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Branch Bank at Mobile v. James and Darrington.

of Lord Ellenborough, [2 Camp. Rep. 185,] a case which has, been repeatedly questioned. [Pitman on Prin. and S. 184, and note 6.]

To entitle the sureties to insist on the extension of the time of payment, it is not necessary that the plaintiff should have been informed of the fact of the suretyship at the time the note was discounted. He referred to the cases already cited from the Reports of this State, and 13 Verm. Rep. 81; 5 Wend. Rep. 501; Holt's N. P. 84; 3 Mer. Rep. 272; 1 Mees. & W. Rep. 205.]

COLLIER, C. J.-The note which the defendants in error united with R. D. James in making, matured in March, 1842, and in February preceding, the proposition of the principal to convey property to the plaintiff, upon a stipulation that he should not be sued, nor his property sold for five years thereafter, was submitted to the Bank; and afterwards consummated by the execution of a deed of trust. Here was a clear agreement by the creditor to give time to the principal upon a sufficient consideration-the conveyance by way of security of a large estate, apparently more than adequate to pay the debt in toto. This being the condition of the case as shown by the record the legal inference is, that the contract as proved by the deed of trust, is obligatory upon both parties.

The note sought to be recovered does not in haec verba, describe the parties either as principals or sureties, but merely ast joint-promissors, so that those cases which maintain, that, where a party has stated the character in which he contracts, he shall not be allowed to prove the reverse by extrinsic evidence, have no application.

It must be conceded that the prima facie intendment in a 'case like the present, is, that the parties who subscribed the note are co-makers merely, and it devolves upon those who would profit by showing the contrary, to prove it. There are certainly quite a number of cases, both English and American, which maintain that it is not allowable for a joint obligor, whose suretyship is not indicated by the instrument to establish the fact by parol evidence, and that the parties to an accommodation bill occupy a different relation inter se than that the paper itself shows. But it is apprehended that the American decisions do not sustain so stringent a rule in respect to promissory notes; and it may

Branch Bank at Mobile v. James and Darrington.

indeed be questioned whether the strictness of the earlier English adjudications have not been so much relaxed as to admit parol proof of the character in which one or more of several makers subscribed a note. [See Pitman on Prin. and S., note 6, and cases there cited.] But however this may be, is by no means an important inquiry with us at this day; for all our decisions upon the subject, commencing with 1st Stewart, and continued down, explicitly recognize the admissibility of extrinsic evidence in such a case. If we were dissatisfied with them, they have become too deeply and firmly engrafted in our jurisprudence, to be overruled, without an inexcusable disrespect of the maxim stare decisis.

But it is insisted, that conceding the admissibility of the proof, it can avail nothing, unless the payee of the note was informed at the time of its acceptance of the relative position of the parties. We are aware that some of the cases in respect to accommodation bills have admitted the relation of the parties to be shown to be different in legal effect from the situation they occupy upon the paper, where the facts are communicated to the holder at the time he receives it. And where he was not then informed of it, such proof has been rejected upon the ground, that it would be a fraud upon his rights, or the parties were estopped from offering it-the parties having impliedly admitted that they were liable in the order in which their names appear. Whether these cases are defensible upon principle or not, we need not now inquire. But we may remark that we are not insensible to the force of the argument upon this point; it can be very well imagined why paper not subject to the law of principal and surety would sometimes be more valuable, than if it were thus trammelled. Yet our researches do not furnish a single case where a promissory note was sought to be recovered, in which the distinction is taken between the effect of information in respect to the character of the makers undertaking, communicated contemporaneously with, or subsequent to its delivery. Our own decisions have never recognized the distinction, but like those of other States, and elementary works, lay down the law broadly. Under these circumstances, we do not feel authorized to innovate upon the general and long continued understanding both of the bench and the bar. If the law upon this point, as heretofore understood, is prejudicial to creditors, it were better that the Legislature should apply the appropriate corrective.

Harrison, et al. v. Foster, et al.

In thus stating the law, we do not desire to be understood that it is competent for joint-promissors, in all cases, to show the precise situation they occupy in respect to each other, so as to impose conditions and duties upon the payee more disadvantageous and onerous than he was authorized by the contract to expect. If they have contracted as principals with the payee, we should think, they could not assume a different relation when they are jointly sued for a failure to perform their undertaking. But, if in such case, the defence set up affirms the suretyship of some of the makers, and makes it apparent by proof, it will be competent for the plaintiff to show that the defendants dealt with him as principal. Our conclusion is, that the judgment must be affirmed.

HARRISON, ET AL. v. FOSTER, ET AL.

1. A bequest of perishable chattels to one for life, with remainder to another, without some direction as to the mode of enjoyment, shows the intention of the testator, that each taker shall have the same mode of enjoyment, and this is the rule, whether the bequest is general or specific, or of a residuum. But the general rule is controlled by the intention of the testator shewing how the tenant for life is to enjoy the estate: Held therefore, that when the bequest was, that so much of the testator's stock or town property as was sufficient to pay his debts, should be sold, and the residue of his property was given to his wife during her life or widowhood, (with remainder over,) to use in any necessary or lawful way, to sell for a valuation, or to dispose of all or any part for her convenience or necessary use, was a bequest of the use of the property in kind, and that the executors of the wife were accountable for such only as remained in specie, or were sold during her life-time, but not for necessary use.

WRIT of error to the Court of Chancery for the 3d District.

This bill is filed by Foster and others against Harrison and another, as the executors of the will of Polly Foster, deceased, and its object is to obtain an account of the estate of Isaiah Fos

Harrison, et al. v. Foster, et al.

ter, who died testate in Alabama, sometime in the year 1821, and upon whose will letters testamentary were then granted to Polly Foster, his widow. The clause of his will, of which the construction is involved in this cause, is as follows, to-wit:

"I desire that so much of my stock or loose property be immediately sold after my decease as shall be sufficient to pay all my just debts. The residue of my property, with a few exceptions, I give to my wife Polly Foster, during her life or widowhood, to use in any necessary or lawful way-to sell for a valuation, dispose of all or any part thereof for her conveniency or necessary use! With the approbation of my other executors, to sell any land, and remove the personal property to any part of the United States she intends moving to, and at her death, or marriage, should it so happen, one-half of the said property, or its proceeds, to my friends; the other half entirely at her own disposal, except, &c:"Should my wife marry, any choice negroes she is at liberty to take at valuation." This will was made in SouthCarolina in 1816, but afterwards, the testator removed to Alabama, where he died in 1821.

The Chancellor decreed for the complainants, and among other matters," as to the articles of personal property, embracing such things as were liable to be worn out, or were necessarily consumable in the use, the tenant for life was bound to leave an amount in kind, equal to the amount she received; and if such an amount was not left by her, then her executors were bound to account for the deficiency. An account was directed to be taken before the master, charging interest from the death of Mrs. Foster, which occurred in 1834.

Exceptions were taken to the master's report, but need not be specially noticed here, as all the points insisted on arise on the decree.

This portion of the decree is assigned as error.

ERWIN and MURPHY for the plaintiffs in error, insisted,

1. When a personal article, which must be consumed by its use, is given for life, with remainder over, the first taker has the absolute property. (Evans v. Inglehart, 6 G. & John. 171; 2 Lomax on Ex. 71; 1 Eq. Ca. Ab. 361; Percy v. Terrell, 1 Dev. & Batt. 441.)

2. But the construction depends on the intention, and here

Harrison, et al. v. Foster, et al.

the will expressly provides that the life owner shall use the property in any necessary way; clearly indicating that she is not to be responsible for its destruction.

A. GRAHAM, of Greene, contra, argued,

1. The rule is general, when chattels consumable in their use are given, the tenant for life takes the property of the bequest as specific; but if under a residuary clause, the chattels must be sold, and the interest enjoyed for life. (Randell v. Russell, 3 Merrivale, 194; Madder v. Madder, 2 Leigh, 389; Robertson v. Collier, 1 Hill's S. C. Eq. 373; Smith v. Barnham, 2 Dev. Eq. 426; Gee v. Gee, 2 D. & B. Eq. 113.

2. The question of interest was properly settled, but here there was no appeal from the master's decision on the exceptions, so that cannot be now opened. (7 Ala. Rep. 227.)

GOLDTHWAITE, J.-There is great difficulty in laying down rules, by which wills shall be construed under all circumstances, because when the intention of the testator is conformable to law, that must govern. It is only when the terms of the will are so obscure or ambiguous that the intention cannot be certainly ascertained that rules are of much use. When therefore, we find decisions declaring there can be no remainder created of a chattel which is ordinarily consumable in its use, we are constrained to consider them as applying chiefly, if not entirely, to the particular cases then examined. If the intention is clearly expressed to create such a remainder, there seems no legal impediment to doing so.. The case of Hazle v. Baradale, 1 Eq. Ca. Ab. 361, is illustrative of the legality of such a bequest, and shews also what inferences arise when the bequest is general instead of special. It was a general bequest by a farmer, of his stock (which consisted of corn, hay, cattle, &c.) to his wife for life, and after her death to another. The bequest over was held good, but if any of the cattle were worn out in using, the first taker was considered not answerable for them; but if any were sold as use less, he was to answer for their value at the time of sale. The case of Howe v. Dartmouth (7 Vesey, 137,) shews, that when the testator provides for the manner in which the life-estate is to be enjoyed, the bequest is withdrawn from the general rule, that the tenant for life and the remainder man are to be equally pro

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