That the same was sold and the debts paid, and that there now remains in the surrogate's office, after paying all debts and expenses, a balance of $331.56, the avails of the real estate.

That no part of the bequests have been satisfied, except the umbrella to Jane Cooper.

The petitioners allege, that they are not apprised that the testator left any heirs in the State of New-York or elsewhere.

That application has been made to the surrogate for an order or decree to pay from the avails of the real estate, the amount of the respective legacies, which was refused; and the petitioners now ask a law authorising or directing him to pay the same.

Unless the estate has escheated to the people of this State, for defect of heirs, the committee are not aware of any principle in legislation that would justify such a law. It is in effect asking the Legislature to make a posthumous will for the testator, in lieu of one made by himself.

The petitioners admit the validity of the will: this presupposes the exercise of a sound disposing mind, and courts at law or equity are the proper tribunals to decide what rights were acquired under the will, and to enforce those rights.

If the surrogate decided wrong, the petitioners had the right of appeal to the Chancellor; and if they acquired no rights under the will that could be enforced by the courts, it is, in the opinion of the committee, impolitic for the Legislature to interfere.

The testator having made no provision in his will for the payment of his debts, his personal estate was left to be first applied for that purpose. Until the personal property was exhausted, no resort could be had to the land, and as the will did not charge the legacies on the land, no resort can be had to it by the legatees.

Every citizen is presumed to know the law, and as the testator in effect devised his personal estate subject to the payment of his debts, the law presumes that he so intended, and that he did not intend to charge his real estate with these legacies.

If the will is to be so construed, then the committee object to any enactment that shall attempt to change the provisions of the

will, and to create a charge to the prejudice of the heir at law. In fact, the committee suppose such an enactment would not be binding upon him, and his rights should not be embarrassed by legislative enactment.

If it should finally appear that the testator had no heirs capable of inheriting, and that the land, or the avails thereof, escheated for defect of heirs, then the Legislature may, in its discretion, make such disposition of the fund in the hands of the surrogate, as shall be deemed most advisable. The committee, however, discover nothing in the will of the testator that appears to give the petitioners any particular claim to this fund, or to the equity of the Legislature.

There may be facts not stated in the petition and unknown to the committee, that might induce the Legislature, upon a proper application, to release to the petitioners the amount of these legacies; but this the committee suppose should be something more than the fact that he made these bequests.

The petitioners, however, have not, in the opinion of the committee, taken the necessary measures for an application to the Legislature, on the ground that the State owned the fund. This fund being the avails of real estate, the committee suppose may be regarded as the estate itself. A notice of the application was, therefore, necessary, which the committee have no evidence has been given.

They suppose the spirit and intent of the law requiring notice is as applicable to a petition for the avails of escheated land before the office found, as for a release of land itself. A notice should not be dispensed with where there may be heirs at law who have an interest in the fund.

The committee therefore report against the petitioners, and recommend that they have leave to withdraw their petition.

LEVI BEARDSLEY.

Chairman.

IN SENATE,

March 27 1833.

REPORT

Of the committee on the judiciary, on a bill from the Assembly, entitled "An act for the relief of Margaret Langley, executrix of James Langley, deceased, James Langly, junior, and Henry G. Langley."

The committee on the judiciary, to which was referred the bill from the Assembly, entitled "An act for the relief of Margaret Langley, executrix of James Langley, deceased, James Langley, junior, and Henry G. Langley,"

REPORTED:

That the petition on which the bill is founded is signed by Margaret Langley and her two sons, James and Henry, James being about seventeen, and Henry about sixteen years of age.

The petitioners represent that James Langley, deceased, by his last will, made the first of July, 1830, devised his real and personal estate. That the will, after his decease, was proved and recorded in the surrogate's office in New-York. That Mrs. Langley was appointed executrix, and Charles H. Redman and John Mansfield executors. That Redman declined acting as executor, and :hat letters testamentary were granted to Mrs. Langley and Mansfield.

The petitioners represent that the testator devised, among other estate mentioned in the will, to Mrs. Langley in lieu of dower, the equal undivided third part, during her life, of a lot of land in New-York, with the buildings thereon, then being No. 49, Bankerstreet, now No. 53, Madison-street.

That he also devised the same lot to his two sons, James and Henry, in equal portions, subject to the right of dower of Mrs. Langley during their and each of their natural lives. And if either of them should die without lawful issue, then he devised the moiety of the one so dying to the survivor. But if either or both should die leaving issue, then the portion of the one so dying should descend to such issue, their heirs and assigns. If both should die without issue, then said lot to go to his daughter during life, and after her death to her lawful issue, and the issue of such issue; but if his sons and daughter should die without lawful issue, then to his right heirs forever.

The petitioners also represent that the testator by his last will directed his executrix and executors to build a suitable house on said lot, and that they should apply so much of his personal estate not otherwise disposed of, to the building of such house as would be sufficient for that purpose.

They represent that for the purpose of improving the property and making it productive to the widow and her children, and in pursuance of the will, a contract was made to erect a two story brick house on the lot, for the sum of $3,450, which is now nearly completed. That $2,050 has been paid to the contractors, and includes all the personal estate of the testator not otherwise disposed of by his will, with other sums procured by the widow; that there now remains due to the builders $1,200, and that the personal estate of the testator amounted to $1,440.

The petitioners pray that Mrs. Langley be authorised to borrow $1,200 to complete the house, and to mortgage the property as security; and the bill is intended to authorise such loan.

The committee have come to the conclusion that it would be an improper enactment to pass this law.

It would, in effect, be subjecting the inheritance to a charge never contemplated by the will of the testator, and rendering more valuable the right of dower of Mrs. Langley. The testator directed the house to be built from his personal estate, and devised the land subject to the right of dower of his wife, the executrix. She has exceeded her authority, and now asks to encumber the estate with a mortgage, the avails of which mortgage are to render