Miller v. Colt. intended to confine them to the provision made for them in the codicil. But there is no evidence that he intended to debar them from receiving any part of his estate, from or under either of his residuary legatees, Morgan, Thomas or Julia, by gift, descent, devise or legal distribution. The plan of the will and codicil, as to the residue, was to give it to Morgan, Thomas and Julia, with substitution of their lawful issue in their places, if they should die before distribution leaving such issue, but with limitation over to the survivors or survivor in case of their death without lawful issue before distribution. On distribution, however, the shares were to belong absolutely to those to whom they were given, and the testator did not attempt or intend to control them further. The testator himself declares his meaning clearly. In the fifth section of the will, after using the expression "in the same manner as I have directed the three other shares of my property to be appropriated," he adds: "And my meaning in this last clause, which I have annexed to each of the four shares of my estate, is this-that the share of any one of my children shall, upon the death of said child leaving no lawful issue, go over to the three others; that is to say, that the said share of Roswell L. Colt, junior, deceased, if his children shall all die leaving no lawful issue at their respective deaths; and so as to so much of the shares of my sons Morgan G. Colt and Thomas O. Colt, if they or either of them die leaving no lawful issue before such distribution; and in like manner if my daughter shall die leaving no lawful issue, the share or shares or residue of shares shall go to my three surviving heirs, &c." Here he distinctly and explicitly states that the limitation over in the case of Morgan and Thomas, is to be in case of death without lawful issue before distribution. In this connection it may be remarked that the testator in the will not only directs that the division be made forthwith, but that payment also be made forthwith, and then provides for limitation over, not Miller v. Colt. in case of death without lawful issue before payment, but before distribution. The defendants insist that, if the view which I have taken of the limitation is correct, still Morgan and Julia are entitled to so much of the share of Thomas as at his death remained in the hands of the surviving executors (they were Aaron S. Pennington and Morgan G. Colt), because it was in fact undistributed. Reference in this connection is made by them to the finding of the inquisition in the proceedings before mentioned, under the act "relative to habitual drunkards," that Thomas O. Colt then had no property except what he was entitled to under the will of his father; that he had no immediate title to his share of his father's estate, because it was in the hands of the executors for distribution; that distribution would probably not be made for many years (the inquisition was taken in 1863), and that if he should die leaving issue before distribution, the issue was to have the property, but if he should die without issue, the share would go to other parties. That inquisition is, of course, of no importance on the question of construction. It may be supposed to be of weight as establishing the fact that there had at that time been no distribution. But it is of no value on that point. As before stated, as early as 1868, five years after the inquisition and about a year before the death of Thomas O. Colt, the share of Morgan G. Colt was ordered to be paid to him, and one-fourth of Mrs. Fowler's share was ordered to be paid to her, and the rest of her share was duly held in trust for her, and the estate had been settled. Thus distribution had been made. The executors, indeed, held the share of Thomas, but, as before stated, he was one of them and his guardian was another. Pains have been taken on the part of the defendants to prove that, though Thomas O. Colt was an habitual drunkard up to the time of his death, yet for about two-thirds of the time he was entirely competent to transact business, and from this evidence the deduction is made that he had the capacity to manage his property even after the inquisition, Miller v. Colt. and that he intended that his share should remain undistributed. But the obvious suggestion presents itself that if such intention existed, it could not alter the fact that distribution was in fact made in 1868 by the separation of the other shares from his. The fact that, though he had business capacity to manage his property, he did not change its custody, but permitted it to remain in the hands of the executors, would in nowise affect his claim to the ownership of it absolutely and in severalty. As before stated, the will does not provide for any limitation over in case of death without lawful issue before payment, but only in case of death without lawful issue before distribution. Manifestly the fact that he left the share in the hands of the executors could not affect the claim of his next of kin or heirs at law to the property of which it consisted. Again, it is urged in behalf of the defendants, that the testator, by the term "distribution," meant not merely division, but payment also, and that not only had the executors power, but it was their duty, to convert the property in which the share was invested and pay it over, and if it was not converted it could not be said to be distributed. The testator, as before remarked, in the bequest of one of the shares, uses the term "hand over" as well as "pay," and in another the term used is "appropriate." It by no means appears that he did not contemplate the actual division of part, at least, of the estate in the investments in which he would leave it. Indeed, it seems very probable that he contemplated the retention of those investments by the residuary legatees; for the estate consisted almost entirely of the stock of the Society for Establishing Useful Manufactures, all of which, with perhaps a trifling exception, was owned by him, and was very valuable property. He nowhere directs conversion. If it was the duty of the executors to convert, the complainant's rights in this matter can not be affected by the neglect of the executors to do their duty. And, further, the fact that the share was permitted to remain in the hands of the executors without conversion after distri Miller v. Colt. bution had in fact been made, is evidence of an intention not to convert it but to accept and retain it in the securities and property in which it was invested. Thomas O. Colt, from the time when the inquisition was found under the act relative to habitual drunkards, until his death, was divested of all power and control over and legal estate in his property, real, personal or in action, and the power and control over and legal estate in that property were vested in his guardian in trust for him, and no contract made by him would have bound his person or estate. (Rev. p. 325 § 4.) He therefore had no legal capacity to exercise any discretion or take any action in the matter under consideration from the time of the finding of the inquisition, but the power and control of his estate was vested in his guardian, Morgan G. Colt. The latter must be deemed, as such guardian, to have waived conversion. Indeed, the answer states that in 1868 the prospect was that the stock of the society, which had increased largely in value up to that time, would increase still further, and that that prospect continued up to the death of Thomas O. Colt; and that at the latter period, and just before that time, his interest in the estate of his father, according to all appearances and the judgment of the best business men, was in as safe a condition as it could be, and it would have been exceedingly unwise to have disposed of the stock. Manifestly the rights of the complainant do not in anywise depend on the question whether the share was converted or not. Williams on Ex'rs 1228; Hutchin v. Mannington, 1 Ves. jr. 366; Post v. Herbert's Ex'r, 12 C. E. Gr. 540. It would be enough that the legacy vested on the death of the testator, was not defeasible by the death of Thomas O. Colt without lawful issue after distribution, and that he did not die till after distribution might have been made. The complainant is entitled to have an account as prayed. A foreclosure bill on a first mortgage prayed a decree for deficiency against the owner of the premises, who had assumed its payment, and, also, the payment of a second mortgage thereon.—Held, that the holder of the second mortgage, who was a party, could not, by filing a crossbill against the owner, obtain a decree for deficiency on his own mortgage. Bill to foreclose. Motion that cross-bill be dismissed. Mr. J. W. Davis, for the motion. Mr. J. D. Bartine, contra. THE CHANCELLOR. This is a suit for foreclosure and sale of mortgaged premises. The present owner of the property assumed the payment of both the first and second mortgages. The bill, which is filed by the holder of the first mortgage, prays a decree for deficiency against the owner. The second mortgagee having answered, setting up his mortgage, filed a cross-bill against the owner of the property with a view to obtaining a decree for deficiency in his favor against the latter. The owner of the property moves to dismiss that bill. A cross-bill is a defence, and it therefore must be confined 'to the matters in litigation in the original suit. It cannot become the foundation of a decree concerning matters not embraced in the original suit, and, if it does, no decree can be made on such matters. Galatian v. Erwin, Hopk. 48; Dan. Ch. Pr. 1549; Griffith v. Merritt, 19 N. Y. 529. The liability of the owner of the premises to the second mortgagee for deficiency, is not a matter of defence but a distinct substantive cause of suit. The object of the crossbill is not, in any sense, to aid the defence, but to obtain a |