Volume 35 — New Jersey Equity Reports

<p>Bill for injunction. Motion to dissolve. ■ On bill and answer.</p>

<p>On bill. Motion to set aside service of subpoena ad respondendum. On order to show cause.</p>

<p>Title to lands in this state was derived through a mortgage given to “ Joseph D. Beers, president of the North American Trust and Banking Company, his successors and assigns,” without words of inheritance. The bill states that the North American Trust and Banking Company was a corporation of the state of New York, and its president, by virtue of the statutes of New York, a corporation sole of that state, and therefore took an estate in fee in said lands, under the mortgage. — Held, that the court would not, on an application for a specific performance of a contract to buy such lands, compel the vendee to complete his purchase, because such title was questionable, and therefore not marketable.</p>

<p>A separation sought by a wife because her husband is intemperate and improvident, is not an obstinate and willful desertion on his part, within the meaning of the divorce act.</p>

<p>Petition for divorce.</p>

<p>Bill to foreclose. Motion to set aside master’s sale. On petition and depositions. .</p>

<p>A trust “to employ the annual income of the said moneys so invested, and from time to time to be invested, for the relief of the most deserving poor of the city of Paterson aforesaid forever, without regard to color or sex; but no person who is known to be intemperate, lazy, immoral or undeserving, to receive any benefit from the said fund,” with a power of appointing and substituting trustees for those named, is a valid charity, and will be executed.</p>

<p>Bill to foreclose. On final hearing on pleadings and proofs.</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>Bill for relief. On general" demurrer.</p>

<p>1. Where no special ground of equitable jurisdiction is alleged, a bill to restrain a sheriff from selling, under execution, lands claimed to belong to a person other than the defendant in execution, cannot be maintained.</p> <p>2. If a bill is demurrable and allowed by the defendant to proceed to a hearing, and then dismissed for want of equity, the dismissal will be without costs.</p>

<p>The act regulating the fees of sheriffs on sales under execution, provides that they shall receive on all sums of §1,000 and less, one per cent.; on all sums over §1,000 and not exceeding §3,000, one half of one per cent.; and on all sums over §3,000, one-quarter of one per cent. — -Held, that only one rate can be taken thereunder, whatever the amount of the sale, instead of one per cent, on the first $1,000; one-half of one per cent, on the amount between $1,000 and $3,000, etc., as under the old statute.</p>

<p>Bill for relief. On motion to strike ont parts of the answer of the administrator.</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>Bill for relief. On final hearing on pleadings and proofs.</p>

<p>Motion to set aside the inquisition.</p>

<p>On petition, order to show cause, and depositions.</p>

<p>Argued on bill and demurrer.</p>

<p>Simply affirming under oath that the consideration of a chattel mortgage is-the sum for which it is given, without disclosing how the debt on which it is founded arose or was incurred, is neither a literal nor a substantial compliance with the statute requiring the mortgagee to file an affidavit showing the consideration of his mortgage.</p>

<p>At the death of one of two partners, the firm assets consisted of large tracts of land, factories &e., mortgaged for about $100,000, and personal property estimated to be worth $120,000. A bill by the representative of the decedent charged that land standing in the name of the surviving partner had been paid for by the decedent’s individual means, and also charged the surviving partner with fraud and mismanagement. The surviving partner was appointed receiver of the firm’s assets, with full power to settle its affairs under the direction of the court. The survivor was found to be indebted to ^the firm for about $75,000, which have not yet been paid. In order to eliminate the real estate from the settlement, the survivor (the complainant) made a written proposition that he would give, or take, for the land, $30,000, and a release of the mortgages ($100,000) thereon, and deposit the $30,000 in court, as part of the firm’s assets, to be disposed of by the court, with a further provision that the court should have power to enforce and carry out the contract. The representative (the defendant) agreed to purchase the land on the terms stipulated. On the day fixed for consummating the bargain, the complainant attended, with his deed for the premises duly executed, but the defendant neither tendered the $30,000 nor produced the releases of the mortgages, but proposed instead thereof, to charge herself with $30,000 on account of her share of the surplus assets of the firm, and to indemnify the complainant against his liability for the mortgages. This proposition the complainant declined, and the court refused to compel him to accept; he also rejected defendant’s proposition that he should buy the property, instead of defendant, on the same conditions. He then applied to the court to compel the defendant to perform her contract, or that the lands be sold and the defendant held liable to the estate for any loss incurred by her default. The court refused to interfere at that time, reserving the question whether relief might be granted thereafter, and, on appeal, that proceeding was sustained. The personal property of the firm was afterwards sold, by direction of the court, and about $46,000 realized. Two of the mortgages were subsequently foreclosed, and a decree for $96,000 thereon obtained. To reduce this decree, $24,000 of the money derived from the sale of the personalty was ordered by the court to be applied thereto, and, on a foreclosure sale thereafter, the premises brought $80,000, about enough to satisfy the balance due on the decree. Complainant files the present bill to charge the defendant with the personal loss which he has sustained by reason of her failure to perform her contract. — Held, that while equity may, in the absence of unfairness or imposition, enforce a contract by the representative of a deceased partner to purchase of the surviving partner the lands of the partnership, or may, in case such performance be impossible or impracticable, award compensation, if the complainant’s remedy at law be uncertain or inefficacious, and such compensation be indispensable to his relief in equity, yet, if the complainant’s action or inaction has hindered or prevented the defendant from performing his contract (as, in this case, complainant’s failure to pay his own debt to the firm deprived the defendant of the means of fulfilling her contract), equity, in the exercise of its discretion, will refuse relief.</p>

<p>1. A statute permitting a party to be a witness, although the other party sues or is sued in a representative capacity, applies to an action pending at the time of its passage.</p> <p>2. In a suit for an account by a surviving partner against the executor of his deceased copartner, the survivor is competent to prove that the decedent applied partnership funds to his own use, but statements or personal transactions of the survivor with the decedent must be excluded.</p>

<p>Argued on the pleadings and proofs, before Vice-Chancellor Dodd.</p>

<p>On bill and demurrer.</p>

<p>A claim for services rendered by a detective employed by tbe counsel of tbe principal legatee, such services being valuable in establishing the will, may be allowed and paid out of the estate.</p>

<p>A testator gave ¡55,500 out of his bonds and mortgages for the support of his daughter, and directed the trustee (his son) to keep the money invested, and to pay her the interest, and so much of the principal, as might be needed for her support. The trustee bought a house with the money, and accounted only for the rents dei-ived therefrom, which were less than the fund would have produced if invested at legal interest. — Held, that he must also account for the difference between the rents received by him from the house, and legal interest on ¡55,500.</p>

<p>1. A ward, whose estate was small, lived with his father, who was the guardian. The father never, during his lifetime, made any charge against the ward for his maintenance. — Meld, that sureties of the guardian cannot obtain an allowance therefor in a suit on their bond.</p> <p>2. A guardian was appointed in 1860; his youngest ward came of age in 1871, and the guardian became insolvent in 1872 or 1873. — Meld, that the ward’s omission to sue the surety or his administrator, until 1880, did not prevent his recovery.</p>

On exceptions to report of A. R. Throckmorton, esq., surrogate of Monmouth county, to whom it was referred to ascertain and report damages. Submitted on briefs of counsel.

<p>1. The proceeding to require an executor to give security in the orphans court may be by an order to show cause without petition.</p> <p>2. An executor gave his testator, during the latter’s lifetime, a mortgage for moneys loaned, but, owing to the testator’s illiteracy, the mortgage was never registered. — Held, that the residuary legatees might require him to give security because he neglected to have the mortgage registered after it came into his hands as part of the estate, and also because he claimed certain credits for payments thereon, which appeared to be false.</p>

<p>An administrator converted dividend-paying bank stock of tbe estate into money, and with it paid off a mortgage on lands in which be had an interest as heir of the intestate. On exceptions to his account, credit for that payment was disallowed. — Meld, that he was chargeable with interest at the legal rate on that amount from the date of the payment, including the time during which litigation on the exceptions continued.</p>

<p>Appeal from order of Burlington, orphans court.</p>

<p>A testator gave his homestead and a certain legacy to his wife for life, charged on a farm given to his son Andrew. He then made devises to his daughter Sarah, to the children of his daughter Margaret, and to the children of his daughter Temple. He then devised a farm to his daughter Catharine, and added, “ And I do further order that the said Catharine shall have an amount of money paid to her in addition to the above-said farm, out of my estate, to make her share equal with the rest of my children named” He then gave his residuary estate equally to his other children and their'representatives, not before provided for. He then ordered that the property given to his wife be sold after her decease, “ and the proceeds of the same shall be equally divided among my last-meniioned children." After the widow’s death, the farm given to her for life was sold. — Held, that Catharine was entitled to share the proceeds equally with, her brothers and sisters, mentioned in the residuary clause, the testator’s intention being that the proceeds should be part ■of the subject of that clause.</p>

<p>1. Tbe verdict of a jury on an issue sent from the orphans court is not conclusive, and the finding as to the capacity of a testator, undue influence &e„ may be reviewed in this court.</p> <p>2. If the evidence taken at the circuit-has not been reduced to writing it can be taken anew here, and other testimony than that produced below admitted.</p> <p>3. Undue influence over a testator must be satisfactorily established by other evidence than his declarations, although they are admissible to show the extent and effect of such influence.</p> <p>4. The will in this case sustained, but not the codicils, they being held to have been executed while the testator was suffering under senile dementia.</p>

<p>Appeal from decree of Essex orphans court.</p>

<p>1. Where an executor allowed a claim for farm produce furnished the testatrix, and the claimant swears positively that he furnished the produce, and that no part of the price has ever been paid, his oath is not overcome by that of ODe of the next of kin, the exceptant, who swears that the claimant lived with the testatrix, and had no place whereon he could raise the produce.</p> <p>2. Where two of the next of kin are requested by one of the executors to remain in one of testatrix’s houses to take care of it, and they, without agreeing to pay rent therefor, continue in possession until notified to quit, they are not liable for rent of the premises.</p>

<p>Where the court of errors and appeals has rendered a decree after hearing on the merits, and the decree has been entered in the minutes in accordance with the views of the court, and the record has been regularly remitted to the court below, it has no further jurisdiction of the case, and therefore will not entertain an application for leave to file a bill of review. Such application is to be made to the court of chancery.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose - opinion is reported in Elizabethtown Savings Inst. v. Gerber, 7 Stew. Eq. 130.</p> <p>The appellant, the Elizabethtown Savings Institution, obtained a judgment in New York against one Ahern. In proceedings under this judgment an order was made by the New York court that the Esterbrook Steel Pen Manufacturing Company, or its agent, should appear and be examined touching its alleged indebtedness to Ahern. This proceeding was taken by virtue of the New York'code, and it having appeared, by an examination of the agent of this company, that it was indebted to Ahern in an amount that was being ascertained in the court of chancery of this state, an order was made by the New York judge that one Esterbrook, -who was the secretary of said pen manufacturing company, should pay to the appellant any amount which might be due to said Ahern from said pen company, up to the amount of said judgment, and forbidding him from paying the same to said Ahern, or to any one for him.</p> <p>The Esterbrook Steel Pen Manufacturing Company was a corporation of this state, having a place of business in New Y ork.</p> <p>In the suit in chancery in this state between the pen manufacturing company and Ahern a certain amount was found to be due from the former to the latter, and which amount having been paid into court, the bill in the present case was filed by the appellant to reach that fund.</p>

Ebenezer M. Crosby executed a bond and mortgage to the complainant to secure $1,000, and then conveyed the premises to David B. Crockett, who, as part of the consideration, assumed the payment of said mortgage. Crockett mortgaged, in his turn, the premises so purchased, and this mortgage was subsequently foreclosed without the first mortgagee being made a party.

<p>In 1872 the legislature authorized the riparian commissioners, governor and attorney-general to make a deed in the name and under the great seal of the state, to the New Jersey West Line Eailroad Company, for any lands of the state under tide water, or that theretofore had been under tide water, which should happen to come within the location of the route or of the stations, depots or other works of the company or be needed therefor — the boundaries and price to be fixed by the riparian commissioners — the consideration to be paid to the trustees of the school fund. A deed was made accordingly, on the 19th of March, 1872. For part of the consideration ($82,000) the trustees for the support of the public schools accepted a bond with Asa Packer as surety, secured by mortgage on the premises, as an investment for the benefit of the school fund. The Central Bailroad Company was in possession, and had put improvements on part of the premises granted. On the 12th of November, 1874, the riparian commissioners, for $300,000, made a grant to the Central Bailroad Company of several tracts of land under water, excepting thereout the premises and privileges granted to the West Line company, with a covenant that in case the state had not power to vest title in the West Line company, the state should, for the consideration of $1, release to the Central Bail-road Company the premises granted to the West Line company, free from any encumbrance thereon, by mortgage given to the state. The trustees foreclosed their mortgage, and took a final decree October 22d, 1875. The complainants were not parties to the foreclosure suit. On March 1st, 1879, complainants filed a bill against the West Line company, under the act to quiet titles. Rev. 1189. The mortgagees and other encumbrancers and Asa Packer were made defendants in this bill. The bill prayed, among other things, that the trustees be restrained from selling the mortgaged premises under their decree. On appeal from an order of the chancellor denying an injunction to stay a sale under the execution, on the foreclosure decree, pending the suit — Held,</p> <p>1. That the trustees for the, support of public schools are the custodians of the fund set apart for the support of public schools, free by constitutional provision from even the control of the legislature, except in the designation of the mode in which the interest and dividends arising therefrom shall be applied for the support of public schools. For the purposes of the administration of the fund of .which they are made custodians and of the rights and remedies upon or against tl>e securities in which it is invested, the trustees-are constituted the representatives of the state.</p> <p>2. Suits brought by the trustees for the foreclosure of mortgages — investments of the school fund — are subject to the same defences by answer or cross-bill as like suits by other mortgagees ; and, as mortgagees, they may be made parties to a bill to quiet the title filed against the mortgagor.</p> <p>3. The covenant contained in the grant of the riparian commissioners to-the Central Bailroad Company, is executory in terms and legal effect, and can only be executed by a bill for specific performance. To such a bill the state is a necessary party, and the trustees are not its representatives in such a litigation.</p> <p>4. The riparian commissioners had no power, by the covenant contained in the grant to the Central Bailroad Company in 1874, to release and discharge a mortgage which before that time was an investment of part of the school fund.</p> <p>5. A mortgagor who mortgages an embarassed title, or whose title has subsequently become clouded, cannot, in the absence of fraud, have' the foreclosure proceedings stayed on account of an apprehension that the mortgaged premises will not bring full vaiue at a foreclosure sale. His remedy is by redemption.</p> <p>6. A court of equity will ordinarily not interfere to enjoin a sale of lands under an execution agkinst one person, the title to which is claimed by another, for the reason that such a sale wij>l not prejudice the rights of the' latter. To warrant resort to the restraining pofrer of the court, the case must present some recognized ground for equitable relief — fraud or irreparable injury-</p> <p>7. Courts interfere with great reluctance with the collection of the public revenues. To justify resort to a court of equity to stay the collection of public revenues, the party must make a case strictly within the bounds of equity jurisdiction — an injury otherwise not remediable; and he must seek and prosecute his remedy with promptitude.</p> <p>8. The equity of a party who relies on an equitable estoppel to give validity to an inefficient contract is not to have his contract made binding, but to put his adversary to an election between performance of the contract and repudiation of it on equitable terms.</p> <p>9. The doctrine of equitable estoppel presupposes that the person against whom it is set up has the volition to accept or reject thp proffered benefit and power to restore the consideration if received.</p> <p>10. The trustees for the support of public schools have no control over the state’s lands under water; no authority to decide what lands under water shall or shall not be sold; or to fix the price or dictate the terms and conditions on which sales shall be made, nor power to rescind contracts of sale made by the riparian commissioners, which they may deem prejudicial to the school fund. They have not even the capacity to determine from what sources the revenues for the support of public schools shall be derived; no choice as to what money shall or shall not become part of the school fund. Their powers and duties in relation to the school fund are purely executive and ministerial — to invest the fund and appropriate its income annually to the support of public schools.</p> <p>11. The trustees are not equitably estopped from collecting their mortgage by the covenant which the riparian commissioners inserted in their grant to the Central Railroad Company, although the state received for the lands granted thereby the sum of $800,000, which, by the act to increase the school fund of the state (JRev. p. 1061 \ d7), went into and became part of the school fund.</p> <p>12. The prayer of the texecutors of the surety (who have no indemnity for the liability of the surety’s estate on the bond except the vendible value of the mortgaged premises and the oMigation of a bankrupt corporation), that the mortgaged premises be sold, also presents considerations of pre-eminent weight on an application to a court of equity for a discretionary writ, which is never allowed except on a clear preponderance of equity on the side of the applicant.</p> <p>13. The receiver of the West Line company, the mortgagor, by his answer to the bill in this case, affirms the validity of the title of the West Line company, but charges that it would be inequitable to dispose of the title by foreclosure, or otherwise, until its validity as against the complainants’ title is determined, and asks, also, that the sale be delayed until it can be made upon an unclouded title. The executors of the surety pray a sale for the purpose of discharging his liability on the bond. A sale of the mortgaged premises at this time will satisfy the mortgage debt. — Held, that, under the circumstances, the covenant contained in the grant to the Central Railroad Company would create an equity in the complainants to be allowed to redeem the trustees’ mortgage and be subrogated to the right of the mortgagees in the decree so far as to give protection against a sale under it, pending the litigation of the titles of the parties respectively, subject, however, to the equities of the personal representatives of the surety on the bond ; but that it could not be made available to the complainants against the indisputable equity of the mortgagees, and of the personal representatives of the surety on the bond, to have the mortgage and the liability of the surety taken out of this litigation and disposed of in the condition of affairs as they were when the mortgage was given and the obligation of the surety was incurred.</p>

This bill was filed by the complainant, who is the respondent in this court, for the specific performance of an agreement for a lease. The complainant is the owner of a tract of mineral lands containing about one hundred and ten acres, situate iu the county of Morris, on which two separate veins of iron ore had been opened and worked.

The bill in this cause was filed for partition of certain real estate in the county of Bergen, of which James Cronkright died seized. A commission was regularly issued in the cause to Samuel E. De Groot and others, directing them to make partition and division of such lands. William Williams, the respondent, who is a civil engineer, was employed by the commissioners to make, and he did make, a survey and map .of the property for the use of the commissioners.

R. Co. v. Stanley, 7 Stew. Eq. 55. On the 22d of February, 1870, the following agreement was entered into between the Montclair Railway Company and the heirs of Henry Stanley, deceased: “ In consideration of the sum of one dollar to us in hand paid by the Montclair Eailway Company, and in further consideration of the benefit to us of the location of a railway depot thereon, we, John G. Stanley, of the township of Caldwell, and William B. Stanley, of the township of…

, sitting as advisory master: On March 5th, 1874, the complainant issued a policy of insurance to the defendant, Catharine Mchol, then Catharine Mettenheimer, insuring her dwelling-house in Oxford, Warren county, against loss or damage by fire, to the amount of $1,200, for the term of five years, from February 19th, 1874.

<p>On appeal from a decree of the chancellor, whose opinion is reported in Smith v. Muirheid, 7 Stew. Eq. 4.</p>

<p>1. Where, upon exceptions being filed to the account of an executor, on the ground that he has not charged himself with certain shares of stock, the executor claims the stock by virtue of a gift from the deceased, he is not a competent witness under the act of 1880, or any other act, to prove a delivery to him of the stock by, and the alleged declarations of, the deceased at the time of the delivery.</p> <p>2. Upon the hearing, a witness swore that she heard the deceased say that he had given the stock to the executor, and the executor himself swore that he had had possession of the stock since January 7th, 1875. It appeared that the deceased gave to the executor, on January 7th, a power of attorney to receive and assign scrip or dividends; that the executor drew the dividends due after the death of the deceased, and paid out of the amount interest upon a mortgage due by the deceased, and that he afterwards assigned the scrip as executor. — Held, that the executor failed in showing that the stock passed to him by gift.</p>

<p>•1. Receipts, though prima fade evidence of discharge of an obligation, may always be explained and contradicted by other evidence.</p> <p>2. Where receipts, upon a bond secured by mortgage, which purport to be-of money, are shown to be of the obligor’s unsecured promissory notes, the burden is upon him who claims the benefit of the discharge evidenced by the receipts, to show that such notes were accepted upon an agreement that they should operate to satisfy so much of the debt. The acceptance of notes for a pre-existing debt, will not operate to discharge such debt, unless it be agreed that such shall be its effect.</p> <p>3. Such receipts, if expressed to be in full, would he evidence of an acceptance of the notes in satisfaction, unless explained; but if, in addition, it appear that the obligee was illiterate, of great age, and made her mark to the-receipts, at the instance of the obligor, who drew them, and who was a near' relative, in whom she would have a peculiar confidence, the person claiming the discharge will be required to establish that the obligee designed and intended thereby to satisfy the debt evidenced by the bond.</p>

<p>1. An appeal from a final decree brings before the appellate court all interlocutory orders or decrees involving the merits.</p> <p>2. On appeal from the final decree, the appellate court will decide whether a decree of reference, prescribing the limits of the accounting, be right. But items clearly within the limits of the reference, not allowed by the master, where exceptions to the report have not been filed, will not be considered.</p>

<p>Equity will not entertain jurisdiction to remove a cloud from the title of a lot, alleged to have been imposed thereon or threatened by a municipal assessment, (1) because complainant paid the assessment without knowledge of its illegality; nor (2) because the city has not repaid the excess over and above complainant’s share of the improvement, as the city agreed; nor (3) because there was a misrepresentation by the city that the assessment, when made,' was just and equitable'.</p>

<p>An insolvent corporation had been in the hands of this court since 1876, and its railroad operated through a receiver appointed by the chancellor. The injunction restraining the managers of the corporation from interfering with or exercising the franchises of the company was modified in order to allow the stockholders to hold an election for directors, and thereunder certain stockholders made a written application to the existing board of directors to order an election of new directors, at the time designated by the by-laws for holding such annual election. This the directors refused to do. On application to the chancellor, — Held, that he might order an election of directors by the present stockholders, and so ordered; such election to conform as nearly as possible to the requirements of the by-laws of the company.</p>

<p>Bill for relief. On general demurrer.</p>

<p>"Where land limited over and charged with the support of A for life, includes old and dilapidated buildings, and has never produced enough to furnish a plain support for A, and to pay the taxes and assessments thereon, and the life-tenants are, through poverty, unable to pay such taxes and assessments, the fee in the land may be sold by order of the court, under the statute.</p>

<p>Bill for partition. On final hearing on pleadings and proof.</p>

<p>Bill to foreclose and cross bill. On final hearing on pleadings and proofs.</p>

<p>Bill to foreclose. On final hearing on pleadings and proofs.</p>

<p>In 1863, two adjoining lots were owned by M., on one of which he had •erected a three-story brick store-house, whose eaves projected about two feet over the adjoining lot, which was then vacant. In 1863, M. sold and conveyed the vacant lot to F., by this description: “ Beginning at the west corner of the brick store-house of the said M., * * * and running thence north, fifty degrees west, passing close along the northwest side of the said brick store-hous.e, sixty-five feet, to the northeast corner of said store-house; thence ” &c., with this right: “ Also the right and privilege to the said F. to join to and build into the wall of the brick store-house of the said M., when erecting a building on the lot hereby conveyed, doing no unnecessary damage to the said brick store-house.” In 1869, F. erected a two-story brick building on his lot, and the same year sold it to H., with the party-wall privilege, and H. sold it to defendant, with the same privilege. M. sold his store-house and lot, in 1872, to S., expressly subject to the party-wall privilege, and through S.’s devisee complainant claims. — Held, that defendant was, by the construction of the description in the deed, by the privilege of building a party wail, contained in the deed, by the measurements necessary to give the lot its full width, as stated in the deed, by the location of F.’s building in 1869, and its peaceable occupation since, and by the absence of irreparable injury to the complainant, entitled to cut off the eaves of complainant’s building so far as their projection over his lot interfered with his raising his own building.</p>

<p>Bill for relief. On final hearing on pleadings and'proofs.</p>

<p>Bill for construction of will. On final hearing on bill and answer ana stipulation of counsel.</p>

<p>On petition and answer.</p>

<p>Petition for divorce a vinculo. On final hearing on pleadings and proofs.</p>

<p>Bill for relief. Motion for direction as to the proper procedure in the cause.</p>

<p>Bill for specific performance. On demurrer.</p>

<p>Bill for construction of will'.' On final hearing on pleadings and proofs.</p>

<p>After a bill-for the specific performance of a contract had been filed and answered, the defendant, who was a resident of New York, died. By his will, he divided his estate into five equal shares, which were to be held by his four executors and trustees for the equal benefit of his five brothers and sisters, for their lives, with remainder to their respective children. Two of the executors proved the will in New York, but it was not proved in this state. After an order in the cause, the two executors who had proved the will appeared, and, by consent of complainant, were allowed to demur. — Held,</p> <p>(1) That their appearance estopped them from asserting that, being foreign executors, they are not amenable to suit here.</p> <p>(2) That their co-executors who have not proved the will, are not necessary parties.</p> <p>(3) That, under the.circumstances, the cesluis que trustent of the executors, who are the devisees, are not necessary parties.</p>

<p>1. On bill to set aside a sale as fraudulent, it is not enough to show that the vendor intended to defraud his creditors, but the further fact must be shown that the vendee was either an active or passive participant in the fraud of the vendor.</p> <p>2: To constitute him such participant, it is not necessary to show that he had direct or positive knowledge of the fraudulent purpose of the vendor, but it will be sufficient to show that he had notice of such facts and circumstances as would naturally lead up to a strong inference of fraud.</p> <p>3. Where special relief is sought in a bill, and not specifically mentioned in the prayer, and the proofs make a strong case for the granting of such relief, equity will order an amendment of the prayer, and make a decree in accordance with such amendment.</p>

<p>1. A second encumbrancer cannot compel the holder of a first lien to re-' deem the second, or be foreclosed.</p> <p>2. The actions of debt limited by the statute of limitations are those only growing out of contract, or such as are given by statute for the enforcement of penalties.</p> <p>3. Where an action of debt is.given for. the enforcement of an assessment made for special and peculiar benefits, and the assessment is made a lien on the land benefited, a failure to sue for six years after the right of action accrues, neither bars the action nor extinguishes the lien, unless the statute authorizing the assessment so provides.</p>

<p>1. There can ordinarily be no judicial restraint or interference with municipal corporations in the bona fide exercise of powers, legislative or discretionary in their nature, provided private rights are not violated.</p> <p>2. But when the corporation has fulfilled its legislative functions, and exercised its legislative-discretion, and is about to carry its legislation into effect, if vested rights are violated, or irreparable wrong will be inflicted, the courts may intervene.</p> <p>■3, The repeal of an ordinance will not operate to disturb private rights vested under it.</p>

<p>1. A notice by telegraph of the granting of an injunction is sufficient to place the party disregarding such notification in contempt, provided such notice proceed from a source entitled to credit, and inform the defendant clearly and plainly from what act he must abstain.</p> <p>2. It is an established rule of the court of chancery that it is not open to any party to question the orders of the court, or any process issued under its authority, by disobedience ; and even where the order is improvidently granted or irregularly obtained, it must nevertheless be respected until it is annulled by the proper authority.</p> <p>3. An attempt to justify such disobedience by showing that the act was committed after consultation with counsel, and upon his advice to disregard the notice, will afford the defendants neither justification nor palliation.</p>

<p>On petition by Edward W. Vanderbilt and Edward W. Hopkins, and answer by Henry S. Little, receiver of the Central Railroad Company of New Jersey, and depositions taken in open court.</p>

<p>On final hearing on bill and answer.</p>

<p>Appeal from order of Hudson orphans court, admitting to-probate a paper writing purporting to be the will of William P. Turnure, deceased, and cross-appeal from an order directing payment of the costs and expenses of the litigation out of the estate.</p>

<p>Appeal from allowance of commissions made to executors, and allowance to surrogate for auditing account.</p>

<p>1. The statute which provides for an issue for the trial of the question of the validity of a will, by the circuit court, does not take away the right of appeal secured, by the constitution; and on such appeal the issue is to be retried in the prerogative court, as fully as if the decree appealed from were based on the finding of the orphans court itself.</p> <p>2. The declarations of a testatrix, either before or after the making of her . will, are not competent evidence to prove fraud in obtaining it.</p> <p>3. The testator’s power to make discrimination in the distribution of his property, constitutes no small part of the value of the testamentary right, and ■therefore considerations of inequality in such distribution are not to be entertained, where there is competency and no fraud.</p>

<p>Appeal from decree of Hudson orphans court, admitting to probate a paper writing purporting to be a codicil to the last will and testament of Julius G. Kahl, deceased, and ordering the caveatrix to pay. the costs.</p>

<p>A testator directed his executors to invest certain funds in “first-class, interest-paying securities,” and to pay the interest derived therefrom semiannually to certain designated beneficiaries for life, and to pay the principal to others after the termination of the life estate of those first named. The funds at the testator’s death were left by him invested in second mortgage railroad bonds, railroad stocks and bank stocks. — Meld, that ,the orphans court had no power, under the one hundred and fifteenth section of the orphans court act (Rev. p. 777), on the application of the executors, to order that the investments of the funds be continued in the securities left by the testator, because such order is not within the object of that section of the act. The section does not apply to moneys which the fiduciaries therein mentioned are required to invest, but such as they are required to hold—</p>

<p>An administratrix of her husband’s estate retained out of the estate money due her from her husband for money lent by her out of her separate estate to him,'to be repaid with interest, and also money received by him as a deposit for her benefit out of her separate property. She also delivered to the surviving executor of an estate of which her husband was an executor certain securities found in her husband’s safe after his death, and proved to be the property of that estate. — Held, that her action in both matters was lawful.</p>

<p>Where an administrator, in pursuance of a family arrangement for the benefit of the widow and children of the deceased, disposed of the property in such manner in connection with a lease on which the estate was liable, as to realize more than could have been realized by disposing of it in the usual way, taking into account the loss which the estate, but for the arrangement (part of which was the assumption of the lease), must have met on the lease — ■ Held, that he was not liable under the circumstances, on certain notes taken as part of the purchase-money of the property, and which he had failed to collect.</p>

<p>A decedent went into a store to execute his will. His brother James was there, and also Mr. Harrison and Mr. Miller. James said to Harrison, in the hearing of the decedent, “My brother has been making his will, and I would like to have you witness it,” to which Harrison replied, “All right.” The decedent, James and Harrison, then went into a small enclosure or desk, with glass around the top, so that persons inside of it were visible to others in the store. James said to Harrison, “This is my brother’s will, I would like to have you witness it,” whereupon decedent signed it, and Harrison, who saw him sign it, also signed as a witness. James then stepped out of the enclosure, and going to Miller, who was engaged at a counter about ten feet away, said, “Mr. Miller, Mr. Harrison has been kind enough to witness my brother’s will, now I want you to,” and then Miller went into the enclosure where decedent remained (Harrison having stepped out to make room for Miller), and signed his name to the will as a witness. Before James asked Miller to sign, the latter did not know that decedent was signing his will, although he surmised so because James had told him, a few weeks before, that his brother was coming there to execute his will, and that he (James) would like him (Miller) and Harrison to witness it. Miller testified that he thinks decedent heard James request him to witness the will. Miller did not see decedent sign nor hear him acknowledge his signature to the will.- — Held, that there was no publication of the will by decedent in Miller’s presence, and therefore that there was no execution of it, in compliance with the statute.</p>

C.: The evidence shows, beyond all doubt, that the mortgage in suit was purchased and suit brought thereon for some other purpose than collecting the money due on it. . If this is not so, it is difficult to see why Mr. Davis cannot say at once, without direction or instruction from his counsel, whether or not he will receive the amount due and assign the mortgage.

C.: What the complainant really asks in this case is a mandatory injunction. He has framed his prayer so that if an injunction follows its language, it will be, in form, simply prohibitory,' but its effect must be mandatory. It will, in effect, command an affirmative act to be done, viz., the removal of obstructions from alleged ways. As a general rule a mandatory injunction will not be ordered except upon final hearing. This rule has a single exception.

<p>1. Subscriptions to capital stock are a trust fund for the payment of the debts df the corporation. The trust is created for the benefit of creditors as a class. All the creditors of the corporation have a common interest in this fund, and are entitled to share in it ratably. •</p> <p>2. A creditor,' having- exhausted his remedy against the corporation by judgment, execution and a return of milla bona, may file a bill against stockholders to compel the payment of unpaid subscriptions to the capital stock.</p> <p>3. The fifth section of the act concerning corporations {Rev.p. 178) provides that “ where the whole capital of a corporation shall not have been paid in, and the capital paid shall be insufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share, as fixed by the charter of the company, or such proportion of that sum as shall be' required to satisfy the ■debts of the company.”</p> <p>4. In a suit by a judgment creditor against stockholders of a corporation to compel payment of their unpaid subscriptions to the capital stock — Held,</p> <p>(1) That such a suit can only be prosecuted by a creditor suing in behalf of all the creditors of the corporation.</p> <p>(2) That the corporation is a necessary party to the suit.</p> <p>(3) That all the property and assets of the corporation must be brought into the suit and put in the course of administration.</p> <p>5. Entries in the books of a corporation are, as a general rule, competent evidence of the proceedings of the corporation, and of the acts and votes of its officers transacted at official meetings ; but such entries are not notice to third persons of acts or resolutions entered on its minutes, so as to raise up against them an equitable estoppel arising from a consent to the proceedings.</p> <p>6. The capital stock subscribed is a substitute for the personal liability of partners in ordinary copartnerships, and creditors are entitled to a bona fide exercise of the compulsory powers of the corporation to compel subscribers to pay in their subscriptions.</p> <p>7. The officers of a corporation are the trustees of the subscriptions to its stock, qnd hold them as a trust fund for creditors; and the trust cannot be defeated by any simulated payment of the stock subscriptions, of by any device short of actual payment in good faith.</p> <p>8. Transactions under statutes authorizing corporations to purchase property and issue stock in payment for it, or to accept property in payment of subscriptions to the capital' stock, are upheld only where the agreement to purchase property and pay for it in stock has been made in good faith, and the property taken in payment of stock subscriptions has been put in at a fair bona fide valuation.</p> <p>9. Courts have inflexibly enforced the rule that payment of stock subsoriptions is good as against creditors, only where payment has been made in money, or what may fairly be considered as money’s worth.</p> <p>10. The third section of the land improvement act (Rev. p. 568) enacts that payment of the capital stock of corporations organized under the act, shall be made either in money or in land — the land to be appraised by the board of directors and taken at such value. — Held,</p> <p>(1) That this section does not supersede the obligation of subscribers to-pay their subscriptions, as they appear in the certificate of organization — it simply provides the manner in which payment shall be made; and in a. suit by creditors against a stockholder, to compel him to pay his subscription, the inquiry is, has he paid in money or money’s worth?</p> <p>(2) That the directors, in the appraisement of land taken in payment of subscriptions, act in a fiduciary capacity, and are bound to discharge the duties of the trust with fidelity.</p> <p>11. Five persons agreed for the purchase of a tract of land, and organized themselves into a corporation, under the land improvement act. In the certificate of incorporation the capital was fixed at §100,000, and these persons subscribed for all the capital stock, and became the directors of the company. The consideration of the purchase was §50,000; the deed was made directly to the corporation, and it gave its obligations for the whole purchase-money. The directors then appraised the lands at §100,000, and credited §50,000 of that valuation as a payment of fifty per cent, on the subscriptions to the capital stock. The lands were not worth more than the original purchase-money, and the company acquired no other property, real or personal. In a suit brought by a creditor of the corporation against the subscribers to the capital stock, to compel them to pay their subscriptions, in order to satisfy debts of the corporation — Held, that as against creditors of the corporation the allowance of a credit of fifty per cent, on the subscriptions of the stockholders was invalid, and that the stockholders were liable for the whole amount of their subscriptions to the capital stock, as they appeared in the certificate of organization.</p>

On t,he 27fch of April, 1874, the city of Elizabeth caused an assessment to be made for the cost and expenses of paving Jefferson avenue. This assessment was laid on a lot on Jefferson avenue owned by George R. Hill, in common with other lands fronting on the avenue. Hill’s lot was assessed in the sum of $1,211.76. In June, 1874, a writ of certiorari was sued out by owners of other lands, which removed the assessment to the supremo court.

<p>In order to set aside, as fraudulent against creditors, a conveyance to one • creditor, lie must have participated in or have been cognizant of the grantor’s unlawful motives when he accepted the conveyance.</p>

, advisory master: The bill in this case was filed to recover a deficiency existing after a foreclosure and sale of the mortgaged premises. The suit and proceedings for foreclosure and sale were had in Passaic county circuit court. !No claim for deficiency was made in the bill in that case in the circuit court.

<p>1. The record of a judgment at law imports absolute verity. The court of chancery cannot examine or determine whether it expresses the judicial determination of the court in which it was pronounced, or whether it was entered up, by mistake of the clerk, different from what it ought to have been or was intended to be.</p> <p>2. A judgment of the circuit court, upon proceedings to enforce a lien claim, may be general or special, or both. If, when the proceedings are against the same person as builder and owner, the record shows a general judgment only, •the court of chancery, in the absence of fraud or imposition, cannot directly or indirectly impose the debt involved therein as a lien on the lands in question, on the ground that it ought to have been recorded as a special as well as a general judgment, and was erroneously recorded by mistake of the clerk.</p>

The appellant, Lippincott, recovered a judgment against Keturah. M. Evens, wife of Samuel B. Evens, on a joint note executed by said Samuel B. Evens and Keturah, his wife, to said Lippincott, to raise money to pay a note of Samuel B. Evens, given for his individual debt — Keturah M. Evens signing said joint note as surety for her husband.

<p>On appeal from a décree of the chancellor, whose opinion is ■reported in Sayre v. Sayre, 6 Stew. Eq. 61.</p>