Volume 15 — New Jersey Equity Reports

This case came before the Chancellor on the hearing of a rule to show cause why a preliminary injunction should not be granted on a bill filed by complainants, by which they seek to be protected in the enjoyment of certain franchises and privileges granted to them by the state of New Jersey.

Tho controversy in this case arose out of the erection of a public schoolhouse in tho city of Trenton. The complainants, for whom the building was erected by contract by Henry O. Scott, were indebted to him in tho sum of $632.40. Conflicting claims having been made upon tho complainants by creditors of Scott, amounting to about $1150, tho complainants paid into court the money due from them to Scott, and filed a bill of interpleader against the claimants.

<p>In a suit for the foreclosure of a mortgage, which contained an agreement that the mortgagor should keep the buildings insured, and assign the policy to the mortgagees, and in default of so doing, the mortgagees might effect such insurance, and that the premium paid thereon should be a lien on the mortgaged premises, and added to the amount secured by the mortgage and payable on demand with interest, an order of reference was made to a master to take an account of the amount due to complainants. The master reported, allowing, in addition to the amount due on the mortgage, a sum of money due for premiums paid by the mortgagees on effecting insurances on the buildings. — On exceptions to the master’s report, .it was held, that the amount so allowed for insurance was not within the cognizance of the master. The master’s authority, as to the subjects and extent of his examination and report, is limited and controlled by the order of reference.</p> <p>The order of reference in this ease is in the usual form, directing the inaster to take an account of the amount due to the complainants upon their bond and mortgage. The sum paid for insurance is no part of the amount due on the bond and mortgage.</p> <p>When neither the complainants’ right to insure, nor the fact of the insurance is averred in the bill, and no relief is prayed on that account, the amount paid for insurance should not be allowed, although, by a liberal construction of the order of reference, it might be deemed within the cognizance of the master.</p>

<p>On a Mil, filed by a judgment creditor against the debtor and other prior judgment creditors of the same debtor, alleging that the debt for which complainants’ judgment was entered was fraudulently contracted by the debtor, in purchasing goods of complainant with intent to subject them to the lien of the execution of the defendant’s relatives having claims against him, and claiming that complainant is entitled to have the articles so purchased specifically applied to the satisfaction of his judgment, it was held—</p> <p>That complainant’s ease must rest upon the ground of fraud in the purchase of the articles from complainants which vitiated the contract, and prevented any change in the owneiship of the chattels ; and that to sustain the case upon this ground, the articles must have been purchased with the purpose of defrauding the complainant, or the credit must have been obtained by false and fraudulent representations of material facts calculated to mislead the complainant, and npon which he acted m the sale of the goods.</p> <p>If the debtor purchased the goods of complainant with the fraudulent design of subjecting them to the executions of his near relations and other friends having claims against him, however just, it affords a olear case for equitable relief.</p> <p>A purchaser gains no title, and acquires no right of retaining goods, if he obtain possession by gross fraud under color of purchase, whether on credit or otherwise.</p> <p>When goods are sold for cash on delivery, if the purchaser, on delivery of the goods and demand of payment, refuses to pay the purchase money, it is competent for the vendor at once to reclaim the goods, and seek the protection of a court of equity against judgment creditors of the vendee. In such a case no title passes. The condition of the sale is violated.</p> <p>If an insolvent purchaser, concealing his insolvency from the vendor, procures goods without intending to pay for them, the property in the goods will not be changed.</p> <p>When, however, the vendor does not disaffirm the contract and reclaim the goods as his own, but on the failure and absconding of the vendee, issues an attachment against him for the debt, and afterwards obtains judgment by confession against him, and seeks to enforce the judgment by claiming an equitable lien on the goods sold, that is an affirmance of the contract, and there is no principle on which the complainant is entitled to that relief against prior judgment creditors of the vendee when executions have been levied on the goods.</p>

This bill was filed by Lewis J. Youngblood' and others against Henry Schamp and Robert Schamp, executors of Henry G. Schamp, deceased, for an injunction to restrain the defendants from making sale of a farm of their testator, pursuant to>>>an order of the Orphans Court of the county of Hunterdon.

This was a bill filed by Samuel Rinehart and Peter Rinehart, executors of Adam Rinehart, deceased. It was set forth, in the bill, that by the will of Adam Rinehart, deceased, the complainants and one Jacob Hipp were appointed the executors. The complainants proved the will, and took upon themselves the administration of the estate.

<p>On a bill to foreclose a mortgage, it appeared that 0., one of defendants, recovered a judgment against K., the mortgagor, on the 23d of January, 1858, but took out no execution thereon until June 25th, 1862. Complainant’s mortgage was recorded on the 26th of December, 1859, and in June, 1861, several other judgments were recovered against the mortgagor, on which executions were promptly taken out and levied on the mortgaged premises. On a dispute about the priority of these several encumbrances, it was held — •</p> <p>That G., by neglecting to issue an execution on his judgment until after executions had been issued on the junior judgments had lost his priority, not only over the younger judgments, but also over the complainants’ mortgage, which was entitled to priority over the younger judgments.</p> <p>The history of the legislation of this state regulating the priority of executions reviewed.</p> <p>Although the statute (Nix. Dig. 724, $ 9,) in terms, relates merely to the title which a purchaser by virtue of a sheriff’s sale under an execution at law shall acquire, the operation of it cannot be limited only to the case of a sale under the junior judgment, where no execution has been sued out upon the senior judgment, and levied on the land.</p> <p>The junior judgment, by suing out and levying the first execution upon the land, acquires a priority of lien, which cannot be affected by any execution subsequently issued, nor by any mode in which the land may be sold. The issue of the execution upon the junior judgment, and its delivery, duly recorded, to the sheriff destroys the priority whicli was enjoyed by the older judgment, and transfers it to the junior judgment.</p> <p>Executions against real estate have priority according to the time of their delivery, duly recorded, to the sheriff, irrespective of the dates of the judgments.</p> <p>The same result which would follow from a sale on an execution issued on the junior judgments would follow a sale under a decree of this court. The order of the encumbrances cannot be changed or affected by the tribunal out of which the execution issues.</p> <p>Where a statute, originally one, has its provisions broken up by a revision of the law, and incorporated in two different acts, the construction of these provisions cannot be affected by their change of collocation. They are in pari materia, and their construction must be the same as if they remained, as originally enacted, parts of the same statute.</p>

<p>A married woman purchased a farm, which was encumbered by a mortgage, which, although registered, contained an important proviso designed to secure prompt payment of the interest, which proviso was not disclosed by the registry of the mortgage. < The purchaser took the premises subject to the mortgage, and assumed the payment óf it as a part of the consideration of her purchase. On a bill filed to foreclose . the mortgage, in which the purchaser set up that she was a bona fide purchaser without notice of the proviso, because it was not disclosed by the registry, it was held—</p> <p>That it was totally immaterial whether the mortgage was registered or not, the purchaser had actual notice of the existence of the mortgage.</p> <p>That the covenant by a married woman does not impose any obligation upon her personally is immaterial; the complainant is not seeking to enforce the obligation as against her personally, but to have the land applied to the satisfaction of the debt for which it was given.</p> <p>The general doctrine is, that whatever puts a party upon an inquiry amoun's in judgment of law to notice, provided the inquiry becomes a duty, as in the case of purchasers and creditors, and would lead to the knowledge of the requisite fact by the exercise of ordinary diligence and understanding. So notice of a deed is notice of its c'ontents, and notice to an agent is notice to his principal.</p> <p>The answer of defendants denying notice will avail nothing against this clear and well settled principle, charging them with notice of the contents of of the mortgage.</p> <p>The object of the laws requiring conveyances to be recorded, is to prevent imposition on subsequent purchasers and mortgagees in good faith without notice of the prior conveyance, but not to protect them when they have such notice. It is no part of their office to furnish information of the contents of deeds and mortgages of which the subsequent purchaser has actual notice. A defective registry cannot qualify the effect of actual notice.</p>

<p>When an act of the legislature authorized commissioners, thereby appointed, to select a site for a bridge over the Passaic river, within certain limits in the city of Newark, and to erect, or canse to be erected, a bridge over the said river, and to lay out a road four rods wide from the courthouse in Newark to the place where the bridge was to be built, and the commissioners, having located the bridge, and provided for its erection, proceeded to lay out the road, and by the survey and return of which, r-ecorded as required by the act, it appeared that the highway was laid out to “ the west end of the bridge ”—</p> <p>Held, that inasmuch as the survey carries the highway to the river, wherever the river is found, there the highway extends, If the shore is ex tended into the water by alluvial deposits, or is filled in by the proprietor of the soil, the public easement is, by operation of law, extended from its former terminus over the new made land to the ■water.</p> <p>The owner of the soil, even when his title is unquestioned, cannot, by filling in, and thus extending his land towards the water, obstruct the public right of way to the river.</p> <p>The highway being required to be sixty-six feet wide, and the bridge being only required to be thirty-two feet wide, if in progress of time it had been found the interest of the bridge proprietors to widen the bridge to sixty-six feet, it is not perceived why-they may not lawfully have done so, and required the full width of the highway for that purpose. The public could not justly have contracted the highway to the prejudice of the proprietors, nor, on the other hand, can the proprietors, by leaving a part of the highway unappropriated, impair the rights of the public, much less can they despoil the public of their rights by claiming title hostile to those under whom they claim.</p> <p>The proprietors of the bridge may be deemed to have the right to the enjoyment, for the purposes of the trust committed to them, of the whole terminus of the highway upon the river. This seems necessarily involved in the right of constructing a bridge for the accommodation of the highway across the river to any width they may deem proper over thirty-two feet; but this possession was not independent of or hostile to the public right, and no right adverse to the public could be acquired under it.</p> <p>If, under such circumstances, the bridge proprietors, or those claiming under them, set up title adverse to the public ea.soment, and especially if they invoke the aid of a court of equity to protect them in the enjoyment of such pretended right, it becomes them to show conclusively the existence of the right, and how they acquired it.</p>

<p>B. C., being indebted to the complainant, died without personal estate, but seized of a lot of land in the city of Newark, which, by his will, he devised to his infant son. After his death, the lot was taken by the city of Newark for a street, and its value was paid into the hands of the city treasurer, according to a provision of the city charter.</p> <p>On a bill filed by the complainant to obtain satisfaction of his debt out of the money in the hands of the treasurer, it was held, that the proceeds of the land in the hands of the treasurer are assets for the payment of the debts of the deceased, and must be applied accordingly. The treasurer was decreed to pay the funds into the hands of the administrator of B. 0., deceased.</p> <p>Although it seems doubtful whether it would not be the better practice to send the parties to the Orphans Court for a final settlement, yet the general practice appears to be otherwise. Ordinarily, when the parties are before the court, the final account is settled in Chancery.</p>

<p>It is a well established doctrine of equity, that where, upon the purchase of real estate, the title is taken in the name of one person, and the purchase money is advanced by another, the parties being strangers to each other, there is a resulting trust in favor of the party from whom the consideration proceeds.</p> <p>When the purchase is made, and the money advanced by a father, and the title taken in the name of a son, the purchase would be deemed an advancement ; but when the purchase is made, and the money advanced by the sou, and the title taken in the name of the father, the relation of the parties will not defeat the resulting trust.</p> <p>In this case the farm was purchased by two sons, for their own use: they paid all the purchase money that they could raise, and in order to enable them to pay the balance, their father mortgaged his own farm, and to secure himself for such advance, took the title for the farm in his own name. During the lifetime of the father, the sons treated the mortgage debt as tlieir own, paid the interest on it, and also used and enjoyed the farm purchased as their own, the father disclaiming all interest in or control over it. The father afterwards died intestate as to the farm so purchased, but by a will, made before the purchase, he devised his owu farm to the two sons, charged with the payment of all his debts. On a bill, filed by the two sons against the other heirs of their father, praying that the farm be declared to be held by the heirs of the father in trust for the two sons, it was held that the other heirs of the father would be declared trustees for the complainants, and they were decreed to convey their respective interests to them.</p> <p>Although ordinarily the trust must arise at the time of the making of the deed, and if part only of the consideration be paid at the time by the party claiming the benefit of the trust, the trust results in his favor only to that amount, although ho subsequently pays the whole purchase money; yet in this case the whole purchase money must be regarded as paid by the complainants, and the transaction between the sons and the father must be regarded as a loan by the father to the sons to enable them to make the purchase.</p>

<p>The husband is a necessary party to a bill filed by the grantee of the husband against the wife for the partition of lands alleged to have been held by the husband and wife as tenants in common. The wife can only defend the suit jointly with her husband, except under special circumstances.</p> <p>A wife, though living separate from her husband, even though she has been separated by deed, cannot be sued alone; her husband must be joined, if only for conformity.</p> <p>If an estate in fee be given to a man and his wife, or a joint purchase be made by them during coverture, they are neither properly joint tenants nor tenants in common, for they are in law but one person, and cannot take by moieties. They are both seized of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole. A conveyance by either alone is inoperative.</p> <p>The estate thus vested in the husband and wife by a conveyance to them during coverture is not affected by the act of 1812 respecting joint tenants and tenants in common (Nix. Dig. 136, $ 34). That act extends to joint tenancies only, and not to tenancies by entireties.</p> <p>But when an estate is conveyed to a man and woman before marriage, who afterwards intermarry, as they took by moieties they will continue to hold by moieties after marriage.</p> <p>So it seems that a husband and wife may, by express words, be made tenants in common by gift to them during coverture.</p> <p>When a bill for partition alleges that the husband and wife were seized as tenants in common by virtue of a conveyance to them made during coverture, that fact is not necessarily inconsistent with the creation of a tenancy m common, and on demurrer to such a bill it will be assumed that apt words were used in the conveyance for that purpose. If in truth the conveyance was made to the husband and wife during coverture, and apt words for the creation of a tenancy in common were not used, the fact should be shown by way of plea.</p>

<p>Complainants and defendants, being joint owners of an island in the Caribbean sea, said to contain large deposits of guano, entered into an agreement that complainants should conduct the business of collecting and soiling the guano for the mutual benefit of all concerned, and that the profits and losses of the business should be divided among all the parties according to their respective interests, and that complainants should have a lien on the island and all the personal property used in their business for any advances made by them. The business generally proving unprofitable, the complainants filed their bill against the defendants (who are citizens of this state, and appeared regularly to the suit-,) praying an account and a decree against the defendants for their proportion of the losses, and for a sale of the island, its contents, and the personal property connected therewith—</p> <p>Held, that it is no objection to the court’s taking an account, and making a decree in the cause, that the property is out of the jurisdiction of the court, so that the decree cannot be enforced in rem.</p> <p>The strict primary decree of a court of equity is in personam,, and not in rem, and the authority of this court to deal with contracts in relation to land not within the jurisdiction of the courtis fully established.</p> <p>The contract between the parties and the circumstances of the case held to be such as to entitle the complainants to close their operations, and seek an account and settlement in this court.</p>

<p>This was a motion to dissolve an injunction.</p>

<p>On a bill filed by the heirs-at-law of a deceased vendee by parol contract against a purchaser claiming by a subsequent deed from the vendor, charging such purchaser with notice of the parol contract of sale, and qiraying a decree for specific performance against such purchaser, it was held that the administrator of the vendee was a necessary party to such a suit where the personal estate was small, the estate still unsettled, and it does not appear that the debts of the deceased vendee have been paid.</p> <p>The administrator is not only liable for the purchase money, and interested in disputing the contract, but he has an equitable interest on behalf of creditors in the real estate of his intestate paramount to that of the heirs. All persons interested in the contract should be made parties to the proceeding.</p> <p>The fact that the heirs are also bona fide creditors of the vendee, however it may strengthen their claim to equitable relief, cannot aid the defect in the bill for want of parties.</p> <p>The defendant did not take his title directly from the vendor, but from one S. P. M., to whom the vendor made title, and who was originally a party to the bill, but died pending the suit. It appeared,, however, that S. P. M. was a mere trustee for the defendant. Held that the conveyance by . S. P. M. to the defendant was a mere execution of the trust, and that it was unnecessary to make the representatives of S. P. M. parties to the suit.</p> <p>There is no. difficulty in enforcing the specific performance-of the contract against the alienee of the vendor. Where the alienee has notice of the original contract at the time of the alienation, he is liable to its performance at the suit of the vendee. If he is a purchaser with notice, he is liable to the same equity, stands in his place, and is bound to do that which the person he represents would be bound to do by the decree.</p>

<p>J. A. M., domiciled in New Jersey, (lied intestate. Letters of administration on her estate were granted to the complainant, in the place of the domicil of the intestate. The defendant, a brother and one of the next of kin of the intestate, obtained possession of some of the personal property of the deceased, consisting of bonds and stock of the Buffalo, New York, and Erie Railroad, a bond of the New York and New Iiaven Railroad Company, and a note or notes of a brother of the intestate, who resided in New Jersey, and procured administration of the personal estate of the intestate to be granted to him by the surrogate of the city and county of New York. Complainant filed his bill in this court against the defendant, alleging the above facts, and also that defendant had received other considerable sums of money in Now York as administrator ; that there were no debts, and praying a discovery and account of the amount in the defendant's hands, and a decree that he pay over such amount to the complainant. On a demurrer to this bill, it was held—</p> <p>That, as the intestate left assets both in New York and in this state, administration was rightfully granted in both states, although the right of succession to the personal estate is to be regulated by the law of the domicil.</p> <p>Administration of the estate must be in the jurisdiction in which possession of it was taken and held under lawful authority, and when there are two administrators in different countries, each portion of it must bo administered in the country where possession of it was so taken.</p> <p>The person to whom administration is granted is bound to administer the estate and pay the debts of the deceased. His duties remain the same though the intestate may have been domiciled elsewhere. The right of administration is irrespective of the domicil of the intestate.</p> <p>The validity of the letters of administration m New York not being called in question, the claim of the complainant, that the defendant having, as such foreign administrator, collected funds of the intestate, is bound to account for them to the administrator in this state, to be administered here, is without foundation in principle.</p> <p>The bill alleges that, as to one or more of the securities taken and held by defendant, the debtor resided and still resides in this state. The foreign administration gave no title to these securities as against the administrator in this state. The bill prays a discovery and account as to these securities, and for that purpose it can be maintained.</p> <p>The demurrer is too general; it is applied to the whole bill, but is good as to part only, and must be overruled.</p>

<p>On a bill filed for the foreclosure of a mortgage, in which it is alleged that the mortgage had been cancelled, and with the bond had been surrendered to the defendant by mistake, under a mistaken apprehension that the mortgage debt had been satisfied, when in truth it had not—</p> <p>Held that the voluntary cancellation of the securities by the holder is a very strong circumstance, which can only be overcome by clear cvidence; but that the evidence in this case shows satisfactorily that the mortgage has never been paid.</p> <p>Equity will relieve where an instrument has been delivered up or can-celled through fraud or mistake.</p> <p>The present case does not fall within the principle, that to entitle the party to relief on the ground of mistake, it must be of such a fact as he could not by reasonable diligence have obtained knowledge of.</p>

<p>On a bill filed to settle the construction of a will containing the following residuary clause, viz. “ all the residue and remainder of my moneys not above disposed of, that is of moneys which I have at the time of my decease, I direct to be equally divided among my children and grandchildren living at the time of my decease — “ whatever personal property is not herein before disposed of I direct to be sold by my executors, and the moneys thereon arising to be divided equally between my son and my two daughters,” it was held that, by these two clauses, a clear distinction is made between moneys and personal property. The residue of the one is given to all the children and grandchildren equally ; what remains of the other not disposed of is to be divided equally between the children.</p> <p>It is a well settled rule of construction, that by a bequest of money, bonds, mortgages, promissory notes, or other securities for the payment of money will not pass, unless it appears by the will or from the condition and circumstances of the testator’s estate that it was her intention to pass them. The term money must be understood, in its legal or popular sense, to mean gold or silver, or the lawful currency of the country, or bank notes or money deposited in bank for safe keeping.</p> <p>The bequest of money in this case does not include funds in the savings bank — that is in the nature of an investment drawing interest, and is not usually subject to the immediate order of the owner.</p>

<p>In a dispute between a mortgagee and lien claimants, as to the priority of their respective encumbrances on the mortgaged premises, where it was objected to the validity of the lien that the building was not erected by the owner of the land, nor by bis consent expressed in writing, and it appeared that, pending the erection of the building, the owner had conveyed away the land, but that the conveyance was merely as collateral security for the payment of a debt due to the grantee, that the deed was intended simply as a mortgage, and that on satisfaction of the debt the land was reconveyed — held, that these circumstances effectually dispose of the objection urged against the validity of the lien.</p> <p>A change of ownership during the progress of the building does not make a new commencement of the building, nor affect the validity of the lien which attached at the commencement of the building.</p> <p>Nor will the interruption of the work for a short period, and its subsequent resumption without a change of its original design and character, constitute a new commencement, or affect the attachment of the lien when the building was originally commenced.</p> <p>The proceeding under the statute to enforoe the lien by said deed judgment is a proceeding in rem. It does not create the lien any more than a proceeding and decree for the foreclosure of a mortgage. There is nothing in the statute which requires that the time of the commencement of the building, and the consequent attaching of the lien, should be specified either in the lien itself or in the reoord of the judgment.</p> <p>It is no objection to the validity of the liens that the mortgagor procured them to be filed, or that he concealed their existence from the mortgagee at the time of obtaining the loan for which the mortgage was given. If the mortgagor was actuated by fraudulent motives, it oannot affect the rights of the lienholders. The validity of the liens cannot depend upon the motives which suggested their being filed.</p>

<p>When, on the foreclosure of a mortgage, an execution had been issued, which by mistake directed the sale of land not included in complainant’s mortgage, nor described in his bill, and by virtue of which the sheriff had sold such land, an injunction will issue to restrain the sheriff from delivering the deed.</p> <p>On a sheriff’s sale of land consisting of different parcels, the general rule is, that if the land is plainly divisible, it should be sold in different parcels, so as to secure the highest price.</p>

<p>The statute (Nix. Dig. 211, $ 4,) which raises a presumption of the death of a person absenting himself for seven years without being heard from, was designed to furnish a legal presumption of the time of the death, as well as of the fact of the death.</p> <p>In the absence of the statute, the presumption would be that the absent person is still alive. This presumption of the continuance of life only ceases when it is overcome by the countervailing presumption of death afforded by the statute, which is not until the end of seven years.</p> <p>The presumption of death which arises at the expiration of seven years cannot operate retrospectively.</p>

<p>On a petition by a defendant that a decree of this court, in all respects regular, bo opened, and tliat he be admitted to answer, alleging surprise and merits, it was held—</p> <p>■That the general rule is that a decree regularly entered and enrolled cannot bo altered except by bill of revivor.</p> <p>Great liberality has been exercised in the opening and correcting of decrees before enrollment, and even afterwards (where the decree has been taken pro confesso), for the purpose of rectifying mistakes apparent upon the face of the proceedings, or whore there is a clear case of surprise and merits.</p> <p>When the only allegation of surprise is that the defendant is unacquainted with proceedings in this court, but in some way got the impression that he would have until the first day of the present term to file his answer, this is not a sufficient case of surprise. It was his duty to inquire as to his rights. If he negligently relied on his mistaken impression, he incurred the hazard of his default in not answering.</p> <p>The petition, though sworn to, is no evidence of the facts contained in it. Its truth must be established by affidavits and other evidence taken according to the rules and practice of the court.</p>

<p>When a parcel of land is sold under a decree of foreclosure, and is struck off and conveyed to the purchaser under an erroneous impression that the mortgage covers the entire tract, the price for the entire tract being bid and paid, and the purchaser put into possession, and it is afterward discovered that, from a mistake in the description, the mortgage does not cover the entire premises intended to be mortgaged, by reason whereof the legal title fails, the purchaser is entitled to be protected in the peaceable possession of the land purchased.</p> <p>Had an application been made on behalf of the mortgagee to reform the mortgage prior to the date of foreclosure there could havebeen no doubt of his equitable title to relief. And if a mistake in a mortgage may be corrected it is just and equitable that the mortgagor should abstain from availing himself of the mistake to the prejudice of the purchaser.</p> <p>It is not gross carelessness in a purchaser at a sheriff’s sale not to know that the description in a sheriff’s deed does not include the entire premises . which are understood to be offered for sale.</p> <p>In this case the devisee of the mortgagor was restrained from proceeding by ejectment to recover the possession of that part of the premises accidentally omitted from the mortgage, and was decreed to release the same to the purchaser.</p>

<p>In a bill for the foreclosure of a mortgage, in which a question arose between the complainants, whose mortgage was given before the erection of a building on the land, and certain lienholders, who had liens for the erection of the building, as to the proportions in which they were respectively entitled to share in the proceeds of sale which were insufficient to satisfy all the claims, it was held that the only safe mode of determining the relative claims of the respective parties will be for the master to ascertain the fair market value of the lot and building, and also of the value of the lot, as it stood at the time of the mortgage, clear of the building, both valuations having relation, as near as may be, to the time of sale.</p> <p>The mode of estimating the relative values of the land and building in Whitenack v. Noe, 3 Stockton 330, and in Newark Lime and Cement Co. v. Morrison, 2 Beasley 136, criticised and disapproved.</p>

<p>It is a well settled rule of this court that in questions of divorce guilt cannot be established by the unsupported testimony of either of the parties.</p> <p>Although delay in bringing a suit for divorce, after the discovery of the commission of the offence which is the ground of the divorce, of itself constitutes no bar, yet it is a circumstance always open to observation! and may, and in many cases ought to determine the court against granting relief. °</p> <p>There is, however, a difference in the application of the principle as against the husband or the wife, as against the latter the delay wall rarely furnish evidence of condonation or connivance.</p> <p>It is in accordance with the soundest principles of public policy and of morality that a wife, while living in a state of separation from her husband in silent submission to her wrongs, shall not be debarred by any lapse of time from the protection to which she might otherwise be entitled whenever the husband shall disturb her peace by an attempted exercise of his marital rights.</p>

An injunction having been granted on filing the bill, the defendant answered the bill, and now moves to dissolve the injunction.

<p>In a suit for divorce, instituted by the wife, where it appears that the parties have already been divorced by a decree of a court of Indiana, in a proceeding instituted by the husband, the wife has no title to the aid of this court.</p> <p>When it appears, by the record of the proceedings in Indiana, that the court had jurisdiction both of the parties and of the subject matter, that the defendant appeared by counsel, and has received from the clerk of that court the sum awarded her in that suit for alimony, she will not now be permitted to impugn the decree on the ground that it was fraudulently obtained.</p> <p>When it appears, to the satisfaction of the court, that the proceedings have not been instituted by the wifejn good faith for the purpose of obtaining a divorce, but for the mere purpose of collecting money from her husband, or compelling him to support her, alimony will be denied, and a writ of ne exeat previously issued will be granted.</p>

On filing the hill in this caso a preliminary injunction was allowed under the circumstances, which are stated in the Chancellor’s opinion. Defendant, having answered the bill, now moves to dissolve the injunction.

<p>Where a bill filed to avoid a deed, on the ground that it was never delivered to the grantee, but was fraudulently and clandestinely taken from his possession, and the defendants (the heirs of the grantee) have no personal knowledge of the delivery of the deed, and can only answer as to their information and belief, and the answer contains no positive denial of the fact which is distinctly alleged and charged in the bill, and therefore not evidence in the defendant’s favor upon that point, the complainant is not required to increase the weight of his evidence to overcome the answer.</p> <p>The fact of the possession of a deed by the grantee, duly executed and acknowledged by the grantor, is presumptive evidence of the delivery of the deed at the date of the acknowledgment. That presumption is to be overcome by counter evidence of superior weight. The uncorroborated evidence of the grantor is not sufficient for that purpose.</p>

<p>On a petition for divorce, filed by a wife against lier husband, on the ground of adultery, when the only proof that of the guilt of the husband is, that within six months after his marriage, he was affected with venereal disease, the evidence is not of itself sufficient to justify a decree,</p> <p>"When the facts relied on are susceptible of two or more interpretations, any one of which is consistent with the defendant’s innocence, they will not be sufficient to establish guilt. Though it is not necessary to prove the direct fact of adultery, it is necessary to show that adultery is the only necessary conclusion from the facts of the case.</p> <p>When the defendant was examined as a witness, and denied that since his marriage he has had connection with any other woman than his wife although his evidence is not entitled to the weight due to the testimony of a fair and impartial witness, it is nevertheless entitled to some weight, and in a case of this kind is at least sufficient to overcome the effect of the evidence on the part of the complainant.</p>

<p>A person to whom property is struck off at a sale made by commissioners appointed by the Orphans Court in proceeding for partition acquires a right which the court is bound to protect. Such bidder has a right to have a deed for the properly, unless for good cause the sale he set aside.</p> <p>If the court, without good cause, set aside the sale, such bidder is a party aggrieved by an order of the Orphans Court, and as snch is entitled, by the constitution of this state, to an appeal to the Prerogative Court.</p>

On tlie seoond day of September, A. D. 1851, tr. P. Conover and Sarah IT. Conover made their application, by petition, to the Orphans Court of the county of Monmouth for a division of real estate, of which they and others, named in said petition, were tenants in common.

<p>The personal property of a testator is by law the primary fund out of which the debts are to be paid.</p> <p>Properly nothing is the personal estate of the testator which was not so at his death.</p> <p>If a testator directs lands to be sold and converted into money to pay his debts, the proceeds become a fund which is liable for his debts.</p> <p>But where the conversion of the land into money is ordered in the will for a specific purpose, as if the direction is to convert the estate in order to give a legacy, the creditors cannot elaim the money as personal estate.</p> <p>The will in question contained the following clause: “ I also order my executors to sell my house and lot at Bmghampton, Broome county, and state of New Tort, as soon as conveniently can be after my decease, and to execute lawful deeds for the same, if I don’t dispose of the same in my lifetime ; and the money arising therefrom must be paid by my executors towards the debt of my son Peter, where I am bound as surety for my son Peter ; the remainder of the purchase money of the house and lot, if any there should be, I give unto my daughter-in-law Charity Ann, the wife of my son Peter.” The executors sold the premises, and there was a remainder after paying the debts specified; and on an application to the Orphans Court for an order to sell lands on a deficiency of personal property to pay debts, that court refused the application on the ground the remainder of the proceeds of the sale of the Binghampton property was personal estate, and must be applied to the payment of the several debts—</p> <p>Held, in the Prerogative Court, reversing this decision of the Orphans Court, that the proceeds of the sale of the Binghampton property could only be regarded as personalty for the specific purposes designated in the ■will, and that an order should be made to sell lands to pay the general debts.</p>

<p>The word children does not, ordinarily and properly speaking, comprehend grandchildren, or issue generally. Their being included in that term is permitted in two cases only, viz. from necessity, which occurs when the will would remain inoperative unless the sense of the word children were extended beyond its natural import, and where the testator has clearly shown, by other words, that he did not intend to use the term children in its proper actual meaning, but in a more extensive sense.</p> <p>Courts of probate are not governed by the same strict rules as a court of construction in reference to the admission of parol evidence. There are a number of cases where mistakes made in preparing a will have been corrected.</p> <p>Decedent made a will, dated 14th January, 1845. He had then living one son, seven daughters, and four grandchildren, the children of a deceased son. The testator gave to his daughter, Elizabeth, a certain portion of his real estate, and then directed his executors to convert the residue of both real and personal estate into money, and to distribute the same as follows: To his son Peter, two shares; to each of his daughters, with the exception of Elizabeth, one share ; and also one share to his four grandchildren, the children of his deceased son Garret. It was further provided, that if any of said children should die previous to said distribution, the share of such child so dying should go to his or her children. In the year 1850, one of the testator’s daughters died, leaving a son, and who, under the above provision of the will, would have taken the share of his mother. The testator then, in 1851, made a second will, in most of its provisions similar to the former one, but with the exception that, after providing for Elizabeth, the devise is made to his three, instead of four daughters. This will then also provides that, in case of the death of any of his children, the share of such child shall go to his or her children. Under this will it was clear that the son of the deceased daughter would not take. Evidence was offered to show that it was the intention of the testator, by his last will, to give to the son of the deceased daughter the share which would have come to him by force of the former will. Held, that as there was no ambiguity on the face of the will, as there was no fraud, and no mistake by the testator as to any fact, the court could not reform the will so as to make it correspond with the presumed intentions of the testator.</p>

In the matter of proving the last will and testament of Esther Horton, deceasedappeal from the Orphans Court of the county of Morris.

<p>An appeal -will lie from order of Orphans Court fixing the amount of executor’s commissions.</p> <p>This is a constitutional right, and the legislature has not the power to abridge or take it away.</p> <p>But the Prerogative Court will not exercise its jurisdiction to review the decision of tlie Orphans Court in a matter of this kind, except in case of a manifest error in judgment.</p> <p>Where the amount of commissions allowed the executors is grossly inadequate, it is the duty of the Ordinary to substitute his own‘judgment, and exercise his own discretion upon the subject matter.</p>

<p>The Orphans Court cannot open the final account of executors or administrators except for fraud or mistake.</p> <p>Where an account is opened to correct an alleged mistake in any particular item or items, the whole account' is not thereby thrown open for review.</p>

<p>It is only when a minor has no other means for his education and maintenance that the Orphans Court is empowered by the statute to order the sale of his lands.</p> <p>Where the parent is of sufficient ability to maintain and educate the infant, as a general rule, the lands of the latter should not be sold for that purpose.</p> <p>There may be such a disparity between the fortune of the minor and the pecuniary circumstances of the father as would make it proper that the fortune of the child should contribute to his own support.</p> <p>The principle which should govern the court in making the order should be the same as has been adopted in chancery in like cases.</p>

This case came before the court by appeal from the decree of the Orphans Court of the county of Camden. Two papers were presented to the surrogate of that county for probate, the one purporting to be the last will and testament of Peter Cheesman, deceased, and the other a codicil thereto. Caveats against the probate of these papers were filed by William J. Cheesman.

<p>On a question of testamentary capacity, evidence of the opinions of witnesses, though competent, is merely preliminary to the further inquiry of the facts and circumstances upon which their opinions are formed.</p> <p>It is not the opinion of the witness upon which the court relies, but the court draws its own conclusion, and forms its own judgment from the premises which have produced the conviction in the mind of the witness.</p> <p>The mere opinion of a subscribing witness is entitled to no more weight with the court than that of any other witness.</p> <p>The opinion of a witness who is a stranger to the testator, and who sees or hears nothing except what is necessary to enable him to attest the instrument as a subscribing witness, is not as much to be relied upon as that of a neighbor and familiar acquaintance of the testator. The opinion of neither is of any weight with the court, except as it proves itself to be a correct and sound conclusion from facts which justify and warrant it.</p> <p>A man who will subscribe an instrument attesting that the testator is of sound mind, memory, and understanding, and then repudiate under oath his own' attestation, does not occupy a position that will justify a court in giving any weight to his own opinion.</p>

This case came before the Ordinary on an appeal from the Orphans Court of Gloucester county. The facts are sufficiently stated in the opinion of the Ordinary.

<p>A will can be cancelled in no other way than by its being burned, torn, or obliterated by the testator himself, or in his presence and by his direction and consent, or by a revocation in writing, executed in the same . manner as wills are required to be executed.</p> <p>A testator asked his wife if she had brought his will from its place of deposit according to his instructions, and at the same time informed her that he wished to burn it up. The wife replied that she had burnt it up. Held, that this did not amount to a revocation, the will not having been burnt.</p> <p>Under the statute of this state, passed in 1814, it was requisite that the witnesses should be actually present, and see the testator sign the will. The act of 1851 makes the acknowledgment of his signature in the presence of the witnesses sufficient.</p> <p>There is no argument to be drawn from the substitution of the word “ declared," in the act of 1851, for the word “published," in the former act. . Whatever would amount to & publication would answer the requirement, that it should be declared to be the testator’s will.</p> <p>It is manifest that the authors of the act of 1851 did not intend to affect any wills executed in compliance with the requirements of the old act.</p> <p>The attestation clause to a will is primes facie evidence of the facts stated in it; and the instrument will not be rejected because the witnesses fail to remember the mode of its execution.</p> <p>If there is no attestation clause, there must be affirmative proof of the publication by the testator and of the other requisites.</p> <p>There must be some declaration by the testator that it is his will, and a communication by him to the witnesses that he desires them to attest it as such. But this need not be by word : any act or sign by which that communication can be made is enough.</p>

<p>Where a caveat is filed against proving a will by a person who claims to be attorney in fact for legatees under a former will, who, if living at all, live in a distant state of the Union, and no power of attorney is produced from such legatees — held that the fair presumption was, under the circumstances of this case, that no power of attorney was in existence, , and that it was the duty of those opposing this will on behalf of such legatees to give some evidence of their being still alive, and of the authority to appear for them, if they wish to attack the pres ent will because of their not being mentioned in or provided for in it.</p> <p>Tl.e evidence in this case carefully examined, and the will admitted to probate against a very strong array of medical and other testimony against the sanity of the testator.</p> <p>The testimony of the attesting witnesses, as to the sanity of testator, held to be strengthened by the facts that the will is a reasonable one on the face of it, and that its contents correspond with the repeated declarations of the testator.</p> <p>The consideration is entitled to some weight, that by the will under consideration the property is mostly given to the heirs-at-law and next of kin of the testator, who are satisfied with the will as it stands. The caveators, if they claim as devisees or legatees under a former will, should have propounded it for probate. Not having done this, the presumption is that, if this will is not established, the decedent died intestate, and such being the case, the property would go to the very persons to whom it is given by the present will, and the caveators would derive no benefit from defeating it.</p>

This cause came before the Ordinary on an appeal from a decree of the Orphans Court of the county of Essex, refusing to admit to probate a paper purporting to be the last will of Jonathan M. Meeker, deceased, propounded by David K. Boylan, who was named as one of the executors in the will, and to whom large legacies were given by it. The decree appealed from also denied costs and expenses to the party propounding the paper.

<p>A testator made a will in 1850, a codicil thereto in 1854, and a subsequent will in 1858, by which he bequeathed and disposed of all his real and personal estate without exception, and which contained a clause, “ hereby revoking all former wills, and declaring this to be my last will and testament.” After the last Will had been admitted to probate, on ah application to admit to probate the codicil of 1854, it was held, that the last will contains both an implied and express revocation of the codicil. The revocation extends to all prior testamentary dispositions of testator’s estate, real and personal.</p> <p>It is a principle, as ancient as it is familiar, that no man can have two wills. The last will is of necessity a revocation of all former wills, so far as it is inconsistent with them. So if one having made his will, afterwards make another will inconsistent therewith, hut not expressly revoking it, this will nevertheless be a revocation.</p> <p>This implied revocation is effected only when the last will is inconsistent with the former; for it maybe a will of different goods, or different pieces of land, so that the two may be taken conjointly as the will of tbe testator.</p> <p>If llie latter will contain an express revocation of the former, it is immaterial whether the latter be or be not inconsistent with the former, or whether it operates as a will at all or not.</p> <p>It is undoubtedly true that the revocatory clause is not always inoperative, and that its effect depends upon the intention of the testator, hut that intention must in every case be gathered from the contents of the instruments themselves. Parol testimony is inadmissible for this purpose. It is never admissible to contradict by parol the terms of a will, or to overturn its plain provisions.</p>

<p>What constitutes undue influence can never be precisely defined. It must necessarily depend in each case upon the means of coercion or influence possessed by one party over the other. Whatever destroys the free agency of the testator constitutes undue influence. It is immaterial whether that object be effected by physical force or mental coercion, by threats which occasion fear, or by importunity which the testator is too weak to resist, or which extorts compliance in the hope of peace.</p> <p>Threats of personal estrangement and non-intercourse, addressed by a child to a dependent parent, or threats of litigation between the children to influence a testamentary disposition of property by the parent, constitute undue influence.</p> <p>The fact that a testator has been induced to make a new will by false representations as to the contents of an existing will, is a proper element in the consideration of the question of undue influence, although the new will may not materially vary from the former one in respect to the subject matter of the false representations.</p> <p>Testimony on a question of undue influence, which is but matter of opinion, is entitled to consideration only so far as it is sustained by facts.</p>

<p>A married woman is incapable of devising real estate. She is also incapable of disposing of her chattels by will without the consent of her husband. Such a will, being amere nullity, will not be admitted to probate.</p> <p>The wife may, with the consent of her husband, make a valid will of her ' personal estate, and such consent may be by parol; it may be express or implied, and may be before or after the death of the wife.</p> <p>.The consent of the husband is not obligatory, but is revocable at his plea- ■ sure at any time before probate granted. It is nothing more nor less than a caveat that the will be admitted to probate. If that is revoked, ' probate cannot be granted.</p> <p>if, in consequence of the husband’s assent, rights are acquired by other parties to property disposed of by the will, it seems that in such case he would not be permitted to retract his assent and oppose the probate.</p> <p>Where a married woman made a will with the consent, and in parol by the procurement of the husband, and after the death of the wife, a day was fixed for the reading of the -will by the husband at his house, and notice given thereof to the heirs of the wife by the husband, who also knew of the will being taken to the surrogate’s office for probate, and made no objection to it. The husband afterwards withdrew his consent, and filed a caveat against admitting the will to probate. The Orphans Court having admitted the will to probate, the decree of the Orphans Court was reversed.</p>

<p>When executors, being authorized by the will of their testator to sell his real estate, advertised for sale his farm, which was sold at public auction to one S., who purchased at the request of one of the executors, who was the real purchaser, for the sum of $4500. The purchaser did not sign the contract of sale, nor were the other conditions complied with at the time, on account of objections to the sale made by the other executors, but before the day named by the conditions of sale the real purchaser took possession of the farm, contracted for the sale of a part of it, and put the purchaser in possession, and on the day and at the place appointed for giving the deed he appeared, in compliance with the conditions, prepared to complete the purchase, hut the other executors refused to make the title. After repeated unsuccessful efforts, during nine months, to procure the title, the purchaser gave notice to his co-executors that he would no longer hold himself responsible for the purchase, and requested them to re-sell the property.</p> <p>About a year afterwards the purchaser was oited before the Orphans Court by his co-cxocutors to render an aocount of his administration, and was ordered by the court to file an account within twenty days, charging himself with §4500, the purchase money of the farm, as assets in his hands.</p> <p>On an appeal from the decree of the Orphans Court it was held — •</p> <p>1. That there was clearly no valid contract of sale ; treating the executor as a stranger to the estate, the fact that the purchaser refused to sign the conditions because one of the executors refused to ratify the sale, is conclusive on that point.</p> <p>2. That no subsequent act of the purchasing executor bound him. His taking possession of the farm, contracting verbally for the sale of a part of it, and putting the purchaser in possession, were manifestly done in good faith with the expectation of obtaining the title. Having failed m that, he cannot be hound by these acts as part performance or as an acknowledgment of his liability as purchaser.</p> <p>3. The execution of the deed by the other executors a year after the purchase was made, and leaving it at the office of the attorney of the purchaser after he had given distinct notice that he would not accept the title, was a mere nullity.</p> <p>4. The purchase of the property by one of the executors was clearly illegal. He would acquire no valid title if the deed was delivered. If he had accepted the title, and agreed to pay the price, he might not be permitted in equity to disavow the act and refuse to pay the purchase money. But no court would require an executor, against his will, to act in violation of his duty or to accept an invalid title,</p> <p>5. Neither the Orphans Court nor this court has any power to enforce a specific performance of the contract, even if the executor was bound in equity to a specific performance. That question, as well as the question of the liability of the executors for a failure to sell the land and settle the estate, belongs to another tribunal.</p> <p>The decree of the Orphans Court was in all things reversed, but no costs were allowed to either party, as against the other, nor were costs awarded to either party out of the estate.</p>

<p>On an application on behalf of an infant devisee to this court to set aside the report of commissioners assigning dower to the widow of testator, on the ground of inequality and illegality in the mode of making the assignment, it was held—</p> <p>That the statute authorizing the assignment of dower by commissioners was not designed to affect the legal rights or interests of the parties in the subject matter, nor to deprive either party of any protection against an infringement of those rights, It was designed to leave the power of the court over the proceedings of the commissioners so broad and unlimited as to afford to all parties concerned as full protection to their rights as they were entitled to under the subsisting modes of procedure, either at law or in equity.</p> <p>The court must have power under the statute to administer all the relief, legal or equitable, against an illegal or unjust assignment of dower to • which the doweress or the tenant was previously entitled. Relief may be granted, at the instance of either, against any act of the commissioners prejudicial to the legal rights of any party concerned in the proceedings.</p> <p>In this case testator devised to his son and to each of his three grandchildren distinct farms and portions of real estate subject to the widow’s right of dower. The commissioners assigned an entire farm, which was devised to one of the minors as a portion of the widow’s dower. Nearly one half of the land devised to this minor was assigned to the widow for her dower, and much less than one-third in value of the land of other devisees was so assigned, although the whole land assigned to the widow did not exceed one-third of the whole land of which testator died seized. Held, that the assignment was illegal. No more than one-third of the land of each tenant must be assigned to the widow for her dower.</p> <p>Each of the tenants is equally entitled to relief, whether the assignment is illegal and unequal, as between the widow’s dower and the entire estate, or only as between the dower and the interest of the several tenants individually.</p>

<p>The right of appeal from a sentence or decree of the Orphans Court rejecting or admitting a will to probate, is by the statute made conditional upon its being demanded within thirty days after the sentence or decree of the Orphans Court.</p> <p>The thirty days are to be computed not from the time the decision is announced, but from the time the decree was reduced to writing, signed and filed, and entered upon the minutes of the court.</p> <p>The statute requiring the decrees of the Orphans Court to be signed by the presiding judge {Nix. Dig. 588, § 63,) was designed rather to regulate the mode in which the decree should be authenticated, and its existence verified, than to prescribe an essential requisite to the existence or validity of the decree. The decree, having been duly made and filed, may be subsequently authenticated by the signature of the presiding judge.</p> <p>The demand and filing of the appeal in the court below, and not the petition of appeal in this court, is the demand of appeal intended by the act, and which, alone, is required to be made within thirty days.</p> <p>The time of filing the petition of appeal is regulated by rule of court, and whenever the rule has not been complied with, the court may, in the exercise of its discretion, release the party from the effects of his laches.</p> <p>That the appellant, by her proctor, immediately on the decision being announced by the court, and before the decree was framed or its precise terms settled, gave notice orally, in the presence of the adverse proctor, that she intended to appeal from said decision, is not a sufficient demanding of an appeal.</p> <p>It seems that a mere oral demand of appeal, without any instrument of appeal being prepared, or entry made on the minutes, or some order made by the court, is not, according to the practice in this state, a lawful demand of an appeal.</p> <p>An order made by the Orphans Court more than thirty days after the decree was signed and filed, reciting that an appeal had been demanded in open court, and directing that the said appeal be entered, and that re-' turn be made therein according to law and the practice of the court, is not conclusive that an appeal had been duly demanded, when it otherwise appears that the only demand of appeal actually made, was an oral declaration of the appellant’s proctor that he intended to appeal.</p> <p>The principle is of universal application, that the validity of an appeal is to be decided by the appellate tribunal.</p> <p>Where the court below met by formal appointment to decide the cause, and announced the decision in the hearing of both proctors, and immediately and publicly adjourned in the presence of the proctor of the aggrieved party to an early day, that the decree might be formally prepared for signature, and again met on that day, and signed the decree, which was immediately placed on file, and there remained until after the time for appealing had expired, no actual notice of the signing of the decree was necessary, nor is it material whether the party aggrieved or her proctor was actually in court when the decree was signed. Parties are bound to take notice of the acts and decrees of the court regularly made.</p> <p>If, however, the court had met, and made the decree privily, or without full notice to the appellant, or if the fact of the decree had been intentionally concealed from the proctor of the party aggrieved, or its existence denied, or any artifice or fraudulent practice resorted to to deprive' him of the opportunity of appeal, the right of appeal would not have been lost.</p>

This case came up on appeal from the decision of the Chancellor dismissing the complainant’s bill. The opinion of the Chancellor will be found in 2 Beasley, p. 201. It was argued in the Court of Appeals by

<p>This was an appeal from the decision of the Chancellor, reported in 2 Beasley, p. 322.</p>

<p>This was an appeal from the Chancellor’s decree. — See the case reported in Chancery, in 1 Beasley 165.</p>

<p>This was an appeal from the opinion of the Chancellor, as reported in 1 McCarter, p. 229.</p> <p>It was argued on appeal by</p>

<p>When a married woman, with the consent of her husband, contracted for the purchase of a lot of land, which was afterwards conveyed to the husband, who paid the purchase money and erected a house on the,lot, part of the cost of which was paid by the husband, and the balance was secured by his bond and mortgage on the premises, which was after-wards paid by the wife by money derived from her own earnings — ■</p> <p>Held, that these circumstances fail to establish any resulting trust in the wife, or show any interest in the property in her paramount to the title of the husband.</p> <p>By the common law, the earnings of the wife by the product of her skill and labor belong to the husband. They do not become the property or the wife, even in equity, without a clear, express, irrevocable gift, of some distinct affirmative act of the husband divesting himself of them or setting them apart for her separate use.</p> <p>An injunction, which had been allowed at the instance of the wife, to prevent a judgment creditor of the husband from satisfying his judgment out of the land, held to have been properly dissolved.</p>

Upon the filing of the complainant’s bill in the Court of Chancery, an injunction was granted ex parte. The defendant, having filed his answer, moved to dissolve. This motion was argued before Mercer Beasley, esquire, master, &c., to whom the matter was referred by the Chancellor, (Williamson) he having been of counsel with the defendant in relation to matters contained in the bill. Upon recommendation of Master Beasley, the Chancellor made an order dissolving the injunction.

<p>A testator, by his will, bequeaths to his wife specifically all that portion of his personal estate commonly known as goods and chattels, such as plate, furniture, horses, carriages, &c., and immediately after gives and devises “ all the rest and residue of my real and personal estate” unto certain persons in trust for various uses and purposes, among which are, to give to each of five legatees named, two hundred and fifty shares of certain stock which testator had at the making of his will and at the time of his death. And the question being which of the bequests of the shares of stock were specific or general bequests — it was held</p> <p>That it seems to be conceded that if a testator bequeaths to a person a certain number of cows or sheep or shares of stock it is a general legacy ; but if he add the word my cows, my sheep, or my shares of stock, it is a specific legacy, although in both cases he may be, at the time of making the will, and thence to his death, the owner of the number of the cows, sheep, or shares mentioned in the will.</p> <p>In this case the testator, having otherwise disposed of all his personal property except the stocks and bonds, concerning which this question arises, and there being no other personal estate but his stocks and bonds on which the residuary bequest could operate, his describing such residue as "my personal estate” is equivalent to saying my stocks or my bonds, and makes the legacies specific, and not general.</p>