Volume 17 — New Jersey Equity Reports

John Rolason, late qf the township of Oxford, in the county of Warren, by his will, bearing date on the twenty-first of June, 1830, among other things, devised and directed that the remainder of his property should be sold for cash, and the remainder of the money applied to purchase a house and lot suitable for the family; the house and lot to be his wife’s during her widowhood, and after her death, the property to be sold and equally divided among the children of the…

<p>1. Where the equity of the hill is not denied, or where the facts upon which the equity rests are admitted, but the answer sets up new matter in avoidance, the injunction will not be dissolved or denied upon the answer alone.</p> <p>2. Now matter, by way of justilication or avoidance of the matters contained in the bill, will not avail the defendant upon the hearing upon bill and answer.</p> <p>3. The right of a party to an injunction, or to its continuance, cannot be prejudiced or altered by the mere fact that the case is heard upon the argument of the rule to show cause why an injunction should not issue, upon the complainant’s motion, and not upon a motion to dissolve by the defendant. The defendant, in such case, stands upon the same ground and with the same rights that he would upon the motion to dissolve.</p> <p>4. A denial of the complainant’s right, upon an application for an injunction, must be made upon the defendant’s knowledge, and not upon his belief or opinion.</p> <p>5. The Passaic, at the great falls, is a private river. The complainants are the riparian proprietors, and are entitled to the use and enjoyment of the stream without diminution or alteration.</p> <p>6. Where a party seeks an injunction to restrain a violation of a covenant under a lease, and such covenant is a continuing covenant running with the land, and its violation is of constant recurrence, his title to relief is not forfeited by long delay in making his application.</p> <p>7. If, under the circumstances, an injunction had been asked without due notice that the oomplainant insisted upon the performance of the covenant, the motion might have been resisted upon the ground of surprise,</p>

<p>1. A widow joined with th,e heirs-at-law of her deceased husband in the execution of two mortgages to satisfy a part of the indebtedness of his estate, pledging her individual interest in the lands of which he died seized, to the payment of that specified indebtedness. To secure the remaining indebtedness, the heirs.-at-law, alone, subsequently executed other mortgages upon the same real estate. By an arrangement between the executors and the subsequent mortgagees, they were authorized to enter upon the mortgaged premises, sell all the standing timber fit for market, receive the proceeds of sales, and appropriate them towai ds the payment of the mortgages in such proportions as might he agreed upon by the mortgagees respectively. Under this agreement sales of timber were made to a large amount. By a subsequent arrangement between the first mortgagee (complainant in this suit) and the subsequent mortgagees, the proceeds of these sales were applied, not to the complainant's mortgage, which was executed by the widow, hut to the subsequent mortgages, the holders thereof guaranteeing the payment of the complainant’s mortgages. Held—</p> <p>First. The interest of the widow cannot be thus subjected to the encumbrance of the entire mortgage debt. It is liable only for the debt secured by the mortgages to the complainant, executed by herself. Beyond that, it is unencumbered.</p> <p>Second. The widow is entitled to have her claim for dower satisfied out of the proceeds of the sale of the land, as though the entire net proceeds of the sale of the timber had been applied toward the satisfaction of the complainant’s mortgage.</p> <p>Third, To afford the widow the protection to which she is entitled, and to secure to her the full value of the dower in the equity of redemption, it is necessary that the entire value of the timber cut upon the premises should be credited upon the mortgage to which she became a party.</p> <p>2. A widow is entitled to dower in wild or unimproved lands.</p> <p>3. If the land be sold under the mortgage, the value of the dower in woodland is ascertained by the same rule which is applicable in any other case.</p> <p>4. Where a wife’s inheritance has been sold and conveyed by the husband and wife, and. the proceeds have been used by the husband, without any contract with the wife for repayment, the wife, after the death of the husband, has no claim in equity upon the real estate ,of the husband, as against his creditors,</p>

<p>1. Where to a scire facias upon a decree payment is set up as a defence, the burden of proof is upon the defendant.</p> <p>2. Absence from the state held no ground for postponement of a decision, or for the exercise of discretion in permitting further delay.</p>

<p>1. No change in the mode of appropriating the proceeds of sale, specifically disposed of by decree and execution, can be made, except by opening and correcting the decree and altering the execution. This can only he done upon notice.</p> <p>2. In suits for foreclosure and sale of mortgaged premises, each mortgagee is entitled to be paid his principal, interest, and costs, according to his priority. It is immaterial whether the bill he filed by the first, last, or any intermediate encumbrancer.</p>

<p>1. The title of a mortgagee to chattels mortgaged, is absolute at law after forfeiture, and he may sell them for the satisfaction of his debt without the aid of a Court of Chancery.</p> <p>2. A mortgagee of chattels may maintain an action at law for the conversion of the goods, although not in his actual possession.</p> <p>3. A mortgagee has the right to come into equity to obtain a foreclosure of the equity of redemption and a sale of the chattels, and also to protect the property from 'conversion or destruction until a sale be effected.</p> <p>4. If the mortgagee retain the chattels, they are always liable to redemption by the mortgagor. His only right to them is to satisfy his debt. When that is satisfied, his title ceases.</p> <p>5. The conduct and fairness of a sale of chattels by the mortgagee or pledgee, and the rights acquired under such sale, are always open to investigation at the instance of the mortgagor or pledgor. A sale under judicial sanction is therefore safer, and where the amount is large, advisable.</p> <p>6. The mortgagee has the right to foreclose his mortgage. He is not bound to incur the risk of selling the property without the sanction of a decree, and he may, it seems, come into a court of equity for the protection of his rights as mortgagee, even before a forfeiture has been incurred.</p> <p>7. Where an injunction has been issued at the prayer of tho mortgagee to restrain a sale or removal of chattels mortgaged, and the payment of the proceeds of sales already made to the plaintiff in execution, if the mortgagee has assented to a sale of the chattels, and they have in fact all been sold, the injunction will not he continued to prevent their removal, or to restrain the sheriff from paying over tho proceeds.</p>

Upon filing the bill in this cause, an injunction issued pursuant to the prayer thereof. The defendant having answered the bill, now moves to dissolve the injunction on the ground of ii’regularity; it having been issued without the security required by the statute.

<p>1. A lessee having made permanent improvements upon the demised premis.es under a covenant that he shall be repaid their appraised value at the expiration of the term, may seek relief in equity as well as at law. The value of the improvements constitutes an equitable lien upon the premises, which alone entitles tlie party tq relief in equity.</p> <p>2 If the lessee covenant for him and his assigns, that they will make a new wall upon a part of the thing demised, it shall bind the assignee. But if the thing to be done, be merely collateral to the land, and doth not touch or concern the thing demised in any sort, the assignee shall not be charged, though he be named in the covenant. The covenant is a mere personal covenant not affecting the land demised.</p> <p>3. A covenant by the lessor to pay his lessee the value of machinery, fixtures, and other necessary improvements, authorized to be substituted in the place of those already in the buildings at the time of the lease, enures to the benefit of the assignee of the lessee, though the word “ assigns " be omitted. Such improvements constitute an equitable lien upon the premises which can be enforced only in this court.</p>

The bill in this canse was filed by the executor of General Philip Kearney, to determine the interest of his widow and children in his estate under certain clauses in- the will; and also the rights and liabilities of the tenant for life and remainderman. The executor seeks the direction of the court in the execution of the trust, without being hostile to any of the parties in interest.

<p>1. The rulé is that if an executor, administrator, or trustee, negligently suffer the trust moneys in his hands to lie idle, or mingle them with his own funds, or employ them in his business, he is chargeable with interest.</p> <p>2. It is the duty of an administrator to invest the funds of an infant in his hands, within a reasonable titiie after the settlement of his accounts, where there is no probability that he will be called on for early payment.</p> <p>3. An administrator is not entitled' to a diminution in the legal rate of interest upon funds retained in his hands uninvested, on the ground that it would have been difficult to invest m his neighborhood small sums, except at less than the legal raté.</p> <p>4. Administrator allowed six. months from settlement of account for making investment, and charged with interest from that time to date of decree.</p> <p>6. An administrator is Entitled to no commissions upon funds remaining in his hands after settlement of his ácóount, where Ire has neglected to invest them, or has converted them to his Own use.</p> <p>6. Where interest is given against ’a trustee, as & remedy for a breach of tirust, costs follow as of course.</p>

The complainants are, respectively, the owners of lots butting upon Congress and Market streets, in the city of Paterson, and claim title to the middle of the street. The defendants are about to construct a horse railroad through those streets, under the authority of their act of incorporation. The complainants ask to enjoin the construction of the road. 1.

<p>1. Upon a bill for injunction, an allegation that the location of a street railroad will inconvenience the complainant’s business and diminish the value of his property, is material and significant, only where the road is constructed without authority, and the evil complained of is a public nuisance, as showing that the complainant has sustained special injury.</p> <p>2. But where the laying of the track and the use of the road are authorized by the municipal authorities, its location rests in the discretion of the corporation, or of those having the control and regulation of the streets. It cannot affect the question of right.</p>

<p>Petition to be relieved from contributing to the maintenance of an infant child, on the ground of the father’s pecuniary inability to pay the allowance decreed by the court, and that the child should live with the father and contribute to his support, denied ; his pecuniary inability not being satisfactorily shown, and the character of his house being such as to render it improper that she should live there.</p>

The bill of complaint in this cause is filed by the first mortgagee in order of priority, against the mortgagor and all subsequent encumbrancers, for the foreclosure and sale of the mortgaged premises.

<p>1. A mortgage given to secure future advances, duly registered, is good not only as against the mortgagor, but is entitled to priority over subsequent encumbrances, for all advances made prior to actual notice of the subsequent encumbrance.</p> <p>2. If the first mortgagee have knowledge of the existence of a second mortgage upon the estate, he cannot give further credit upon his prior mortgage, provided it is entiiely optional with him whether to make further advances or not.</p>

<p>1. To justify a decree for divorce on the ground of adultery, the evidence of the defendant’s guilt must be clear and satisfactory. A full and explicit denial of the charge by the defendant, and his alleged particeps criminis, should be regarded as decisive in a case oí doubt.</p> <p>2. Testimony touching reputation, founded on opinions expressed post litem, motam, is incompetent.</p> <p>3. A stranger sent by a party to the neighborhood of a witness to learn his character, will not be permitted to testify as to the result of his inquiries.</p>

Thomas Letson, the complainant’s testator, by his will, bearing date on the 30th of November, 1839, devised to his son, Johnson Letson, certain real estate in the city of New Brunswick, and also bequeathed to him a share of the residue of his personal estate, and of the proceeds of the sale of certain real estate, directed by the testator to be sold by his executors.

The complainants are residents and tax payers of the township of Delaware, in the county of Hunterdon, and have filed their bill in this cause, to restrain the defendants from collecting a tax imposed by an act of the legislature, entitled “ an act to authorize the township of Delaware, in the county of Hunterdon, to raise money by taxation to relieve the inhabitants of said township from the burden of a draft,” approved 25 th March, 1864.

<p>1. A certificate of stock in an incorporated company, accompanied by a power af attorney, authorizing the transfer of the stock to any person, is prima, fade evidence of equitable ownership in the holder, and renders the stock transferable by the delivery of the certificate. And when the party in whose hands the certificate is found, is shown to be a holder for value, and without notice of any intervening equity, his title as such owner cannot be impeached.</p> <p>2. The purchaser of a certificate of shares of stock, with an irrevocable power of attorney from the owner, without notice of any intervening equity, has a perfect right to fill up the power to himself, and to recover at law against the company for refusing to assign the stock upon his demand.</p> <p>3. A bill of interpleader is proper, only where the complainant has property or funds in his possession, or under control, to which there are two or more claimants, and the complainant is doubtful to which of the claimants the debt or duty is due. It cannot be sustained where the complainant is obliged to admit, that as to either of the defendants, he is a wrongdoer.</p> <p>4. The want of the affidavit to a hill of interpleader, denying collusion, constitutes a ground of demurrer, but it also may he taken advantage of at the hearing.</p>

This case was heard upon the argument of the rule to show cause, upon motion to set aside the sheriff’s sale, and that a new sale be ordered.

<p>1. Where the pews in a church have been purchased and a title given to the purchaser, he has but a qualified interest. His right is subject to that of the trustees or owners of the church, who have the right to take down, rebuild, or remove the church for the purpose of more convenient worship, without making any compensation to the pew-holders for the temporary interruption.</p> <p>2. A court of equity will not, on the application of a pew-owner, enjoin the pulling down and rebuilding, or removal of the church edifice by the trustees, whenever it shall be found expedient and proper. Nor will it affect the question, that the application is made by a majority of the church and congregation entitled to vote at its congregational meetings.</p> <p>3. The common law right of alienation by religious corporations has not been restrained in this state by statute.</p> <p>4. The real and personal estate of a religious corporation is trust property, not to be controlled by the will of the eestuis que trust, much less by a bare majority of them, but by the trustees, the duly constituted guardians of the rights and interests of the congregation.</p> <p>5. The Court of Chancery is vested with the same jurisdiction over corporate trusts that it ordinarily possesses and exercises over other trust estates. It will guard jealously against any perversion of the trust funds by the corporation, and will hold the trustees personally responsible for a breach of trust.</p> <p>G. Where the material charges of the bill are fully denied by the answer, an injunction will not be granted, even though the bill disclose clear ground of equitable relief.</p>

<p>A testator, by his will, devised as follows: “ I do give the residue of my real estate to my children, share and share alike, but the shares whieh may fall to my sons, George and Michael, I do give to them only during their natural lives, and after their death, to go to their children, share and share alike, and if any of their children shall die before their lather/ leaving children, then the children to take their father's or mother’s part.’’ George died leaving no issue. Held-</p> <p>1. George and Michael, the devisees for life as well as the other children of the testator, take several, not joint interests in the residuary estate.</p> <p>2. The estate of each tehant continues during his life, and upon his death, goes to his children. If he have ho children, the devise over fails, and as to that reversionary ihterest, the testator died intestate.</p> <p>3. The remainder of the share devised to George, ve'sts not in the surviving children df the testator, but in his heirs-at-law.</p>

<p>1. No assignment in writing is necessary to transfer thp title to securities delivered under the prpvisions of a trust depd. A valid title passes by delivery.</p> <p>2. Securities delivered under the provisions of 3, trust deed, will not be decreed to be re-delivered at the mere will of the grantor.</p> <p>3. It does not lie in the mouth of a cestui que trust, while competent to judge of hjs own interest, to complain of acts as breaches ol trust, which were occasioned by his oiyn neglect or misrepresentations.</p>

This bill was filed to enjoin proceedings at law upon a promissory note for $5000, purporting to have been given by “ The Consolidated Franklinite Company of New Jersey,” to A. H. Ball & Company, on the 26th of April, 1861. The injunction issued, pursuant to the prayer of the bill, on the 12th of December, 1863. The defendants, having answered, now move to dissolve the injunction, on the ground that the equity of the bill is fully denied by the answer.

The bill alleges that the complainant is the owner of the one equal, undivided, half part of certain goods and chattels, consisting of a steam engine, printing press, type, and other articles, the materials of a printing office establishment, of which Holmes is the owner of the other undivided half, and that Crowell, the other defendant, claims some interest, the character of' which is unknown to the complainant ; that Holmes is in the possession and enjoyment of the…

Tbe bill in.this cause was filed to settle the construction of the will of Evert H. Yanness, deceased, and for directions to the executors.

The bill is filed to recover a donation causa mortis, alleged to have been made by the defendant’s testator, Tunis Melick, to the complainant. Susan Trimmer) a daughter of the testator and his residuary legatee, by her petition, asks to be admitted to defend the suit-.

<p>1. An'agreement by the complainant with the mortgagor, in a suit for foreclosure, his claim and costs having been paid in full, that the suit shall be no further prosecuted, binds the complainant only.</p> <p>2. A defendant who has been allowed to proceed with the suit in the complainant's name, under Rule XIV, § 9, may enforce the payment of his demand by means of such suit, though the complainant's debt be paid in full or he have given the mortgagor further time.</p> <p>3. Where an answer is filed, to which there is neither exception nor replication, tho cause should be set down for hearing upon bill and answer; and a decree pro confesso and order of reference cannot be taken except by consent of the defendant. Rut where the cause is conducted and the decree taken at the instance of the fiefendant who ha.s answered, his entering the decree is a waiver of his rights and a consent to the decree.</p> <p>4. Full costs will not be allowed a mortgagee upon his answer spun out by long recitals from the bill touching other encumbrances, for the mere purpose of admissions.</p>

<p>1. Upon tlie completion of a contract for the sale of real estate, the vendor is deemed in equity, a trustee for the purchaser of the land sold.</p> <p>2. Whore a party has contracted for the purchase of real estate, and subsequently consents to a sale thereof by the agent of the vendor, upon the assurance that he shall receive a specified sum therefor, the estate of the vendor is liable in equity for the value of the land to which the purchaser was equitably entitled.</p> <p>3. Upon the final hearing, the material charges of the bill must be taken as true.</p>

This case came before the court upon a motion to amend the bill as filed, by adapting the allegations with greater precision to the facts already proved, A large mass of testimony had been taken, and the evidence was still in progress.

<p>A testator gave the residue of his estate, real and personal, in trust to receive the rents and income, and to pay over the net interest and income “in three and one-eighth parts, to wit. one-third part to my daughter C. H., one-third part to my daughter S. B., and one-third and one-eighth parts to my daughter M. D.”</p> <p>Held — that M. D. takes one-eighth of the estate, and not one-eighth of a share, more than the other legatees; the remainder to be equally divided between the three.</p>

<p>1. Equity will not decree the specific performance of a contract, if it be reasonably doubtful whether the contract was finally concluded. The parties will be left to their remedy at law.</p> <p>2. Specific performance will not be decreed on the ground of part performance of the contract, unless the part performance has been such as clearly to take the case out of the operation of the statute of frauds.</p>

<p>1. A party who acts as the agent of another in the sale of land, and receives the purchase money therefor as such agent, is estopped from questioning the title of his principal to the premises, or to the proceeds of sale.</p> <p>2. A purchase by an agent or trustee in his own name, while in the performance of his office, enures to the benefit of his principal or cestui que trust.</p>

The bill alleges that the complainant and one John Black, jun., on the 17th of March, 1855, gave their joint bond to Beulah Merritt and Keziah Merritt, in the penal sum of $6000, conditioned for the-payment of $3000 in one year, \vith interest.

<p>1. When the cause is heard upon the bill and answer, as between the complainant and the defendant who answers, all the allegations of the answer must be taken as true.</p> <p>2. Where, at the time of the execution of a mortgago, for the foreclosure of which a bill has beou filed, the mortgagor had no right, title, or interest whatever in the mortgaged premises, and no power or authority to execute the mortgage, but the title was in other parties, of whom the answering defendant was one, such defendant is entitled to a decree of dismissal.</p> <p>3. The answer of one defendant is no evidence against a co-defendant. Much less can such answer avail a defendant, when not responsive to the charges of the bill, hut designed to establish a case in his favor, not within the scope of tho complainant’s case.</p> <p><1. An admission or allegation of fact in the answer will not avail the complainant, unless put in issue by the bill. If he desires to avail himself of such fact, ho must amend his bill.</p> <p>5. If an answering defendant seeks a decree to establish claims outside of any issue made by the pleadings, he must file a cross-bill.</p>

<p>This case came before the court upon a motion to dissolve the injunction, which issued upon the filing of the bill.</p>

<p>1. The ordinance of the city of Camden, “ authorizing and regulating the erection and building of party walls," is not repugnant to the constitution of the United States, or of this state. The land is not taken for public use.</p> <p>2. Under that ordinance, the right to compensation for the use of a party wall enures not to the owner of the building at the time of its erection, but to the owner at the time the party wall is used for the purpose of building on the adjoining lot. It is not a personal claim of the grantor, but a right annexed to, and which passes with the ownership of the building to the grantee.</p>

<p>1. A bill for partition will not lie where the title is denied, or depends on doubtful facts or questions of law.</p> <p>2. Where, upon a bill for partition, the title is denied, equity may retain the suit to give the complainant an opportunity to establish his title at law. But there is no room for the exercise of the power, where the defendant has established a valid title to the premises in dispute.</p>

<p>1. Upon a contract for the conveyance of real estate by deed with “ usual covenants,” the grantee is entitled to covenants of seisin, of right to convey, against encumbrances, of quiet enjoyment, and of warranty.</p> <p>2. “ What are usual covenants in deeds in a given locality ” may he referred to a master.</p>

This case came before the court upon an appeal by the defendant from a report of the master on exceptions to the answer.

<p>On the 23d of December, 1861, the complainant executed to a trustee, an assignment of two bonds and mortgages, amounting to about $1300, in trust to collect the moneys due thereon, and after satisfying claims against the complainant amounting to $78.50, to pay out of said moneys, unto John V. Lanning, a brother of the complainant, a debt of $1231, with interest, and to pay the surplus, if any, to the complainant.</p> <p>The bill seeks to set aside the assignment in favor of John V. Lanning, on the ground that there was, in fact, no debt due to him. That the notes which constituted the pretended indebtedness were given without consideration, and with a view to the creation of the trust. That the real consideration of the assignment, and the sole purpose of the trust in his favor, was an agreement and undertaking on his part, that he would take the complainant into his family, and would clothe, board, and lodge him, during life, for the sum of $1231, so assigned in trust for him. And that previous to the execution of the assignment, the defendant promised to execute a bond to secure such support and maintenance, which he afterwards refused to execute, or in any wise to fulfill the contract on his part.</p> <p>The answer denies fully the charges of the bill, and alleges that the trust was created for the satisfaction of a debt of $1231, due from the complainant to the defendant, as stated in the assignment.</p>

<p>1. Where a husband, in the transaction of his own business, assumes to deal in his wife’s name, and upon the credit of her estate, her knowledge of the fact will not operate to charge her with participation in the fraud, nor her estate with liability for the indebtedness. So long as she abstains from active co-operation with him, her silence can raise no presumption that he acted as her agent, or by her authority.</p> <p>■ 2. In order to charge the separate estate of the wife for debts contracted by the Husband in his business, there must be clear and unequivocal evidence of her assent to that arrangement.</p> <p>3. It is not necessary that the return should show that the officer before whom the commissioner was sworn, was duly authorized to administer an oath in the state where the commission was executed. All that the court requires is competent evidence of the authority of the officer to administer the oath.</p> <p>4. It is no objection to tlie evidence of a non-resident witness, taken bv virtue of a commission, that the witness is dead.</p> <p>5. An oath by a commissioner to take depositions in a foreign state, " truly, faithfully, and without partiality, to take the examinations and depositions, &c„” is a material departure from the requirements of the statute, and the testimony taken before such commissioner is inadmissible.</p> <p>6. Duties of commissioners defined.</p> <p>7. It is necessary to the admissibility of testimony taken before a commissioner, to show that all the requirements of the statute have been complied with.</p>

<p>The withholding a part of a loan in violation of the agreement of the parties, does not constitute usury. The mortgage stands as a valid security for the amount actually advanced, and no more.</p>

The complainant, by his bill, alleges that, upon the representations of Thomas M. Brown, of the firm of Brown & Shields, doing business in the city of New Toril, as to the character and extent of the business -done by said firm, he purchased of said Brown his interest therein, for the sum of '$1750.

<p>1. A testator, by bis will, ordered and directed as follows, viz. “ I do hereby appoint and declare my executors, hereinafter named, to be trustees of all property, estate, or interests, herein given or devised to any of my children, or that any of my children may be entitled to by virtue of any provision in this my last will, during the life of such child (excepting the life estate in the mansion-house devised to my son) with full power to retain all such property in their hands unsold and undivided, until after the year eighteen hundred and sixty-seven, and I do authorize my said executors to sell or convey all or any part of my real estate, and all real estate that may be purchased by them, &c. Held, that the power of sale extends to any and every part of the testator's estate, and not to the trust estate only.</p> <p>, 2. An express disposition, though probably involving an oversight or mistake by the testator, cannot be controlled by inference which is not necessary and indubitable.</p> <p>3. To a common bill for the specific performance of a contract of sale, the parties to fhe contract are the only proper parties.</p>

The complainant filed his bill in this cause, for an injunction to restrain the defendant from unlawfully flooding his land. The injunction issued pursuant to the prayer thereof. The defendant now asks that the complainant may be required to give security for such damages as he may sustain by reason of the injunction.

The hill charges that Nicholas Peiffer, the executor of Peter Peiffer, deceased, holding and owning, as such executor, a bond and mortgage for $5000, and being a creditor of the estate of his testator, on the 4th of January, 1862, assigned all his individual share, right, title, and interest, in the said bond and mortgage, and in the decree theretofore made for the foreclosure thereof, to the complainant, as collateral security for a debt of $3000, due from Nicholas Peiffer,…

<p>The bill charges that the defendants, George 1ST. Smith and Joseph E. Eoutzel, were partners in business under the name of Smith & Eoutzel, and were possessed of a large amount of personal property, encumbered by a chattel mortgage. That the complainant is a creditor of the firm, and that an action at law has been commenced, and is now pending for the recovery of the debt. That the chattel mortgage upon tho property of the firm has been foreclosed, the property sold, the mortgage satisfied, and a balance of the proceeds of sale, amounting to $670.98, remains in the hands of the sheriff.</p> <p>Alter the suit at law was commenced by the complainant against Smith & Eeutzel, arid before the sheriff’s sale under the foreclosure of the chattel mortgage, George 1ST. Smith confessed a judgment against himself, in favor of Simon and Samuel Walters, for $1500. An execution was issued upon this judgment, and a levy made upon the personal property of the firm of Smith & Reutzel, before the sale under the mortgage. By virtue of this levy, the execution creditors of Smith claim the balance of the proceeds of sale of the property of Smith & Reutzel, in the hands of the sheriff. The complainant, as a creditor of the firm, claims that he is entitled, to the proceeds of the sale of the partnership property, in preference to the creditors of an individual partner.</p> <p>Hpon filing the bill, an injunction issued restraining the sheriff from paying over the money to the execution creditors. The defendants, having answered, now move to dissolve the injunction, on the ground that the equity of the bill is denied by the answer.</p>

<p>1. In a bill by a purchaser of real estate, to enforce the specific performance of a contract for the sale and conveyance thereof, an averment of tender of the purchase money, on the day designated for the execution of the contract, is not necessary.</p> <p>2. As a general rule, in equity, time is not deemed to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. Equity holds time to be prima Jade non-essential, and will enforce the specific performance of agreements, after the time for their performance has been suffered to pass by the party asking for the intervention of the court.</p> <p>3 Equity regards a contract for land, of which a specific execution will be decreed, for most purposes, as if it had been specifically executed. The purchaser is regarded as the equitable owner of the land, and the vendor of the money.</p> <p>4. Where, upon a bill filed to compel the performance of a contract for the conveyance of real estate, an injunction issued to prevent the defendant from dealing with the property during the pendency of the suit, an objection that time is of the essence of the contract, will not avail the defendant upon a motion to dissolve the injunction.</p> <p>5. Upon a motion to dissolve an injunction, the court will not undertake to determine points of doubt or difficulty upon which the merits of the case may depend, but will leave them to be determined at the final hearing, when the evidence is fully before the court.</p> <p>6. When the answer admits the material allegations upon which the equity of the complainant’s bill rests, but sets up new matter in avoidance, the injunction will not be dissolved.</p> <p>7. In many cases, the court will interfere and preserve property in statu quo during the pendency of a suit in which the rights to it are to be decided, and that without expressing, and often without having the means of forming an opinion as to such rights.</p> <p>8. It is not necessary to the continuance of an injunction, that it should be clear that the complainant will succeed at the hearing. It is sufficient if there is ground for supposing that relief may be given.</p> <p>9. It is the’duty of a complainant holding an injunction, to prosecute his claim with all diligence.</p>

<p>This caso came before the court on a motion to amend the answer.</p>

<p>A party prosecuting an inquisition of lunacy, in good faith, will not b'e condemned in the costs of resisting the commission.</p>

<p>Under a declaration of trust: 1. To pay to A. M.,_or to her order, such dividends as may be declared by said bank during her natural life. 2. At her decease, to pay the same to S. V., or to her order. 8. After the decease of said S. V., then to transfer the said stock to A. M. V., for her sole use and benefit,” held, that the interest of A. M. v. vested at the creatidn of the trust.</p>

<p>This cause came on for hearing, upon a motion to dissolve the injunction, upon the bill, answer, and proofs. The case was argued before J. Wilson, esq., one of the masters of the court, who was called by the Chancellor to advise with him upon the hearing of the same.</p>

<p>This case was argued before Mr. J. Wilson, called by the Chancellor to advise with him. The facts of the case sufficiently appear in the opinion of the master.</p>

This cause was argued before J. Wilson, esq., one of the masters of the court, who was called by the Chancellor to sit and advise with him. The facts of the case are fully stated in the opinion of the master.

This cause was argued before J. Wilson, esq., one of the masters of the court, upon a motion to dissolve the injunction, which issued pursuant to the prayer of the bill.

This cause was argued on final hearing, upon the pleadings and proofs, before Beasley, Chief Justice, sitting for the Chancellor.

<p>1. Query. Whether desertion would be a valid plea to a bill for divorce on the ground of adultery. But, admitting that it would, it is necessary that such desertion should exist for the uninterrupted period of three years.</p> <p>2. Witnesses of questionable character are to be relied on, in any judicial proceeding, only so far as their testimony is intrinsically probable, or is Corroborated by circumstances.</p> <p>3. Where, upon a bill for divorce on the ground of adultery, the direct evidence, though insufficient of itself to .support the charge, is sustained by the proved habits and character of the accused, as well as the strong probability of corroborative facts, the colnplainant is entitled to a decree.</p>

<p>1. Upon a bill between partners for closing the affairs of a partnership, after a dissolution of the firm, the insolvency of the defendant will entitle the complainant to the appointment of a receiver, and an injunction^</p> <p>2. Where the answer is not responsive to the allegations of the bill, the injunction will be retained.</p> <p>3. A partner, defendant to a bill for an account, will not be allowed to take possession of funds to which the firm has claims, until his right shall have been established by final decree.</p> <p>4. The complainant having failed to prosecute his suit with proper diligence, charged with the oosts of the motion to dissolve.</p>

<p>1. Where the subject matter of the trust is in controversy, all the trustees must be made parties.</p> <p>2. The mere fact that the title to trust property is deposited in trustees, will not deprive the grantor of his control over it, if his rights are not limited, or in some way qualified, by the deed.</p>

<p>Upon a bill for divorce on the ground of adultery, the confessions of the defendant, made under circumstances which exclude all suspicion of an attempt to fabricate evidence, and of any collusion between the parties to the suit, and sustained by facts irreconcilable with his innocence, will entitle the complainant to a decree.</p>

<p>Equity will interfere to restore rights which h^vo been lost by unavoidable accident.</p>

<p>1. When a decedent leaves a debt due by specialty, and the residuary fund has been exhausted, there being neither lands descended, nor lands charged with debts, the general rule is, that the specific legacies and the land devised must contribute ratably to discharge such debt.</p> <p>2. But in case the decedent has secured such debt by way of mortgage on any part of the land devised, after the exhaustion of the general residuary fund, the devisee of the mortgaged lapd cannot call for contribution, either on the general or specific legatees.</p> <p>3. A right given by will to occupy, at a specified rent, certain premises as long as the devisee may desire to occupy the same as a drug store, amounts to an estate for life.</p> <p>4. Such tenant is bound to keep down the interest of the encumbrances on the property, but he cannot bs compelled, as between himself and the remainder man, to pay off any part of thg principal.</p>

<p>Thie bill of complaint sets forth that the complainant, Whitney, on the -8th of March, 1864, issued an attachment out of Hudson county Circuit Court, by which two lots on South Third street, in Jersey City, were duly attached as the property of Louis S. Robbins, the defendant therein. That the complainants, West and Caldwell, were admitted as creditors in said attachment. That Robbins appeared and ■dissolved-the attachment; and that on the 20th day of February, 1865, judgments were obtained against him by.Whitiiey for $971.86, and by Caldwell and West for $1078.60, besides costs. That writs of fieri facias were issued on said judgments, .and returned by the sheriff unsatisfied, with the further return, that he could find no goods and chattels, or lands, whereon to levy.</p> <p>The bill further states, that in 1864, Louis S. Robbins placed in the hands of Matthew P. Robbins a large amount of money, to be invested for him, in the name of Matthew, for the purpose of protecting the same from the creditors of Louis, who was largely in debt. That, with said money, M. P. Robbins purchased said two lots, and took the deed in his own name, but in trust for said L. S. Robbins. That, on the first of February, 1864, M. P. Robbins, at the request of L. S. Robbins, for the avowed purpose of enabling him better to elude his creditors, conveyed said lots to Clara Augusta Robbins, the wife of Louis ; intending that she should convey them to his brother-in-law, the defendant, W. W. Keith. That, on the 9th of February, 1863, L. S. Robbins and his wife conveyed the same to Keith, without consideration, by and for the nominal consideration of one dollar, intending the same to be jield in trust for L. S. Robbins. That Keith, on the first of October, 1864, conveyed said lots to the defendant, Minthorn, for the nominal consideration of $4200. That said conveyance to Keith and Minthorn were both without any consideration paid, and intended in trust for L. S. Robbins, who procured the same to be made to defraud his creditors.</p> <p>The bill prays a discovery and order for the examination of L. S. Robbins before a master to make discovery of his things in action, for a receiver, and for a conveyance by L. S. Robbins and his assigns; also, that the conveyances to Keith and Minthorn be set aside, and that the property and things in action of L. S..Robbins be appropriated to the payment of the complainants’ two judgments.</p> <p>An order was made for the examination of L. S. Robbins, which was had; several other witnesses were examined, including M. P. Robbins.</p> <p>The defendants, L. S. Robbins and wife, Keith, and Min-thorn appeared, and except Minthorn, against whom a decree pro confesso was taken, answered. They deny that the lots were purchased with L. S. Robbins’ money, or for his use, or with his knowledge or consent. They admit that they were conveyed to his wife for a consideration paid by him, and that they were conveyed by her to Keith, as stated in the bill, but for a consideration of $1700, which was paid by Keith to Robbins, by crediting that sum in an account actually owing by Robbins to Keith; that they were conveyed by Keith to Minthorn, as stated in the bill, for the consideration of $4200, expressed in the deed, of which-$2800 was paid in cash by Minthorn to Keith, and $1400 by assuming an old mortgage to that amount on the lots, and that the cash was used by Keith in his business. They disclaim all interest in the premises, and deny that they are, or were, held by Keith or Minthorn, in any way, in trust for L. S. Robbins.</p> <p>A replication was filed, and after issue joined, testimony was taken in addition to the depositions under the order for examination, which were also used op the hearing; the parties having, pursuant to the statute, filed notices of their intention so to úse them.</p> <p>The testimony, as to the fact whether the lots were originally purchased for L. S. Robbins, and with his money, or with his assent, was conflicting and directly contradictory ; that of L. S. Robbins,-on the one side, and M. P. Robbins, on the other, being respectively supported by other witnesses, documents, and corroborating facts:</p> <p>But there was no direct evidence, on either Side, whether the conveyances to Keith and Minthorn were without consideration, except the examinations of L. S. Robbins.</p> <p>The cause was argued before A. O. Zabriskie, esq., master., sitting for the Chancellor.</p>

<p>1. The wife’s earnings, and the avails of her labor, during coverture, belong to her husband, and he cannot, as against his creditors, give, or agree to give, them to her.</p> <p>- 2. Real estate purchased with the wife’s earnings, during coverture, belong to the husband, and is subject to be taken for his debts.</p> <p>3. A conveyance, in view of future indebtedness, and with an intent to place the property beyond the reach of creditors, is fraudulent, as against creditors, and will be set aside.</p> <p>4. A husband cannot testify in favor of his wife in a civil suit in which she is a party.</p>

<p>1. This court has the power to construe a written instrument, upon a motion to dissolve. But it is a matter resting in the discretion of the court, to bo exercised according to the nature and circumstances of each particular case.</p> <p>2. But the power will not be exercised, where the ends of justice are more likely to be attained by deferring the construction till the final hearing.</p> <p>3. A written instrument must be construed according to the intent and meaning of the parties, as manifested by the instrument itself. Yet, where the construction is doubtful, the court may look into the surrounding circumstances, and avail itself of such light as they may afford in ascertaining the true meaning of the terms and language employed.</p> <p>4. The ea parte affidavits were properly used on the argument.</p>

This cause was argued before Jacob Weart, esq., one of the masters of the court, who was called by the Chancellor to advise with him upon the hearing of the same.

<p>Upon bill filed, “the New Jersey Arms and Ordnance Company ” was, on the 4th day of April, 1865, declared insolvent, and a receiver appointed, in pursuance of the statute in this state, entitled “ An act to prevent frauds by incorporated companies,” (Nix. Dig. 371). By this decree, opera- ' ting as a statutory assignment, all the property of the company, real and personal, passed to the receiver, subject to the liens then existingi</p> <p>The factory and buildings of the company, situate in the city of Trenton, with the machinery, fixtures, tools, &c., therein, were, at the time they passed into the hands of the receiver, subject to two mortgages; the first, given by the Trenton Locomotive and Machine Manufacturing Company, formerly holding the premises, dated April 1st, 1856, to Joseph G. Brearley, trustee, &c., purporting to secure the payment of fifty bonds, of one thousand dollars each; the second, by the New Jersey Arms and Ordnance Company, to Joseph G. Brearley, trustee, &c., dated October 5th, 1864, to secure one hundred bonds, of the sum of one thousand dollars each, and filty bonds, of the sum of five hundred dollars each, amounting, in the aggregate, to one hundred and twenty-five thousand dollars. The obligation of. these mortgages, and of the bonds which they purport to secure, (thirteen bonds under the first mortgage only excepted), are called in question in the bill filed.</p> <p>An application was made to the Chancellor, on the petition of the complainant, for an order to direct the receiver to sell and dispose of the real and personal property of the company, free of the encumbrances of the said two mortgages, the proceeds of such sale to be paid into court to abide the event of the suit.</p> <p>The Chancellor denied the application, on fue ground that such order was not within the power of the court. This opinion has been sustained by the Court of Appeals.</p> <p>By an act approved March 13th, 1866, (Pamph. L. 296), it was enacted, that where the property of an insolvent corporation, in the hands of a receiver under the act, is encumbered with mortgage or other liens, the legality of which is brought in question, and the property is of a character materially to deteriorate in value pending the litigation, the Court of Chancery may order such receiver to sell the same, clear of eucumbrance, at public or private sale, for the best price that can be obtained, bringing the money into court, there to remain, subject to the same liens and equities of all parties in interest as was the property before it was sold, to be disposed of as the court, by its decree, should order and direct.</p> <p>Subsequent to the passage of this act, the receiver filed his petition, in which, after setting forth that, as receiver, he came into possession of the real and personal estate of said company, consisting of the armory buildings, machinery, &c., and a large amount of personal property, &c., subject to said two mortgages, that the legality of the liens of said mortgages is one of the principal matters in dispute in the cause, and that the said last mentioned mortgage had, on January 30th, 1865, been filed as a chattel mortgage in the office of the clerk of the county of Mercer, but that tlie same had not been re-filed within the time limited by the act, but was re-filed February 5th, I860, the receiver prayed the instruction of the court, whether the lien of the said last mentioned mortgage, so far as respects the personal property, is not lost or destroyed, and whether he may not sell and dispose oí the same, according to the statute, free of encumbrance.</p> <p>The receiver, further alleging that the said property, real and personal, was rapidly depreciating in value, and that it could then he sold to more advantage than thereafter, further prayed the court for authority to sell the same, free of encumbrance, the proceeds to be paid into court, to abide its, order.</p> <p>A rule was granted to show cause why the said application should not be granted, with leave to take affidavits, &c.</p> <p>Affidavits were takeft, and the motion argued before Thomas P. Carpenter, esq., one of the masters of the court, sitting for the Chancellor.</p>

<p>1. Tho inventory and appraisement prescribed by the acts of 1856 and i860, {Nix. Dig. 273, 274,) operate a substitute for the inventory and appraisement prescribed by the fourth section of the act of 1851, {Nix. Dig. 270,) and by the tenth section of the act of 1846, {Nix. Dig. 277.)</p> <p>2. In all cases where the intestate dies, leaving a wife or child entitled to the benefit of tho provisions of the acts of 1856 and 1860, {Nix. Dig. 273, 274,) the inventory must be made by appraisers appointed by the surrogate, not selected by the administrator, who are to be sworn by him before entering upon the performance of their duties, and to execute their office in pursuance of the requirements of the act of 1856.</p> <p>3. A promissory note taken in the name of tho intestate, should not be omitted from the inventory upon the claim of the wife that it is hers, being in payment of the sale of a gift to her from her husband.</p> <p>4. Gifts of chattels by the husband to the wife are void at law, though they may be sustained in equity. But even in equity, where a widow seeks to establish a gift from her husband in his lifetime, she must adduce evidence beyond suspicion, and nothing less will do thah a clear irrevocable gift, either to some person as trustee, or by some cle'ar and distinct act of his, by which he divested hims'elf of the property and engaged to hold it as trustee for the separate usé of his wife.</p> <p>5. To constitute a perfect gift, the donor must part with the possession and dominion of the property. And if the thing given be a chose in action, the law requires ah assignment, or some equivaloht instrument, and the transfer must be actually executed.</p> <p>6. The act for 'the better securing the property of married women, confers no power on th'e wife to take real Or personal property directly by gift from her husband.</p> <p>7. To bring property claimed by lire wife within the protection of the statute, it must have been acquired by her in her own right, either before or after marriage. A purchase by her, or a mere gift by the husband to the wife, or a declaration by the husband that the property is hers, will hot avail to defeat the claim of creditors or of the next of kin, after the death of the husband.</p>

<p>1. An assignment of a legacy passes the whole right of the assignor; after such assignment, there remains in the assignor no distinct, subsisting right, capable of being assigned.</p> <p>2. Where a legatee has assigned a legacy for a valuable consideration, it is no defense to an action brought by such assignee against the executors to recover the legacy, that they have paid it in good faith to a second assignee of the legatee, without notice of the previous assignment. No interest, legal or equitable, passes by the second assignment. But where, in point of fact, such payment was by note of one of the executors, given to the second assignee with full knowledge of the rights of the first assignee, the note was without consideration and void; and if paid at all, was paid in fraud of the rights of the first assignee, and constitutes no defense to his claim for the legacy.</p> <p>3. A principal is not responsible for the fraudulent- act of a special agent in a matter foreign to the transaction in which he was employed.</p>

<p>1. To constitute a donatio mortis causa, there must not only be a clear intention to give, but an actual delivery at the time of the alleged gift.</p> <p>2. The giving of one's promissory note or acceptance by the donor to the donee, will not constitute a donatio mortis causa. It is otherwise with the giftof a note, acceptance, or bond of a,third party, which may pass by endorsement or delivery.</p> <p>3. An exception to a charge allowed by the Orphans Court not sustained, where, in the opinion of this,Court, an allowance of a part of the sum was warranted, but the preponderance of the evidence is not so decisive as to require a modification of the decree.</p> <p>4. An oath made by a party to a claim against ah estate, upon the statement of the executor that he would pay it if the claimant swore to it, is voluntary and worthless.</p> <p>5. An executor will not be allowed a charge against the estate, for services rendered in the lifetime of the testator, where the services rendered by the parties were mutually beneficial, and it is apparent that ho pecuniary remuneration was expected or intended.</p> <p>6. It is the duty of an executor, not Ohly to exhibit his aóhonnt for allowance, but to use diligence in bringing it to a final settlement.</p> <p>7. Decree of the Orphans Court charging the executors, individually, with the costs of suit, where they have permitted great and unwarrantable delay in the final settleltoent of their accouht, approved.</p>

<p>1. In strictness, the grant of administration operates only within the jurisdiction whore it is granted. It gives no legal right to collect debts, or recover the possession of property elsewhere.</p> <p>2. Where letters of administration are granted in different jurisdictions, the inventory of each administrator regularly includes only the property within the jurisdiction where his letters are granted, and for that property only he is accountable. Each administrator must account for the property in his hands, before the tribunal of the state from which his authority emanates.</p> <p>3. Where administration has been granted in the place of the domicil of the intestate, and ancillary administration elsewhere for the purpose of collecting debts, if the fund in the hands of the foreign administrator is needed for the purposes of due administration in the place of the domicil, the mode of reaching it would be to require its transmission or distribution, after all claims against the foreign administration had been ascertained or settled.</p> <p>4. The distribution of an intestate’s property must be regulated by the law of his domicil. But by what tribunal that distribution shall be made, depends upon circumstances, and rests in the sound discretion of the tribunal before which the account of the foreign administrator is brought for settlement. Where parties interested in the distribution reside in the state where foreign administration is granted, the fund will be retained and distributed there.</p> <p>5. An administrator, by virtue of a grant of administration in this state, the place of the intestate’s domicil, who has also sued out letters of administration upon the intestate’s property lying in a foreign state, is required to file here, an inventory of such property only as he is authorized to administer here; and for that alone will he he required to give security.</p>

<p>1. The loss of an instrument upon which a party seeks to recover, may be proved by presumptive evidence, Proof that the paper cannot be found, due diligence having been used in searching for it, is sufficient to raise the presumption of loss, and let in evidence of its contents.</p> <p>2. All that the law requires as a ground for the admission of secondary evidence, is a reasonable assurance that evidence of a higher nature is not withheld or suppressed by the party offeriug it.</p> <p>3. A party will not be presumed, in the absence of all evidence of the fact, voluntarily to have destroyed an instrument which he was interested in preserving. As a general rule, the legal presumption arising from proof that it cannot be found, is that it is lost.</p> <p>4. Where if does not appear whether a lost note was, or was not, negotiable, it will not be presumed to have been negotiable ; or, if negotiable, that it has been endorsed in blank.</p> <p>5. An executor will be charged in his account with the amount of a note against himself, set down in the inventory, and alleged to have been lost or destroyed by the testator in his lifetime, where the existence, amount, and loss of the note are satisfactorily proved, and where there are no circumstances sufficient tp raise the presumption that the note was intentionally destroyed by the testator.</p>

This case came before the court upon an appeal from a decree, made in accordance with an opinion of the Chancellor, reported in 1 G. E. Green 122.

This was an appeal from an interlocutory decree of the Court of Chancery, made in a foreclosure suit, wherein the respondent to this appeal was complainant. The complainant was adjudged to be entitled to the relief prayed for in his bill, and it was referred to a master to ascertain the amount of principal and interest due to him upon his mortgage. The defendant, conceiving that usury had been clearly shown, appealed from the decree.

This was an appeal from a decree qf the Chancellor, The opinion- is reported in 2 Beasley 16.8. On the 10th of August, 1807, Mindert Garrabrants (2d) executed to the father and brother of his wife a conveyance in fee of all his lands, including those claimed by the respondents. The conveyance was upon certain trusts, therein specified.

The controversy ip this case, related to the proper construction of the last will of James Shreve, deceased. The will was dated August 23d, 1852. The testator left four daughters, two grandsons, (children of a deceased son,) his deceased son’s widow, and his own wife, and made them the devisees of all his property. The first provision of the will is a .direction to the executors to pay off and discharge all his debts.

The final decree in the above stated cause was made agreeably to the opinion delivered in the case of The Broadway Bank v. McElrath, 2 Beasley 24.

On the 7th of July, 1856, John B. Oonover executed a mortgage to the Mechanics Building and Loan Association of New Brunswick, to secure the payment of certain moneys mentioned in tho condition of a bond, bearing even date with the mortgage.

<p>Tins was an appeal from a decision of the Chancellor, reported ante, p. 59.</p>

<p>This was an appeal from a decision of the Chancellor, reported in 1 G. F. Green, 468.</p>

<p>A receiver, appointed by virtue of the “act to prevent frauds by incorporated companies,” will not be authorized, as the law stands, to sell the real estate, clear of encumbrances, and to pay the proceeds into the court, but must sell, as sheriffs and other officers do, subject to encumbrances,*</p>

<p>1. The well settled rule of law is, that where the equitable and legal estates unite in the same person, the equitable estate is merged in the legal.</p> <p>2. A grantor or mortgagor cannot prove by parol, that his deed or mortgage was made in trust for the use and benefit of himself; such proof would be in contravention of the statute of frauds.</p> <p>3. If the answer denies the trust, such trust must be proved by logal and competent testimony, though the answer does not set up the statute of frauds as a defence to the alleged trust.</p> <p>4. For many purposes, an original and cross cause in chancery are considered as one suit, and ordinarily heard together, and the rights of all the parties, in respect to the matters litigated, are settled by one decree.</p> <p>5. This court will presume that the pleadings in the court below, were as recited in the decree.</p> <p>6. The answer of the defendant to the cross-bill, may be considered as substantially, and for all practical purposes, a replication to. the defendan t’s answer to the original bill.</p>

<p>This was an appeal from a decree of the late Chancellor. The facts of the case appear in the opinion of the court.</p>

<p>An appeal will not lie from an order of the Chancellor, refusing to order a special guardian appointed by him, to pay over the moneys derived from a sale of the minor’s lands to the general guardian, in the mode authorized by the act of 1865, {Pamph. Paws 790); the power of the Chancellor in that respect being entirely discretionary,</p>

<p>1. The testator directed his trustees to pay over the income of his estate in three and one-'éighth parts, to wit: one-third part to his daughter, O. H.; one-third part to his daughter, S. B., and ohe-third and one-eighth parts to his daughter, M-. D. Held, that M. D. was entitled to one-eighth more of the whole estate than either of her sisters, making ten twenty-fourths for M. D.,.and seven twenty-fourths for O. H. and S. B., each.</p> <p>2. The testator also directed, in case of the death of either daughter, without children, that his trustees should pay the incotae arising from his estate, in the proportions aforesaid, to his surviving daughters, stating his intention that the share of such daughter should sink into, and constitute a part of his estate in the hands of his trustees, and the income arising therefrom, be divided among his surviving daughters in manner aforesaid. Held, that if C. H. should die without children, her share would be a part of the whole income, and M. D. entitled to one-eighth more of the whole than S. B., and not to one-eighth more of the whole, and one-eighth more besides, than S. B., of the share of O. H.</p> <p>3. The same rules apply to the disposition of the principal sum under this will.</p>

This was an appeal from an order of the late Chancellor, made upon the hearing, upon bill and answers. The opinion is reported ante, p. 87.

In the year 1840, Abraham I. Staats, father of the complainant, James B. Staats, died intestate, leaving, surviving him, his widow, Mary Staats, and three sons, who were his only children.

On the 4th of February, 1863, the Chancellor made a decree in the above stated cause, whereby it was ordered that the injunction theretofore issued, restraining proceedings at law, should be dissolved, and that the complainant’s bill of complaint be dismissed, with costs; and that upon service upon the complainant, of a copy of this decree, and of the taxed bill of costs of the said defendant, Andrew G. Van Syckel, and upon demand and non-payment of the said costs, the said…