Malin v. Malin

Sutherland, Justice of the Supreme Court.

The original bill in this cause, was filed in June, 1811, by Rachel Malin, complainant, against Enoch Malin and Eliza, his wife, Elnathan Botsford, jun., Asahel Stone, jun., Asa Ingraham and Truman Slone, defendants. It sets forth substantially, that a religious society or association was formed and established at Jerusalem, in the county of Ontario, by Jemima Wilkinson, denominated the society-of Universal Friends, of which the said Jemima was the head, and was known by the appellation of the Universal Friend; that, for the support of herself, and the poor and indigent of said society, the said Jemima, on the 5th day of January, 1792, purchased from one Benedict Robinson the north half of lots No. 22 and 27, and lots No. 23, 24, 25 and 26, all in the town of Jerusalem, in township No. 7, in the second range of townships in Phelps and Gorham’s purchase, in the county of Ontario, containing, in the aggregate, 1400 acres, for which the said Jemima paid the said Robinson, in h and, the sum of $100; that, according to the principles of said society, no estate or temporalities could be vested in the said Jemima; she therefore nominated Sarah Richards, then one of her followers, as the trustee to receive the title of the said lands; and that the said Robinson, accordingly, at the sole instance of the said Jemima, and for her benefit and use, and the support of the poor of the said society, and upon the consideration aforesaid, did, on the said 5th day of January, 1792, convey the said lots, in fee simple, to the said Sarah Richards, without expressing in said conveyance any trust whatever ; that although the said conveyance was absolute to the said Sarah Richards, yet she at all times acknowledged said trust, and held and managed the said lands for the use of the said Jemima, and faithfully applied the proceeds thereof to her support, and that of her indigent followers; that the said Sarah Richards died, on or about the 29th of December, 1793, having first made her last will and testament, in proper form for passing real estate. The will is set out in the bill. It gives to the complainant Rachel-Malin, 1000 acres of the land which Benedict Robinson had conveyed to the testatrix; also a tract of land which Thomas Hathaway, on the 2d day of May, 1793, had conveyed to her, by a deed witnessed by William Carter and Abel Botsford; also all the land to which the testatrix was entitled from the estate of Asa Richards, deceased.

The bill alleges, that the testatrix, Sarah Richards, intended by her said will to constitute the complainant, Rachel Malin, a trustee of all the said lands so devised to her, for the same uses for which she, the testatrix, had received and held the same; and that the complainant so received the said lands under the said will, and has so managed and improved them.

The bill then alleges, that Benedict Robinson had title only to a moiety of the lands described in his deed to Sarah Richards, and that the complainant, Rachel Malin, after the death of the said Sarah Richards, to wit, on the 14th day of August, 1795, purchased and procured a conveyance of the other moiety of said lands, from William Carter, of the city of Albany, for the consideration of $350; that Eliza Richards, now Eliza Malin, one of the defendants, the daughter and only child of Sarah Richards, was left by her mother under the care and protection of the Universal Friend; that she continued to reside with her for about three years, when, without the consent or approbation of the Universal Friend, she left her protection and intermarried with Enoch Malin, another of the defendants; that the said Enoch Malin and Eliza, his wife, although they well knew the trust upon which Sarah Richards, the mother of the said Eliza, held the said lands, relying on the loose and imperfect manner in which said trust was created, and upon some defect supposed to exist in said Sarah’s will, have laid claim to said lands, or some part thereof, and for some trifling consideration, have sold and conveyed 600 acres thereof, in certain proportions, to the other defendants mentioned in the bill, who have entered upon and improved the same, and concludes with a prayer of general relief.

The answer denies that Jemima Wilkinson made the purchase of the lots mentioned in the bill from Benedict Robinson, or that she paid the sum of $100, or any other sum, as the price or consideration therefor: on the contrary, the defendants aver that the said consideration money was paid by Sarah Richards. They deny that Sarah Richards was constituted or appointed the trustee of the said Jemima, to receive said conveyance; and they allege that $100 was the full price or value of 400 acres of said land, and not of the whole 1400 acres; and that 1000 acres of said land were presented or given by said Robinson to said Sarah Richards. They deny that any trust in relation to said lands was created for the benefit of said Jemima, or that Sarah Richards ever acknowledged such trust.

They admit the death of Sarah Richards as stated in the bill, and also the making of her will, but they aver that after said will had been proved before the surrogate of the county of Ontario, it was falsely and fraudulently altered and erased, so as to change the sense and meaning of the testatrix, and so as to devise and bequeath unto the complainant, Rachel Malin, large portions of the estate of the testatrix, which by the will, as it was originally executed, were devised to her daughter, Eliza Richards, now the defendant, Eliza Malin.

They deny that it was the intention of Sarah Richards to constitute the complainant trustee for any person or purpose whatever, not expressed in said will. They deny that Robinson bad title to only a moiety of the lands conveyed by him to Sarah Richards; on the contrary, they aver that he was seized in fee of the whole of said land, and conveyed a good title thereto to the said Richards, although they admit that the complainant may have obtained a quit-claim or release from William Carter of all his claim to or interest in the premises.

The defendants, Enoch Malin and Eliza his ioife, deny that they had any knowledge of the trust stated in complainant’s bill, nor do they believe that any such existed.

They deny that Sarah Richards had no real estate in this state; on the contrary, they aver that she died seized not only of the before mentioned 1400 acres, but of other lots in the same township, the title whereof she derived from Thomas Hathaway; and also of an equitable interest in other lots in said township, purchased with her money, and the money of one Asa Richards, to which she became entitled as legatee or devisee of said Asa, and for which said last mentioned lands, the answer alleges, deeds have, since the death of said Sarah Richards, been given to the complainant upon surrendering certain receipts, which, by the will of said Sarah, before its alteration, were given to the said Eliza Malin; and if the said complainant claims those receipts, or the lands conveyed on the surrender of them, it must be under the forged alteration of the will. The other defendants deny all knowledge of any trust in relation to said lands at the time when they purchased portions of them, and all belief of the existence of any such trust.

They deny that Enoch Malin and his wife conveyed 600 acres of said land for a trifling consideration; on the contrary, they aver that the said Enoch and his wife did, in August, 1799, by indenture of bargain and sale, with full covenant, convey 400 acres or said premises to Benajah Botsford and Elnathan Botsford, jun. for- the consideration of $1200, paid by the grantees to the grantors, and which they aver was a full and fair price for the same. That they immediately entered upon said lands, which were then wild and uncultivated ; have since cleared and improved the same, and expended large sums of money thereon. That before the said Bots-fords purchased said lands, they applied to Jemima Wilkinson and Rachel Malin, and apprised them of their intention to purchase; that they made no objections thereto, but consented to and approved of the same.

They aver that the said Enoch and Eliza, by a similar conveyance, sold 50 acres more of said land to Asahel Stone, jun. for $200, and other 62 1-2 acres to Asa Ingraham for $250. To this answer the complainant, Rachel Malin, filed a general replication. Upon the issue thus joined, witnesses were duly examined, and the cause was brought to a hearing before Chancellor Kent, in Nov, 1816, when he ordered that the bill should be amended by making Jemima Wilkinson a party complainant, and that a feigned issue should be made up to try, 1st. Whether any part of the consideration for the lands conveyed by Robinson to Sarah Richards, on the 5th of Jan. 1792, was paid or advanced by Jemima Wilkinson. 2d. Whether the whole or any part of those lands passed by that deed. 3d. Whether the will of Sarah Richards had been altered since its execution. 4th. Whether the defendants were bona fide purchasers without notice of the alleged trust. The bill was accordingly amended, and the feigned issue prepared and noticed for trial at the Ontario circuit, in June, 1817. And at the same circuit, an action of ejectment was also noticed for trial, brought upon the demise of the said Enoch Malin and Eliza his wife, against the said Rachel Malin, in which the validity of the will of Sarah Richards and its construction, and the question whether it had been fraudulently altered after the death of the testatrix, were directly presented and involved. The jury in that cause found a verdict for the plaintiffs, and that the will had been altered by some interested person.

The complainant, Rachel Malin, then put off the trial of the feigned issue, upon an affidavit of the absence of a material witness. Enoch Malin and Eliza his wife had both died previous to the trial of the ejectment suit, leaving two sons, David H. and Avery Malin. In August term, 1817, several actions of ejectment were commenced upon the demise of David H. and Avery Malin, and Elisha Williams, against the several occupants of the lots in township number seven. The tenants severally appeared, and then, on the 20th of May, 1818, filed their bill, with Jemima Wilkinson and Rachel Malin, as complainants, against the said David H. and Avery Malin, and Elisha Williams. This bill alleges, that in addition to the lots purchased by Jemima Wilkinson, through Eliza Richards, her trustee, from Benedict Robinson, on the 5th January, 1792, as set forth in the original bill, she also, through the same trustee, on the 2d day of May, 1793, purchased of one Thomas Hathaway the south half of lots No. 22 and 27, and the north part of lot No. 21 and 28, in the said .township No. 7; that the entire consideration for the last mentioned purchase moved from the said Jemima Wilkinson, though the conveyance was made to the said Eliza Richards, without any trust being expressed in it. The bill also alleges a similar purchase from the said Thomas Hathaway of lot No. 47, on the 1st day of June, 1793, the consideration being paid by the said Jemima, though the deed was given to Sarah Richards. Also, a conveyance from William Carter to Rachel Malin, as executrix of Sarah Richards, of lots No. 50, 51 and 52, in said township, bearing date the 14th day of July, 1795. The deed recites, that the consideration money, f 124, had been paid by Sarah Richards to Benedict Robinson; and the bill avers the said consideration money was the money of Jemima Wilkinson, and was paid by Sarah Richards, as her trustee, and io and for her use. The bill also alleges, that on the said 14th day of July, 1795, the said William Carter, in consideration of $140, received by Benedict Robinson, from one Asa Richards, conveyed to Rachel Malin, (executrix of Sarah Richards, who was the executrix of the said Asa Richards,) lots No. 45 and 46 ; and on the 14th of August of the same year, in consideration of $850, money of the said Jemima, paid to the said William Carter by Rachel Malin, the said William did release and convey to her all his interest in all the lots which had been purchased by the said Jemima as aforesaid, through her trustees, Sarah Richards and Rachel Malin, including in the whole 4160 acres. The bill states that Carter, in June and August, 1795, purchased from Benedict Robin- and Thomas Hathaway, who were then the proprietors, as tenants in common, of township No. 7, the greater portion of their interest in said township; and that the conveyances made by Carter were made for the purpose of perfecting the title to the lots granted by Robinson and Hathaway individually, to the trustees of Jemima—there having at that time been no partition between them.

The complainants then state the filing of the original bill, and the proceedings upon it, the awarding of a feigned issue, and the trial of the question as to the alteration of the will of Sarah Richards in the action of ejectment, and offer to abide by the decision of the supreme court in that cause, upon the subject of said will; though they insist that the will cannot be material, or have any bearing upon the title to the lands in question, as they claim nothing under it., except as a declaration of trust and part execution thereof, in transferring the same to Rachel Malin, the trustee named by Jemima Wilkinson, as the successor of Sarah Richards in said trust; and they pray that the order of November, 1816, directing a feigned issue, may be set aside, or at least revised and modified; and they also pray an injunction against the defendants, commanding them to desist from further prosecuting as well the said suit in ejectment, in which a verdict was found, and case made and submitted to the supreme court, as the said other suits in ejectment, more recently commenced, and not yet brought to trial. .

To this bill, the infant defendants put in a formal answer by . their guardian, and Elisha Williams, the other defendant, filed a separate answer, denying substantially all the material allegations of the bill. In this stage of the cause, further testimony was taken. Jemima Wilkinson having died, a bill of supplement and revivor was filed by Rachel Malin and.Margaret Malin, together with the other and former complainants, alleging the death of the said Jemima, and that she,had left a will, by which she had devised the lands and tenements in question to Rachel and Marget Malin, two of the complainants, in fee, in trust for the maintenance and support of the poor of the society of the Universal Friends. To this bill, answers were also filed, and the cause was put at issue, and came on to a bearing before the late chancellor Kent, at the June term, 1823, upon the pleadings and proofs, including, by the agreement of the solicitors, the testimony taken in the first cause, wherein Rachel Malin alone' was^ complainant; and on the 11th of July, 1823, the chancellor made a final decree, by which he adjudged that Sarah Richards was, at the time of her death, seized in fee in trust for Jemima Wilkinson, of the lands contained in lots Nos. 21, 22, 23, 26, 27 and 28, in township No. 7, and that the' complainant, Rachel Malin, at the death of the said Sarah, became" seized of the said lands, upon the like trust, as devisee under the will of the said Sarah Richards. It was further adjudged, that there was not sufficient proof that the said will'had been altered, or if it had been, that the alteration was made with the privity or knowledge of the said Jemima Wilkinson, or the complainant, Rachel Malin. It was further adjudged, that the said Rachel Malin, since the death of the said Jemima, continued Seized of the said lands, in trust for such person or persons; and for such purposes as the said Jemima may, by her last will, have directed and appointed, and in default thereof, for the lawful heirs of the said Jemima. And it was further declared and adjudged, that Rachel Malin was, in the life time of the said"" Jemima, seized of the lands in lots Nos. 45 and 46, in trust for the said Jemima, and continued so seized in trust under her will, or for her lawful heirs; and it was declared that the will of Jemima Wilkinson was not sufficiently admitted or proved, lo enable the court to determine whether the complainant, * 11 Margaret Malin, was a devisee under it or not. And it was further declared, that there was not the requisite parol proof, nor any sufficient manifestation in writing, that the said Sarah Richards held any other land in township No. 7, in trust for the said Jemima Wilkinson, except it be lots Nos. 24, 25, and 47, and that the complainant, Rachel Malin, did not appear to be entitled to those lots as devisee under the will of Sarah- Richards, and that the complainant, Margaret Malin, had not shewn herself entitled thereto under the will of Jemima Wilkinson, so as to entitle her to the aid of the court in this suit, with respect to those lots. • The injunction which had been previously granted, was therefore continued and made perpetual in respect to lots Nos. 21, 22, 23,26, 27,28,45, and 46. And it was further adjudged, that if any part of the lands purchased by Asahel Stone, junior, Elnathan Botsford and Truman Stone, as contained in the pleadings and proofs in the case, lie in either of said lots, that they were not bona fide purchasers thereof without notice of the trust; and it was decreed, that the}? should release the same to the said Rachel Malin. in September, 1823, the decree of chancellor Kent was, upon a rehearing, amended by chancellor Sanford, so as to permit the will of Jemima Y/ilkinson to be read, and to include in the injunction, lots Nos. 24, 25 and 47, in like manner as the other lots awarded to Rachel Malin. From these decrees, the defendants below brought their appeal to this court.

It will be perceived, that the principal question in this case is, whether Sarah Richards, in whom the legal title of the greater portion of the premises in question was vested, held the property in her own right, or in trust for Jemima Wilkinson. The decree affirms that she held it in trust. The general allegation, on the part of the complainants, is, that, according to the principles of the society of Universal Friends, of which Jemima Wilkinson was the head and founder, no estate or temporalities could be vested in her; that she, therefore, nominated Sarah Richards, then one of her followers and a member of said society, as her agent and trustee ; and that, as such trustee, the premises in question were conveyed to her, though the consideration therefor was paid by the said Jemima Wilkinson.

The testimony in the case abundantly shows, that from the-' first establishment of the sect of which.Jemima Wilkinson was the head, she was known among her followers by the name of the Universal Friend, and answered to and acknowledged that name alone; that it was a prevailing opinion among her people, that she could not hold land, or make written contracts by that name; that in contracts of that description, therefore, made for her benefit, the name of some one of her followers was also used ; and that, during the two first years after the establishment of the society in the county of Ontario, (from 1791 to 1793,) Sarah Richards was, for the most part, her trustee or steward, and the written contracts of the Friend were made in her name ; and that after her death, Rachel Malin became such trustee, and so continued when the testimonjr in the cause was taken. It seems also to be established, by a decided preponderance of testimony, that the land there held by Sarah Richards and Rachel Malin, wasal-' so considered by the followers of Jemima Wilkinson, as her’s, and was called the “ Friend’s landthat it was cultivated and improved, or otherwise disposed of, under her directions; and that the proceeds of said property -were applied to the support of the Friend and her family, agreeably to her directions, and not to the personal benefit or emolument, either of Sarah Richards or Rachel Malin. The repeated declarations of Sarah Richards, that all the land held by her in the county of Ontario, belonged to the Friend, and was purchased and paid for with the Friend’s property, and that she had no property, except a small house and farm in Watertown, in the state of Connecticut, and was dependent upon the Friend for the support of herself and her daughter, are also proved.

These declarations of the trustee are competent evidence for the purpose of establishing a resulting trust; for no principle is better settled, than that such a trust is not within the statute of frauds, and may be proved by parol; though all the cases admit that it is a dangerous species of evidence, and inculcate the necessity of requiring the payment of the money by the ceslui que trust, to be clearly and satisfactorily established. A resulting trust is a trust raised by operation of law in favor of a person who advances the purchase money or consideration for an estate, the conveyance for which is taken in the name of another. The consideration expressed in the conveyance from Benedict Robinson to Sarah Richards, of the 5th of January, 1792, is £40; but the evidence shows, that a part of the land conveyed, was intended as a donation to the Friend. Robinson says, that before any partition of township No. 7 had been made between him and Hathaway, who owned it in common, he had agreed to make a present to Jemima Wilkinson of 1000 acres of land, in such part of said township as she might elect to have the same; that she having elected to have it in the north-east part of the tract, he obtained a release from Hathaway of his interest in said portion of the township, and soon afterwards made the conveyance to Sarah Richards. He supposed, at the time, Sarah Richards acted as the agent of the said Jemima, and that the said conveyance was for her sole benefit, with the exception of 200 acres described in said deed. He does not know from whom the said Sarah obtained the money with which said land was purchased, except that about the time the money was paid, he heard Jemima and Rachel Malin say, that the money wras obtained from the said Jemima.

The only direct and positive parol evidence, that the consideration of the conveyance from Robinson to Sarah Richards was paid by Jemima Wilkinson, is contained in the testimony of Mary Bean and Richard Smith. Mary Bean says that she has seen the Friend deliver money to Sarah Richards and Rachel Malin, to carry to Benedict Robinson, in part payment for said land, and that said Sarah and Rachel, and some man with them, went away with the money; that when said Sarah and' Rachel received the money, as aforesaid, from the Friend, she said she was going to pay it to Benedict Robinson for the land; and when they returned home, Sarah observed, that they had been to Benedict Robinson} and had paid, the money to said Benediet; that she has often heard the said Sarah declare, that the lands purchased of Benedict Robinson were the Friend’s lands, and that they were paid for with the Friend’s property. She also testified, that she had seen a yoke of oxen, and, she believed, a cow or two, of the Friend’s property, delivered by the Friend to some of her hired men, to be taken to said Benedict, in part payment for said land ; but she did not see said cattle delivered to said Benedict.

Richard Smith, in his examination taken on the 3d day of September, 1833, under the bill filed in 1818, testified that, during the year 1792, according to his best recollections as to the time, he was present when the said Jemima Wilkinson delivered to Sarah Richards $100, in silver, to pay to the said Benedict Robinson, as a part of the purchase money for land for a farm bought by said Sarah Richards, as trustee or agent for said Jemima; that he, the witness, and the said Sarah went to the house of the said Robinson together, when the said Sarah went into the house; and that the said Robinson had since admitted to the witness, that she at that time paid him the said sum of $100. He further testified, that some time during the same year, 1792, he sold to Sarah Richards, as agent or trustee for Jemima Wilkinson, two yoke of oxen for about the sum of $200, which oxen he delivered to Benedict Robinson, as a payment upon the land bought by Sarah Richards from him, and took a receipt accordingly. The testimony of this witness, if he were unimpeached, would be sufficient to establish a resulting trust in favor of Jemima Wilkinson, as to the lands conveyed by Benedict Robinson ; but he stands self-contradicted, in a manner which most essentially impairs, if it does not destroy the weight of his evidence. He was examined as a witness under the original bill in 1813, and he then testified that in 1793 he received two yoke of oxen from the Friend of the value of $100 or upwards, which he delivered by her direction to Benedict Robinson, in payment of lands ; and that he never saw the said Sarah Richards receive money from the Friend or olhenoise¡ which was applied in payment for land. The discrepancy as to the time when the oxen were delivered, and their value, might not perhaps of itself destroy the credit of the witness. He qualifies his testimony as to the time, by saying that it was, according to his best recollection, in 1793; and as to the value of the oxen, he says, on his first examination, that they were worth $100 or upwards, and on his last, that they were worth about $200. Here is no positive and irreconcilable contradiction. But not so as to the receipt and payment of the $100 in money. In 1813, he swore that he never saw Sarah Richards receive money from the Friend, which was applied in payment of land; but in 1822, he swears that he not only saw the Friend deliver her $100, but it was in silver, and he himself went with her to Robinson’s, where she paid it over to him. No circumstances are mentioned by which his recollections may, in the intervening time, have been refreshed. It is a bold, positive and unexplained contradiction, and it would be unsafe to give to the testimony of such a witness any weight, except so far as it may be confirmed by the other direct or circumstantial evidence in the case. j

Mary Bean, however, is entirely unimpeached, and is supported as to a part of her testimony by Jonathan Davis and Jedediah Holmes, both of whom saw oxen and cows belonging to the Friend delivered to Robinson and Hathaway, in part payment of land purchased from them. They both also heard Sarah Richards say that the lands purchased from Robinson and Hathaway belonged to the Friend, and Holmes heard her say that they were purchased with the Friend’s property. She declared, in her last sickness, to Moses Atwater, who drew her will and was her attending physician, and to Ruth Spencer, that she. had no real estate, except a farm in Watertown, in the state of Connecticut, and that all the land she held in the county where she lived was the property of the Friend, and that she held it only in trust for her.

A mass of testimony was taken for the purpose of shewing that Sarah Richards was in truth poor; that she brought little or no property with her, except a few personal chattels, when she came to this state, and that she never had the means of making on her own account, and from her own funds, a purchase like that in question ; and although the evidence upon this point is not entirely harmonious, the weight of testimony undoubtedly is, that she was poor, and essentially dependant upon the Friend, with whom she ap» pears always to have lived. When we add to this her own repeated declarations to the same effect, the fact must be considered established beyond all question.

I consider it therefore satisfactorily proved, that all the writ? ten contracts of Jemima Wilkinson were made in the name of an agent or trustee, nominated by her for that purpose ; that Sarah Richards, when the contracts in question were made, was such agent or trustee; that the persons from whom the lands were purchased understood and believed the purchase was made for the benefit of Jemima Wilkinson ; that they were always considered as her lands, and were so called by all her family and followers; that they were cultivated, improved, or otherwise disposed of, as she directed ; that their proceeds or profits were appropriated to her use, or to the assistance and support of her indigent followers, agreeably to her direction, and not to the individual benefit of Sarah Richards ; that Sarah Richards has repeatedly, nay, uni-' formly declared, that she was but the agent or trustee of Jemima Wilkinson in the purchase of these lands ; that at or before the delivery of the deed by Benedict Robinson, the consideration of ¿C40, expressed in the deed, was paid to him ; that from the circumstances of Sarah Richards, as derived from the proofs in the cause, and from her own declarations, it is utterly improbable that that payment was made from her own funds; that Jemima Wilkinson (as appears from the testimony of Mary Bean) certainly advanced some money and other property to a large amount towards the payment for this land ; and that Sarah Richards, from the • time of the purchase down to her last sickness, invariably admitted that the land was paid for with the Friend’s property.

If the preceding summary is a fair deduction from the evidence, it appears to me to be a clear, case of a resulting trust, within the spirit of all the authorities. It has been often said, both by judges and by elementary writers, that proof of the declarations or confessions of parties, is the most unsatisfactory species of evidence, on account of the facility with which it may be fabricated, and the impossibility of contradicting it, and because the slightest mistake or failure of recollection may totally alter the effect of the declaration. This observation was applied by the master of the rolls to the declarations of a trustee in the case of Lench v. Lench, (10 Vesey, 518.) But it was admitted, that where there were corroborating circumstances, the character of the evidence would be changed. In the case now under consideration, all the circumstances tend to corroborate and confirm the repeated admissions of Sarah Richards, that she was but the trustee of the Friend, and that the land in question was paid for with the Friend’s property. If these declarations, thus corroborated, are to be taken as true, then the §100 paid to Benedict Robinson, when, the original contract was made, which was before the deed was executed, as well as the §67, paid on the 10th January, five days after the deed bears date, were advanced by Jemima Wilkinson; and it is to be considered as one transaction, and the payment as having been made when the deed was delivered. At what time the money and cattle, spoken of by other witnesses, were sent by Jemima Wilkinson to Robinson, does not appear. None of them specify the time, except Richard Smith, whose testimony, for the reasons already stated, is to be disregarded.

But it is said, that ten or twelve hundred acres of the land were a gift, and that as to that portion, there can be no resulting trust, because it can arise only upon a valuable consideration. Admitting it to have been a gift, it is clearly shown to have been made and intended for the benefit of Jemima Wilkinson ; and the valuable consideration expressed in the deed, and which was paid by her, must be considered as applying to all the premises described in it, as supporting the whole trust.

But admitting the view which I have hitherto taken of the case to be erroneous, and that the complainants’ claim cannot be supported on the ground of a resulting trust, let us next enquire, whether the trust is not sufficiently manifested and proved by writing, to entitle it to be sustained and enforced as a direct trust. The written evidence is contained in exhibits R, S and T. These documents were first disclosed in the bill filed in 1818, and it is there alleged that they had been discovered since the filing of the original bill, in the fall of the year 1817. They all purport to be written or signed by Sarah Richards, and contain repeated and explicit admissions of the trust in favor of Jemima Wilkinson, in relation to all the lots. The only question, then, is as to their genuineness.

Exhibit R, which is spoken of in the case as the blue book, purports to be a register or memorandum book, kept by Sarah Richards, commencing on the 13th of March, 1790, at Worcester, in Pennsylvania, being the day Jemima Wilkinson left there to remove into this state, and continued down to October 24, 1793, less than two months before the death of Sarah Richards. Orpha Gates, Sarah Potter, Mary Bean, and Richard Smith all testify, that they were well acquainted with Sarah Richards, and have often seen her write; that they have examined the book, and they believe the whole of it to be in the proper hand of Sarah Richards. Mary Bean further testified, that she had often seen in the possession of Sarah Richards a book, the cover of which was similar to this, and which she believes to be the same, and that she had often seen the said Sarah write in said book.

On the other hand, Justus P. Spencer, Ruth Spencer, Almira Banforth, Anna Stone, Mary' Kidder, Abraham Wag-goner and John Townsend swear, that they were well acquainted with the hand writing of Ruth Spencer, formerly Ruth Pritchard, and that the whole of the said memorandum book, except the signature of Sarah Richards, is in the hand writing of Ruth Spencer, who was the wife of one of the witnesses, and the mother of two others. This preponderance of evidence probably must be deemed decisive upon this point; and when the nature of the entries is considered, it is extremely improbable that Sarah Richards would have employed Ruth Pritchard as her amanuensis to write them, while she only signed her name. As judges, therefore, deciding according to the weight of evidence as it is presented to us in the depositions of the witnesses, we are probably bound to disregard this memorandum book.

The exhibits S and T, however, were unquestionably written by Sarah Richards. In addition to the four witnesses who testified in behalf of the complainants in relation to exhibit R, we have the testimony of Anna Stone and Abraham Waggoner, two of the appellant’s witnesses, who both swear that said letters are both in the hand writing of Sarah Richards. Against this, we have the testimony of Almira Dan-forth, who believes the body of the letters is in the hand writing of Ruth Spencer, her mother, though the signatures are not • but she never saw Sarah Richards write. Mary Kidder, another witness of the appellants, also believes the letter marked T, to be-in the hand writing of Ruth Spencer. As to the exhibit S, she cannot testify. She also was unacquainted with Sarah Richards’ hand writing. That these witnesses were entirely mistaken is shown by the testimony of Justus P. Spencer, Ruth Spencer and John Townsend, all of whom were witnesses on behalf of the appellants, and all unite in saying, that the letters are not in the hand writing of Ruth Spencer. They were unacquainted with Sarah Richards’ hand writing, and could not say by whom they were written. More satisfactory or conclusive evidence of the genuineness of an instrument, so far as it depends upon the proof of hand writing, can hardly be imagined; and it can scarcely be necessary to notice what was called upon the argument the extrinsic evidence of their having been fabricated. Both of these letters are addressed to Ruth Pritchard. The first bears date on the 13th of March, 1793, at Jerusalem. It acknowledged the receipt of a letter from Ruth Pritchard, and expresses a wish that she would make ready to come where the Friend is, in this town. It informs her that the Friend has land enough for all that will be faithful and true, and then proceeds thus: “ Dear Ruth : I will inform thee that Benedict Robinson has given the Friend a deed of some land in the second seventh, in the Boston pre-emption, which deed contains five lots; and the Friend has made use of my name io hold it in trust for her, and now I hope the friend will have a home, and likewise for the poor friends.”

The second letter bears date at Jerusalem, the 3d of June, 1793—it is as follows: “Dear Ruth, I take this opportunity to inform thee further about the situation of our earthly concerns. The Friend has also taken a deed of Thomas Hathaway, containing land south of that which Robinson deeded to me, to hold in trust for the Friend; and this deed is witnessed by William Carter and Abel Botsford. I hope we shall get together before long.”

The circumstances relied upon to impeach the genuineness of these letters are, that they are dated at Jerusalem, and invite the person to whom they are addressed, to join the Friend in that town ; whereas, it is said that the Friend did not remove to Jerusalem until some time after the letters bear date, and after the death of Sarah Richards.

The precise time of the Friend’s removal is not disclosed in the case; but Richard Smith and Mary Bean both state that it was after Sarah Richards’ death. But all the testimony shews, that the Friend commenced clearing the land, and making her preparations for a settlement there, immediately after the purchase from Robinson, which was in January, 1792. Mary Bean, the same witness, says, that the season after the purchase, the summer of 1792, she was sent upon the land where the Friend built her house, to look for some men who were employed by the Friend in clearing the land ; and that about a year and a half after the time, which would bring it down to the fall of 1793, or the winter of 1794, the Friend removed with her family from the gore upon said land. From the time of the purchase from Robinson, that was considered the permanent home or settlement of the Friend and her followers—that was the object of the purchase ; and in March, 1793, when the arrangement for a removal must have been in active and forward preparation, it was not unnatural for Sarah Richards, in addressing an absent friend, with a view to induce her to join the Friend’s family, to speak of her residence as being where it was soon and permanently to be, although at that moment she had not actually removed to it.

If every correspondence were to be thus nicely scanned, and every letter were to be condemned as a forgery, notwithstanding positive proof of the hand writing of the author, in which an inaccuracy of this decription could be detected, it would be difficult, I apprehend, to establish the authenticity of any series of letters.*

It is also objected, as a suspicious circumstance against this letter, that it communicates to Ruth Pritchard the information of the purchase from Robinson, fourteen months after it was made.

Ruth Pritchard was examined as Ruth Spencer, under the original bill, in 1813. It appears that she came into this state with the Friend, and was a member of her society; and that, at the time of her examination, she resided in the town of Benton. If the appellant had deemed it important to shew that Ruth Pritchard resided with the Friend in 1792, when the purchase from Robinson was made, and must have known of it, and in March and June, 1793, was a member of the same establishment with Sarah Richards, and from these facts to infer the improbability of these letters having been written to her, they had an ample opportunity for doing; for the letters themselves are'set forth in h(BC verba in the bill filed in 1818, and the depositions under that bill were not taken until 1822. The appellants, therefore, were not surprised by their production and proof before the examiners. But I am not prepared to say, that proof of the facts to which I have alluded, would vary the case : they might be important where the evidence of the handwriting was slight or contradictory. These letters, therefore, I feel myself bound to consider as genuine, and they establish the trust decisively as to The lands purchased from Robinson in January, 1792, and from Hathaway in May, 1793. A declaration of trust need not be made at the time of the purchase ; it may be at any subsequent period. (3 Vesey, 696. 5 Johns. Ch. R. 12. 6 Cowen, 726.)

The next inquiry is as to lots 45 and 46, known in the case as the Asa Richards’ lots. The legal title to these lots, it will be recollected, was conveyed to Rachel Malip by William Carter, on the 14th of-July, 1795. The consideration expressed in the deed, $140, was received by Benedict Robinson of one Asa Richards. Asa Richards, by his will, made on the 21st of April, 1792, devised and bequeathed all his estate, both real and personal, to Sarah Richards, and made her his executrix. Sarah Richards, by her will, made the 16th November, 1793, gave to Rachel Malin all the land that had or might arise from Asa Richards’ estate. Benedict Robinson testifies, that he recollects to have received from Asa Richards a sum of money, about £56, for which he gave him a receipt, and engaged to convey him lands in township No. 7. The deed from William Carter to Rachel Malin, he believes, was in fulfilment of that contract, as Carter, to whom he had conveyed all his right and title to lands in that town, was bound to fulfil the contracts which he had made for the sale of lands therein. The consideration for these lots was therefore paid by Asa Richards, and all his right, title or interest in them passed to Sarah Richards under his will; and I find no legal evidence of their having been charged with any trust in favor of Jemima Wilkinson. The title of the complainants to these lots, therefore, must rest upon the will of Sarah Richards.

The terms of the will are clear and explicit. It gives to Rachel Malin all the lands that have or may arise from Asa Richard’s estate. Asa Richards had a devisable interest in these lands, although he had only a contract for them ; and so had Sarah Richards, although she had not actually received a deed. The vendor is, from the time of the contract, considered in equity only as a trustee for the purchaser. The estate is considered as the real property of the vendee, and may be sold, charged,'or devised by him. (1 Ves. 437, 494. 7 Ves. 274. l Ch. Cas. 39. 3 Salk. 85. 10 Ves. 611, 614. 11 Ves. 544. 1 Ch. Cas. 93. 1 Madd. 364.)

But it is contended that the will of Sarah Richards has been fraudulently altered by the complainants, subsequent to its publication, and that they therefore can take nothing under it. I shall content myself upon this branch of the case with stating the conclusion at which I have arrived, without detaining the court with an analysis of the evidence. After a careful consideration of the testimony, I consider it by no means as clearly established that the will has in fact been altered. Moses Atwater, who drew the will and saw it subscribed by the testatrix, swears that it is now in the same state as when it was executed by her. His testimony, when we consider the means of knowledge which he possessed upon the subject, ought to outweigh the testimony of a dozen witnesses who speak only from an inspection of the will as it now appears. But the fact that the will produced does not correspond with the record of it in the surrogate’s office, may perhaps give a preponderance to the evidence in support of the . alteration.

But admitting it to have been altered, the evidence is insufficient to charge the complainant with such alteration; and it has been judicially decided in the case of Jackson, ex dem. Malin v. Malin, (15 Johns. R. 293,) that the alteration did not change the effect or construction of the will, and an immaterial alteration in a deed, if made by a stranger, will not destroy it; Rachel Malin, therefore, took lots 45 and 46, under the will of Sarah Richards. She admits in her bill, that the devise to her was in trust for the Friend ; she holds them therefore, subject to the will of Jemima Wilkinson.

The only remaining lot is No. 47. This lot was conveyed by Thomas Hathaway to Sarah Richards, on the 1st of June, 1793. Exhibit S speaks only of the conveyance from Hathaway of the 2d May, 1793, for the south 1-2 of Nos. 22 and 27, and the north 1-2 of Nos. 21 and 28; and if the memorandum book is rejected, there appears to be no written evidence of a trust in relation to this lot, and there is no parol evidence that the consideration was paid by Jemima Wilkinson, except the general admission of Sarah Richards that all the land held by her in the county of Ontario was paid for with the Friend’s property. This is not sufficient to create a resulting trust, and it can have no effect in any other way. As to this lot, therefore, the complainants have failed to establish a title.

The will of Jemima Wilkinson must be considered as having been either duly proved or admitted in the court below, because the decree of Chancellor Sanford, of the 2d September, 1823, alleges that the fact of the devise of the lands in question by Jemima Wilkinson to Rachel Malin and Margaret Malin, was not questioned or disputed between the parties, and neither the pleadings nor proofs on which his amended decree was founded, are now before the court to enable us to test its correctness.

The only remaining question is, whether the defendants or any of them were bona fide purchasers, without notice of the trust. Elnathan Botsford, junior, and Benajah Botsford purchased 400 acres of the north part of lot 25 from Enoch Malin and Eliza Malin, on the 26th August, 1799, and took a conveyance of that date, with full covenants for the same. The answer alleges, that before they purchased, they applied to Jemima Wilkinson and Rachel Malin, and apprised them of their intent to purchase; to which they made no objection, but consented to and approved of the same. This allegation in the answer is fully supported by the testimony of Elnathan Botsford, jun., Parmele Barnes, and Gilbert Hathaway. The first witness says, that sometime in the month of August, 1799, he was informed by his son Benajah Bots-ford, that he and Elnathan Botsford, jun. had purchased, or were about to purchase 400 acres of said land on the north part thereof, and desired the deponent to go to the said Jemima, as he, the said Benajah, was not on terms with her, and inquire if she had any claim to the said 400 acres, or had any objection to their purchasing the same; and that, according to said request, the deponent immediately called on said Jemima, and made the inquiries as requested, and received for answer from her, “ that she had no claim to said 400 acres, and that she had no objection to the said Benajah and Elnathan Botsford purchasing the same ; that she supposed Enoch would sell it, and she had rather that his (deponent’s) family would buy it, and come and live on it, and be neighbors to her, than any body else.” That 2 or 3 weeks after the deed was given there was a rumor that Jemima claimed a part of said 400 acres; that he called upon her again to ascertain the fact, when she again disclaimed all title to it. Pamela Barnes was present at the conversation, and confirms it in every essential particular. Gilbert Hathaway heard similar declarations made by Jemima Wilkinson and Rachel Malin, in relation to said contemplated purchase by the Botsfords about the same lime, although he does not state that they were made to Elnalhan Botsford, sen. The only impeachment of either of these witnesses is contained in the testimony of Amy Gates. She swears that in 1817, she heard Elnathan Botsford, sen. declare that he had never testified that the Friend had given permission to his son to purchase his farm, and he did not know that any such licence had been given. It is extremely improbable that Botsford ever made such a declaration. He must have known that his examination, which was taken in 1813, was reduced to writing, and would show conclusively, that such declaration was false; but corroborated as he is by the other two witnesses, even if he made the declaration imputed to him, it would not materially affect the force of his testimony. It is conclusively shown, that notice of Jemima Wilkinson’s claim was given to the other defendants, Jlsa Ingraham and Jlsahel Stone, jun. before they purchased. Jlsahel Stone, senior, the father of Asahel Slone, jun. swears, that before either Asa Ingraham, or his son purchased, and while such purchase was in contemplation, he, at the request of the Friend, and in her name, informed them that the land was the Friend’s, and forbid them to make any purchase of said land, or have any thing to do with it. This witness is fully sustained by Richard Smith, Jonathan Davis and Jedediah Holmes. The latter witnesses speak of the notice as having been given to Elnathan Botsford, jun. as well as Stone and Ingraham, but upon looking at their testimony, it will be perceived that it was in 1805, six years after Botsford purchased, and two or three years certainly after he had actually entered into possession ; it could not therefore affect him. Botsford is also shown to have paid a valuable consideration for the land purchased by him. He was therefore a bou a fide purchaser without notice, and must, on that ground, be protected.

I have thus, Mr. President, finished the examination of this complicated case, a case involving no difficult or even doubtful question of law, but embarrassed with- a multitude of witnesses and a mass of contradictory testimony to an extent which I have seldom known before. It has been my object, by a diligent examination of all the evidence, to satisfy myself as to the general truth and justice of the case'; and where, in the consideration of particular topics, I have found the evidence contradictory and equally balanced, I have suffered such general conviction to decide the scale. But I have sometimes found that what, as a judge, I felt myself bound to-consider the legal weight of evidence, did not produce that moral conviction which can alone impart confidence or satisfaction to legal conclusions, I shall therefore feel no surprise, if other members of the court, who may have examined the case with equal diligence and equal or superior powers of discrimination, shall, on some of the points which it presents, have arrived at different conclusions.

The result of my opinion is, 1st. That as to the land conveyed to Sarah Richards by Benedict Robinson on the 5th of Jan. 1792, there is sufficient parol evidence of the consideration money having been paid by Jemima Wilkinson to raise a resulting trust in her favor. 2d, That admitting it is not a case of a resulting trust, then that a direct trust, not only in relation to those lands, but also as to the lands conveyed to Sarah Richards by Thomas Hathaway, on the 2d May, 1793, is established and proved by exhibits S and T. 3d. That there is no sufficient evidence of a trust in relation to lot 47. 4th. That as to lots 45 and 46, Rachel Malin is entitled to them under the will of Sarah Richards, and that as she admits by her bill, that she is the trustee of Jemima Wilkinson, she must hold for the trust declared in her will. 5th. That as to the 400 acres of lot No. 25, conveyed to Benajah Botsford and Elnathan Botsford, jun., they were bona fide purchasers without notice of the trust, and cannot be disturbed in their possession'; that the decrees below, ordering a perpetual injunction, ought, therefore, to be affirmed, except so far as it relates to lot 47 and 400 acres of lot No. 25, purchased by the Botsfords, in August, 1799.

* Since my opinion was written, I discover, upon re-examining the case, that John Davis testifies, that the gore where the Friend first settled, was in the then town of Jerusalem, since altered to the town of Benton. He says, when he arrived ill the county of Ontario, (which was about 21 years before his examination, which was in 1813, carrying it back to 1782,) the Friend resided in that part of the then town of Jerusalem which is now called Benton, about a mile from the Seneca lake; that about two or three years thereafter, she removed on to No. 7, where she now resides.