Volume 10 — Delaware Chancery

Bill for Instructions to Trustees. The bill was filed by Mahlon Bryan, et al., trustees under the will of James C. Aikin, deceased, for instructions as to the disposition of shareá of stock of the Delaware Railroad Company issued to and received by the trustees as holders of certain shares of the stock of the company.

Demurrer to a Bill of Complaint: Heard by the Chief Justice, the Chancellor having certified his disqualification to hear the cause. The facts appear in the opinion sustaining the demurrer.

Injunction Bill. The bill is by the Attorney General upon the relation of two citizens and taxpayers of the City of Wilmington, alleging that the city owns land bounded by Rodney, Eighth, Clayton and Ninth Streets, containing a reservoir for water, and so a part of the water works of the city, full jurisdiction over and control of which was and is vested in the Board of Water Commissioners.

Bill to Annul a Judgment. The case was heard on bill, answer, depositions and exhibits, and the facts appear in the opinion of the Chancellor.

<p>'The question of whether there is an adequate remedy at law, so as to deprive the Court of Chancery of jurisdiction, must be considered whenever and however raised, and even on the court’s own initiative.</p> <p>The statutory disqualification of a mortgagor to testify to the making of payments to a deceased mortgagee applies in equity as well as at law; the rules of evidence being the same in both courts.</p> <p>The production of a document in the possession of an adverse party cannot be compelled by a subpoena duces tecum, any more in equity than at law.</p> <p>Ordinarily an action at law is the proper remedy for the recovery of money paid through the mistake of a debtor or the fraud of a creditor.</p> <p>In a suit to enjoin a scire facias action on a mortgage, the mortgagor alleged that, through his mistake and the fraud of the mortgagee, the mortgage had been overpaid, and asked an accounting and the discovery of books and papers of the mortgagee, which he claimed would show such payments. Held that, although some of the relief sought could be obtained at law as well as in equity, the fact that a separate action to recover the overpayments would be necessary at law, in connection with the allegations of fraud and mistake and the demand for an accounting and discovery, showed sufficient grounds for the intervention of equity to justify the granting of a preliminary injunction, leaving the question of jurisdiction, however, open for later determination.</p>

Statement of the Case. The American Brick Manufacturing Company was decreed by the Chancellor to be insolvent, and receivers were appointed to wind up its affairs. The assets of the company turned over to the receivers consisted of real estate and personal property, which was sold by the receivers pursuant to an order of the Chancellor, and a mortgage lien against the real estate was transferred to the proceeds of the sale thereof.

Bill for Specific Performance. The bill in this cause was by Arthur M. Matthes against Margaret Wier for specific performance of a contract to lease a certain piece of property, known as 811 King Street, in the City of Wilmington, with an option to the lessee to purchase the property at any time during the term of the lease at the price stated therein. The cause was heard on bill, answer, testimony and exhibits, and a decree for specific performance was rendered.

Bill for Construction of Will and Revocation of the Appointment of a Trustee. The case is before the court on a motion for a decree notwithstanding the answer, and was heard under the new equity rule No. 29-A, adopted January 1, 1912.

Injunction Bill. On November 10, 1875, Letitia L. Green purchased from Joshua B. Fennimore certain land situate in the town of Middletown and gave to him a bond and mortgage for the full amount of the purchase price thereof. Through sundry assignments the said bond and mortgage were assigned to the trustees under the will of Victor Green, and are now held by The Equitable Guarantee and Trust Company, the present trustee under said will by appointment of the Chancellor.

Statement of the Case. After the appointment by this court of receivers for the Delmar Lumber Manufacturing Company, a trustee in bankruptcy for the company was appointed in the District Court of the United States for the District of Delaware, and upon petition the receivers were directed to turn over the assets of the company, exclusive of cash in their hands, to said trustee and to file in this court a report of their proceedings under the order of their appointment and an…

Injunction Bill. The bill in this cause was filed by Blema B. Jones, a minor, by her next friend, Alexander Jones, to restrain the pleading of a release by the Philadelphia, Baltimore and Washington Railroad Company in a suit at law for damages as a result of injuries sustained by the complainant by the explosion of powder in transpor cation over the company’s railroad.

Bill for Specific Performance. Joseph Stidham and wife, in 1784, conveyed to John Boggs, et al., a lot of land upon trust that it be used for the sole purpose of a Baptist meeting house to be erected, and for a burying place, with provision for the self-perpetuation of the trustees, the survivors to convey to the new coming trustees as joint owners in trust.

Bill by a Trustee for Instructions. Martha J. Wilson died January 10, 1898, and by her will made certain bequests and then divided all the rest, residue and remainder of her estate into five equal parts; gave one share absolutely to each of two brothers and one sister; gave one other share in trust for a sister, Annie, for life, and at her death to pay over the share to the testatrix’s children then living and the issue of deceased children the testatrix’s daughter being a…

Petition for Intervention in a Cause in Partition. A petition for partition of land late of John P. Cochran, deceased, had been filed by all the parties in interest, devisees under the will of John P. Cochran, and a commission appointed to make the partition.

<p>Petition for the payment of rent out of funds in the hands of a receiver. In July, 1909, the Delaware Candy Company leased a portion of a building belonging to Thomas N. Stayton at a yearly rental of nine hundred dollars, payable monthly, and placed therein a boiler and machinery for the manufacture of candy. On February 3, 1912, the lessor, under an option- contained in the lease, terminated said lease for non-payment of rent, and on February 6, 1912, a receiver for the company was appointed on the ground of its insolvency. The lease also contained the following provision:</p> <p>“It is further hereby expressly understood and agreed that on the termination of this lease, the said Delaware Candy Company is to have the privilege of removing any fixtures belonging to it, or put up by it, in said building, provided said fixtures may be removed without damage to said building; and provided further that there is no rent in arrear.”</p> <p>On October 18, 1912, the lessor filed a petition setting forth that at the time of the appointment of the receiver there was due $1,080 for rent in arrear; that all the fixtures had been sold by the receiver, by order of court, and removed from the building, except a boiler in the basement of the building; and that under the terms of the lease all rent in arrear should have been paid in full before the removal of the fixtures. The petitioner also stated that he had mislaid, or lost, his copy of the lease and did not recall the above-quoted provision thereof until October 14, 1912, when the receiver produced a copy thereof at a hearing before the Chancellor concerning the right of removal of said fixtures.</p> <p>The petition prayed that the receiver be instructed to pay the lessor the amount of rent due at the time of the appointment of the receiver. The receiver did not file an answer, but at the hearing admitted the facts alleged in the petition.</p>

A preliminary injunction was granted in this cause in accordance with the opinion reported ante p. 51, 81 Atl. 1, and the matter now comes before the Chancellor on a motion by the solicitors for the defendants to dissolve the preliminary injunction.

Bill to Set Aside an Award because of partiality and misconduct of a referee. The bill was filed to set aside an award because of the partiality and misconduct of one of the referees.

A demurrer to the bill of complaint was sustained, ante p. 18, 83 Atl. 520, and the solicitors for the complainants asked leave to file an amended bill of complaint. The cause was heard by the Chief Justice, owing to the disqualification of the Chancellor to hear and determine it, and the facts sufficiently appear in the opinion.

Bill by Administrator C. T. A. in the Nature of a Bill for Instructions. The complainant was the administrator cum testamento annexa of Thomas H. Savery, deceased, and filed this bill for a construction of the will and instructions concerning distribution of the testator’s estate.

Bill by an Executor for Instructions. The bill was for instmctions to the executor of William H. Ennis, deceased, respecting two items of the will.

Bill for Specific Performance. The bill is for specific performance of an agreement contained in a lease for a renewal of it from year to year, and was heard on a motion under rule 29a for a decree notwithstanding the answer.

Bill for the Construction of a Will. Dr. Horace Burr, of New Castle Hundred, died January 10, 1899, and by his will provided, as follows: “Third.

Bill to Enjoin the Collection of a Judgment. The complainant was sued by the Westinghouse Air Brake Company, one of the defendants, before a justice of the peace on December 3, 1912, for the price of goods, sold and delivered, and after several continuances the parties appeared and on March 14, 1913, a hearing was had.

Bill to Restrain the Sale of Property Under Foreclosure Proceedings. Chilinsky being the owner of a hotel in Delaware City, on April 3, 1906, made three mortgages which obtained priority in the following order: First, to Eliza Bell Pattison, for $11,000; second, to Joseph Stoeckle Brewing Company, for $7,500; and third, to the firm of H. Rosenheim & Son, for $1,500.

Bill in Equity. The bill of complaint filed in this cause sought as ultimate relief an accounting, cancellation of stock in the' complainant company and a preliminary injunction to restrain the defendants transferring, incumbering or otherwise disposing of certain shares of stock held by them during the pendency of the cause.

Bill to Set Aside an Agreement. The bill is filed prir marily to set aside, on account of fraud, an agreement whereby the complainant subscribed'for stock of the defendant company, to obtain a return and cancellation of certain promissory notes, given by the complainant pursuant to the agreement and to enforce re-payment of part of the money paid for. the stock.

Hearing on motion for the production by the defendants of the several books and documents mentioned in the answers filed in this cause, and in the schedules thereto, in order that the complainants and their agents may take copies and abstracts thereof and extracts therefrom. The facts appear in the opinion.

Bill by John Denash against the Security Trust and Safe' Deposit Company, executor under the last will and testament of Patrick Denash, deceased. The facts appear in the opinion.

Bill for Specific Performance of an Agreement for Sale of Land. The suit is by a purchaser of land against the seller, and a grantee from the seller with notice.

Action by Rachel B. Ross against the South Delaware Gas Company for the appointment of a receiver. On petition of complainant’s counsel for the allowance of compensation for services rendered in the action. The facts appear in the opinion.

Exceptions to Claims. The company was organized, among other things, to carry on a plan of receiving deposits for accumulation.

Bill to Restrain the Cutting of Timber. The bill alleged that on or about March 1, 1890 Andrew Dill died seized of a certain tract of land situate in South Murderkill… Held: possessed and controlled by them adversely to every one else for over twenty years, they have acquired title thereto. By agreement of the solicitors for the complainants and defendants, the cause was heard on bill, answer, testimony of witnesses examined orally before the Chancellor and exhibits.

Bill to Restrain Sale of Personal Property. The complainants were the owners of unimproved real estate situate on the westerly side of Main Street, in the town of Smyrna, extending from a street in said town known as Hamilton’s Lane to Lake Como, a lake or pond which constitutes the southern boundary of the town. Main Street is a continuation through the town of.

Bill to Remove a Cloud from Title to Land. On April 2, 1892, Thomas Duffy the defendant purchased a lot of land in the city of Wilmington, fronting on Front Street, adjoining a lot on the northeast comer of Front and Madison Streets, both of which lots extend in a northerly direction parallel with Madison Street to Christiana Street. • Erected on the lot then acquired by Duffy was a two-story frame dwelling house.

Bill for Specific Performance. The bill is for specific performance of a contract for the purchase by the defendant of a tract of land from the complainant, situated at the northeast comer of Ninth and Tatnall streets, in the City of Wilmington.

<p>Petition by George P. Knight against William K. Knight for partition. Heard on petition and answer.</p> <p>The facts are stated in the opinion.</p>

Exceptions to Claims in a receivership cause. A receiver having been appointed for the defendant company, claims of various creditors were filed, and exceptions, were taken to the claim filed by Elmer E. McDaniel. The matter was heard on said claim and exceptions. The facts sufficiently appear in the opinion of the Chancellor.

Petition for Rule requiring a witness to appear and show cause why he should not be ordered to answer certain questions. (See, also, 9 Del. Ch. 273, 81 Ail. 583.) During the taking of testimony before the examiner appointed in this cause, John Biggs, Esq., an attorney at law, was produced as a witness and declined to answer certain questions because his knowledge of the matter inquired about was obtained while acting in a professional capacity.

Bill of Interpleader and for Instructions to Executors. Hannah R. Weldin by will dated April 7, 1906, and a codicil dated February, 1911, both probated shortly after her death, which occurred August 28, 1911, made the following gifts: “Twenty-third.

Petition to Bar an Estate Tail. Edward. Taylor, who died on or about March 30, 1897, by his will probated in Sussex County, disposed of a farm in Broad Creek Hundred and certain lots of land in Laurel, as part of his residuary estate, by the following provision: “I give and devise to my wife, Martha Taylor, all the residue of my property, real, personal or mixed, to be held by her for and during the period of her natural life or widowhood, and for her to properly educate and…

Bill by Trustee for Instructions. Margaret Ware, • by Item 4 of her will, dated July 1, 1904, gave the residue of her estate to a trustee for the following purposes: “In trust, however, for the use, benefit and behoof of my grandson, James Whilldin Ware McClymont, to pay the said James Whilldin Ware McClymont for and during his natural life the clear yearly income after all expenses are paid, of any real estate I may die seized of, or the interest on any sum of money that I…

Petition by the Security Trust and Safe Deposit Company, administrator with the will annexed of Hannah M. Darlington, deceased, for an order to sell real estate pursuant to the will. The facts are stated sufficiently in the opinion.

Abatement of Suit. The defendant had asked for security for costs based on the non-residence of the complainants, and a rule on the complainants was made returnable on Friday, the thirty-first day of July, 1914, at ten o’clock a. m. After the rule issued and a few hours before it was returnable, one of the complainants died and an affidavit of that fact was filed and the death suggested of record by the defendants.

Bill for Specific Performance. The bill was filed by a vendee against the vendor for specific performance of a contract of sale of land, with an abatement of the price based on the value of the inchoate right of dower of the wife of the vendor, who refused to join him in a conveyance of the land, or with an order requiring the defendant to give bond with surety to indemnify the complainant against a claim of the wife of the defendant for dower in the land.

Bill for an Injunction. The bill was filed to obtain a perpetual injunction against further proceedings under a writ of levari facias issued in Sussex County on a judgment obtained in the Superior Court in a mechanic’s lien case, on the ground that in the statement of claim the husband of the complainant was alleged to be the owner, or reputed owner, while in fact the complainant was the owner by a duly recorded deed.

<p>Exceptions to claim filed by Benjamin E. Harris. The facts are stated in the opinion of the Chancellor:</p>

Exceptions were taken by the receiver to the claim filed against the receivership estate by Tippett and Wood, by which is sought the right to remove from the property of the Frederica Water, Light and Power Comapny a water tank, erected thereon under an agreement or contract of conditional sale. The facts are sufficiently stated in the opinion of the Chancellor.

Injunction Bill. A stockholder of the New Keystone Copper Company, a Delaware corporation, filed a bill in this court to perpetually enjoin a proposed sale of substantially all of the assets of the company to the Inspiration Consolidated Copper Company, a Maine corporation, in exchange for shares of stock of the latter company, and to prevent a distribution by the defendant company of its assets among its stockholders.

Statement of Facts. The Attorney General, upon the relation of the Taxpayers’ League, Incorporated, the owner of real estate in the City of Wilmington, filed an information in this court against the Mayor and Council of Wilmington, a municipal corporation of the State of Delaware, and the Mayor, the members of the Council, the City Auditor, the City Treasurer, the Building Inspector, and the three persons who ex officio constituted the Board of Assessment, Revision and…

<p>Bill to Set Aside a Conveyance. The complainants, the heirs at law and beneficiaries under the will of Ebenezer McKnatt, seek to invalidate a deed made by him on May 1, 1913, to Charles W. McKnatt, for the consideration of one dollar, conveying a farm near Harrington, worth about five thousand dollars. The grantor, a bachelor about eighty-one years of age, being no longer able to farm his land, had boarded in Harrington at several places, including the home of his nephew, Joshua Reynolds. On December 30, 1912, while living there he made a will, which was after his death duly probated. By it he directed a sale of his property by his executor and a division of the proceeds. At that time his health had failed, and he had serious and incurable ailments, including Bright’s disease of the kidneys, and required much nursing, being usually unable to walk without assistance. He was an illiterate, uncommunicative person. It is probable that at the time when he executed the will he was mentally competent to do so. After the death of his nephew, Reynolds, he continued to live with the widow of his nephew; but it was not a happy state for either of them, so that when on April 17, 1913, the defendant, Charles W. McKnatt, the tenant on the farm, took the old man to live with him on the farm, there was no regret on the part of- either Mrs. Reynolds, or Ebenezer Mc-Knatt, but on the contrary words passed between them which indicated a feeling of relief on both sides, though Mrs. Reynolds was entitled under his will to nearly two-thirds of his property. Between the feeble old landlord and his tenant there was no kinship, but the latter had been attentive in visits to his landlord and took good care of him after he came to the farm. The new home was indeed a haven of rest for Ebenezer McKnatt, for there seemed to be no other home then open to him, and he was happy there, and for a while improved in health. But he was very feeble and required increasing ministrations to such an extent that the defendant, Charles W. McKnatt, as he testified, was obliged to give up work on the farm in order to care for the homeless old man he had taken into his home, and who was not a very pleasant patient.</p> <p>According to the uncorroborated statement of the grantee, the grantor expressed a desire to convey the farm to his tenant, the defendant, in consideration of the attention in the past and future care in this home during the rest of his life and the payment of his funeral expenses after his death. Ebenezer Mc-Knatt wanted to consult a certain Maryland lawyer, whom he named, but Charles W. McKnatt sent for his own attorney, R. R. Kenney, Esquire, of Dover, the other lawyer probably not being readily accessible. By arrangement, three old friends of the grantor, Zadoc C. Fleming, William T. Sharp and Samuel L. Shaw, all men of standing and repute in the community, one of them a notary public, and-James L. Wolcott, Esquire, (the attorney who came in the place of Mr. Kenney) met at the farm on May 1, 1913, and the proposed transaction was explained to them, both grantor and grantee being present. Thereupon the deed conveying the farm was then and there prepared by the attorney, read over to the grantor and explained to him, and executed and acknowledged, and within a few days left for record at the proper office. In form, the deed was in the usual form of a conveyance, the only stated consideration being one dollar, and was without a warranty clause, and was signed by the grantor only.</p> <p>The attorney who drew the deed and the friends of the grantor who were around him when he did so, all testified that he understood what he was doing, though he talked little; that he was capable mentally of making the deed; and that he and the grantee and those present understood the arrangement for the care of the old man, and that the grantor was satisfied with it. According to Mr. Fleming, the grantor said he wanted a home and did not want to go to the poor-house. Mr. Sharp testified that when Ebenezer McKnatt was asked by Mr. Wolcott the attorney, what he wanted done, the old man turned to Charles W. McKnatt, the grantee, who was present, and said to him: ‘‘What is it you want me to do? You tell them;’’ and also that after the deed and the consideration were explained to the grantor he had said that that was what he wanted. Mr. Shaw took the acknowledgement, and when he learned what the real consideration was, said he thought it was a “tame” deed, because the real agreement should have been in it, and discussed this with the grantee and the attorney. All of this was probably in the presence of the grantor, though whether he heard it, or not, does not appear from anything he said. At any rate, all of his friends there present approved of the transaction and trusted the grantee to fully perform his part.</p> <p>The grantor owned practically no other property than the farm, and his personal property was just about enough to pay his debts, except the funeral expenses, after his death. He had no relatives nearer than nephews and nieces, and none dependent upon him, or intimate with him.</p> <p>There was much testimony as to the mental condition and the character of his physical ailments, and the effect thereof on his mind. The physicians who testified differed on the point, as also did the witnesses.</p> <p>On July 18, 1913, about two and one-half months after the deed was made, the grantor died, the grantee having taken care of the grantor until the end of his days, and at his own expense buried his body after his death.</p> <p>The bill was filed December 20, 1913, to set aside the deed, claiming that advantage had been taken of the helpless condition and dependence of the grantor on the grantee, and that at the time of the conveyance the grantor was of unsound mind and incapable of transacting business, was unduly influenced and was without the benefit of counsel. The prayers were for a cancellation of the deed, for an accounting of rents from J anuary 1, 1913, and for a reconveyance by Charles W. McKnatt and his wife to the heirs at law of Ebenezer McKnatt, subject to the right of his executor to sell it for distribution as authorized by the will.</p> <p>By their joint answer Charles W. McKnatt and wife denied the allegations of undue influence, mental incompetence and advantage taken of the condition of the grantor, while admitting the illiteracy, old age, physical weakness and serious illness of Ebenezer McKnatt. The defendants alleged that when the deed was made it was understood and agreed between the grantor and granted that the consideration for it was the expense, service, care and attention incurred and rendered, to be incurred and rendered to the grantor for the rest of his life and the burial of his body after his death; that Charles W. McKnatt faithfully performed the consideration, including the payment of $202.25 for funeral expenses.</p> <p>The executor of Ebenezer McKnatt was made a formal party" defendant, and answered, submitting to the order of the court.</p> <p>The case was heard on the bill, answer and testimony, heard, by agreement, by the Chancellor orally in open court.</p>

<p>Bill for Specific Performance. This is a bill f >r specific performance, the facts being these: Hannah M. Darlington owning a house and lot of land, situate on the westerly side of Shipley Street, and known as No. 919 Shipley Street, by deed dated July 14, 1885, conveyed the same to Thomas Darlington in trust to permit Anna and Emily Webb, and the survivor of them, to occupy it for life, and after the death of the survivor of them, as follows:</p> <p>“* * * To hold the same for the usé of such person or persons and for such estate or estates and subject to such limitations and provisos as the said Hannah M. Darlington by any writing in the nature of a last will and testament and executed as such in her lifetime shall direct, limit and appoint, and in default of such appointment, then to hold the same for the use of such person or persons, as shall at the decease of the said Hannah M. Darlington, answer the description of heirs at law, of the said Hannah M. Darlington. * * *”</p> <p>Hannah M. Darlington died in 1900, and by her will dated August 15, 1887, provided inter alla as follows:</p> <p>“Fifth. I give and devise to Anna and Emily Webb of the City of Wilmington, and State of Delaware, my house and lot in said City of Wilmington, situated on the west side of Shipley St., between Ninth and Tenth, to have and to hold the same, for and during the life of the survivor of them. And upon the death of the survivor of them, I direct said house and lot shall be sold and the proceeds arising therefrom to be paid over to the sisters of the said Anna and Emily Webb, viz.: Mary Palmer and Eliza Clement of Alameda, California, and Sarah Peterson of German-town, in equal shares, and if any of the sisters being deceased at the time leaving issue, such issue to take among them the share that his, her or their parents would have taken if then living.”</p> <p>She also appointed an executrix, to whom letters were granted and who has since died, and the complainant, the Security Trust, and Safe Deposit Company was then appointed administrator d. b. n. c. t. a.</p> <p>Thomas Darlington died in 1902, and no trustee has been appointed in his place. Emily Webb having survived her sister, died April 24, 1914. The complainant sold the premises at public auction to the defendant, who refuses to take the title. By the bill it is alleged that the property described in the deed to Thomas Darlington is the same premises as that mentioned in the fifth item of the will of Hannah M. Darlington. The prayer is that the purchaser be compelled to accept the deed tendered to and refused by him, the deed being attached to the bill.</p> <p>By his answer, the defendant, Christopher L. Ward, the purchaser at the sale, does not admit the identity of the property described in the deed with that mentioned in the will; denies that the complainant is able to convey a good title; and alleges that the deed tendered was insufficient. He also says there was not a due, proper and sufficient execution by Hannah M. Darlington of the power of appointment; that if there be a sufficient execution of the power of appointment, the sale should be made not by the complainant, the administrator c. t. a. of Hannah M. Darlington, but by a new trustee to be appointed in place of Thomas Darlington, deceased.</p> <p>By agreement of the parties, evidence of the identity of the premises described in the deed with that mentioned in the fifth item of the will of Hannah M. Darlington was offered by affidavits of witnesses filed in the cause in lieu of testimony-taken otherwise.</p>

<p>Bill for Specific Performance. The bill is one for the specific performance of a contract to buy shares of stock of a corporation. The complainant owns 1,800 shares of the Diamond Manufacturing Company, being sixty percent, of the outstanding capital stock, and the Diamond Manufacturing Company owns, by assignment from William J. Jones, certain claims to a patent for a certain machine for treating leather. By the bill the complainant claims that the defendant agreed to purchase from it these shares of stock in order to control the company owning the claims for patents, and submits as proving the purchase two letters from the defendant company addressed to one James J. English. It alleges that he was acting for the complainant, being its secretary, treasurer and general manager, though the name of the complainant is not mentioned in the letters, both of which were dated October 9, 1913; that before and after the contract was made, the claims were submitted by the complainant to examination by the defendant, and thereby the defendant gained full knowledge of the patent; that afterwards, on October 14, 1913, the defendant repudiated the contract, and refused to perform it, though the complainant was able to perform and offered to do so. The prayer for specific performance is based on inadequacy of a remedy at law, first, because a judgment in a suit at law would not place the complainant, with respect to the patents, in the same position in which it was prior to the contract, the defendant having knowledge of the machine and its patent status; and, second, because there was no means to determine the market value of the stock of .the Diamond Manufacturing Company, that value “being almost entirely dependent on the commercial value of said patent claims,” and that the damages for a breach of the contract “would of necessity be a matter of mere conjecture.”</p> <p>The two letters are as follows:</p> <p>“October 9, 1913.</p> <p>"Jas. J. English, City—Dear Sir: Mr. ffm. J. Jones has submitted to us your offer to sell us 1800 shares of the capital stock of the Diamond Manufacturing Company, a corporation of the State of Delaware. The price seems to us high, considering the limited claims that Mr. Jones is going to be able to secure on his machine. However, we will buy these shares with the understanding that there has so far been issued only 3,000 shares of the stock of this company, and that you guarantee the company to be free of all indebtedness. With this purchase of stock we are to receive all books of the company, all drawings, patterns and templates pertaining to the building of the Jones seasoning machine, as well as the machine now at the Delaware Leather Company’s, and the first machine built. For this we agree to pay you the sum of $5,000, as follows: In cash, $500.00; 3 notes, $1,500.00 each, at two, four and six months. Settlement to be made as soon as our attorney can examine papers in the matter, and have agreements drawn between Mr. Jones and ourselves.</p> <p>“Trusting the above will meet with your approval, we beg to remain Very truly yours,</p> <p>“G. W. Baker Machine Co.</p> <p>“Geo. W. Baker, President."</p> <p>“Oct. 9, 1913.</p> <p>"James J. English, Esq., City—Dear Sir: Mr. Jones has reported to us your talk with him and we accept the offer of $5,280.00 as the price, the payments to be:</p> <p>Cash.................................$ 780.00</p> <p>Note 2 months........................ 1,500.00</p> <p>Note 4 months........................ 1,500.00</p> <p>Note 6 months........................ 1,500.00—$5,280.00</p> <p>“Kindly have all papers, charter and such sent to the office of William S. Hilles, our attorney, and as soon as he has passed on same we will make settlement.</p> <p>“Yours very truly,</p> <p>Geo. W. Baker, Pres.”</p> <p>The answer denies that any of the claims of the Jones patent have been allowed and says the defendant’s contract was with English and nqt with the complainant 'company, and that the defendant was seeking a controlling interest in the Diamond Manufacturing Company. It is further claimed, that neither English, nor the complainant, did or could perform the contract by delivery, or offering to deliver, the books of the Diamond Manufacturing Company, the drawings, etc., for the machine. and the two machines already in existence. Certain books had been turned over to counsel for the purchaser, and pending his examination thereof the defendant received from counsel for F. F. Slocomb & Co. a notice dated October 14, 1913, that the machines made under the Jones claims were infringements. Immediately on receiving this notice it was brought to the attention of English, and on October 20th he was notified by the defendant that because of the threatened suit it would not go further, and withdrew its offer. It is denied that the defendant has acquired any knowledge of the patent and machines which affected the rights of the complainant. The jurisdiction of the court to compel specific performance was denied. It was alleged also that if the claim of infringement be sustained the stock of the Diamond Manufacturing Company is worthless, and that it is, in fact, absolutely worthless.</p> <p>The letter from the defendant to English, dated October 20, 1913, stated that the defendant had been notified that the Jones invention was an infringement on other patents, and that suit would be instituted to determine this question and for an accounting for the machines already built, and then contained this statement:</p> <p>“Under the circumstances, it is impossible for us to go further in the matter, in view of the fact that the company was to be turned over to us free of obligations. We therefore must decline to proceed further, and to withdraw our offer as it was conditioned upon our being satisfied that the Diamond Manufacturing Company was clear from any indebtedness or obligations other than those of which were familiar. ’ ’</p> <p>The further facts, not disputed, were these: The Jones claims for a patent had been assigned to the Diamond Manufacturing Company in exchange for all the capital stock of 3,000 shares, fexcept the shares necessary to qualify officers. It was created to hold the patents and had no other asset, and did no business. Of its shares 1,200 were held by Jones, 1,794 by the complainant, and the remaining 6 by certain directors, and all but tliose held by Jones were held for the U. S. Fire Apparatus Company, the complainant. The negotiations for the sale of the shares of stock were between Jones and the defendant, except preliminary inquiries made of Mr. English by Edward B. Mode, its vice-president.</p> <p>It was disputed, however, that the machine made according to the Jones patent and which the Delaware Leather Company at one time had in its possession was there on trial, and so under control of the complainant, or whether it had been sold.</p> <p>The case was heard on bill, answer, exhibits and testimony taken by depositions before an examiner.</p>

In the matter of exceptions filed by the receiver of Ross & Son, Incorporated, to a claim by the McCall Company of liquidated damages for breach of contract. The facts are stated in the opinion of the court.

<p>Where a corporate stock was bequeathed to trustees as a part of the trust estate, in trust to pay the income and dividends to certain beneficiaries for life, with remainder over, and the corporation retained surplus earnings and invested them in additional real property and improvements, and thereafter capitalized the same by issuing a stock dividend, which did not affect the value of the original stock, nor materially affect the rights of the original stockholders, such new stock should be regarded as income, passing to the life tenants, and not as capital, belonging to the remainder-men.</p> <p>Though a corporation may reserve a portion of its net earnings for a period of years and treat them as capital, either retaining them in its treasury or investing them in securities or other property for the company, yet if it subsequently divides such earnings among stockholders, by declaring a dividend in cash, stock, or both, it will be regarded as a distribution of profits; the earnings so distributed not being regarded as capital, though they had been so treated by the corporation prior to distribution.</p> <p>As applied to corporations, the word “capital” does not mean the corpus of the property or the stock, but with reference to new stock, issued as a stock dividend, is property or corpus; the property of the corporation being its real capital. The word means one thing in connection with the corporation, and a different thing with reference to the stockholder, since the corporation owns the property, its capital, while the stockholder owns the stock, his capital; the stockholder having no capacity to own the property of the corporation, or even its earnings, until' they are declared in the form of dividends.</p>

<p>Appeal from the Court of Chancery. This was an appeal from the decree of the Chancellor entered in the cause below in accordance with the opinion reported ante p. 290.</p>

The Chief Justice, sitting as Chancellor, owing to the disqualification of the Chancellor to hear and determine this cause in the Court of Chancery, sustained a demurrer filed to the bill of' complaint, ante p. 18, and application was made for leave to file an amended bill. This application was opposed by the solicitor for the. defendants below, and after argument the application was; denied, ante p. 155.

Petition by Frank F. Davis, trustee, for the sale of lands of William Reeves, insane, tenant in tail, Stephen Taylor, contingent remainder-man, respondent. From an order of the Court of Chancery, antep. 324, (92 Atl. 246), directing the trustee to sell and convey the realty in fee simple, the respondent appeals.

<p>Appeal from the Court of Chancery for Kent County. This is an appeal from the decree in the above stated cause, entered by the Chancellor in accordance with an opinion filed on February sixteenth, A. D. 1915.</p> <p>The assignment of errors are summarized in the opinion of the court.</p> <p>Bill to Restrain Sale of Personal Property.—A motion made by the complainants for a decree notwithstanding the answer was argued, and for the reasons stated in the opinion of the Chancellor heretofore filed in this case Ante p. 263 (91 Atl. 297), respecting the motion, he declined to decide the cause upon the motion and ordered the cause to proceed to hearing.</p> <p>On December 15, 1914, the cause was heard by agreement of the solicitors by the Chancellor upon oral testimony produced before him. It was admitted, at the hearing, that Samuel Catts was dead and his executor made party complainant in his stead, and a copy of his will was offered in evidence; also that the notice from the town of Smyrna had been served on Samuel Catts, Charles Katz and Sarah E. Cunningham, then owners of the land, in the manner alleged in the answer of the defendants. A map of the town of Smyrna, made in 1855, was produced from the office of the Recorder of Deeds for Kent County and offered in evidence by the complainants, and showed Main Street to be forty feet wide between curbs. The complainants also offered evidence to show that Main Street was the public road known as the “State Road,” the width of which was fixed by law at forty feet. A plot showing the location of the curb on both sides of the street in front of the complainants’ land was also put in evidence by the complainant.</p> <p>The defendant proved-the passage of the ordinance requiring the curb and gutter to be set and pavement laid in front of the complainant’s land; the notice to the lot owners to do the work; the warrant to the alderman to collect the cost thereof by levy; and the levy made pursuant thereto. It was also shown by the testimony of Walter O. Hoffecker, a surveyor, that from measurements made at various points on Main Street for several squares to the north of the complainants’ land, there was a variation in the width of the roadway between curbs from thirty-five feet to forty feet, and that only at one place of measurement did he find it to be forty feet. Also that the center stones shown in the recorded city plan made in 1855 were removed several years ago, and that without them it cannot be ascertained which side of Main Street is in a position correct according to that plot.</p> <p>The solicitors submitted briefs of their argument.</p> <p>The following was the opinion of the Chancellor:</p> <p>• “ The matters of fact upon which the opinion rendered on the motion of the complainants for a decree notwithstanding the answer was based were all established by evidence produced at the hearing, and the only real dispute was as to the validity of the location of the curb and gutter. Without reviewing the questions, it is here reaffirmed, for the reasons stated in the opinion, that the court has jurisdiction of the cause; that the provisions of the charter of the town, the Act of 1897, controlled in determining the validity of the assessment, and that the written notice to the then owners of the land to lay the sidewalk, curb and gutter was a sufficient compliance with the law to warrant the procedure by the town to collect the cost of the improvement from the owners by a levy on their goods and chattels and by a sale thereof.</p> <p>“This much being settled, it follows that the sidewalk was laid regularly and no sufficient legal reason is shown why the town had not a right to sell the personal property levied on in order to enforce payment for the cost of the sidewalk.</p> <p>“It is still to be determined whether by reason of the faulty location of the curb and gutter the assessment for the cost thereof was invalid. At the former hearing it was made clear by the plot filed with the answer that Main Street in front of the land of the complainants was about two feet less than forty feet wide between the curbs, and that the curbs were not parallel. But it did not then appear that the prescribed width was forty feet, or that the line of the curb erected on the west side of the street (on which side the complainants’ land was situated), was not the correct line, and it was uncertain whether it was the curb on the west, or that on the east, side which was in a wrong place, if either of them were. By the recorded plot of the town, made in 1855 and produced at the final hearing, Main Street throughout its length is made sixty feet wide, with sidewalks on each side ten feet in width and the roadway forty feet wide, and the exact location of the street, including the curb lines, are fixed by reference to certain center stones placed in Main Street and other streets. These center stones were removed several years before the curb in question was laid.</p> <p>“After carefully considering the testimony produced at the final hearing,,it is clear that with this authoritative and unavailable data gone, it has not been established by the testimony that the curb in front of the complainant’s land was not located in the proper place. The apparent encroachment on the west side of the highway is not necessarily a real one, and this depends on whether the curb on the east side of the street was properly located. No convincing testimony was presented to show that the curb as set on the east side was set rightly, or even that it had been located in its present place for a long period of time, though there was some testimony that there had, for upwards of fifty years, been a sidewalk on the east side of Main Street opposite the Catts’ property.</p> <p>“The numerous variations in the width of the roadway, and the consequent deviations in direction, none of which variations or deviations are seriously large, show that the location of the curb to the north of the complainants’ land is not an accurate guide, but perhaps misleading. Not having the help from the location of the center stones, or other evidence as to the location of the center of the roadway, it was not established that the curb laid in the front of the complainants’land was not properly located. The presumption is that it was rightly located, and it was for the complainants to prove the contrary in order to give them a right to enjoin the collection of the assessment for the curb and gutter declared illegal and void.</p> <p>“Inasmuch, therefore, as the town had a right to sell the personal property to pay for the cost of the sidewalk laid along the front of the complainants’ land, and it was not shown that the assessment for the cost of the curb and gutter was invalid or unlawful by reason of the incorrect location of them, the complainants are not entitled to relief by way of injunction to prevent the sale, or to have the lien declared invalid, or to have other relief, and the bill must be dismissed, with costs on the complainants.”</p>

Petition for Partition. The petition of Elsie R. Frazer showed, inter alia: That James Davis died September 25, 1900, seised of land, and by his will devised all his real estate to his wife, Mary A. Davis, for life, and provided further as follows: And from and immediately after the death of my said wife, Mary A. Dávis, I direct, devise and bequeath all my said property, real, personal and mixed, of whatsoever nature and kind the same may be, and wheresoever situated at the…

Petition for Directions to Administrator. George B. Ward, Administrator of Mary Ann Ward, deceased, sold the real estate of the deceased under order of the Orphans’ Court for the payment of her debts. Thereafter a subsequent petition was presented praying for directions as to the payment or disposal of the surplus in his hands after payment of the debts. The facts appear in the opinion of the court.

. The Register of Wills being disqualified to probate the paper writing purporting to be the last will and testament of Alfred D. Lecarpentier, deceased, a petition was presented on behalf of those named therein as executors asking the Orphans’ Court to take jurisdiction thereof and to probate the will. An order was made directing that citations issue to the persons interested therein, and at the return thereof a caveat was filed on behalf of two of the persons so interested.