed the house and lot of ground situate in Hague-street, to one Thomas Cooney, and that for the whole, or a great part' of the price thereof, she had received from .Cooney a bond, and also a mortgage on the house and lot, executed to her in the sum of thirteen hundred and fifty dollars, payable at a future period later than her death, which bond and mortgage remained in her hands unpaid at the time of making the will, and thence until her death, though, at the time of making the will, she had forgotten or overlooked the fact of her having sold the house and lot, and received in place thereof the bond and mortgage, and that her omission to specify the bond and mortgage and her interest in the house and lot arising therefrom, was a mere oversight and mistake.
    That notwithstanding the provisions of the will, Benjamin Moore and Charity his wife collected the money due by that bond and mortgage, in different sums, amounting in the whole to the sum of sixteen hundred and thirty-four dollars and ninety-six cents, the last payment in full being made on the fourth day of February, 1807, and converted the whole of the money to their own use, or disposed thereof in some other way unknown, in violation of their duty as such trustees, and contrary to the will of the testatrix, so that neither of the children of Samuel Clarke, nor the complainants received • any part thereof, or any benefit therefrom. .
    
      The bill then further showed, that before the death of Mrs. Clarke, one Beriah Palmer, her agent, had made a contract in her name, to sell the land described in the will as “ that lot of land situate in the patent of Kayaderosseras, and lying on the Mohawk river, in the possession of one Northrup,” and that after her death Benjamin Moore and his wife, trustees, recognized the contract as valid, and completed it, conveying the land, and receiving a large sum of money for the price thereof, and converted the money to their own use, in violation of their duty as such trustees, and contrary to the will of the testatrix.
    That the land described in the will as “ the lot of land situate in the said patent, in the possession of Hacaleah Poster,” had been sold and conveyed by Mrs. Mary Clarke, before making the will, and on or about the twentieth day of April, 1801, to one John Davis, for the price of five hundred dollars, for the whole of which she had received the bond of Davis, payable at a future period, and also his mortgage to her on the same land, payable to her later than the time of her death, which bond and mortgage remained in her hands, unpaid at the time of making the will, and thence until her death, though at the time of making the will she had forgotten or overlooked the fact of her having sold the land and received this bond and mortgage, and her omission to specify the bond and mortgage and her interest in the land arising therefrom, was a mere oversight and mistake. That Benjamin Moore and wife, converted Davis’s bond and mortgage, or the proceeds thereof, to their own use, in violation of their duty as such trustees, and contrary to the will of the testatrix.
    That of the six hundred acres divided into farms specifically devised by the will, for the benefit of Samuel Clarke and his issue, only two hundred and fifty-two acres and one-quarter of an acre, or thereabouts, have ever been conveyed by the trustees to the issue of Samuel Clarke, or to the complainants, or accounted for by the trustees, either to him or them; that the trustees either so neglected the remaining three hundred and forty-seven acres and three-quarters of an acre, or so disposed of the same, in violation of their duty as such trustees, that neither Samuel Clarke, or either of his children, or the complainants ever received any part thereof, or any rents or profits thereof, or any benefit therefrom, and this land by reason of such neglect, has been wholly lost to them and to the issue of Samuel Clarke.
    That Samuel Clarke was married and had issue, Mary S. Clarke and Harriet S. Clarke; that Mary S. Clarke was born on the ninth day of March, 1813, and Harriet on the twenty-second day of September, 1814; that Samuel Clarke died on the sixth day of May, 1815, intestate, leaving Mary S. and Harriet S. Clarke his only issue; that Harriet died on the tenth day of October, 1815, leaving her sister Mary her only heir-at-law ; that Mary S. Clarke intermarried with the complainant, James H. Woods, on the fourth day of September, 1830, by whom she had issue, the other complainants, the eldest of whom was born on the third day of August, 1831; and that their mother, Mary S. Woods, died in 1845.
    That the trustees before named were often applied to by or on behalf of Samuel Clarke and his issue, to account for and restore the bonds and mortgages, and the lands before mentioned, or the price, or the value thereof, but that all such applications were unavailing.
    That the trustees and Clement C. Moore, sometimes pretend that the three hundred and forty-seven acres and three-quarters of an acre of land, had been sold by Mrs. Clarke, before her death, or could not be located; but the bill charged that large-tracts of land belonging to Mrs. Mary Clarke, in the Kayaderosseras patent, were taken possession of by the executors of the will, Benjamin Moore and his wife among the rest, as a part of the residuary estate, and so afterwards partitioned and disposed of, which would have satisfied the specific devise to the. trustees, if the lands therein mentioned could not otherwise be. located, so that if the lands had been sold by Mrs. Clarke, there were bonds and mortgages therefor remaining in her hands at her death, which should have been taken by the trustees, and held in the place of those lands.
    That Benjamin Moore and Charity his wife, and Elizabeth Maunsell, are all dead; Moore having died on the twenty-seventh day of February, 1816, Elizabeth Maunsell, previous to the year 1820, and Charity Moore, on the fourth dáy of December, 1888, and all died intestate.
    That letters of administration of the estate of Benjamin Moore, were duly granted to Clement O. Moore, the same person named in the will, on the twelfth day of March, 1816, and that as such administrator, he took possession of, and received a large amount of personal assets over and above the amount paid out by him for debts of B. Moore; that no letters of administration have been granted on the estate of Elizabeth Maunsell, or the estate of Charity Moore, but that Clement C. Moore was the only child, and heir-at-law of Benjamin and of Charity Moore, and that he took possession of and received all the personal property, rights, and credits, of Charity Moore, left at her death, which were of considerable value, and assumed the administration and disposition thereof; that he also received from them a large real estate, being the same devised by Mrs. Glarke’s will to Benjamin Moore and Charity his wife, and to their heirs, in fee; and that the amount of real estate which descended to him, as the heir-at-law of Benjamin and Charity Moore, amounts to more than five hundred thousand dollars in value, and that he still has the same estate.
    ' The bill prayed that Clement C. Moore, as administrator of Benjamin Moore, and as heir-at-law of Benjamin and Charity Moore, and in his own behalf, and as having intermeddled with and disposed of the goods, chattels, and credits of Charity Moore, might be held to account for the breaches of trust alleged; that the complainants be paid the amount of the bond and mortgages, with interest thereon from the death of Samuel Clarke, that the real estate so devised, or the value thereof, with all the rents, income, and profits received, or that might have been received therefor, might be restored or paid to them ; that an account be taken of the extent of their losses by reason of the alleged acts and neglects of Benjamin Moore and Charity his wife, and of all those breaches of trust, of the amount of the bonds and mortgages and interest, of the contract price of the land so sold by Beriah Palmer, and the interest thereon, from the twenty-third day of July, 1802, and the value of the lands, rents, income, and profits received, or that might have been received, with interest thereon, and that the . amount thereof be paid and satisfied to the complainants; first, out of the personal assets of Benjamin Moore, and then out of the personal assets of Charity Moore received by Clement C. Moore, and the residue out of the real estate descended to him as the heir-at-law of Benjamin Moore and Charity his wife, or either of them, or conveyed by them to him after the acceptance by them of the trusts of the will.
    The answer of the defendant admitted the statements of the bill, except as follows. He did not admit the quantity of land contained in the leases was six hundred acres. He stated that $100 was paid on Cooney’s mortgage to Mrs. Clarke in her lifetime. That he is unable to say how it happened that the testatrix made the devise in question of the house and lot in Hague-street, nor why she omitted to specify the bond and mortgage and her interest in the house and lot, nor whether she had forgotten or overlooked the fact of her having sold the house and lot, and received in place thereof the bond and mortgage ; nor whether her omission to specify the bond and mortgage and her interest in the house and lot arising therefrom, was a mere oversight and mistake.
    He admitted that the acting executors of Mrs. Clarke did collect all the money due upon the bond and mortgage at her death, with interest thereon; and that the whole sum so collected amounted to sixteen hundred and thirty-four dollars and ninety-six cents; and that the same was paid at different times and in different sums; and that the last payment thereof was made on or about the fourth day of February, 1807.
    He does not know, and is unable to state, what proceedings were had, subsequent to the death of Mrs. Clarke, in reference to the lot of land contracted by her agent, B. Palmer, nor how much land there was, nor where it was.
    As to the land contracted to John Davis, he answered as in' respect to the Hague-street lot; and he insisted as to both, that the devises of the premises conveyed to Cooney and Davis were wholly inoperative and void, inasmuch as Mrs. Clarke had no title to the same at the time the will tvas executed by her. He alleged that the acting executors of the will of Mrs. Clarke appropriated and applied the bonds and mortgages of Cooney, and Davis, or the proceeds thereof, to the residuary legatees of Mrs. Clarke, some or one of them, as part of her residuary estate. He stated that he was unable to give any explanation as to 347f acres of the 600 acres stated in the will to have been divided into farms, and to be specifically devised for the benefit of Samuel Clarke and his issue. . He presumes either that the same were sold by Mrs.. Clarke, in her lifetime, or that no counterparts of leases were .found among her-papers with the name of Samuel Clarke indorsed thereon to designate the.same.
    The answer denied all the breaches of .trust alleged, and all liability.
    A replication was filed and proofs taken.. The cause was transferred to this court. The. proofs established that the defendant,. and those whom he represented, had received the amount of the mortgages of Cooney and Davis, and also a bond of four hundred dollars, given for a part of the proceeds of the six hundred acres mentioned in the will as having been divided into farms. There was ho evidence showing the receipt of any thing from the lot of land described in the will as in the possession of one Northrup.
    
      D. D. Field, for the plaintiffs.
    I. The plaintiffs have .succeeded to all the rights of Mary, the sole surviving child of Samuel Clarke, under the will of Mary Clarke; and the defendant is .responsible as the legal representative of his father and mother, t.wo of the trustees under the will, for any breach of trust they may have committed. . (Lewin on Trusts and Trustees, 630, 634, and cases cited.) The defendant is also responsible as the sole surviving executor of Mrs. Clarke’s will.
    II. The breaches of trust charged are the diversion from the beneficiaries of four out of five different items of property, devised for tbe benefit of Mr. Clarke’s children, viz.: the interest of the testatrix in the Northrup lot; in the house and lot in Hague-street; in the Foster lot; and in 347 acres of the Kayaderosseras patent. If such diversions were made, they were breaches of trust. As to the Northrup lot, the claim of the plaintiffs is substantially admitted by the answer. There must therefore be a decree in their favor for that; and a reference should be ordered to ascertain its value.
    III. The lot in Hague-street having been sold and mortgaged back to the testatrix before the date of her will, the devise is to take effect so as to pass the bond and mortgage. This is so for two reasons, either of which is sufficient to sustain it.
    1. There appears to have been a mistake made in describing the lot, instead of the bond and mortgage which were substituted for it. This must have happened either from her own forgetfulness and oversight, or from the draftsman having copied from a previous will, drawn before the sale of the lot. In case of mistake in the description of property, the court will ascertain by parol evidence what property was meant, and decree accordingly. The intent that Mr. Clarke should have the lot, or its proceeds, is manifest. (1 Story, Eq. § 179; 1 Jarman on Wills, 329; 1 Yes. Jr. 259; 3 Yes. 306; 11 East, 246, Doe v. Tofield; 2 Sim. 493, Benson v. Whittan ; 10 Paige, 140, Pond v. Beach; 1 Sandf. Ch. R. 330, Havens v. Havens; 3 Ibid. 77, Smith’s Ex’s. v. Wyckoff.)
    
    2. The mortgage of the lot back to the testatrix revested the fee in her, according to the law existing at the execution of the will, which fee passed by the devise, and carried with it the beneficial interest in the mortgage debt. (Powell on Mortgages, 408; 1 Jarm. 363, 633, 638, 714, 725; 5 Sim. 384, Le Gro v. Cocherell; 11 Sim. 469; 13 John. 537, Jackson v. De Lancey.) For the same reasons the bond and mortgage upon the Foster lot passed under the devise of that lot.
    IY. The 347 acres under lease in the Kayaderosseras patent must be accounted for, or a sufficient reason for not doing so given. The burden of proof lies upon the trustees. In this case no proof is produced, and no reason given.
    
      G. Wood, for the defendant.
    I. The devises, in the will of Mary Clarke, of the house and lot of ground on Hague-street, and the lot in possession of H. Poster, were void and totally inoperative to pass any thing.
    1. The testatrix did not own the premises at the date of the will. And ownership or seisin by the testatrix, at the date of the will, was essential, to pass any title by devise. (Goodright v. Forrester, 1 Taunt. R. 578; Roe v. Griffith, 4 Burr. 1961; Campbell v. Sandys, 1 Sch. & Lef. 294; 8 East. 552, 563-4; Roberts on Wills, 297-8; 6 Cruise, Tit. 38, ch. 3, §§ 26, 28.)
    2. The mortgage debt would not pass under a devise of the land, it being totally distinct in its character, being a chose in action. (Edwards v. The Farmers’ Fire Insurance Company, 21 Wend. 490, 491; Martin v. Rowlin, 2 Burr. 969, 978-9.)
    II. The devise of the lot in the Kayaderosseras patent, in the possession of Northrup, was void, and totally inoperative, to pass any thing. 1st. The land having been previously sold, belonged to the purchaser in equity; and the purchase money, being a chose in action, could not pass under a devise of land, which is a different thing, and in no respect identical. 2d. If the testatrix had owned the land at the time of the devise, and had subsequently contracted to sell it, the devise would have been revoked. 3d. There was no mistake of description by the testatrix. The mistake, if any, consisted in her not owning the land which she accurately described. 4th. Parol evidence would be inadmissible to explain the will, by showing a different tract from the one described was intended. (Mann v. Mann, 14 John. R. 1; Norwood v. Bard, 1 Richardson R. 135.)
    III. The court cannot conjecture that, if the testatrix had known she did not own the land, she would have given the respective choses in action instead thereof. This would be making a new will, by carrying the Cy pres doctrine of construction to a length unknown before, instead of restricting it, as ought to be done. (Fearne Cont. Rem. 203, 208, n. &c.; Moggridge v. Thackwell, 7 Ves. Jr.)
   By the Court.

Oakley, Ch. J.

The first question arises upon the devise of the house and lot in Hague-street, and the other lands which Mrs. Clarke had sold and conveyed before she made her will, and had received mortgages for the purchase money. It is contended, on the part of the defendant, that the lands did not pass under the devise, because she had no title, in them, and that the mortgages did not pass, because, a devise of land is a totally distinct thing from a gift of a mortgage debt. On the other hand, the plaintiffs claim that this is a mere mistake in the description of the property, and many authorities were cited to show that the courts will carry into effect the will of the testator, where it is clearly shown that it is an -error in 'description.

The rule established is very plain, that where it is clear that there was an intent that the property in question should pass, it will be held to pass, notwithstanding a misdescription, so long as there is enough of correspondence to afford the means of identifying the subject of the gift. The rule comes to this, that where it is necessary to carry out the intent that the will shall operate on the real estate, it will be held so to operate, although the«object is not thus described, and vice versa.

So when the devise is of land, and it turns out that the testator’s interest was a mortgage upon the-same.land, the la.w may-pass his estate as mortgagee, such as it actually existed, with all his rights and interests in the debt, and in the land itself growing out of that relation to it.. In a case like the present, where the testatrix once owned the land in fee, and had conveyed it, receiving a mortgage upon it for the purchase money, the intent to give such interest as she had in the land, or arising from it, is so. plain, that the court can have no hesitation in holding that the mortgage debts secured upon the lands devised passed to the objects of her bounty, as indicated by the gift of the lands.

It was contended, th’at-in truth the title was. revested in Mrs. Clarke by the mortgage, and that the mortgagor' had a mere equity in the land. This was technically true, and it adds to the force of the reason founded on the manifest intent of the testatrix.

In such cases, the residuary devisees and legatees take the property in question as trustees for the persons for whom it was intended, and are bound to account for the proceeds, in the same manner as other trustees. The defendant must in this case account to the plaintiffs for the proceeds of the bonds and mortgages in question, as representing Benjamin Moore and his wife, by whom the same were received.

With respect to the six hundred acres mentioned in the will as divided into farms, it appears there were four leases of farms in that tract indorsed by the testatrix with the name of Samuel Clarke, of which farms all except one were disposed of either by him or by the testatrix in her lifetime. The defendant is shown to have received, on account of that farm, four hundred dollars, for which he is liable to the plaintiffs.

There must be a decree for an- account on the principles we have stated. Neither party will recover costs against the other to this time. All further questions and directions are reserved until the account is taken.  