sey, 6 Am. Dec. 506; Singstack v. Harding, 7 Id. 669; Murdock's case, 20 Id. 381; Davis v. Simpson, 9 Id. 500.

As a decision upon the point that a trustee must, in the sale of the trust property, see that the sale be to all possible advantage, this case is cited in Johnson v. Eason, 3 Ired. Eq. 330, and Denny v. Palmer, 5 Ired. Law, 610.

CLARKE V. COTTON.

[2 DEVEREUX Eq. 301.]

A LEGACY VOID FOR UNCERTAINTY sinks into the residuum.

PAROL EVIDENCE IS ADMISSIBLE TO SHOW THE LEGATEE where the description in the will applies to several.

A VALID LEGACY NOT CLAIMED within a reasonable time, goes to the sovereign as derelict.

THIS case came on for further directions in regard to certain clauses in the will of Mary S. Blount, deceased. Of these, one gave to Martha Barrow, daughter of Bennett Barrow, esq., four hundred dollars; the other gave to Elizabeth Hunter five hundred dollars. From the report of the master it appeared: 1. That Mr. Barrow had two daughters, named respectively Margaret and Olivia, but that there was no evidence before him to show either of these to have been intended by the testator. 2. That there were many persons answering to the name of Elizabeth Hunter, but to whom of these the legacy belonged was entirely uncertain. As there were not sufficient assets to meet the demands of the pecuniary legatees, Devereux, representing them, moved that the sums in these legacies be ordered distributed among them pro rata.

HENDERSON, C. J. (after stating the facts). As to the legacy to Martha Barrow, there being no testimony, if admissible, to prove the identity of the person intended, and the question being presented on the will and facts before stated, it is but common learning to pronounce the bequest to be void for uncertainty. There is no legatee designated by name, or by any other description. The bequest is therefore void, and the case is to be considered as if it had never been made. It is property undisposed of, and is to be taken to pay general legacies, and if not needed for that purpose, it sinks into the residuum.

Upon the other clause of the will, it being as yet entirely uncertain who is the Elizabeth Hunter intended by the testatrix, it is unlike the case under the fifteenth clause. For here a legatee capable of taking may yet appear. The ambiguity arises from

the fact that there are many answering to the description, and it may be shown by parol evidence which of them the testatrix meant. The legacy, then, is not property undisposed of, but property given to a person who does not yet appear. It must therefore be kept for her; and if, after a reasonable time, it be not claimed by the legatee, it goes to the sovereign as the trustee of all derelict property. In this state, the trustees of the university have succeeded to this right of the sovereign, and at a proper time they can claim the legacy.

Per CURIAM. Direct accordingly.

THAT WHERE THE LEGACY FAILS through the obscurity of the will, the property embraced by it lapses into the residuum, see Rothmahler v. Myers, 6 Am. Dec. 613.

THAT PAROL EVIDENCE IS PROPERLY ADMITTED to explain a latent ambigu. ity, see Storer v. Freeman, 4 Am. Dec. 155; Doolittle v. Blakesly, 4 Id. 218; Mann v. Mann, 6 Id. 416; Goddard v. Bulow, 9 Id. 663.

CASES

IN THE

SUPREME COURT

OF

OHIO.

ATKINSON V. JORDAN.

[5 OHIO, 293.}

ASSIGNMENT TO TRUSTEES FOR BENEFIT OF CREDITORS, which contains a

provision that each of the assenting creditors must, within a specified time, either execute a release of his whole debt or be denied any share in the proceeds of the property assigned, is void as against creditors. CREDITORS WHO HAVE NOT ASSENTED TO SUCH ASSIGNMENT may subject

the property in the hands of the assignees to the payment of their debts. BILL in chancery reserved from Hamilton county. The complainants, creditors of Jordan, Ellis & Co., recovered judgment and took out execution against them, but were unable to find property to satisfy their claim. Jordan, Ellis & Co., being compelled to stop payment, made an assignment to the defendants, Ames, Fessenden, and Bates, in trust, for the benefit of their creditors, with authority to sell and apply the proceeds: 1. To defray the expenses of the trust. 2. To pay certain lawyers' fees. 3. To indemnify certain sureties in a suit at law. 4. To pay certain preferred creditors. 5. To apply the residue, if any, to satisfy the claims of other creditors. The assignment contained the following clause: "Provided, nevertheless, and these presents are to be understood with this provision, that none of the creditors herein mentioned, of either class, shall be entitled to the benefit of this assignment, or to claim any payment of their debts or demands, by virtue hereof, excepting such as shall, within ninety days from the date hereof, signify their assent to this assignment, and release the parties of the first part (Jordan, Ellis & Co.) by signing and sealing these presents." The complainants did not execute the assign

ment. The trustees admitted the assignment, but denied that, at the time of the commencement of this suit, they had received anything as proceeds of the assignment. The property which passed under the assignment was estimated at nineteen thousand two hundred and six dollars and twenty-two cents. The schedule of preferred debts was set down at thirty-one thousand three hundred and forty-four dollars and seven cents, and that of other debts at twenty-four thousand six hundred and four dollars and sixty-eight cents. The complainants called upon the defendants to disclose the trust property, and pray that these funds be held liable to satisfy their judgments, and for general relief.

Storer and Fox, for the complainants, cited Seaving v. Brinkerhoff, 5 Johns. Ch. 332; Hyslop v. Clark, 14 Johns. 458; Austin v. Bell, 20 Id. 442 [11 Am. Dec. 297]; 6 Conn. 277; Halsey v. Whitney, 4 Mason, 206.

Starr, for the defendants, cited Lupton v. Cutter, 8 Pick. 298; Johnson v. Whitwell, 7 Id. 74; Baxter v. Wheeler, 9 Id. 21; 2 Kent Com. 420; Harris v. Summer, 2 Pick. 129; Widgery v. Haskell, 5 Mass. 144 [4 Am. Dec. 41]; 5 Conn. 647; Hyslop v. Clark, 14 Johns. 459; Wilkes v. Ferris, 5 Id. 335 [4 Am. Dec. 364]; Murray v. Riggs, 15 Id. 571; Ingraham v. Geyer, 13 Mass. 146 [7 Am. Dec. 132]; 20 Johns. 142; Mackie v. Cairns, 1 Hopk. Ch. 373; Burd v. Smith, 4 Dall. 76; Passmore v. Eldridge, 12 Serg. & R. 198; Lippincott v. Barker, 2 Binn. 174 [4 Am. Dec. 433]; Cox v. Adams, 5 Greenl. 245; Halsey v. Whitney, 4 Mass. 206.

By Court, WRIGHT, J. It is claimed that the assignment of Jordan, Ellis & Co. is fraudulent and void. The only objection urged, is to the clause which declares it inoperative in favor of any creditor who should not within ninety days execute the same and release the debtor. The case is without any evidence of fraud in fact, and presents a question of fraud in law, to be established by the force of the instrument.

It is said the genius of the common law opposes itself to every species of fraud; and the most solemn acts, even judicial proceedings, if tinctured with it, are held to be vicious and unavailing. While the multiplied and ever-varying relations of society refine the arts of deceit, and the intricacy of legal transfers and proceedings multiplies the means of fraud and increases the difficulty of tracing and fixing the fraudulent connection between the original act and the ultimate purpose, they invoke

the greatest vigilance of the law in scrutinizing colorable and equivocal transactions, and require of courts in deciding upon them to have some regard to public utility. It seems admitted that a debtor, in failing circumstances, may, in good faith, pay one creditor in money or goods in preference to another; but the frequent abuses practiced in transfers, to effect a preference by means of trusts instead of actual payment, have led many to doubt the policy of holding such transfers valid. As a general proposition it will not be denied that persons so situated are legally bound to good faith between themselves and their preferred creditors, and moreover to avoid, in transactions connected with the placing their effects beyond the reach of legal process, all bad faith in respect of other persons standing in a relation to be affected by them. The practice among speculating traders, of shattered and desperate circumstances, of accumulating property upon credit with a desire of securing the means of satisfying the claims of confidential creditors, who contribute in various ways to keep up the credit upon which the property has been procured, and then passing their effects so procured into the hands of trustees to be protected from legal process and to be exhausted in satisfying those preferred claims, leaving all other creditors without a farthing, can hardly be justified on any sound, moral, or legal principle. Instances are frequent of merchandise procured from an honest trader on credit, being handed over in bulk to trustees to secure indorsers and other confidential creditors. Equity delights in equality, and it is becoming a grave question whether courts of justice should longer countenance a sinking debtor, in preferring one creditor to another, in the distribution of his effects. The opinion is gaining ground, that chancery should control such assignments and compel an equal distribution of the effects assigned amongst all the creditors.

In Burd v. Smith, 4 Dall. 76, the high court of appeals in Pennsylvania held an assignment void which provided for the distribution of the assigned effects to such creditors as should agree to accept, and the payment of the proportions of such creditors as should not accept to the debtor, because it contained a resulting trust to the debtor, and placed the dissenting creditors in his power, or that of trustees appointed by him. The judges in that case delivered their opinions seriatim. Smith, J., held the deed void on its face. Breckenridge, J., page 88, says, the right of a debtor to favor particular cred itors" has been allowed perhaps on principles of humanity,