& others V. & others. time of fuch indorfement, cannot infift on the want of de- ALBANY, Feb. 1805. mand and notice, because he was not an indorfor, in the common courfe of business, and cannot be affected by the G. C. Newkerk want of notice. The fame point was afterwards ruled by Buller 7. at nifi prius, 1 Efp. Rep. 303. But within two C. Newkerk years fubfequent to the first decifion, the fame court of C. B. decided directly the contrary in the cafe of Nicholson v. Gouthit, 2 H. Black. 609. I think the reasoning in the last decifion the best and ought to be followed. When a person figns a note in the character of indorfor, the presumption is, that he is to receive all the privileges of that character. 'If he meant to be abfolutely bound as a co-debtor, he would have figned the note jointly with the drawer, or this meaning would have been in fome other way declared. An indorfement for the credit of the drawer, and without receiving value, is not unusual in the ordinary course of business, but it would be inconvenient and injurious to dispense with the fettled rule of the previous demand and notice in all fuch cafes. is, no doubt, the general understanding of the parties when negociable paper is indorfed, that the legal confequences fhall attach to that indorsement. There is no imputation of fraud or want of faith in this cafe. It is not analogous to the cafe of a drawer of a bill, drawing without funds to uphold his draft, and who is properly chargeable without notice. I am therefore of opinion, and that of the court is the fame, that judgment ought to be entered for the defendant. It Garret C. Newkerk and Leah his wife, and Jannetje Roofa against Cornelius Newkerk, Cornelius P. Newkerk, and Peter Dubois and Arriantje his wife. A devife of" all IN partition from the common pleas of Ulfter county. my right in the The defendants had pleaded, that the plaintiffs did not hold in Patentees' common with them, in manner and form &c. upon which woods, to my iffue was taken, and a verdict rendered by confent, fubject to the fame conti the opinion of the court, on the following cafe. children, in cafe nue to inhabit the town of In 1767, Cornelius Newkerk, deceased, being feised in Hurley, otherwife not," paffee of feveral undivided portions of land, in a tract called the fes the fee, if Patentees' Bos, or Partner's Wood-Land Tract, fo named from there be one in having been originally purchased by nine perfons, entered in- is a condition the teftator, and ALBANY, to articles of agreement with the then proprietors, by which Feb. 1805. they mutually covenanted, that their refpective shares fhould & others V. & others. it be a condition at all, but is, ut pugnant to the nature of a fee. tation, for want of a devife over; and if the de vife itfelf be to the teftator's as a condition; vifees them of it. A refi Late, except 66 G, C. Newkerk forever remain uncultivated, and in common among them their heirs and afligns, " being refidenters in the town of Hurley," C. Newkerk for their respective proper uses," within the limits of the town of Hurley," even though partition fhould be made of the fubfequent, if fame, "Provided always that they be refidenters in the town of Hurley aforefaid, the faid parties, each one of them for femb. void, as re- themfelves, and for their refpective heirs and affigns, covenanting, granting, and agreeing, to and with each It is not a limi- other, and the heirs and affigns of each other, that they "will not give, grant, bargain, fell, convey, or otherwise "difpofe of their respective right, title, or interest in the "faid tract or parcel of land, (not now enjoyed in severalty) heirs, it is void to any perfon or perfons not refiding in the town of Hurbecaufe the de-"ley, aforefaid." On the 15th of September, 1787, he felves would be duly made and published his last will and teftament, dated at the perfons to his house in Hurley, by which he devifed all his "right in take advantage the woods of the patentees, to all his children, and also his duary claufe of "fon Airy's fon, Peter, in cafe the fame continue to inhabit the a teftator's "whole real ef- town of Hurley, otherwise not." In a fubfequent clause he fays, "It is my will and defire, and I give by thefe, to my be"fore-named two fons, Philip and Cornelius, my whole real "eftate, except what I have ordered and difpofed refpecting the woods of the patentees, to be divided between the two, for them, their heirs and affigns for ever." In February, 1788, the teftator died, leaving two fons, Philip and Cornelius, four daughters, Jannetje, the wife of Benjamin Roofa, Leah, the wife of Garret Newkerk, Hendrica, the wife of Cornelius Dumond, Arriantje, the wife of Petrus Dubois, and his grandfon Petrus, the son of Airy. In 1789, by act of the then colony, the Patentees' Bos was annexed to Hurley, within which it was not comprehended by the patent and incorporation of that town. In 1793 Philip Newkerk departed this life, leaving iffue, Cornelius P. Newkerk, Elizabeth, and Maria who died an infant. Judgment having gone by default against thofe defendants, not mentioned in the title of this fuit, the caufe came on for trial between thofe named, when it appeared in evidence that the teftator's houfe, from whence his will was dated, and where he refided and died, was not, in fact, at that time, within the town of Hurley, but within the Patentees' Bos, which, however, was generally called the town or village of Hurley. That his what I have be- ALBANY, Feb. 1805. & others V. & others. daughters, Leah, the wife of Garret C. Newkerk, and the other plaintiff, Jannetje Roofa, at the period when the will was made, and at that of the teftator's death, were, and ever fince G. C. Newkerk have been, inhabitants of the town of Rochester, and not of Hurley. That Peter, the grandfon was, both when the tef- C. Newkerk tator made his will, and when he died, an infant, refiding fometimes with his mother, in the town of Kingston, and fometimes with Peter Dubois in Hurley, but now living in Dutchess county. That Peter Dubois, and Arriantje his wife, from the date of the will, to the prefent time, were refidents in the town of Hurley. The queftion was, whether under these circumftances the plaintiffs could claim any estate in the Pantentees' Bos, by virtue of the above devife? I fhall contend, Ift. L. Elmendorf for the plaintiffs. That by the words, "all my right," which the teftator has ufed, a fee is paffed. 2d. That the inhabitancy required, is a condition fubfequent. 3d. That as there is no limitation over, no eftate can be raised on the breach of this condition. 4th. That the condition is too uncertain to create a forfei ture, and is also repugnant to the nature of the estate, and therefore void. On the first point.-In a devise any words which comprehend all the teftator's intereft pafs a fee, if he has a fee to pafs. In the Countess of Bridgwater v. Duke of Bolton, 1 Salk. 236, "all my eftate," was held to carry the fee. So in Hogan v. Jackson, Cowp. 299, all "effects real and perfonal; becaufe fays Lord Mansfield, "if the "words denote the quantum of intereft, the whole extent of "fuch his intereft paffes." Ibid. 306. The terms here are tantamount, and thus, being a principle fettled, it would be dangerous to refine upon them. Barry v. Edgworth, 2 P. W. 524. The introductory words of this will profefs a difpofition of the whole of the teftator's intereft, and, there fore, must be confidered in expounding the meaning of any doubtful expreffion. Loveacre ex. dem. Mudge v. Blight and ux. Cowp. 352. "All perfonal and real estates" carry every thing. Chefter v. Chefter, 3 P. Will. 56. If fo, why all my right?" In Fletcher v. Smiton, 2 D. & E. 656, Lord Kenyon fays, the word "all" fo effectually paffes every thing, that a refiduary claufe has nothing to operate on. To fhew whether the inhabitancy be a condition precedent or fubfequent, we muft look at what makes a condition fubfequent. "Where the intent appears that the eftate shall be "vested till the condition be performed, it fhall be a condi Y Y not " ALBANY, & others "tion fubfequent." Com. Di. title Condition C. The forfeiture, if any, was not to be till after they had ceased to G. C. Newkerk"continue" to inhabit; not the mere non-refidence, but the continuance of that non-refidence, was to defeat the estate. C. Newkerk It was, therefore, a fubfequent condition, for the non-continuance cannot precede the commencement. Plowd. 23, 5. V. & others. 5 Vin. 77. pl. 32. Time must be allowed to take poffeffion, and begin to inhabit. If a condition depend on a party himfelf, he has his whole life to perform it. Co. Litt. 308, 9. Thomas v. Skin. 320.' "A devise to I. S. fo long as he shall have Howell. iffue, is to his death." Pow. on Dev. 257, 8. ALBANY, & others V. C. Newkerk & others. Emott contra. The teftator, at the time of making his will, was under the covenant contained in the articles. He believed them to be valid, whether they are fo or not, and G. C. Newkerk they, therefore, may be reforted to, for the purpose of explaining what paffed in his mind. Before examining the will, I shall lay down fome preliminary propofitions, which, it is prefumed, cannot be denied. Ift. The intention of the teftator is the polar star in the construction of devises, and will be carried into effect if discoverable, unless against law. 2d. No precife form is requifite to fhew this intent, and when it appears, it will control the words of the will, and be established even against them. Strong v. Cummin, 2 Burr. 770. Evans v. Aftley and others, 3 Burr. 1581. Therefore, in conftruing a will, lefs deference is to be paid to authorities, than the words of the inftrument. 3d. Where the taking of an estate depends on the performance of a precedent condition, the eftate can never veft until the condition is strictly complied with. Shep. Touch. 126, 9. 4th. If the precedent condition is unlawful, against public good, or fubverfive of the eftate, it is void, and the eftate can never veft. 5th. That if it is the intent of the teftator, that on a non-performance, the estate is to go to any perfon except the heir, it shall be a conditional limitation, and not a condition. Page v. Hayward, 11 Mod. 61. 6th. That a condition, describing the qualification of the person who is to take, is, in its nature, a condition precedent. Pow. on Dev. 247. Creagh v. Wilson, 2 Vern. 573. The cafe prefents this question, have the plaintiffs any intereft? If they have no interest, it is enough for us, whether we have any or not. By the covenant, in the articles of agreement, the property in the Patentees' Bos was to lie uncultivated, as a common, to furnish the residents of Hurley with wood, &c. It would, therefore, benefit no other perfon; be no more than a commonable interest in the lands devifed, under the reftriction of refidence contained in the articles. The words made ufe of fhew, that the refidence of the devifees was peculiarly contemplated. The teftator does not fay, all his undivided intereft, or estate, but "all his right in the Patentees' woods." This was a right of common, to be exercifed whilft he, or his alienees inhabited the town of Hurley. This right was not only diftinct from, but might exceed his eftate. The word continue has not any particular force. Continue to refide, is no more in common parlance, than fall refide. The eftate was not intended to |