
    CATHARINE VANDERHOOF v. JOHN CLAYTON AND ELIAS C. CLAYTON.
    1. C. H. received a certificate for a pension for five years, commencing from March 4th, 1836, at the rate of $310 a year. E. C. C.' acted for her in procuring the pension; but, for reasons stated, the power of attorney to draw the pension was given to' J. O., and J. 0. about the 6th March, 1839, received, for the pension money then due, $931.98. C. H. had lived a number of years with J. C., in his family. On the 8th March, 1839, O. H. signed a receipt, by which she acknowledged to have received from E. 0. C. $931.98, in full of her pension up to March 4th, 1839, obtained by him for her, excepting $430, which she had agreed to give him for his services in obtaining the pension for her and paying the expenses. 0. H. died February 18th, 1841, having continued to live with J. C. until her death, leaving a will, dated February 10th, 1841, by which she gave to her daughter, 0. V., “ all her property and possession, whether real or personal, and also the amount of her pension which might be due at her death,” and appointed E. C. C. executor of her will. Held first, under the circumstances, that the $931.98, received in March, 1839, could not be considered as belonging to C. H. at the date of the will. Second, that E. 0. C. was entitled to retain the $430, and that it was not a case within the act of congress in reference to agreements before pensions are obtained.
    2. Matter set up in avoidance must be proved.
    In 1839, Catharine Hartshorne received a certificate for a pension, for five years, commencing March-4th, 1836, at the rate of $310 a year. Elias C. Clayton acted for her in procuring the pension; but for reasons which appear in the case, the power of attorney to draw the pension was given to John Clayton; who, about March 6th, 1839, received $931.98, the amount of the pension then due.
    On the 8th March, 1839, Catharine Hartshorne signed a receipt, witnessed by Joseph R. Magee, by which she acknowledged to have received from Elias C. Clayton $931.98 in full of her pension up to March 4th, 1839, obtained by him for her, excepting $430, which she had agreed to give him for his services in obtaining the pension for her and paying the expenses.
    Catharine Hartshorne died February 18th, 1841, leaving a will, dated February 10th, 1841, by which she gave to her daughter, Catharine Vanderhoof, “all her property and possessions, whether real or personal, and also the amount of her pension which might be due at her death ; ” and constituted Elias C. Clayton executor of the will, “ to take care of all her property, and to receive all the pension money, and, after paying her funeral expenses, to pay the balance to her said daughter, Catharine Vanderhoof,”
    The bill is filed by Catharine Vanderhoof against the said John Clayton and Elias Clayton.
    The bill states that the complainant has requested the said executor, Elias C. Clayton, who is a son of the said John Clayton, to bring the said John to an account for the moneys received by Mm for the said Catharine Hartshorne, and has offered to indemnify the said executor against all costs, but that the said ex-eentor refuses to do so.
    It states that John Clayton has paid over to the said Elias C. Clayton one-half of the pension money so received by him, under pretence of paying him for his services in obtaining the said pension, and that the defendants pretend that the said John is entitled to the other half of the said pension money for the board of the said Catharine j whereas, the complainant charges that the said Catharine was not indebted to the said John, for board or anything else, she having paid her board to him by permitting him to receive an annuity due her of some $50 a year, and by her services in the family of the said John j and the bill charges that the said Elias C. Clayton did not obtain the said pension, nor in any way assist in obtaining it, but that it was obtained by “ another person,” and that the only service performed by the said Elias was to employ an agent or attorney to prepare the evidence and the papers for the said Catharine Hartshorne.
    The bill prays that the defendants, the said John Clayton and Elias C. Clayton, may be decreed to account for the said pension money.
    The defendants put in their joint and several answer, in which the defendant John Clayton admits that the said Catharine Hartshorne constituted, him her attorney to receive, for her, her pension, at the several times when it became due, excepting the first amount that was drawn after she received her' certificate, and that he received her pension up to September 4th, 1840, which amounted to $465.99, and alleges that when he drew it, he offered it to the said Catharine, and that she requested him to keep it, to pay him for her board, which he did, and considers himself in equity and good conscience entitled to dp.
    He says that the said Catharine lived with him 18 years; that she was his sister-in-law; that when he took her to live in his family she was destitute and without home; that he clothed her during the whole time she lived with him; that she was aged and infirm, being at her death, 90 years old ; that she required, particularly during the latter part of the time, considerable care and attention, and that, on a strict account, she would have been largely indebted to him at her death. He admits he received an annuity of $40 a year due her, during thirteen years, on account of her board, but says that the same and the part of the pension he received are not sufficient to satisfy him for the board and clothing furnished the said Catharine, and the care and attention bestowed upon her.
    The defendant Elias C. Clayton admits that he was requested to permit his name to be used to bring the said John Clayton to an account, but says that he then believed and still believes, that the amount of the pension money which the said John had drawn for the said Catharine, she had paid him for her board and clothing furnished her by the said John, and that there is nothing due from the said John to the estate of the said Catharine Hartshorne, and he says he has paid over to the complainant all the money coming to her from the estate of the said Catharine Hartshorne which has come to his hands, and that he is ready and willing to make a settlement of his accounts as the court shall direct.
    The defendants admit the will, and say that by the expression in it “ the amount of my pension which may be due at my death,” the testatrix meant the amount that might accrue between the last semi-annual payment and the time of her death, and not the whole pension she had received from the time she obtained her pension to the time of her death.
    The defendants say that at the time the certificate of pension was received, the defendant Elias was a justice of the peace; that he was, in fact, the attorney of the said Catharine at that time, to draw the pension; but that the affidavits of the said Catharine Hartshorne to the power of attorney were taken before him as justice of the peace, and therefore the name of John Clayton was inserted in the power of attorney; and that the said John drew the pension money and handed it to the said Elias.
    The defendant, John Clayton, says that he has not paid over any of the said pension money so by him received, except as aforesaid, to the said Elias B. Clayton.
    Testimony was taken.
    
      Vredenburgh, for the complainant.
    
      D. B. Ryall and W. L. Dayton, for the defendants.
   The Chancellor.

The first question is, whether, under the will and so much of the testimony as may be considered in connection with it, any more of the pension than that which accrued from September 4th, 1840, to the death of the testatrix, on the 18th of February, 1841, belongs to the estate of the testatrix.

The will gives and bequeaths to the complainant “ all my property and possession, whether real or personal, including my wearing apparel, and also the amount of my pension which may be due at my death,” and appoints Elias C. Clayton her executor to take charge of all my property, and to receive all my pension money, and after paying my funeral expenses, to pay the balance to my daughter, Catharine Vauderhoof.”

First, under this clause and the proof in the case, can the $930 received in the spring of 1839, as the pension which had accrued from the period named in the certificate for its commencement, be considered as belonging to her estate, and as passing by the will?

A receipt signed by Catharine Hartshorne, by her mark, witnessed by Joseph R. Magee, dated March 8th, 1839, by which the said Catharine acknowledges to have received from Elias C. Clayton $931.98, in full of her pension up to March 4th, 1839, obtained by him for her, excepting $430 which she had agreed to give him for his services in obtaining her pension for her and paying her expenses, is exhibited on the part of the defendants.

Magee, the subscribing witness to this receipt, testifies that he was a clerk in the store of Elias C. Clayton, kept a short distance from John Clayton’s residence. That Elias C. Clayton wrote the receipt at the store, with the name Catharine Hartshorne thereto, and gave it to the witness and told him to take it to Mrs. Hartshorne and get it signed, and to witness the receipt, saying that he had been up to Col. Clayton’s, (the defendant, John Clayton’s,) and settled with Mrs. Hartshorne. That he, the witness, took the receipt to Mrs. Hartshorne, and read it to her; that' she said it was all right, or she expected it was right, witness don’t remember which, and signed her mark to it, and he witnessed it. His impression is, that Col. John Clayton was by when he took the receipt to Mrs. Hartshorne.

On cross-examination, he says that when he went to her with the receipt, he did not take any money to her, and that he did not see any money paid to her.

On the 10th February, 1841, nearly two years after this receipt, Catharine Hartshorne made her will, containing the clause above stated. I am of opinion that the will confirms this receipt, and excludes the idea that the testatrix, at the making of the will, contemplated that anything was due to her from any person for pension money accrued due at the date of that receipt. We are not at liberty to suppose that she did not remember the giving of that receipt. She must be supposed to have known, when she signed the receipt, and when she made her will, whether she actually received the money which, from the terms of the receipt, it would appear that she had received. It may be that when she signed the receipt, John Clayton had received from her, or from Elias, the amount named in it, except the $430, which she allowed Elias to retain. But if it be so, the fact of her giving the receipt, and of her taking nothing from John Clayton to show any indebtedness from John Clayton to her, taken in connection with the terms of the will, made nearly two years after, would be sufficient to show that she had given the balance to John Clayton, or paid it to him. And if she was willing to do so, to requite a benefactor, or make what she thought a proper compensation for her board, &c., no just complaint can be made against it.

I think these remarks are applicable also to the $430 which she allowed Elias C. Clayton to retain. He paid $125 of this $430 to the attorney he employed to prepare the papers, &o., for obtaining the pension for her. The testatrix made him executor of her will. I am disposed to think that this fact, and the peculiar language of the will, connected with the fact that she had allowed him, after the pension was received, to retain $430 of it for expenses and his services in obtaining it, should be considered equivalent to a gift of it by the will. ■

The case does not seem to me to stand on the question, whether, under the act of congress, the court would give effect to any agreement or understanding, before the pension was obtained, that the person obtaining it should be allowed a portion of it for his services. She would certainly be at liberty to give Elias, by will made two years after the pension was received, any portion of the pension money she had received or that was due her, though any agreement before it was obtained to pay him a portion of it when obtained might be void.

John Clayton admits that he received for Catharine Harfcshorao the three last semi-annual payments of her pension which became due in her lifetime, amounting to $465. They became due as follows; September 4th, 1839, $155; March 4th, 1840, $155; September 4th, 1840, $155. He alleges in his answer, that when he drew her pension he offered it to her, and she requested him to keep it, to pay him for her board, which he says he has done.

His saying she requested him to keep it, &c., is matter set up in avoidance, and must be proved. The testimony on this part of the case is that of Sarah Ann Mount.

She says that in the fall of 1839, John Clayton drew her pension, (the semi-annual payment;) that on the next day he offered it to Mrs. Hartshorne, and that she said to him, you know I have been a great deal of trouble to you, and if I live, I do not know how much trouble I may be, and that if it had not been for the pension she could not have made him any satisfaction, and that he might take it and keep it as long as she lived, and when she was dead and gone, he might do as he pleased with it. The witness said that Mrs. Hartshorne wished him to keep it for the troüble she had been to him and the trouble she would be.

On cross-examination the witness said that when Col. Clayton offered Mrs. Hartshorne the money, she said in conversation, that he was more capable of taking care of the money than she was, and to keep it.

As to the two other semi-annual installments of the pension received by John Clayton, there is no evidence either of his offering them to Catharine Hartshorne or of her requesting him to keep them.

On this part of the case, I am of opinion that John Clayton’s offering her the said installment received by him in the fall of 1839 is sufficient evidence that he did not then consider her in his debt. How it was that he was willing to offer her this money does not, with certainty, appear; but I cannot resist the impression made on my mind by the pleadings, proofs and circumstances, that he got the benefit of the $930 first drawn, excepting thereout the money which Catharine Hartshorne allowed Elias 0. Clayton to retain. If he had not, it can hardly be imagined, in view of the defence set up in the answer, that he would have offered to pay her this $155. And I do not think that the testimony of Mrs. Mount enables me to say that the answer of Catharine Hartshorne to Col. Clayton amounted-to a gift of the $155.

This part of the case, therefore, turns on the question, whether Catharine Hartshorne’s giving, by her will, to her daughter the amount of her pension money which might be due at her death, and directing her executor to take charge of all the property and receive all her pension money, and after paying her funeral expenses, to pay the balance to her daughter, amounts to a gift to Col. Clayton of* the $465 received by him in the last three installments before her death. I do not think it should be so considered. It does not appear that she was ever informed that the two last installments, or either of them, had been drawn by Col. Clayton, and if we ought to presume that a woman of her great age, and in the infirm state in which she appears to have been at that time, would be aware that the time for their payment was passed, and could divest ourselves entirely of doubt whether the peculiar language of the will in this respect was really her language ; yet it is easy to perceive that money in Col. Clayton’s hands, received by him as her pension money, might be considered by her as pension money due her. She had given no receipt for any of it; and as to the last two installments, it does not appear that either of them had ever been offered to her.

I have found this case somewhat difficult to decide; but, on a careful examination of it, I,am strongly impressed that John Clayton should be decreed to account for the $465 received by him in the three last installments of the pension and that he should be allowed, in that account, reasonable compensation for the maintenance of Catharine Hartshorne from the 8th March, 1839, and to any clothing he may have furnished her after that time.

He cannot be allowed, as against this $485, any sum for maintenance, &c., prior to that time. Nearly two and a half years elapsed from the death of the testatrix to the filing of the bill in this case, and John Clayton presented no account against the estate of the testatrix to the executor of her will. If he did not receive the residue of the $931, after the allowance made to Elias out of it, his presenting no account to the executor is, at least, very persuasive to show that he did not consider her estate indebted to him. If he did receive it, the facts show that he considered himself paid. His offering her the next installment must be taken as proof of one or the other.

As to the account of the executor for so much of the assets of the estate as has come to his hands, he proffers himself, in his answer, ready to render such account; and I see no reason why that account should not be settled in this cause.

Order accordingly.  