expressed his concurrence in the opinion pronounced by Mr. Justice Sutherland.
Oliver, Senator. In order to determine whether this case comes within the statute of frauds, we must examine'whether there is a trust sufficiently manifested in writing under the hand of the party to be charged.
The bill charges that the following lots were vested in Sarah Richards, in trust for Jemima Wilkinson, &c. &c., viz.: 1st. Lots Nos. 23, 24, 25 and 26, and the north half of lots No. 22 and 27, by conveyance from Benedict Robinson, dated the 5lh January, 1792. 2d. The south half of lots Nos. 22 and 27, and the north half of lots Nos. 21 and 28, by conveyance from Thomas Hathaway, dated in 1793. The first testimony introduced by the respondents to shew that the above mentioned lots were deeded to Sarah Richards in trust, and to prove the written manifestation of said trust, are a small memorandum book of Sarah Richards, and two letters from her to Ruth Pritchard, dated in 1793, all of which were before the chancellor when he pronounced his decree in 1823. The memorandum book purports to have been kept by Sarah Richards, and contains four or five entries, which are very important in relation to the question of the written manifestation of a trust in Sarah Richards for the benefit of Jemima Wilkinson. The entries in the memorandum book upon which the respondents principally rely, are those dated the 1st and 7th June, 1791, and the 2d and 19th July, 1791. The three following are those which are of the most importance in this cause:
<c5z/i day of the 1st mo. 1792.
“ This day I received a deed of Benedict Robinson, to hold in trust for the Universal Friend, for which the Friend sent me with a hundred dollars in silver, and then sent two yoke of fat oxen to Phelps and Gorham, to make out the payment for the land, which he said would not be more than one shilling per acre, and the deed contains five lots, which makes sixteen hundred acres. (Signed) Sarah Richards.”
*664“ 2cZ of the 5th mo. 1793.
“ This day I received a deed from Thomas Hathaway, to hold in trust for the Friend, and the Friend has paid all the consideration money to Hathaway. (Signed) Sarah Richards.” „
“ 1st of the 6th mo. 1793.
“ This day I have received another deed from Thomas Hathaway to hold in trust for the Universal Friend, bearing date the 1st of the sixth month, ninety-three, lot number 47, which the Friend purchased for Mary Bartleston, widow, and has paid the consideration money. (Signed) Sarah Richards.”
Orpha Gates, Sarah Potter, Mary Bean, and Richard Smith, all agree and testify, that, in their opinion, the memorandum book was written wholly by Sarah Richards. On the other hand, Justus P. Spencer, the husband of Ruth Spencer, (formerly Ruth Pritchard,) Almira Danfortb, and Anna Stone, testify to their knowledge of Ruth Spencer’s hand writing, and that they believe the body of the memorandums to have been written by Ruth Spencer and the signatures by Sarah Richards. John Townsend is of the opinion that the whole of the memorandum book is in the hand writing of Ruth Spencer. Mary Kidder testifies to about the same, but not with so much confidence. Notwithstanding the suggestions and ingenious argument of the learned counsel, which are calculated to raise in the minds of the court a suspicion that the memorandum book is spurious, and a base forgery, yet, when we take into account the situation of the witnesses, and the opportunity which they respectively have had of knowing the hand writing of Sarah Richards and Ruth Spencer, I think the weight of testimony is decidedly in favor of the authenticity of the memorandum book. If the authenticity of the memorandum book is established, it proves the fact of Sarah Richards’ connection with Jemima Wilkinson ; of her first settlement in Ontario county; of her receiving the deeds for Jemima; of the payments for the land being made by Jemima; and that Sarah Richards held them in trust for Jemima. Exhibits S and T are two letters from Sarah Richards, of March and June, 1793, in which she acknowledges, that both the deed from Robinson and that from *665Hathaway, were given her in trust. The letters are not only proved by the witnesses before mentioned, but by Abraham Waggoner, who was called by the appellants, and go far in corroboration of the authenticity of the memorandum book, and to prove the trusteeship of Sarah Richards. It appears from the testimony and answer, that Sarah Richards came to Ontario as the agent of Jemima, who was the head of the society; and that, as such head, she had the general control of the lands in question; and that part of them were given to her, upon condition of her forming a settlement thereon ; that sundry payments were made by Jemima; that, according to an acknowledged tenet of the society, Jemima’s property was held in trust for her by others; that Sarah Richards, till her death, was a member of the family, and resided with Jemima ; and that she, Sarah, had not the means of making any considerable purchase. The facts alone go far in proving the trusteeship of Sarah ; but when they are taken in connection with the memorandum book and the letters, they are conclusive.
It was urged on the argument, that the deeds from Robinson and Hathaway being absolute, no trust could be raised without contravening the statute of frauds. But I am of a different opinion; for the statute itself excepts this case as one of a trust by implication of law, which can be proved by parol. But the trust being admitted in writing by the trustee, as in this case it is, takes the case out of the statute. In equity, it has never been thought material, whether the writing admitting the trust was prior or subsequent to the conveyance, for the reason that the statute is directed against oral evidence of trusts, and does not apply when there is written evidence.
Again; the statute excepts resulting trusts, or trusts by implication of law: as when A. pays the purchase money, and takes the deed in the name of B., the trust may be made out by parol, inasmuch as the payment of the money, and whose it is, generally rests in parol. So in case of confidences, such as purchases by agents, parol proof is admitted, in order that the statute may not operate as a mean of protecting instead of preventing frauds. For the same reason, *666parol proof is admitted to show that a deed, absolute on its face, was given as security by way of mortgage.
The result of these views of the case, as to the lands conveyed by Robinson and Hathaway, is, that the evidence adduced is satisfactory, and sufficient to establish a declared trust in favor of Jemima Wilkinson, and by her will to the use of Rachel and Margaret, as her devisees, except as against the Botsfords. There is a fact stated in the testimony of Elnathan Botsford, which, if entitled to credit, ought to rebut any equity arising from such trust. He testifies, that in 1799, when his sons were about purchasing 400 acres of land off of the north part of the land deeded by Robinson,' of Enoch Malin and Eliza, he called upon Jemima for the purpose of asking, whether she had any objections to his sons’ purchasing the 400 acres, or whether she had any claim to that land; and received for answer from her, that she had no claim to the said 400 acres of land, and that she had no objections to the said Benajah and Elnathan Botsford, jun., purchasing the same. P. 'Barnes and Gibert Hathaway testify to the same facts. They also testify, that subsequent to this time, the Botsfords settled upon the premises.
The answer which is responsive to the bill; states, that the 400 acres were conveyed to Botsfords in 1799 ; and Richard Smith testifies, that the Botsfords went into possession about the time last mentioned. It is manifest, then, from the above testimony, that the sons of Elnathan Botsford purchased and went into possession of the above mentioned 400 acres, upon the faith of Jemima’s declaration that she had no interest therein. It is also proved, that the Botsfords have paid $1200 as the consideration money of the said 400 acres, and have made valuable improvements thereon. Equity surely requires, that the cestui que trust should not enforce or assert her claim, when, having been previously called upon and inquired of as to her claim, she denied having any. (2 Johns. R. 573. 1 Johns. Ch. R. 354. 5 Johns. Ch. R. 184.)
The second question is, have the respondents made out a right to the residue of the land in dispute, or to any part thereof.
*667The bill alleges, that in 1795, Benedict Robinson and Thomas Hathaway conveyed the whole of their unsold interest in the township, to William Carter, reserving 6510 acres, and subject to the fulfilment of Robinson’s receipts given for land ; that in July, 1795, Carter conveyed lots Nos. 50, 51 and 52, to Rachel Malin, the consideration money having been received by Robinson of Sarah Richards, and on the same day conveyed to her, as executrix of Sarah Richards, lots 45 and 46, for the consideration of $140, paid by Asa Richards to Benedict Robinson, and in August, 1795, in consideration of $350, paid by Jemima, conveyed to Rachel Malin lots Nos. 21, 22, 23, 24, 25, 26, 27, 28, 45, 46, 47, 50, 51, and 52. It will be seen that this deed was executed by way of confirmation, and for the purpose of removing all such doubts, as to the title of the land, as might arise about the partition. It has also a conveyance to Rachel Malin of 50, 51 and 52, and the south half of 21 and 28. These last mentioned lots are claimed by Rachel Malin, under the deed from Carter to her; but the decree appealed from is silent as to these lots, and therefore the appeal does not bring them in controversy.
Lots Nos. 45 and 46 present a different question from any yet discussed. It is proved by Benedict Robinson, that these lots were purchased of him by Asa Richards, who paid the purchase money, but received no deed. Asa Richards, having devised all his real and personal estate in fee to Sarah Richards, and appointed her sole executrix, died. Sarah Richards died before letters testamentary were taken out. Subsequent to her death, Richard Smith obtained letters, with the will annexed. In 1793, Sarah Richards made her will, appointing Rachel Malin her executrix, and shortly thereafter died, leaving Eliza Richards, (the mother of David and Avery,) her only child. By one clause in her will, she devises all the lands that have or may arise from Asa Richards’ estate, to Rachel Malin. The conveyance from Carter for 45 and 46 to Rachel Malin, was in fulfilment of the contract made by Asa Richards with Robinson. The respondents contend, that the appellants’ equity to these lots is denied and repelled by exhibit R, (the memorandum book already re*668ferred to,) which alleges that the receipts from Benedict Robinson -to Asa Richards for land, were transferred by delivery to Jemima, “ to make remittance for the care of all his sickness and funeral charges, to the amount of fifty pounds lawful money of the state of Connecticutthat this delivery passed the interest of Asa Richards out of him, and of course it was not devisable by him ; hence Rachel Malin received the conveyance for these lots, as she admits by the bill, in trust for Jemima’s use. Again ; they contend that the conveyance of Rachel Malin, as executrix of Sarah Richards, could not defeat the interest of Jemima ; and Rachel Malin, being Jemima’s trustee, as well as Sarah’s executrix, must hold the interest of Jemima as trustee. If the facts were as Sarah has stated in her memorandum book, and Jemima had obtained possession of these receipts for 45 and 46, there can be no doubt but that the consideration was sufficient to support the transfer; and therefore Rachel Malin holds these lots in trust for the use of Jemima, and this resulting trust is provable by parol. (1 R. L. 79, sec. 13. Saunders on Uses, 180, &c. 1 Vesey, sen. 92.)
But would this memorandum, as between Jemima and Asa, be sufficient to transfer the interest of Asa to Jemima ? it certainly would not. But in answer to this, it is said, this admission, coining from Sarah, her grand children cannot claim an interest in these lots through her, it being at the time against the interest of Sarah, their ancestor, to make the admission. But I think, that upon a close examination of the facts and proof in the case, it will appear very different from what is stated in Sarah’s memorandum.
1. About the time this memorandum purports to have been made, Asa Richards died, leaving a will, and having in his possession receipts for lots 45 and 46, devised them to Sarah in fee, and in 1793, Sarah died, devising these same receipts by name to Rachel Malin, without words of perpetuity. This at least goes to rebut the idea that Jemima bad the possession and delivery of the receipts.
2. Richard Smith, a witness on the part of the respondents, testifies, that he was the administrator of Sarah Richards; and that he did administer upon the estate of Asa Rich-*669aids; that the debts and expenses of his last illness and funeral, with the expenses of settling the estate, amounted to about one hundred dollars; and that he found property sufficient to balance that amount, and that he found no real estate.” This testimony casts a shade of suspicion over the memorandum, and shows that the equitable interest in these lots was not passed to Jemima by Asa Richards.
Entertaining these views of Jemima’s claim to lots 45 and 46, we will examine the devise of Asa Richards to his sister Sarah, which is, “ all his estate in fee, after the payment of his just debts and funeral charges.” It is settled that such a devise would pass the premises. (3 Salk. 83. 10 Vesey, 613, 2 Vern. 679. 3 Atk. 284.)
The next question in relation to these lots (45 and 46) is, did they pass by the will of Sarah Richards to Rachel Malin, and if so, what estate did she take 1 The testator, in the first instance, devises to her daughter Eliza, the mother of David and Avery, all the receipts she held for lands, or the avails of them. In the next clause, she devises specifically to Rachel Malin, “ all the lands that have or may arise from Asa Richards’ estate.” The settled rule of construction is, that a specific devise to one person forms an exception to a general devise to another contained in a former clause of the will. (2 Burr. 920.) Lots 45 and 46, then, were devised to Rachel, and not to Eliza. There being no words of perpetuity in the devise to Rachel, she takes under it but a life estate, and the heirs at law of Eliza will take the remainder by descent. Therefore, a perpetual injunction ought not to have been granted, as the reversion will pass to the heirs of Eliza, who was the ceslui que trust. The cestui que trust has the same power over the legal estate as the person having the legal estate. The court of chancery will protect that interest. (2 Ch. Cases, 63, 78. 1 Brown’s Ch. Cases, 72. Ambler, 518. 1 Madd. Chan. 362, 3.)
It was said on the argument, that the will of Sarah Richards was void by a fraudulent alteration. This objection cannot avail the appellants, as it is not proved to have been made or procured by Jemima or either of the respondents. Besides, the alteration is in a part immaterial, and therefore un~ *670availing. (15 Johns. R. 293.) Bui if the will was set aside* it would not benefit the heirs of Sarah Richards; for if she was a mere trustee under the deeds of Robinson and Hathaway, the descent to her heirs would be subject'to the trust* and the respondents, as devisees of Jemima, claim to have the trust executed. (Saunders on Uses, 192. 1 Equity Abr. 384. 2 P. Wms. 200, 201. 2 Atk. 119. 2 Johns. Ch. R. 441. 4 Johns. Ch. R. 136. Ambler, 518.)
The most satisfactory opinion which I have been able to form in this case, embarrassed as it is. with complicated questions both of fact and law, is, that Raceel Malin and Margaret Malin, as devisees of Jemima, are entitled in fee to all the lands deeded by Benedict Robinson and Thomas Hathaway to Sarah Richards, excepting thereout that part of those lands which were purchased by the Botsfords of Enoch Malin and Eliza Malin, and that the Botsfords are entitled to the 400-acres last mentioned ; and thus Rachel Malin has a life estate in lots 45 and 46, with remainder in fee to the heirs at law of Eliza, the daughter of Sarah Richards.
Stebbins, Senator. The appellants claim title to the premises in controversy under Sarah Richards, in whom the legal-title to part was vested at the time of her death, and, as they insist, the equitable title to the residue. The respondents insist, that whatever legal estate was vested in Sarah Richards, was in trust for Jemima Wilkinson, and that Jemima was the real equitable owner of the whole premises; and the respondent, Rachel Malin, claiming to be successor of Sarah Richards, as trustee, filed her bill in the court of chancery in 181L to establish the trust.
Preparatory to a decree in that cause, the court awarded an issue to ascertain certain facts, and, among others, whether the will of Sarah Richards had been altered after her death.
Before the trial of this issue, that fact having been found, in favor of the appellants, in an ejectment suit between some of the parties, the appellants commenced several more actions of ejectment against the tenants in possession, and the respondents filed the bill now before the court, to restrain the proceedings of the appellants at law, on the ground of equita*671ble title set up in the bill, and to have that title declared and established.
The question, then, presented to the court of chancery, decided affirmatively there, and brought here for review, is, whether the respondents have established the title set up in their bill, to the whole or any part of the premises in question, so as to enable them to demand of the court a recognition of such title, and an exercise of its authority to compel a release from the appellants.
Township No. 7, in the second range of Phelps5 and Gorham’s purchase, was sold and conveyed to Benedict Robinson and Thomas Hathaway, and Benedict Robinson, on the 5th of January, 1792, conveyed, for the nominal consideration of £40, to Sarah Richards, lots Nos. 23, 24, 25, 28, and the north halves of 22 and 27, described as containing 1400 acres. At the same time, an agreement appears to have been executed between Robinson and Sarah Richards, reciting the conveyance, and that 1200 acres of the land was made a present, and providing that the residue should be paid for at the average prices at which the township should be appraised, acknowledging the receipt of the $100 in part pay thereof, if that sum should pay for more land than was conveyed, then the addition was to be made to the tract.
Sarah Richards died in December, 1793, leaving a will, which, it is urged, has been altered since her death ; but whether altered as alleged, or not, it appears to me no doubt" can be entertained of her intention to devise to her daughter Eliza all the lands conveyed to her by Benedict Robinson, except 1000 acres to be taken off the south end, which she devises to Rachel Malin, without words of perpetuity. The appellants, David H. Malin and Avery Malin, are the heirs at law of Eliza Richards, who was the only child of Sarah Richards.
Without any formal partition, Robinson and Hathaway appear each to have been in the habit of conveying and contracting to convey, different lots in the township, until the interest of both became united in William Carter, by deeds from Robinson, in June, 1793, and from Hathaway, in August, 1795. Robinson testifies that Carter took the convey*672anee subject to the fulfilment of his outstanding contract's, and in several instances hereafter mentioned, it appears that Carter made conveyances to fulfil those contracts.
In August, 1795, Carter released the lots above mentioned, and all the lands in controversy in this suit, to the respondent, Rachel Malin. This conveyance is stated in the bill to have been made partly as confirmatory of the titles obtained from Robinson and Hathaway, and to extinguish any interest which might have passed to Carter by reason of there having been no partition between Robinson and Hathaway at the time of their conveyances. The bill alleges that only an undivided half passed by the deed of Robinson to Sarah Richards, and that consequently the respondent, Rachel Malin, is entitled to the other half under this deed from Cartel-.
Without speculating upon the effect of this deed, which it pretty clearly appears, so far as the lands conveyed by Robinson are concerned, was executed without any other consideration tlian that which moved between Robinson aud his grantee, (for the whole consideration is but £140,) and which was intended to confirm the conveyance of Robinson, which purported to convey, and was considered at the time of its execution as conveying the entire "property; without raising the question upon such a state of facts, whether this confirmatory deed obtained by Rachel Malin, (who claimed to be the owner of the estate conveyed by Robinson,) would or would not enure to the benefit of the true owner, whoever it might turn out to be, on the ground of a trust resulting from the payment of the original purchase money, it might, perhaps; be sufficient to warrant the conclusion, that the entire property passed by the deed of Robinson to Sarah Richards, for the reasons, that both Hathaway and Robinson were in the habit of selling different portions of the township in severalty, with the knowledge of each other, and without objection, and that such sales were probably considered by them and acquiesced in, as parol partitions pro tanto, and the whole account between them adjusted at or before the conveyance to Carter.
But however this may be, the appellants have shewn by the testimony of Robinson, that a release was in fact executed of this part of the lands in question, from Hathaway to> *673him, previous to his conveyance to Sarah Richards, and for the purpose expressly of enabling him to convey the whole estate to her; that this deed was afterwards cancelled by mistake in obliterating the grantor’s name. In that shape, the deed is made an exhibit in the cause. The statement of Robinson is confirmed by the testimony of Thomas Hathaway the younger, and does not appear to be impeached, unless by the testimony of Garnsey, who swears to a conversation, in which Hathaway expressed some concern about an old quit-claim deed which had been cancelled in this way, and Robinson, he says, promised to burn it on his return home. The witness does not pretend to identify the deed in question as the one which was the subject of conversation between Hathaway and Robinson. The circumstance, also, that Hathaway conveyed other lands to Sarah Richards, adjoining these, is a strong one to shew that he acquiesced in the sale by Robinson.
I think, therefore, we may safely assume, that Benedict Robinson conveyed the entire estate in the lots above mentioned, by his deed to Sarah Richards of the 5th of January, 1792.
In regard to these lands, then, the respondent’s claim must rest upon one or other of the following grounds: 1. That Sarah Richards was a trustee for Jemima Wilkinson, and that the trust is manifested by writing, within the provisions of the statute; 2. If not, that she was such trustee in consequence of a trust resulting from the consideration of the conveyance ; 3. If neither of these positions are tenable, that they are entitled as devisees of Sarah Richards.
The written evidences of the trust consist of the small memorandum book of Sarah Richards, and two letters from her to Ruth Pritchard, both dated in 1793. The memorandum book was not produced upon the first hearing of the cause, and is alleged to have been found since in the possession of Ruth Spencer, (formerly Ruth Pritchard.) It contains 17 entries, all but four unimportant, purporting to be signed by Sarah Richards. Its appearance is not such as to inspire great confidence, and the testimony in relation to it is somewhat contradictory. Orpha Gates, Sarah Potter and *674Richard Smith testify, that, in their opinion, it was written wholly by Sarah Richards. Justus P. Spencer, the husband, Ruth Spencer and Almira S. Danforlh, the daughters of Ruth Spencer, and Anna Stone, testify to their knowledge of Ruth Spencer’s hand writing, and that they believe the book to have been written by her, except the signatures. John Townsend testifies to his knowledge of Ruth Spencer’s hand writing, and believes the whole book to have been written by her. Mary Kidder gives nearly the same opinion, with less confidence.
Most, if not all the witnesses who testify that the body of the entries is in the hand writing of Ruth Spencer, express their ignorance of the hand writing of Sarah Richards. The preponderance of this testimony undoubtedly is in favor of the supposition, that the entries were written by Ruth Spencer, and that the signatures are the hand writing of Sarah Richards; but if there is any accuracy in the judgment of the witnesses, it proves also a great similarity between the hand writing of these persons, and still leaves a shade over the authenticity of the book. There are many singular circumstances at tending it, not very well calculated to dissipate eur doubts. It is entitled “Sarah Richards’ memorandum,” and begins in March, 1790, and ends in Oct. 1793. It is singular that, during that period, only 17 events should have been recorded, especially when some are recorded which are very unimportant. It is singular, also, (if the fact is so,) that, in every instance, these entries should be in the hand writing of Ruth Spencer: that some of them should have been so, would not have been remarkable, considering that Sarah was often in bad health; but we should certainly expect to find some of them in her own hand writing. A book of this description is the last upon which persons ordinarily employ an amanuensis. One entry in the book bears date within two days of her letter to Ruth Pritchard of the 12th of March, 1793; another is dated within the same time of her second letter. It is singular, if these entries were made- by Ruth Spencer, that Sarah should have taken the trouble to sign them. Indeed, few persons would have thought of attaching *675their signatures to private memorandums in a book of this description.
If these entries were made for the purpose of being preserved as declarations of trust, it is singular that they should have been made in a book of this description, which certainly bears any other appearance than that of a muniment of title; nor would they probably have been mingled with so much irrelevant matter. If they were made casually, without any particular reference to any effect they might have upon the title, those relating to the lands are couched in language singularly apt as legal instruments. In very few words they declare the trust, and also the only facts upon which the law raises a resulting trust.
It is singular that this book should have been found in the possession of Ruth Spencer, who was a witness upon the first hearing of the cause, and was examined upon the very subject to which these memorandums relate, and testified to an acknowledgment of the trust made by Sarah Richards during her last illness, without once mentioning that she possessed the written acknowledgment of Sarah to that effect.
The entry, which bears the same date, as the deed from Robinson, (5th 1 mo. 1792,) states the receipt of the deed to be held in trust for the Friend, “ for which the Friend sent her with $100 in silver, and then sent two yoke of fat oxen to Phelps and Gorham, to make out the payment for the land,” being 66 1600 acres.”
This memorandum, although bearing the same date as the deed, states the consideration paid, as being $100 in cash, and two yoke of oxen ; but the deed itself only acknowledges $100 consideration ; and, from the agreement, accompanying if, which provides for a further payment if the land should overrun measure, we should certainly expect that the true consideration paid, would have been inserted in the deed and agreement. There seems to be some doubt when, in. point of fact, these cattle were delivered, if delivered at all. Richard Smith, in bis first examination, says he received of the Friend, and delivered two yoke at Canandaigua some time in 1793. In his second examination, he sajrs, in 1798 he sold Sarah Richards two yoke- of oxen, as trustee for the *676Friend, and delivered them at Canandaigua to Robinson, in payment for this land. At any rate, if the oxen were not delivered before the 5 th of January, 1792, as it would seem they eould not have been, the entry is so far impeached as to shew that it was not made at the time it bears date. But again ; the entry states the quantity of land conveyed, at 1600 acres; whereas, in the deed it is called 1400.
Nearly connected with this book, are the two letters from Sarah Richards to Ruth Pritchard. They also were found in possession of Ruth, subsequent to her first examination as a witness in the cause. The proof of their authenticity is, however, stronger than that in relation to the boob. The first one, dated 12th March, 1793, is proved to be wholly in the hand writing of Sarah Richards, by the testimony of Sarah Potter, Richard Smith, Anna Stone, Mary Kidder and Abraham Waggoner; and the last, dated 3d June, by the same witnesses, except Anna Stone and Mary Kidder. Orpha Gates says, the signatures to both are Sarah Richards’ hand writing, Mrs. Danforth thinks both letters, (except the signatures,) together with the superscriptions, to be the hand writing of her mother, Ruth Spencer. Justus P. Spencer and his daughter Ruth, are unable to say in whose hand writing they are, and Townsend thinks they are not Ruth Spencer’s.. It must be remembered that these witnesses were all examined twenty-eight years after the death of Sarah Richards, whose hand writing they were called to identify; and that the hand writing of females is generally much less distinctly marked than that of men of business! Under these circumstances, the intrinsic evidence which the papers may furnish is of more than ordinary importance.
The letter of the 12th of March, 1793, purporting to be written by Sarah Richards, is dated at Jerusalem, and directed to Ruth Pritchard, at Jerusalem. It informs her of the purchase made of Benedict Robinson, which took place more than a year previous, and requests her to come where the Friend is, in Jerusalem.
It appears by the testimony of Ruth Pritchard, afterwards Ruth Spencer, taken upon the first examination, that she was one of the followers of Jemima, and came with her from *677Rhode-island, and arrived with her in the county of Ontario, in the year 1790; that they at first settled on the gore on the west side of the Seneca lake, which is a short distance from the premises purchased of Robinson, and called Jerusalem. She testified upon that examination, that the Friend first cleared and improved the lands purchased of Robinson, and built the first house, which is stated in the memorandum book to have been in 1791.
Now it is singular, that when both parties were in the same town, members of the same society, and fellow emigrants, that Sarah should communicate by letter to Ruth, information ofa conveyance, which had been made more than a year previous, of lands, with which it appears Ruth was well acquainted, and which she knew had been improved and built upon by the Friend two years previous, and which were the very object of their emigration. The scope of the letter seems to be, to desire Ruth to come and reside in Jerusalem, where the Friend was stated to be ; and as an inducement, mentions that there is land enough there for all that would be faithful, for that Robinson had given a deed, &c.
By the testimony it appears, that the Friend did not remove from the gore to these lands until after the death of the writer of this letter, in the fall of 1793. Another interpretation of the letter may be, that the Friend and Sarah Richards were temporarily at Jerusalem, and wished Ruth to join them; but upon this supposition, it is difficult to account for the inducement held out of the large quantity of land, &c., if only a temporary visit was desired. The letter is evidently too cumbrous for a mere note of invitation.
The next letter is dated at Jerusalem, the 3d of June, 1793, and is from the same Sarah Richards to Ruth Pritchard, in which she first professes to give her some further information about the situation of earthly concerns, and then informs her that the Friend had taken a deed of Thomas Hathaway, for land south of that conveyed by Robinson, and which deed was witnessed by Carter and Botsford.
The memorandum book mentions two conveyances by Hathaway, one dated 2d May, and the other the 1st of June, *6781793; the latter conveying lot No. 47. This last deed, which was executed by Hathaway to Sarah Richards; two days previous to her letter under consideration, cannot be the one referred to in the letter, for lot 47 does not lie south of the Robinson tract. The tract which is so situated, is stated in the bill to have been conveyed by Hathaway, on the 2d of May, 1793, and this deed is stated, in the will of Sarah Richards, to have been witnessed by Carter and'Bots-ford. It is this deed, then, to which the letter refers, and it is singular, that in giving information of the situation of earthly concerns, she should mention the deed given a month previous so particularly as to name the witnesses, and entirely omit the one given only two days before writing the letter.
These are some of the principal circumstances attending the written evidences of the trust, and appearing upon the face of the papers, which, in my judgment, are calculated to cast a degree of suspicion over their authenticity, as genuine documents of the character w'hich they purport to bear, and which may fairly be thrown into the scale, in opposition to the proof by which they come recommended. ■_
In this stage of the examination, it appears to me we may, with propriety, put the question, whether the decree appealed from is correct, provided the former decree was considered to be so.
The leading question in the cause is, whether Sarah Richards held the lands in controversy as the trustee of Jemima Wilkinson. Upon the first hearing, the respondents rested upon the parol evidence, to establish a resulting trust; and the court not being satisfied upon the question of fact, directed an issue, to find by whom the consideration money was paid.
The only additional evidence adduced upon the second hearing, in relation to the question of trust, and, I believe, of any description, (except the second account of the two yoke of. oxen, by Richard Smith, above mentioned,) consists of the memorandum book and the two letters before mentioned ; and upon this additional proof, the court declares itself satisfied of the trust, and decrees accordingly. It would seem, therefore, that the poiht decided was, that these doc*679uments furnished satisfactory evidence of a trust, not of the description relied upon at the first hearing, but of a trust manifested by writing, in pursuance of the statute.
If these papers are genuine, and are, in reality, what they purport to be, it cannot be denied, that they amount to a sufficient declaration of trust, under the statute, as to the lands therein mentioned; and if so, the question of fact in relation to a resulting trust, which had been before litigated in the cause, became immaterial, and it was unnecessary to have the finding of the jury upon it.
But if, on the other hand, these papers did not come before the court in such a shape, or so supported as to entitle them to credit as a declaration of trust, it appears to me they could have no influence upon the questions of fact, upon which a resulting trust was to be established. If they are good for any thing, they must be good for the whole. Are they then entitled to credit, as declarations of the trust upon which Sarah Richards held these lands 1 The considerations before alluded to, induce me to hesitate, and adopt the opinion of chancellor Kent in Steere v. Sieere, (5 Johns. Ch. R. 20,) that the plaintiffs have not made out a trust sufficiently clear and certain to enable the court to act upon it, and take the case out of the statute of frauds.
If the decree proceeds upon the basis of a resulting trust, then if the remarks in relation to these documents are'jusf, it rests upon precisely the same and no other evidence than such as was before the court upon the first hearing, and was then considered unsatisfactory.
The decree does not inform us whether the trust was considered as resulting or declared, and we have no opinion of the court to guide us as to the view taken of the different questions agitated, or whether the last decree was considered as an alteration of the opinion expressed by the first, as upon a re-liearing and further examination is frequently done.
It becomes necessary, then, to examine the other questions in the cause, for the purpose of determining either the rights of the parties, or whether the evidence is such as to enable the court to determine those rights, without the aid of a *680verdict at law, upon some of the controverted questions of fact.
The next question, then, in relation to the lands conveyed by Robinson, is, whether Sarah Richards held them upon a trust resulting to Jemima Wilkinson, in consequence of the consideration of the purchase having moved from her.
The memorandum executed cotemporaneously with the deed, recites, that 1200 acres of the land was made a present. Robinson, in his letter of 1789, proffers a quantity of land as a present to Jemima, and testifies on his examination, that previous to the execution of the deed, he had agreed to make a present to Jemima of 1000 acres of land, and had received of Sarah Richards $100. for which he had given her his receipt, engaging to convey lands to her in the township to that amount, and that in pursuance of this engagement, he executed the deed, supposing that Sarah received it for the benefit of Jemima, except as to two hundred acres of the land.x Whether these 200 acres were a present to Sarah, or had been paid for by her, he does not mention. I should rather infer the former; for these 200 acres, with the 1000 to Jemima, make up the 1200 acres mentioned in the agreement, and the $100 paid by Sarah, is, by the agreement, made applicable to the payment for the excess of land over the 1200 acres. At all events, I think the testimony shews very clearly, that 1000 acres of the land conveyed by Robinson to Sarah Richards, were intended for the benefit of Jemima Wilkinson, and that her representatives are entitled to it, unless precluded by operation of the statute of frauds. This supposition is confirmed by the devise of these 1000 acres by Sarah Richards to Rachel Malin. The objection, however, to the claim of Jemima, on the ground of a resulting trust, is, that here was no consideration paid by her, and that the payment of consideration is essential to create such a trust. I think it would be conceding too much to admit that this conveyance as to the 1000 acres was entirely gratuitous. Robinson was formerly a member of the society of which Jemima was the head. At least, he says he attended her preaching, and as early as ’89, and before he had obtained his title from Phelps and Gorham, in his letter to Sarah Richards, he speaks of *681giving a quantity of land in the township to Jemima, and of her forming a settlement there. George Brown testifies, that in 1792, in exploring the township with Robinson, Sarah and Jemima, Jemima asked Robinson how much land he intended to give her and Sarah if they would remove into the town; to which he answered, 1000 acres. Gilbert Hathaway speaks of a similar conversation between Robinson and Sarah, and that he engaged to give her some land on condition she would remove on to if, and make the first settlement. Other witnesses speak of similar conversations, and I think the testimony is sufficient to shew that the removal to, and establishment of the sect of Jemima in the town, was an inducement (if not the only one) with Robinson, to convey the land, and that the conveyance of the land was the inducement for the removal which operated upon Jemima. Why, then, is not this a sufficient and valid consideration moving from Jemima to Robinson 1 I do not perceive that the case furnishes us with any reason for supposing that the conveyance of these 1000 acres was made by Robinson from any other motive than that of interest—certainly none for excluding the supposition of such a motive. It is not like the cases of advancement by a parent or relative; and when we consider the state of the country at the time of the conveyance, we can very readily imagine, that a man who held a township of wild land, and wished to promote its settlement, might, from mere motives of pecuniary interest, find it an object to dispose of a quantity to a person who would commence the settlement, and who would be likely to induce others to purchase and settle. And on the other hand, the commencement of such a settlement, at that period, must necessarily have involved pecuniary sacrifices and personal privations, nearly if not fully equivalent to the then value of the land. Such a consideration of benefit to one party, or injury to the other, would be sufficient to uphold an ordinary contract, and I cannot see why it may not be sufficient as the basis of a resulting trust.
The next inquiry is, as to the evidence of payments actually made to Robinson for this land, aside from the memorandum book and letters of Sarah Richards, which I lay out *682of view upon this question of a resulting trust, for the reasons before mentioned. It is claimed by the respondents, that they were all made by Jemima, and that, of consequence, a trust results in her favor for the whole premises conveyed by Robinson. Richard Smith testifies, upon his first examination, that sometime in the year 1793, he received of the Friend two yoke of cattle, of the value of $100 or more, which were delivered in Canandaigua for the benefit of Robinson, and for which Robinson gave his receipt, to be applied towards land conveyed, or to be conveyed for the use of the Friend. Upon his second examination, after the discovery of the memorandum book of Sarah Richards, containing an entry of cattle paid to Robinson in 1792, he states, that some time in 1792, he sold to Sarah Richards, as agent for the Friend, two yoke of oxen for about $200, which he delivered to Robinson at Canandaigua, in payment for lands purchased by her of him, as agent for the Friend. He also states, that in the same year, he was present when Jemima delivered to Sarah Richards $100 in silver to pay to Robinson, and that Sarah went with him to Robinson’s house to pay it over, but that he. did not go in.. On his first examination, he stated, that he never saw Sarah Richards receive money from the Friend, "or otherwise, which was applied in payment for land.
Jonathan Davis testifies, that he saw Sarah Richards turn out a yoke of bulls, as the property of the Friend, to Robinson, in part pay for land purchased of him. He does not mention at what time this took place.
Jedediah Holmes testifies, that he saw Jemima herself deliver to Robinson and Hathaway four or six oxen and some .cows, being her property, and in part payment for land purchased of them ; but at what time, he does not state.
Mary Bean testifies, that she has seen the Friend deliver money to Sarah Richards and Rachel Malin to carry to Robinson, in payment for land, and that they went away for that purpose, with a man whom she does not remember; that she has seen a yoke of oxen, and thinks a cow or two, delivered by the Friend to some of her hired men, to be taken to Robinson for the same purpose. No date is given to these facts. *683The witness also says, she has frequently heard Sarah Richards say, that the lands purchased of Robinson were paid for with the Friend’s property. She further states, that Robinson had in his possession a mare which was raised by the Friend, and which, she understood, he received in payment for land.
Parmele Barnes testifies, that Sarah Richards purchased of one Brown a yoke of oxen, which she turned out to Robinson in part payment for lands in the 7th township.
These are all the witnesses that undertake to identify particular payments to Robinson ; and they were all, at the time of their examination, the followers of Jemima, with the exception of Barnes, who had withdrawn himself, but who states that he was not unfriendly to the society. Aside from any distrust of the witnesses arising from this circumstance, which might perhaps be thought uncharitable, it appears to me there is a looseness as to dates and circumstances, calculated materially to impair the force of their testimony.
Smith testifies, in his first examination, to a delivery of two yoke of oxen, of the value of $100, in 1792 ; and, in his second examination, to a delivery of two yoke in 1793, of the value of $200, without informing whether he speaks of the same transaction at those different times, or not; and his testimony, in relation to the $100 in money, is little less than a flat contradiction.
With regard to the $100 in money, which was the consideration expressed in the deed, we have no evidence, unless it is to be presumed that he speaks of that money, and that that is the same of which Mary Bean speaks; but she does not pretend to state the amount.
Again ; we have no means of knowing whether or not the oxen spoken of by Holmes, Barnes and Mary Bean, are the same as those mentioned by Smith and by each other, or are all separate and distinct transactions. Of the $67 endorsed on the agreement by Robinson, we have no evidence whatever to shew whose money or property it was, except the general declaration of Sarah Richards to Mary Bean, that the lands purchased of Robinson were paid for with the property of the Friend.
*684In addition to the evidence of payment above mentioned, there is a mass of testimony, consisting of the declarations of Sarah Richards, that she held these lands in trust for Jemima.
Inasmuch as the statute prohibits the enforcement of a trust, unless it is. evidenced by writing, or results by operation of law, it would seem to be going a great length, to' admit the parol declarations of a party to establish a fact from which a trust results; as, for instance, the payment of the purchase money by a person not a party to the deed ; and chancellor Kent, in one case, remarked, that if the point were res integra, he should be inclined to agree with Sir Thomas Clerck, in Lewe v. Dighton, that such evidence is too dangerous in its consequence; but the objection comes too late, as the rule appears to be well established. But to admit the parol declarations of the grantee, that he holds the lands in trust for another, as evidence of the fact that such person paid the purchase money, and thereby to establish a resulting trust, it appears to me, is a total repeal of the statute. Every parol declaration of trust, which is declared invalid by statute, is, by this means, rendered valid as evidence of a resulting trust, which is saved by the statute.
. However strong, therefore, might be the declarations of Sarah Richards upon this point, or however satisfactorily proved, I should be unwilling to regard them as evidence of the fact that the purchase money was paid by Jemima Wilkinson. I have found no case where the bare parol declaration of trust by a party, has been relied upon as evidence of a resulting trust, although in many, the declarations of the party have been admitted, even after his death, as to the fact of who paid the purchase money.
It may be useful, however, to examine this evidence hastily, and if I mistake not, it will be found not entirely uniform and convincing.
Richard Smith, Jonathan Davis, Jedediah Holmes, Mary Bean, Moses Atwater, Amos Garnsey, and Ruth Spencer, all testify to the declarations of Sarah Richards, that she held the lands in trust for the Friend—most of them say they heard her make those declarations frequently. Atwater tes*685tifies, that he wrote the will of Sarah Richards, and that upon that occasion she declared that the property which she held then was held in trust for the Friend; that she owned no land in her own right, but some land in Yf atertown ; that she wished to give that to her daughter; and that it was necessary to make her will, to put the Friend’s land into the hands of Rachel Malin for the use of the Friend, it appears, however, by the will, as written by this witness, in pursuance of these instructions, to have been the evident intention of the testatrix to give only 1000 acres of the land to Rachel Malin. The only comment which, in my judgment, this testimony of Atwater requires, is, that it was given at a time when the construction of the will contended for, was, that it first gave Rachel Malin all the lands deeded by Robinson except 1000 acres, and in the next clause gave her that 1000 acres also.
On the other hand, Gilbert Hathaway, George Brown, Thomas Hathaway, and Isaac Kinney testify, that Sarah called the land her's, and spoke of it as her own. Gilbert Hathaway, Isaac Kinney and Parmeie Barnes say, they have heard her say she intended to have her farm on a certain part of the tract.
Gilbert Hathaway, Thomas Hathaway and Isaac Kinney testify, that they have heard Jemima speak of the lands in question as Sarah’s land. Barnes thinks he has heard her admit to Sarah that she owned a part of the lands, but what part he cannot specify.
Elnathan Botsford testifies, that in 1799, when his sons were about purchasing 400 acres of the north part of the tract of Enoch Malin, he called upon Jemima for the purpose of asking whether she had any objections to the purchase, and was answered by her that she had not. Parmeie Barnes and Gilbert Hathaway testify to her acknowledgments to that effect.
This is about the substance of the testimony gathered from the declarations of the parlies ; and, as I view it, considering the situation of the parties, and admitting it all to be entitled to credit, it amounts to but little upon the question of trust or no trust.
*686Jemima was the founder and head of a religious society of which Sarah was a member; they lived together in the same family, on terms of perfect intimacy; both gave directions as to the improvement of the land, and participated in its products, devoting themselves professedly, at least in a great degree, to other concerns than temporal ones ; and, under these circumstances, I apprehend, it would not be strange that Sarah should have declared that she held the whole property in trust, when, in fact, (as I think is proved,) she did hold 1000 acres which were intended for. the benefit of Jemima, and might have meant no more, as respects the residue, than that it should be devoted to the interest of the religion of Jemima and her society.. So, too, that Jemima should have called the land Sarah’s land, is not remarkably strange, since the legal title was in her, although the trust might have been ever so notorious;
Again ; that the land should have been generally considered Jemima’s, I think is perfectly natural, since she was the known head of this most extraordinary society; and that the land should have been improved in the manner it was, I think entirely consistent with the relative situation of Jemima and her most devoted friend, particularly in the situation in which it then was—an entire forest. It is worthy of remark, that all the buildings erected for the use of Jemima and her society, are siuated oh the 1000 acres.
Such testimony as these loose declarations, to my mind, proves one thing more clearly than the trust which it is designed to establish—I mean, the danger of admitting it.
Sarah Richards, by her last will and testament, executed while on terms of friendship and intimacy, at least with Jemima, if not under her influence, at a time when she was leaving her only daughter to her care and protection, and was about to test the reality of her religion, has solemnly declared in that instrument, that all the lands conveyed to her by Benedict Robinson were hev’s, except 1000 acres; and she disposes of them to her daughter. I esteem this declaration of far greater weight than all the parol declarations that have been given in evidence upon the point; for, under the circumstances attending the execution of this will, I should *687sooner suspect her of doing more than equity, than of withholding it from Jemima.
In support of the argument, that these lands were purchased with the monies of Jemima, it is alleged that Sarah Richards came into the country poor, and had not the means of :.alcing payment from her own funds. Many witnesses have been examined to this point, who state generally that she possessed but little property, while others state that she had considerable. Again, some of the witnesses say Jemima brought but little property into the country, and others described her as bringing considerable stock, &c. The whole testimony upon the point, I think, leads to no satisfactory result. It does siot appear that much property was brought by either of them, and the witnesses do not seem to possess much accurate knowledge as to whom it belonged.
Upon this point, therefore, as to all the lands conveyed by Robinson over and above the 1000 acres, after looking’ through the testimony as carefully as I have been able to do, I am compelled to say, that I am not satisfied that the purchase monies paid to Robinson for these lands, were the monies of Jemima Wilkinson, or that any particular definite portion of such monies were her’s, and consequently that her representatives or devisees are not entitled to the same, in virtue of any resulting trust arising from such payment.
If, however, such a trust had been ever so satisfactorily established, there is a fact stated in the testimony of Elnathan Botsford, which, if entitled to credit, ought to rebut any equity arising from such trust—it is the declaration of Jemima, before mentioned, made to him when he went to her before Ms sons purchased, at their request, to ascertain whether she claimed any interest in the north part of this tract, apprised her of their intention to purchase, and was informed by her, for answer, that she had no claim to those 400 acres, and no objections to their making the purchase. Parmele Barnes testifies, that he was present and heard this conversation, and Gilbert Hathaway testifies to a similar conversation at another time. These are the lands upon which I understand the Botsfords are now settled. The answer states them to have been conveyed to Botsfords in August, 1799—and probably *688that fact was proved. I do not, however, discover the proo in the case ; but Smith says he went into possession about that time. If the testimony of Botsford, the father, therefore, is to be believed, and the deed was taken by his sons upon the faith of that declaration of Jemima, it appears to me a clear case, where equity required of the cestui que trust to assert h claim when called upon, and forbids the assertion of it afterwards. (2 Johns. R. 573. 1 Johns. Ch. R. 354. 5 Johns. Ch. R. 184.)
The purchases by Stone and Ingraham were subsequently made, and the probability is, they had notice of the claim of Jemima at the time of their purchases.
The third question as to the lands conveyed by Robinson is, whether the respondents can claim under the will of Sarah Richards, and to what extent 1
It was contended, when the question arose upon this will in the supreme court, that the whole premises conveyed by Robinson were intended, as the will now reads, to be devised to Rachel Malin. That construction was rejected as inadmissible, and its true construction decided to be the same now as if the word “ also” were inserted in the place where it is said to have originally been. The same view of the question was taken by the court of chancery ; and, it appears to me, any other construction would'involve too great an absurdity to be at all admissible. As I read it, whether with or without the word also, it was the evident intention of the testator to devise 1000 acres of the land conveyed by Robinson to Rachel Malin, and the residue to her daughter Eliza.
That the will has been altered in the manner alleged, I think is pretty clearly proved ; but by whom, is a question of more difficulty, upon which we have no positive proof.
I do not understand it to be contended, that such an alteration of the language of the instrument as does not alter the construction, invalidates it, unless done by a person claiming under it; and if it be conceded that this will would be avoided if the alteration has been made by a party setting it up, I do not think the testimony before us is sufficiently satisfactory to justify such an adjudication.
The question, then, is, what is the legal operation of this will 1 The estate is devised to Rachel Malin without words *689of inheritance. She must, therefore, take an estate for life ; and it is contended, that as the devisor was but a trustee, the whole interest or estate passes without such words.
The case of Foster v. Hale, (3 Vesey, jun. 698,) establishes the doctrine, that since the statute of frauds, it is not necessary that a trust should be created by writing, but it is sufficient if manifested by writing, and that such written manifestation, although executed subsequent to the creation of the trust, renders it valid. Before the statute, the trust might be created and proved by parol, and the construction which seems to have been given to the statute is, that it is applicable only to the species of proof requisite to establish a trust, and that although the trust may be created by parol, as before the statute, yet that it cannot be enforced without written evidence. As applied to this case, it is, that Sarah Richards held the 1000 acres of land in trust for Jemima, but that for want of competent evidence, the trust was not such as could be enforced.
The operation of tbe statute appears to be very similar to that of the statute of limitations upon a debt, which, without destroying it, destroys the remedy to enforce it.
Regarding Sarah Richards, then, as the trustee of Jemima Wilkinson, in virtue of the gift of the 1000 acres by Benedict Robinson for her benefit, though not legally bound to execute the trust, it appears to me some very nice questions may arise as to the effeet of her devise. Can a trustee carve out the estate by the creation of terms, life estates, and remainders, in his trusteeship, in the same manner as the absolute owner of the fee 1 If not, and he attempts to carve, what is the effect of his devising a less estate than he possesses ? Does his whole estate pass, or is the whole grant void1? As he might have rendered the trust valid by acknowledging it in writing, can his devisee do the same 1 Is the will in this case tantamount to a declaration of trust by Sarah Richards ?
The general language of the books is, that the estate of a trustee passes by devise or descent, subject to the trust, and I have found no case where the courts have declared the effect of an attempt to carve out of such an estate by devise.
*690From the examination which I have been able to give the subject, I should be unwilling to say, that Rachel Malin could take a fee under this will; but that notwithstanding the proof in relation to its alteration, she might take an estate for life in the 1000 acres.
If, however, I am correct., that as to these 1000 acres, a trust resulted in favor of Jemima Wilkinson orí the ground of a consideration moving from her to Robinson, the operation of Sarah Richards’will upon this tract becomes immaterial, as Rachel Malin is the devisee of Jemima, and" as such, entitled to the benefit of the resulting trust.
The result of these views of the case as to the lands conveyed by Benedict Robinson, is, that the documentary evidence adduced is not sufficient and satisfactory to establish a declared trust in favor of Jemima Wilkinson and her representatives ; that the testimony in the cause is not sufficient and satisfactory to pr.ove that Jemima Wilkinson paid the consideration for such lands, or any definite proportion of it, to Robinson, either in money or other property, and that therefore no trust resulted in her favor on that ground ; but that in regard to 1000 acres of the south part of the tract, a consideration did move from her, equivalent to the payment of a pecuniary consideration, and as to that part, that a trust did result, of which Rachel Malin and Margaret Malin, as her devisees, are entitled to avail themselves, except as against the Botsfords, (in case the 1000 acres should cover any part of their purchase,) and that Rachel Malin would also be entitled, under the will of Sarah Richards, to a life estate at least in the 1000 acres, in case the devisor had-been'the absolute owner.
We come next to the tract situated south of and adjoining the tract conveyed by Robinson, consisting of the south half of lots 22 and 27, and the north half of 21 and 28, except a portion lying east of the creek. These premises are stated in the bill to have been conveyed by Thomas Hathaway to Sarah Richards, on the 2d May, 1793, and are described as extending south to the lands of Daniel Brown. The deed is not set out In the case, but the answer of the defendant Williams admits that he has seen the record of such a deed.
*691The appellants insist upon the cancelled deed of Hathaway to Robinson of the 5th of August, 1791, before remarked upon, as a subsisting and valid conveyance. This deed describes the premises conveyed as extending south to the lands of Daniel Brown, jun. If the south boundary mentioned in each of these conveyances is the same, then Hathaway conveyed nothing to Sarah Richards, having before released to Robinson, and the legal title passed to Rachel Malin by the subsequent deed of Carter. How this fact is precisely, the case does not enable us to determine, and as the point was not made upon the argument, I proceed to the other grounds upon which the respondents claim these premises, which are—1. On the ground of a resulting trust; 2. As devisees of Sarah Richards; 3. The 'undivided half under the deed from Carter.
The first point must stand upon the same footing as the same point does in relation to the lands conveyed by Robinson, except that the evidence of actual payments is almost exclusively confined to Robinson. Only one of the witnesses, I think, speaks of a payment of cattle to Robinson and Hathaway, and no one of any payment made to Hathaway alone. The devise of Sarah Richards is to Rachel Malin, of specific lands, without words of perpetuity, or other language importing an intention to devise a fee, and a life estate, therefore, passes under it.
With regard to the claim under Carter’s deed of the undivided half, on the ground that no partition was made between Hathaway and Robinson, as before remarked, in my judgment, sufficient appears to authorize us to regard the different conveyances by each of them as partitions pro tanto. There being no trust established, then, the respondent, Rachel Malin, is entitled only to a life estate in these premises.
Lot No. 47 is stated in the bill to have been conveyed by Thomas Hathaway to Sarah Richards, on the 1st of June, 1793, and the conveyance is admitted by the answer. The memorandum of the exhibit attached to the respondent’s case, states the conveyance to be to Robinson, probably by mistake in drawing or printing the case. This lot is not devised by Sarah Richards, and the claim of the respondents must rest *692upon the ground of a resulting trust, or to a moiety under the deed from Carter. As both these points have been examined before, it is unnecessary to do more than to mention them in this place.
Lots Nos. 45 and 46, present entirely different questions. According to the testimony of Robinson, these lots were purchased of him by Asa Richards, who paid the consideration, but took no deed. Asa Richards died, having devised all his real and personal estate to Sarah Richards in fee. By one clause in the will of Sarah Richards, “ all the lands that has or may arise from Asa Richards’ estate,” are devised to Rachel Malin. Rachel Malin afterwards took a deed from Carter in fulfilment of the contract made by Asa Richards with Robinson, which acknowledges the payment of the consideration for it by Asa Richards to Robinson.
■ The respondents allege, that the ^receipt which Robinson gave to Asa Richards for these lands, was sold and delivered by him in his lifetime, for valuable consideration, to Jemima Wilkinson, and that the equitable estate, therefore, vested in her, and did not pass to Sarah Richards under the general devise contained in the will of Asa Richards. The only evidence, I think, which the case furnishes of this fact, is an entry in the memorandum book of Sarah Richards, so often before mentioned. It is dated the 26th June, 1792, and states that Asa Richards died the 38th, (not mentioning the month.) Then follows another memorandum, stating that he came to the Friend’s house sick, nearly two years before his death, and gave the Friend a receipt which he held from Robinson for land, &c. before his death, “ to make remittance for the cure of all his sickness and funeral charges, to the amount of fifty pounds, lawful money of the state of Connecticut.” A circumstance so extraordinary as that of a man’s making provision for the payment of his funeral charges, by disposing of almost the whole of his estate, as we shall see it was, without any writing to attest the transfer, or any receipt for the debt which it was turned out to cancel, and by a man, too, who thought it necessary to make a will, devising both real and personal estate, when he had no real estate except his equitable title to these lands, in my judgment, requires stronger *693proof than any that is afforded by the memorandum book, in which the record of it is found. But the testimony throws a still stronger shade of suspicion over it. Richard Smith, one of the respondents’ witnesses, who was examined before this book was discovered, testifies that he administered upon the estate of Asa Richards; that he found no real estate; that the debts and expenses of his last illness and funeral, and expenses of administration, amounted to about $100; and he found property barely sufficient to balance that amount I think no other inference can be drawn from this testimony than that he paid the expenses of the testator’s sickness and funeral out of the personal estate; and that it appears to me that all pretence, that the equitable interest in this land was conveyed to Jemima by Asa Richards, in his life time, is not only not sufficiently proved, but contradicted by her own witness, and, to say the least, a willing'one.
The devise by Asa Richards is of all his estate, both real and personal, to Sarah Richards, after payment of debts and funeral charges, and under such a devise, I take it to be well settled that the premises in question would pass, (3 Salk, 85. 10 Vesey, 613. 2 Vern. 679. 3 Atk. 254.)
The only remaining question, then, respecting these lots, is, whether they passed by the will of Sarah Richards to Rachel Malin, and what estate the devisee took. The testatrix first devises to her daughter Eliza, all the receipts that she held for land, or the avails of them, and in a subsequent clause, devises specifically to Rachel Malin, 66 all the lands that has or may arise from Asa Richards’ estate.” It appears to me to have been the manifest intention of the testatrix to give these premises to Rachel Malin, and that by the receipts mentioned in the former clause, were meant such as she held in her own name, and it appears she must have held sufficient to cover three lots at least, for that quantity was afterwards conveyed by Carter by deed, acknowledging the consideration to have been paid by her. But at any rate, upon the familiar principles of construction, a specific devise to one person, forms an exception to a general devise to another, contained in a previous clause of the will. (2 Bun. 920.) The devise of these lands is contained in the same clause of *694the will as the other devises to Eachel Malin, and she of course takes a life estate.
Lots Nos. 50, 51 and 52 are also claimed by Rachel Malin under the deed to her from Carter, which acknowledges the consideration to have been paid by Sarah Richards to Robinson. The decree appealed from, however, is silent as to these lots, and it is therefore unnecessary to examine the title of the respondents.
The result of the most satisfactory opinion which I have been able to form upon this case, obscured as it is by complicated questions of fact and difficult questions of law, is, that Rachel Malin and Margaret Malin, the devisees of Jemima Wilkinson, are entitled in fee to one thousand acres off the south part of the tract conveyed by Benedict Robinson, but not to include, however, any part of the lands conveyed to the Botsfords, with the knowledge and assent of Jemima ; that Rachel Malin is entitled to a life estate, under the will of Sarah Richards, in lots Nos. 45 and 46, and also in that part of 21, 22, 27 and 28, conveyed by Hathaway to Sarah Richards, on the 2d of May, 1793; and that as to the residue of the lands claimed in the respondents’ bill, being those claimed by the Botsfords, and' the residue of the tract conveyed by Robinson, and also lots Nos. 47, 50, 51 and 52, the respondents have established no title.
Senators Benton, Crary, Dayan, Elsworth, Enos, McMichael, Schenck, Smith, Throop, Tysen, Warren and Wheeler, also concurred in the opinion pronounced by Mr. Justice Sutherland ; and Senators Hager, Lake, McCarty, McMartin, Todd, Wilkeson and Woodward, concurred in the opinion pronounced by Mr. Senator Stebbins.
Whereupon, it was ordered and adjudged, that the decrees appealed from, ordering a perpetual injunction, be affirmed in all things, except so far as they relate to lots Nos. 45, 46 and 47, and 400 acres of laud purchased by Benajah Bots-ford and Elnathan Botsford, jun., of Enoch Malin and Eliza, bis wife; that there is not sufficient evidence of a trust in favor of Jemima Wilkinson, in relation to lota Nos. 45 and 46‘s *695but that Sarah Richards took an estate, in fee, in the same, without any trust under the will of Asa Richards, and that the complainant, Rachel Malin, is entitled to an estate for life in the said lots, under the will of Sarah Richards, and holds the same subject to the trust declared and appointed by the will of Jemima Wilkinson; that there is no evidence of any trust in relation to lot No. 47 ; and that the Botsfords were bona fide purchasers of the 400 acres, without notice of the trust in favor of Jemima Wilkinson. The decrees below, therefore, were reversed as to lot No. 47 and the 400 acres, and modified as to lots 45 and 46, without costs to be paid by either party to the other.