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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 5) online

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[Tilghman's Estate.]

except to the extent of twenty-five hundred dollars as aforesaid.
And the respondent denies that the said debt ha-s ever been satis-
fied, either in the lifetime of the said William Tilghman, or by
bequests and devises in his will. And the respondent expressly
and especially denies that he ever received the said sum of ten
thousand dollars in satisfaction, partly or wholly, of any debt due
to him, except the debt due upon the said bond, or that he received
the legacy of five thousand dollars, mentioned in the complainant's
bill, in satisfaction or discharge of any debt or engagement, contract
or liability whatever, or of any part or portion thereof, or that he
received the profits of the farm above mentioned, in satisfaction of
the interest on the sums due to him, except so far as the amount of
the said profits would go towards the discharge of the same ; but
maintains that his right to recover the balance due upon the instru-
ment of July 10th 1816, and the interest that has accrued thereon,
is unimpaired and in full force, to wit, the sum of twenty-seven
thousand five hundred dollars, with interest thereon from the first
day of August 1817, deducting from the amount of the said interest
the net profits received from the said farm from the 22d day of
August 1818, to the 29th day of April 1827, when, by the death
of the said William Tilghman, he was deprived of the said profits.
And the respondent further states that he did not, at any time, or
in any manner, relinquish or waive his right to receive from the
said William Tilghman and from his estate, the sum stipulated in
the instrument dated the 10th day of July 1816, with interest
thereon. On the contrary, he declared repeatedly to the said Wil-
liam Tilghman, and at sundry times, that he considered the same
*CQ-, due to him, and the said William *Tilghman liable for the
- same. The said William Tilghman gave no direct or suffi-
cient answer to such remarks, but on one of the occasions referred
to, observed, that if he was to pay this defendant he would have to
sell the house over his head, which expression was among the most
powerful reasons why this respondent deferred insisting on his legal
rights during the lifetime of his said father-in-law. On two differ-
ent occasions the defendant declared to the said William Tilghman
as aforesaid (that he considered the said sum due, and the said
William Tilghman liable for it), previously to the tenth day of May
1818. He did not prosecute or pursue his claims except by personal
remonstrances during the lifetime of the said William Tilghman,
because of a sincere attachment to him, and of a decent respect for
his ease and comfort, and because of the respondent's firm convic-
tion that his legal rights, acquired and purchased by an ample,
valuable consideration furnished by his father, as well as by the
good consideration of his marriage, would be in no manner impaired
by his postponing to take legal measures for their recovery. The
respondent states that the foot of the instrument dated the 10th


[Tilghman's Estate.]

day of July 1816, there appears a memorandum dated the 10th
day of May 1818, a copy of which is part (numbered B) of the
fourth schedule hereunto annexed. The respondent explicitly
denies that he, at any time, directly or indirectly assented to the
same memorandum, or to the principles therein expressed. He
positively asserts that he had no knowledge whatever thereof, or of
auy intention of the said William Tilghman to make such a memo-
randum, until long after it was made ; and he distinctly and posi-
tively alleges and asserts upon his oath, that it is in spirit and in
letter, in form and in matter, wholly and directly contradictory and
at variance with his views, expectation, belief and conviction, and
with his unvaried, avowed, well known and positive declarations
and determination. The said instrument, dated the 10th day of
July, 1816, having been prepared by the said William Tilghman,
and presented by him to this defendant for assent, and having the
signature of this respondent to it, and it being a matter of indiffer-
ence in the hands of which of the two parties it should remain,
when they had such faith in one another as to make and sign but
one copy of an obligation, without witnesses, whereby they were
bound to each other in the amount of so many thousands: and this
respondent having a perfect confidence in the honor and good faith
of his father-in-law, which are manifested by the preservation of
the instrument, it naturally remained in the said William Tilgh
man's possession. But the respondent always regarding it as re-
maining there as in a place of safe keeping merely, without any right
in either party to add, alter, amend or impair its full force and
effect, and without any right of either party to inscribe or to
endorse thereon any thing expressing sentiments of either party
derogatory to their mutual understanding at the time the contract

*between them was made. And the respondent expressly


protests against the said memorandum, and maintains that
the original instrument itself remains in full force and virtue alto
gether unaffected by the memorandum made by one of the parties.
The respondent further states, that besides the sales of the said
William Tilghman, already enumerated, he and his wife did, on the
3d day of April 1798, convey to a certain Samuel Davis, for a
nominal consideration, a tract of land, being the estate of his said
wife, the mother of the wife of the respondent, in the county of
Northampton, containing five hundred acres adjacent to the borough
of Northampton, which was reconveyed by the said Samuel Davis, on
the same day, for a like nominal consideration, to William Tilgh-
man alone, who afterwards sold the same in various parcels to
various persons for large sums of money, which were invested by
him, as the respondent has frequently heard and does verily believe,
in the purchase of the house and lot in Chestnut street, where he
resided for many years, and which he afterwards sold for forty-two

59 SUPREME COURT [Deo. Term,

[Tilghman's Estate.]

thousand five hundred dollars. And the said William Tilghman,
during the minority of his said daughter, sold, under the power
vested in him by the act of assembly dated the llth day of April
1799, sundry lots of ground belonging to his daughter, reserving a
ground-rent of one or two dollars on each lot sold, payable to him-
self for life, and after his death to his said daughter and her heirs.
And he also received from the purchasers, for his own use, large
sums of money or value, in addition to the said ground-rents,
amounting at least to six thousand eight hundred dollars. And
the said William Tilghman did request and desire this respondent,
after the decease of his said wife, to unite with him in a petition to
the legislature of Pennsylvania, for authority to sell during the
minority of the respondent's said son, lots in the borough of North-
ampton belonging to the said son of the respondent ; and the
respondent did accordingly join in such petition. An act of assem-
bly was passed on the 23d of March 1818 (Laws of 1817-1818),
giving the said authority ; and the sales were made in virtue there-
of, by the said William Tilghman, who received the purchase-money
or value, amounting to more than seven hundred dollars. The said
William Tilghman thus received from the various sources aforesaid,
property and estates belonging to the wife and son of this respon-
dent, or which would otherwise have belonged to them, a sum of
money exceeding fifty thousaad dollars, which in equity and good
conscience ought to have been applied to the discharge of the mar-
riage contract aforesaid. The respondent, therefore, denying any
injury or wrong to the complainants, denies also that there is any
hardship to them in his taking and appropriating from the estate
of the said William Tilghman the money which is due to him upon
the said marriage contract, and the interest thereon accrued, inas-
much as the said William Tilghman added to his own estate a sum
*fiA-i much larger than is sufficient *to pay the amount stipulated
J for by the said contract, together with the interest thereon,
by means which were derived from the estates which would other-
wise have come into the possession of the wife and son of this
respondent and of himself."

After argument the judges of the Circuit Court decided against
the claim of Mr. Chew to retain the balance. 1

The executors settled a second account in the Orphans' Court,
the llth of August 1830.

After the decision of the Circuit Court, Mr. Chew applied to the
Orphans' Court to be discharged from the executorship ; and under
this application, having settled an account, he was discharged by
the court in 1832.

In 1835 the several accounts of the executors were referred to
an auditor, by whose report it appeared, that there was a balance
1 See Tilghman v. Tilghman's Executors, 1 Baldwin's Rep. 464.


[Tilghman's Estate.]

in the hands of Mr. Burd, the executor, of thirty-eight thousand
seven hundred and eighty-seven dollars and eighty-four cents, to
be distributed among the residuary legatees, &c.

On the subject of the claim of Mr. Chew, the auditor reported
as follows :

On the part of Benjamin Chew, Jr., Esq., the son-in-law of the
testator and legatee named in his will, it was alleged that the testa-
tor was indebted to him in the sum of twenty-seven thousand five
hundred dollars, with interest from the 1st day of August 1817.
The claim was founded upon certain documents purporting to be
proposals made a short time previous to the marriage of the testa-
tor's daughter with Mr. Chew, for the settlement of her property.
In the Circuit Court of the United States, for the Eastern District
of Pennsylvania, a bill having been filed by certain of the present
legatees against the executors for an account and distribution, Mr.
Chew set up his claim for payment of this alleged debt out of the
assets ; upon which evidence was taken, which by consent was laid
before me. The facts and law of the case were fully investigated
and considered in that Court, and the opinion of that Court was
adverse to the claimant. I have not been able to discover in the
documentary evidence or depositions laid before me, any thing to
induce me to come to a contrary conclusion." " I report there-
fore against this claim." After noticing the claim of one other
creditor, " No other claims as creditors than the foregoing were
laid before me."

Exceptions were filed by Mr. Chew to this report ; but after
argument, the exceptions were overruled, and the report confirmed.

An appeal was then taken by Mr. Chew, who claimed in this
Court to stand as a creditor of the estate of Mr. Tilghman ;

*lst. In his own right, to the sum of twenty-seven thous- r*ai
and five hundred dollars, with interest, under the writing L
of the 10th of July 1816.

2d. As administrator of his deceased wife, to the sum of seven
thousand five hundred dollars, being the alleged proceeds of real
estate sold by virtue of the act of 3d April 1790.

The case was first argued at December Term 1838.

Mr. S. Chew and Mr. J. R. Ingersoll, for the appellant, con-

1st. That the Orphans' Court had jurisdiction of the claim.
They referred to the acts of 29th of March 1832, 16, 21, 55, 56,
57 ; and 24th of February 1834, 19 : 14th April 1835, and 6th
March 1812 ; and cited Bowman v. Herr. 1 P. & W. 282 ; Por-
ter's Estate 7 S. & R. 17 ; Walker's Estate, 3 Rawle 243 ; Smith's
Estate, 1 Ashmead 352.

2d. That the letter of the 10th of July 1816, was a contract by

61 SUPREME COURT [Dec. Term,

[Tilghman's Estate.]

Mr. Tilghman, for a sufficient consideration, to pay the appellant
the sum of thirty thousand dollars, unimpaired by reference to a
particular fund : Graves v. White, 2 Freeman 57 ; Hollis's Case,
Id. 3 ; Harvey v. Chamberline, Id. 200 ; 1 Powell on Contracts
288 ; Moore v. Heart, 2 Rep. in Chan. 147 ; Bird v. Blossie, 2
Vent. 361 ; Austin v. Meddlicot, 9 Ves. 21 ; Wackford v. Feath-
erly, 2 Vern. 322 ; Luders v. Ausly, 4 Ves. 507, 512, 514; Bar-
stow v. Kelvington, 5 Id. 599 ; Table et al. v. Archer, 3 Hen. &
Munf. 349 ; s. c. 409-423 ; 14 Viner 281, 542 ; Corbert v. Maid-
will, 1 Salk. 159 ; 6 Vin. 464, pi. 40 ; Hollis's Case, 2 Mod. 91 ;
1 Viner 292, p. 6 ; Id. 277, pi. 7, 8, 9; Id. 287, pi. 3 ; Id. 289,
pi. 16, 17 ; Id. 302, pi. 3 ; Id. 322, pi. 92 ; Id. 369, pi. 19, 20 ;
Id. 379, pi. 2, 3, 4; Traceyw. Poole, Styles Rep. 143; Bedwell v.
Fenwick, Id. 393 : Greenleng v. Bawdit, Id. 404 ; 6 Viner 442 ;
Badger y. Floid, 12 Mod. 399 ; Chichester's Ex'r v. Vass's Adm'r.,
1 Munf. 98; King v. Withers, Cas. temp. Talbot 117, 123; Col-
ston v. Alston, 2 Vern. 453 ; 16 Viner 449, pi. 9, 11, 12 ; Graves
v. White, 2 Freeman 57, 58 ; Row v. Tillier, 2 Chan. Cas. 94 ;
Penn v. Preston, 2 Rawle 14 ; Hulings v. Craig, Addison 342 ;
Barr v. Hill, Id. 276 ; Perkins v. Gray, 3 S. & R. 331 ; Gilpin v.
Consequa, 3 Wash. C. C. Rep. 184 ; Blight v. Ashley, 1 Peters
85-91, 25 ; Youqua v. Nixon, Id. 221. That the designation of
the fund did not vary the contract. Roberts v. Peacock, 4 Ves.
154, 157-160 ; Chaworth v. Birch, Id. 561 ; Saville v. Blacket, 1
P. Wins. 778 ; Coleman v. Coleman, 2 Ves. Jr. 639 ; 3 Dess. 358,
377, 379, 384 ; Scott v. Blair, MS.

3d. That the appellant was entitled to the proceeds of sales, jure
representations ; and that nothing had intervened to defeat or
impair his rights : 1 Call's Rep. 88 ; Wallace y. Duffield, 2 S. &
R. 527 ; Micnay v. Blatchford, 1 Wend. 518 ; Johnson v. Hum-

f?21 ' . & R. 394 ; Brashiers v. Gratz, 6 Wheat.

528 ; Hepburn v. Auld, 5 Cranch 263 ; Seton v. Slade, 7
Ves. 265 ; 1 Viner 379, pi. 3 ; App v. Dreisbach, 2 Rawle 303 ;
Methodist Church v. Remington, 1 Watts 221 ; Patterson v.
Nichol, 6 Id. 379 ; Jones v. Moore, 5 Binn. 573 ; Angell on
Lim. 351, 278, 354, 185, 181 ; 3 Hen. & Mun. 413, 414 ; Ran-
dall v. Willis, 5 Ves. 270 ; Summerville v. Holliday, 1 Watts
514 ; Ex parte Dewday, 15 Ves. 487 ; Wain v. Sherman, 8 S.
& R. 362 ; Decamp v. Feay, 5 Id. 323 ; Thompson v. McGaw, 2
Watts 161 ; McMullin v. Day, 1 Miles 136 ; Adlum v. Yard, 1
Rawle 163 ; Gray v. Bell, 4 Watts 410 ; 2 Ves. 696 ; 2 Sch. &
Lefoy 450 ; Earl of Northumberland v. Earl of Ayleford, Ambler
540, 567 ; Webb v. Earl of Shaftsbury, 7 Ves. 488 ; Herne v.
Herne, 2 Vern. 555 ; 5 Ves. 857 ; West's Rep. 480, 488 ; Rutter
v. McLean, 4 Ves. 531 ; 6 Dow 179 ; 2 Wheat. 37 ; Clark v.
Guise, 2 Ves. Sen. 617 ; Byrne v. Byrne, 3 S. & R. 55 ; Toller on


[Tilghman's Estate.]

Executors 133 ; Buller's N. P. 175 ; Meddlicot v. Boerses, 1 Ves.
Sen. 207 ; Wain v. Anthony, 5 S. & R. 468 ; Cauffrnan v. Cauff-
man, 17 Id. 23 ; City v. Davis, 1 Whart. 502 ; Webb v. Earl of
Shaftsbury, 7 Ves. 488 ; 11 Viner 72 ; Smith v. Black, 9 S. &
R. 144 ; Baldw. 486.

Mr. Cadwalader and Mr. Rawle, for the residuary legatees,
cited Willes's Rep. 156, 7 ; 1 Saunders 320, n. 4 ; 2 Id. 108,
n. 3 ; McEvellish v. Churchman, 4 Rawle 35 ; Feversham v.
Watson, Prec. in Chancery 445 ; S. c. 2 Freeman 35 ; 2 Powell
on Contracts 19, 20 ; Baker v. Biddle, 1 Baldwin 418, 419 ;
Commonwealth v. Ferree, 8 S. & R. 314 ; Leib v. Bean, Ash-
mead's Rep. 208, 209 ; Scott v. Sermon, Willes's Rep. 404 ;
Taylor v. Plumer, 3 Maule & Selw. 562 ; Lancaster v. Dolan,
1 Rawle 308 ; Ingersoll v. Sergeant, 1 Whart. 337 ; City of
Philadelphia v. Davis, Id. 490 ; Hunt v. Rousmaniere, 8 Wheat.
174 ; Mason v. Libinguth, 2 Rawle 430 ; Hunt v. Rousman-
iere, 1 Peters 1; Bank of U. S. v. Daniel, 12 Id. 55, 56;
Bilbie t. Lumley, 2 East 472 ; 1 Roll.'s Abr. 374, ch. n. ;
Langstaffe v. Fenwick, 10 Ves. 406; 2 Roper on Leg. 378;
Northumberland v. Egremont, Ambler 540 ; Adlum v. Yard, 1
Rawle 171 ; Gray v. Bell, 4 Watts 413 ; Graves v. Foreman, 3
Ves. 67 ; Wilson v. Townsend, 2 Ves. Jr. 697 ; Boyle v. Boyle,

1 West 662 ; McNamara v. Jones, 1 Bro. Ch. 481 ; Webb v.
Shaftsbury, 7 Ves. 481 ; Herne v. Herne, 2 Vern. 555 ; Jenkins
t. Jenkins, 2 Ves. 617 ; Blake v. Bunbury, 4 Br. Ch. 21 ; Rutter v.
McLean, 4 Ves. 531 ; Rancliffe v. Parkins, 6 Dow 179 ; Broome
v. Mauch, 10 Ves. 609 ; Ten Brook v. Livingston, 1 Johns. Ch.
362 ; Cook v. Martin, 2 Atkyns 3 ; Drewry v. Thacker, 3 Swanst.
548; Fitzherbert, 188, tit. Bar. 12 H. 4, pi. 21; Plowden 185,
6; Hobart 10, pi. 20; Sir W.Jones 345; Button 128; Skin-
ner *214 ; Salkeld's Reports 304 ; Hicks v. Gore, 3 P. r * R <>
Williams 184 ; Cheetham v. Ward, 1 Bos. & Pul. 633 ; L *
Bosanquet v. Wray, 6 Taunt. 597 ; Thomas v. Thompson, 2 Johns.
Rep. 471 ; Eichelberger v. Morris, 6 Watk. 43 ; 11 Viner 72, pi.
2 ; Loomes v. Stothart, 1 Sim. & Stu. 458 ; Ex parte Mason, 5
Binn. 168 ; Griffith v. Chew, 8 S. & R. 17 ; Siter's Estate, 4
Rawle 483; Whitaker v. Whitaker, 6 Johns. 117; Burdet v. Hicks,

2 Brownlow 50 ; Thomas v. Thomas, 2 Johns. 481 ; Hampton's
Case, 17 S. & R. 146 ; Thomas v. Reigel, 5 Rawle 281 ; Brisban
v. Davis, 5 Taunt. 144 ; Moore v. Butler, 2 Sch. & Lef. 266 ;
Lewis v. King, 2 Br. Ch. 600; Thellusson v. Woodford, 13 Ves.
220 ; Leonard v. Crammelin, 1 Edwards'* Ch. Rep. 206 ; Stump t>.
Findley, 2 Rawle 173 ; Allen v. Getz, 2 P. & W. 322 ; Cauffman
v. Cauffraan, 17 S. & R. 16 ; Heron v. Hoffner, 3 Rawle 396 ;
Blake v. Bunbury, 1 Ves. Jr. 514 ; Macnamara v. Jones, 1 Br. Ch.

63 SUPREME COURT [Dec. Term,

[Tilghman's Estate.]

481 ; Pusey v. Desbouvier, 3 P. Wms. 315 ; Wake v. Wake, 1
Ves. Jr. 335 ; Rogers v. Rogers, 3 Wend. 503 ; Johnson v. Hum-
phreys, 14 S. & R. 394 ; Wentz v. Dehaven, 1 Id. 312.

The court having directed a re-argument upon the question of
the character and right to the proceeds of the sale of the real estate
sold under the authority of the act of 1790, the case was again
spoken to at March Term, 1839, by

Mr. S, Chew and Mr. J. R. Ingersoll, for Mr. B. Chew ; Mr-
Cadwalader and Mr. Rawle, for the residuary legatees ; and Mr. E'
S. Ooxe and Mr. Ingraham, for the heirs-at-law of Mrs. Tilghman.

The opinion of the court was delivered by

SERGEANT, J. The first question which has been argued in this
case is, the proper construction and effect to be given to the con-
tract of July 10th 1816, upon which the claim of the appellant to
render the estate of William Tilghman liable, altogether depends.
This point has been so carefully examined by the judges of the
Circuit Court of the United States for this district, in the case of
Tilghman and Wife v. Tilghman's Executors, reported 1 Baldw.
464, that it is unnecessary to do more than refer to the reasons
there given, as we concur entirely in the opinions delivered by the
judges, that this contract was not an obligation on the part of
William Tilghman to pay the portion of thirty thousand dollars,
out of his own estate, at all events, but an arrangement to raise it
out of his daughter's real estate, of which be was tenant by the
curtesy, by a sale to be made after she should arrive at the age of
twenty-one ; and as this arrangement failed to take effect in con-
sequence of her decease shortly after that period, without any act
or default of William Tilghman, but by events that were unavoid-
able, provision was, so far as it was not in part executed, defeated.
*641 *The next question arises on the claim of Benjamin
Chew, Jr., as administrator of his late wife, to the sum of
$7500, which money, he alleges, was received by William Tilgh-
man in his lifetime, from sales of real estate in Northampton
county that had belonged to William Tilghman's late wife, and of
which he was tenant by the curtesy. These sales were made under
the power vested in William Tilghman by an act of assembly passed
the 3d of April 1790. By the 5th section of this act, after recit-
ing that the said William Tilghman is seised for life, as tenant by
the curtesy, with remainder in fee simple to his said child, of part
of the town of Northampton, and of lands adjoining the said town,
and that it will be a benefit both to the public and to the said
William Tilghman and his said child, that the lots already laid
out in the said town, or which may be laid out on lands


[Tilghman's Estate.]

adjoining thereto, should be conveyed to such persons as may be
willing to purchase the same in fee simple, reserving an annual
ground-rent charged thereon as has been usual, it then enacts, that
' the said William Tilghman shall be and is hereby authorized,
during the minority of his said child, to sell and convey in fee
simple, to such persons as he shall think proper, any lots lying
within the aforesaid part of the said town of Northampton, or to be
laid out in lands of which he is seised as aforesaid, adjoining the
said town ; provided, that there be reserved a perpetual ground-
rent of at least two dollars, issuing out of and charged on each lot,
to be paid to the said William Tilghman for his life, with remainder
in fee simple to the heirs of his said late wife." Under this power,
William Tilghman made sale, from time to time, of lots and lands
coming within the description mentioned in the act, on which he
respectively reserved ground-rents of two dollars per annum in the
manner prescribed ; but also received in hand, or contracted to
receive gross sums on many of the sales, in addition to the ground-
rent stipulated to be paid. The exact amount of the whole money
thus received was a matter disputed in this cause : the appellant
alleging it to have been 7500 dollars, and claiming the same with
interest ; the appellees stating it at 5000 dollars or less.

The question is, how this money in the hands of William Tilgh-
man at the time of his death, is to be considered, whether as per-
sonal or real estate. If the former, it passed to B. Chew, Jr., in
right of his late wife, who died before her father, William Tilgh-
man; but, if it is real estate, then it is claimed by the heirs of
William Tilghman's former wife, her daughter and grandchild
having both died before William Tilghman, and his estate by the
curtesy having prevented the claim of B. Chew, Jr., as tenant by
the curtesy.

If sales by William Tilghman in the mode above mentioned, were
good, (and we must now take them to be so), they could only be
valid because they were made under the power conferred by the
act of assembly. Without such an act, Wm. Tilghman could have
conveyed no more than his life estate ; and at his decease, as events
*have transpired, the lots and lands would have descended r*Qz
to the heirs of Mrs. Tilghraan. No private act of assembly
could have been procured to authorize a tenant by the curtesy to
sell lands, without investing the proceeds of the sales in the same
manner as the title to the land was held ; and that object the act
in question attained, by directing that ground-rents should be
reserved out of the lands when sold, and that those ground-rents
should be payable to the tenant by the curtesy during his life, and
after his decease, to the heirs of his deceased wife thus substitu-
ting a ground-rent issuing out of the land for the income or profits
of the land. Thus far all is clear enough. But what is to be done


65 SUPREME COURT \I)ec. Term,

[Tilghman's Estate.]

with the surplus money, beyond the amount of the ground-rents ?
As to this there is no legislation ; the act is silent. It appears to
me that we have no other rule to go by than that by which all
other conveyances are construed ; and that such an act of assembly
is to be construed like other conveyances, by the established prin-
ciples of law and equity in relation to them; for a private act of
assembly for such purpose is but a mode of assurance. Private
acts of parliament, says Blackstone, are, especially of late years,
become a very common mode of assurance. They are looked on
rather as a private conveyance, than as the solemn act of the legis-
lature. A general saving is constantly added, at the close of the
bill, of the right and interest of all persons whatsoever, except
those whose consent is given or purchased, and who are therein
particularly named, though it hath been holden, that even if such
saving be omitted, the act shall bind none but the parties : 2 Bl.
Com. 344, 345, 346.

Then the case is, that in a conveyance a power is given to sell
real estate, and raise a sum of money by passing the fee, but the
conveyance is silent as to the nature or disposition of a part of that

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