Volume 36 — New Jersey Equity Reports

<p>Petition for rehearing or a new trial. On petition and affidavit of verification.</p>

<p>Bill for injunction. On motion to dissolve the injunction on bill and answer.</p>

<p>Bill for relief. On motion for leave to bring action at law &e..</p>

<p>Bill for relief. On motion to dismiss.</p>

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

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

<p>A widow may, on tendering a refunding bond, demand of her husband’s, executors a legacy given to her by his will, and they have no right, on an allegation that the legacy was given to the widow in lieu of her dower, to demand, as a condition of paying the legacy, that she shall give a release of her dower in the real estate.</p>

<p>Leave to file a bill of review, on the ground' that the complainant has, since decree, discovered the whereabouts of a material witness, of whose existence and materiality she knew when she began her suit, denied on the ground of laches, and the impolicy of allowing a renewal of the litigation.</p>

<p>Under the authority of a statute, certain bonds were issued by a water company, secured by a mortgage on their property and franchises, and forty-eight of those bonds were taken by the contractors who built the company’s works, as part payment .therefor. All the company’s property and franchises were afterwards sold by a receiver in insolvency, subject to all legal liens, and bought by the contractors, who re-organized the company and conveyed the-property and franchises to the new company, the contractors holding almost all of the stock of the new company. On foreclosure of the mortgage by the-holders of twenty-four of the forty-eight bonds, which had been assigned by the contractors — Held, that the contractors and the old company and the new company were all estopped from alleging any invalidity in the execution or delivery of the bonds, or want of power of the old company to issue them.</p>

<p>Bill for relief. Motion for an injunction. On order to show cause. On bill and affidavits on both sides.</p>

<p>Bill for relief. On general demurrer by all the defendants.</p>

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

Bill to foreclose. On motion for order requiring defendants-to replace a furnace, with its attaching pipes and registers, removed from the mortgaged premises since the commencement of the suit.

<p>The complainant, the holder of a second mortgage on lands, applied to the husband of the holder of the first mortgage (the husband being the owner of the equity of redemption) to purchase the first mortgage. The husband named a price, on condition that the complainant would also pay him §350 for his equity, which proposition was accepted. The husband had no authority whatever to negotiate for his wife in the matter. On bill for specific performance — Held, .</p> <p>(1) That the wife, of course, could not be compelled to assign the first mortgage.</p> <p>(2) That the agreement could not be enforced against the husband by substituting for performance, indemnity against his wife’s interest in the premises as a mortgagee and dowress; there being no prayer for such relief in the bill.</p>

<p>A mortgage on two lots of land contained a stipulation that the mortgagee would release the first lot from the mortgage, on the payment of $300 on account of the mortgage, at any time before its maturity. Five months before the mortgage became due, the mortgagee credited $1,100 on the mortgage, representing interest due thereon and moneys paid by the mortgagor, on behalf of the mortgagee, on transactions having no connection with the mortgage whatever. On foreclosure — Held, that the mortgagor could not claim the benefit of the stipulation so as to withdraw the first lot from the lien of the mortgage.</p>

<p>Bill for directions. On final'hearing on bill.</p>

<p>A testator gave $5,000 to each of his children who should survive him, payable at the end of one year after his death, deducting therefrom any moneys due from any child or the husband of any daughter, as shown by his books of account, which were to be conclusive evidence of the fact and amount of such indebtedness “ for all purposes under the will,” and, if not paid, then to be retained by the. executor from such delinquent’s income, which was payable under a subsequent provision in the will. The net income of the residue was to be paid equally to the sons, and daughters during their lives, with remainder to their children. The executors were also empowered to erect buildings, at their discretion, on designated lots of land in New York city, and on certain other lots there with the consent of the majority of the children then living. — Held,</p> <p>(1) That each beneficiary of the residue was, after deducting the debt payable from that share, entitled to the net income thereon from the date of testator’s death.</p> <p>(2) That the debts due from the children or the daughters’ husbands bore interest, and that the amount of such indebtedness was not limited to the amounts severally charged in the testator’s books.</p> <p>(3) That the appreciation in value of the unproductive property while awaiting a satisfactory sale by the executors, was a part of the corpus of the estate, and not of the income.</p> <p>(4) That- the cost of extensive repairs of the buildings, made in order to-secure a better class of tenants and increased rents, must be paid out of the income.</p> <p>(5) That the claim that interest should be allowed- to the life-tenants on the moneys of the corpus, used in building new houses, to be computed from the time when the moneys were expended until the time when the house3 were completed, could not be admitted.</p> <p>(6) That ordinary taxes and expenses of improved lands must be paid out of the income, while assessments for permanent improvements may be equitably apportioned between the life-tenants and remaindermen.</p> <p>(7) That the residuary estate, being held by the executors on a continuing, active trust, should not be divided even if a partition might appear practicable.</p> <p>(8) That a reference would not be ordered to ascertain whether any more buildings ought to be erected in the state of New York, on the ground that it may be held that the will creates an unlawful estate under the laws of New York; the reference being unnecessary.</p> <p>(9) That the unproductive land ought not to be divided, but an inquiry as to the propriety of the executors selling it, or any part of it, may be ordered.</p> <p>(10) That no income from the residuary estate can be paid to beneficiaries until the debts to the testator charged on their shares are satisfied or secured.</p> <p>Note. — A life-tenant must bear and pay the costs of repairs to the premises, taxes, assessments &c., Holcombe v. Holcombe, 8 Stew. Eq. 597, note; Garland v. Garland, 73 Me. 97; Wheeler v. Addison, 54 Md. 41; Miller v. Shields, 55 Ind. 71; Benagh v. Turrentine, SO Ala. 557; Carter v. Stookey, 89 III. 879; Graves v. Coehran, 68 Mo. 74.</p> <p>Debts charged in a testator’s account-book, and referred to in his will, are not conclusive, Bonnay v. Borradaile, 10 Bear. 863; Hoak v. Hoalc, 5 Watts 80; see Lawrence v. Lawrence, 4 Bedf. 878, 7 Hun 641, 68 H. Y. 108; Fellows v. Little, 46 FT. H. 87; Sims v. Sims, 39 Ga. 108; Shawhan v. Shawhan, 10 Bush 600, — Bep.</p>

<p>Creditor’s bill. On rehearing of final decree.</p>

<p>Creditor’s bill. On rehearing of final decree.</p>

<p>1. A gift of personal property for life, with power to the legatee to use it as she may deem proper, or to sell it, or any part of it, for her benefit, as she may deem needful or best — Held, to be an absolute gift.</p> <p>2. A devise of a residue for the benefit of the testator’s children, and in case of the death of them and their children without leaving any child or children them surviving, the residue to go, after the death of the testator’s widow, to his “ heirs bearing the Kendall name ” — Held, a gift for life to the children (there being evidence that the testator intended to give only a life-estate to his children), with remainder in fee to the grandchildren with limitation over to the testator’s heirs “ bearing the Kendall name,” in case of the death of •the children, and their children, without leaving lawful issue surviving, in the lifetime of the widow.</p>

<p>Bill for relief. On final hearing on bill and answer of executors.</p>

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

<p>A bill by tbe administrator of a deceased partner against his copartner, alleging that the administrator had applied to such copartner for a statement of the accounts of the firm, showing its assets and liabilities and the balance due the administrator; that the copartner had rendered such account; that the administrator, in ignorance of the partnership affairs, and confiding in the copartner’s statement, had, through the fraudulent representations and acts of the copartner, been induced to accept a less amount than was actually due his intestate from the firm, and also asking for an account, is not demurrable, because there has been, as claimed, an account stated, since the bill does not set out an account stated; nor because the bill seeks both an account and to surcharge an account as to the same matters; nor on the ground that the administrator has a remedy at law.</p>

<p>Bill to reform deed and for specific performance. On general demurrer.</p>

<p>Bill for specific performance. On demurrer. Submitted on briefs of counsel.</p>

<p>That part of the purchase-money of a lot of land was paid by a husband with his wife’s money, and that his father gave her a part of the materials after-wards used in erecting a house on the lot, is not a sufficient consideration to-uphold a voluntary conveyance of the house and lot by the husband to the wife as against his creditors, whose debts were nearly all contracted before the date of the conveyance.</p>

<p>A municipal corporation may be enjoined from discharging the water-drainage from the gutters of its streets on private lands, in such quantities as to impair the value and use of those lands.</p>

<p>Bill for partition. Answer in nature of cross-bill. On final hearing.</p>

<p>Bill to enforce vendor’s lien for purchase-money. On motion to strike out parts of the answer.</p>

<p>Bill for relief. On order to show cause why an injunction should not issue. On bill and affidavits.</p>

<p>Bill for construction of will.</p>

<p>The widow of a member of a voluntary, mutual life insurance association, claiming that as such widow she was entitled to receive from the association $1,000 insurance on the death of her husband, filed a bill against two defendants, one the president and the other the secretary and treasurer, to compel payment of the'insurance-money from the funds in their hands, or that the court might compel them to raise the sum by an assessment of the members. The bill further alleged that the decedent had, on account of his illness and through the mistake of a director of the association, to whom he had given the money, failed to pay an assessment levied on him within the time limited by the by-laws, and that his name had been stricken from the association for that reason, and without serving upon him a second notice to make such payment, as required by the by-laws, before he could be removed. Demurrer overruled, and — Meld,</p> <p>(1) That as it did not appear from the bill that there would be any occasion to make an assessment (it appeared by a printed statement in a copy of the by-laws put in by the defendants on the argument of the demurrer, that the association was in possession of ample funds to pay the $1,000), it was unnecessary to decide whether the court had the power, in a proper case, to order an assessment to be levied on the members for such purpose.</p> <p>(2) That the defendants were competent, as the officials of the association, to protect its rights, and that to require the joinder of all the members of the association as parties was impracticable and unnecessary.</p> <p>(3) That impertinent matters might, under the two hundred and tenth rule, be struck out of the’bill.</p> <p>Note. — Courts of equity have jurisdiction over unincorporated, voluntary associations where pecuniary rights of the members are involved, Thomas v. Ellmaker, 1 Pars. Eq. 98; Adley v. Whilstable Co., 17 Fes. 816; Lyman v. Bonney, 101 Mass. 562; Olery v. Brown, 51 How. Pr. 92; Naehtrieb v. Harmony Settlement, 8 Wall. Jr. 66; see Dolan v. Court, 128 Mass. 437; Lamphere v. Grand Lodge, 47 Mieh. 439; Babb v. Beid, 5 Bawle 151; Berry v. Cross, 8 Sandf. Ch. 1.</p> <p>The members are jointly and severally liable to pay benefits, Protchett v. Schaefer, 11 Phila. 166; Payne v. Snow, 12 Cash. 444; Miller v. Georgia Masonic Co., 57 Ga. 221; Henry v. Jackson, 87 Vt. 481; but a mandamus to compel an assessment on the members will not lie, Burland v. Mutual Ben. Assn., 47 Mich. 434-</p> <p>Eecourse to law cannot be had where no pecuniary rights are involved, Thompson v. Soc. of Tammany, 17 Hun 805; White v. Brownell, 2 Daly 329 ; Bauer's Appeal (Pa.), 18 Alb. L. J. 218.</p> <p>If the charter and by-laws provide a mode of expelling or suspending a member, the proceedings of the association, if in conformity therewith, are conclusive, Com. v. Pike Soc., 8 Watts & Serg. 247; Chamberlain v. Lincoln, 129 Mass. 70; Grosvenor v. United Soc., 118 Mass. 78; Burton v. St. Georgds Soc., 28 Mich. 261; Burt v. Grand Lodge, 44 Mich. 208; Society v. Com., 52 Pa. St. 125; Troy Factory v. Corning, 45 Barb. 231; or, at least, must be exhausted before resorting to courts of law, Ellison v. Bignold, 2 Jaa. & W. 503; Carien v. Drury, 1 Ves. & B. 154; Lafoud v. Deems, 81 N. Y. 607; Olery v. Brown, 51 How. Pr. 92; see Austin ¶. Searing, 16 N. Y. 112; Leech v. Harris, 2 Brews. 571; Savannah Exchange v. State, 54 Oa. 668; Kelsall v. Tyler, 34 E. L. & Eg. 588.</p> <p>If the association tribunals decide against a claim for benefits, the claimant cannot recover at law, Toram v. Howard Assn., 4 Pa. St. 519; Anacosla Tibe v. Murbaeh, 13 Md. 91; Blacksmiths Soc. v. Van Dyke, 2 Whart. 390; Osceola Tribe v. Schmidt, 57 Md. 98; see Dolan v. Court, 128 Mass. 437.</p> <p>The provisions of the charter and by-laws of the association as to the manner in which the funds may be acquired or disposed of, bind the members, Vollman’s Appeal, 92 Pa. St. 50; St. Patrtck’s Soc. v. McVey, 92Pa. St. 510; Breneman v. Franklin Assn., 3 Watts & Serg. 218; Folmer’s Appeal, 87 Pa. St. 133; McCabe v. Father Matthew Soc., 24 Hun 149; Torrey v. Baker, 1 Allen 120; Fugure v. Mutual Soc., 48 Vt. 382; Weil v. Trafford, 3 Tenn. Ch. 108; McClure v. Johnson, 56 Iowa 62; Worley v. Northwestern Assn., 10 Fed. Bep. 227; Hyde v. Woods, 94 TI. S. 523; Arthur v. Odd Fellows Assn., 29 Ohio St. 557; Catholic Assn. v. Priest, 48 Mich. 429; Ballou v. Gile, 50 Wis. 614; Kentucky Mut. Ins. Co. v. Miller, 13 Bush 439 ; Bolton v. Bolton, 73 Me. 299;</p> <p>As aforfeiture of benefits where the member dies from intemperance, debauchery, etc., St. Mary’s Soc. v. Buford, 70 Pa. St. 321; or he has been expelled, Blacksmiths Soc. v. Van Dyke, 2 Whart. S90; see Gorman v. Bussell, 14 Cal. 531; State v. Williams, 75 N. C. 134; Diligent Fire Co. v. Com., 75 Pa. St. 291; or where such member’s claim has been forfeited for non-payment of dues, MacDowell v. Ackley, 93 Pa. St. 277; Benevolent Soc. v. Baldwin, 86 III. 479; Logan Ti'ibe v. Schwartz, 19 Md. 565; Card v. Cmr, 1 C. B. {N. S.) 197; Pritchard v. Merchants Soc., 3 C. B. (N. S.) 621; Mutual Soe. v. Lowry, 84 Pa. St. 43; see Com. v. Penn. Ben. Soe., 2 Serg. & B. 141; Acey v. Fernie, 7 M. & W. 151; unless such forfeiture has been waived, Protection Ins. Co. v. Foote, 79 111. 361; Benevolent Soe. v. Baldwin, 86 III. 479 ; Sclmnck v. Gegenseitiger Fund, 44 Wis. 369 ; Erdmann v. Mut. Ins. Co., Id. 376 ; Mound- City Ins. Co. v. Twining, 19 Kan. 349 ; or the claim has been voluntarily abandoned by the member’s withdrawing from the association, Danbury Band v. Bean, 54 N. H. 524; Gaseley v. Separatists Soc., 13 Ohio St. 144; Schriber v. Bapp, 5 Watts 351; see Cox v. Bodfish, 35 Me. 302; Berlin v. March, 82 Pa. St. 166; Driscoll v. Lewiston Soc., 59 Me. 474-</p> <p>As to what allegations and proofs are requisite, Beneficial Soc. v. White, 1 Vr. SIS; Irish Assn. v. O’ Shaughnessey, 76 Ind. 191; Curtis v. Mutual Ben. Co., 48 Conn. 98; Fairchild v. Ins. Assn., 51 Vt. 613. — Rep.</p>

<p>A bill was filed to obtain tbe construction of a will, and the answer attacked the will because it had not been executed according to law, and because the testatrix did not possess testamentary capacity, and because the will had been obtained by fraud. At the hearing it was adjudged that this court had no jurisdiction to try the validity of the will. The will had been admitted to probate nine years, and its genuineness recognized and sworn to by the executor, who was the devisee, and under whose will the answering defendant claims the property as devisee. — Held, that a feigned issue to try its validity would not be ordered upon the application of the answering defendant.</p> <p>Note. — The conclusion of the surrogate or ordinary as to the validity of a will only applies to personalty bequeathed by the will, and does not estop its being questioned in courts of law afterward, Bogardus v. Olarke, 1 Ed/w. Oh. 266; Ben v. Ayres, 1 Or. 158; Snedeker v. Allen, Pen. *42; Bray v. Neill, 6 G.E. Or. 843; Allaire v. Allaire, 8 Vr. 312; Poster v. Joiee, 3 Wash. O. C. 500 ; Harrison v. Rowan, Id. 580 ; Turner v. Hand, 3 Wall. Jr. 88 ; see Tucker v. Whitehead, 58 Miss. 762; Robinson v. Allen, 11 Oratt. 785.</p> <p>The probate of a will of real estate is now, by statute, conclusive evidence of its formal execution, after seven years, P. L. of 1872 p. 85; 1873 p. 129; Rev. p. 1250 | 38; see Parker v. Brown, 6 Oratt. 554.</p> <p>A court of chancery has no jurisdiction to set aside a will for fraud, incapaeity &c., after suck will lias been probated, 8 Pom. Eq. Jur. $§ 913, 914; Rogers y. Rogers, 3 Wend. 503; Colton v. Ross, 8 Paige 396 ; Mitchell v. Holder, 8 Bush 368; Harrison v. Guión, 4 Lea 531; Chambers v. Watson (Iowa), 13 Rep. 73,; Pierce y. Preseott, 188 Mass. 140 ; Ballou v. Hudson, 13 Grait. 678 ; State y. McGlywn, 80 Cal. 833; but see Whitfield v. Hurst, 3 Ired. Eq. 848, 9 Ired. 170; State y. Allen, 8 Tenn. Ch. 1$ / Smith y. Harrison, 8 Heislc. 830; Holden’s Case, 87 Wis. 98 ; except in the case of a foreign will, Sneed v. Ewing, 5 J. J. Marsh. 460; see Parker y. Parker, 11 Cush. 519; Allaire y. Allaire, 8 Vr. 318. — Rep.</p>

<p>On a bill filed by certain of the beneficiaries of a will, whose legacies were charged on land, for its construction, and for an accounting, after it had been, admitted to probate by the orphans court, all the legatees whose legacies were charged on the land being made parties — Held,</p> <p>(1) That neither the legality-of the execution of the will, nor the capacity of the testatrix, nor the existence of undue influence, could be tried in this court, although issue may have been -joined thereon.</p> <p>(2) That all of the legatees whose legacies were charged on the lands devised ought to be parties, and hence there was no misjoinder; nor if there were misjoinder could the objection be raised for the first time at the hearing.</p> <p>(3) That a legacy to two churches, of $5,000 to each church, charged on testatrix’s lands, “ the interest to be strictly applied and distributed to the poor members of said churches forever, and nothing else,” is a valid, charitable gift,</p> <p>(4) That the language of the gift, “ five thousand dollars each, to be secured as by bond and mortgage upon the brick block of the five three-story houses at the southeast corner of Fifth and Clinton streets (two thousand dollars on each house), in the city of Camden ” &c., after the death of the testatrix’s husband, was sufficient to charge it on the lands described.</p>

<p>1. Where a defendant claims by his answer the same benefit that he would have been entitled to had he demurred, and sets up a general denial of jurisdiction, he can only insist upon this defence at the hearing.</p> <p>2. Where a bill calls for an answer to several distinct averments according to defendant’s knowledge, information, remembrance and belief, an answer merely denying knowledge is defective. It ought also to include defendant’s information.</p> <p>3. Where a bill asks for a discovery of the contents of a lost policy of insurance, an answer referring to a copy of such policy as annexed thereto, and having such copy annexed, is sufficient.</p> <p>4. Where tire bill.states that the complainant desired more insurance on his premises, and so notified the defendants; that the defendants consented ■thereto, but declined taking such additional risk themselves, and by their agent directed complainant where to obtain it, an answer that this statement ■is untrue is defective. It ought to have added that no part of it is true.</p> <p>5. Where the bill asserts that application for payment of the loss under complainant’s policy was made to defendants, and makes allegations as to defendant’s replies thereto, an answer setting forth the correspondence between the parties on that subject by letter, held unobjectionable.</p> <p>6. Where the bill alleges that defendants had, after complainant’s loss, made an assessment on his premium-note in order to pay another loss, and thereby waived any forfeiture for breach of condition of his policy, a denial in the answer that such an assessment had been made, coupled with an averment that if so it had been made through a mistake of defendants’ agent, and that the amount of the assessment had been afterwards promptly tendered to ■complainant, may be permitted to stand.</p> <p>7. Statements in the answer in this case in regard to the by-laws of the defendants (a mutual insurance company), and their binding effect on the complainant as a member of the company — Held not irrelevant.</p> <p>8. Where the bill avers that the premises destroyed were worth $4,500, a ■declaration, in the answer, that complainant adjusted his claims against the other insurance companies which held risks thereon, on a basis that fixed the value of the insured premises at §2,500, is not impertinent.</p>

<p>Bill to foreclose. ' On exceptions to master’s report.</p>

<p>In' taxing a sheriff’s fees on a sale of mortgaged premises, under the act of 1879 (P. L. of 1879 p. 177), the taxed costs of the cause, excluding the sheriff’s execution fees, must be included in computing the amount on which the sheriff’s fees are calculated.</p>

<p>Bill to foreclose. On exception to master’s report.</p>

<p>1. The marriage of a woman does not revoke her will executed before such marriage.</p> <p>2. A widow made her will disposing of her property. She afterwards entered into a marriage settlement, whereby she assigned a very large part of her property (it was all personal) and the income thereof,.and of all her other property, to trustees in trust for herself for life, and after her death to distribute the property assigned to certain persons whom she named, and who, with a few exceptions, were the same persons who were named as legatees in the will, reserving to herself, with the express assent of her future husband, a testamentary power of disposition over her estate, which was, by the settlement, put into the hands of her trustees. She was married and died without any further execution of the power. — Held, that her will was not revoked by her marriage, and was a good execution of the power.</p> <p>3. Also, that the property assigned to the trustees must be distributed according to the terms of and under the settlement, and not under the will; but that under the circumstances the gifts to the legatees were adeemed to the extent of the provision made for them in the settlement.</p> <p>4. That the husband waived or relinquished any rights of survivorship in the wife’s remaining personalty by allowing her will to be probated.</p> <p>Note. — At common law or by statute in some states, the will of a feme sole is revoked by her marriage, 1 Jarm. on Wills 79; 1 Wms. on Fxrs. 76; Schouler on Husb. and Wife § 457; Lant’s Appeal. (Pa.), 10 Pep. 645; F'ansen’s Willy 26 Pa. St. 202 ; Lathrop v. Dunlop, 4 Hun 213, 63 N. Y. 610 ; Brown v. Clark, 77 N. Y. 369 ; Loomis v. Loomis, 51 Barb. 257; Vail v. Lindsay, 67 Ind. 528 ; unless the husband’s assent be obtained, Hoyt v. Jaques (Mass.), 14 Law Pev. 808; ICurtz v. Saylor, 20 Pa. St. 205; Cooper’s Case, L. P. (6 Prob. Div.) 34; Cavenaugh v. Anichbacker, 36 Qa. 500; Newlin v. Freeman, 1 Ired. 514; Burton v. Holly, 18 Ala. 408; Lee v. Bennett, 31 Miss. 119; Famds Case, 16 Sim. 406; Smellie v. Smellie, 2 Desaus. 66; see Urquhart v. Oliver, 56 Qa. 344; Burroughs v. Nutting, 105 Mass. 228 ; Allen v. Little, 5 Ohio 65 ; Churchill v. Corker, 25 Qa. .479; and the death of the husband would revoke his assent, Noble v. Willoek, L. P. (8 Ch. App.) 778, 7 H. L. C. 580; Smith’s Case, 1 Sw. & l'rist. 127; Peay’s Case, 4 Id. 215; Price v. Parker, 16 Sim. 198; see Wood v. Bullock, 3 Hawks. 298; Walker v. Hall, 34 Pa. St. 483.</p> <p>But in some instances such revocation has been deemed only a presumption liable to be rebutted, Miller v. Phillips, 9 P. I. 141; Yerby v. Yerby, 3 Call 334; see Arthur’s Appeal (Pa.), 14 Cent. L. J. 837.</p> <p>As to the formalities necessary to revive the will of a woman which has been revoked by her marriage, Brown v. Clark, 16 Hun 559, 77 N. Y. 369; Bizzey v. Flight, L. B. (3 Ch. Biv.) $69; Thorndike v. Reynolds, $$ Gratt. $1; Graham’s Case, L. R. {$ P. & B.) 385; Heathcotés Case, L. B. (6 Prob. Biv.) 80; see Wood v. Bullock, 8 Hawks $98; Ash v. Ash, 9 Ohio St. 883; Grimke v. Grimke, 1 Besauss. 866.</p> <p>The English statute (1 Viet. e. $6 $ 18) makes a marriage subsequent to the execution of a will, either by a man or a woman, a revocation, except in the execution of a testamentary power, Richards Case, L. B. (1 P. & B.) 156 ; Fen-wicks Case, Id. 819; McVicor’s Case, Id. 671; Otway v. Sadlier, 4 Irish Jur. (N. S.) 97; Worthington’s Case, $5 L. T. Bep. (N. S.) 853; Fitzroy’s Case, 1 Sw. & Trist. 133; and some of the United States have similar statutes, Phaup v. Wooldridge, 14 Gratt. 33$; Brown v. Clark, 77 N. Y. 369; Code of Ala. 1876 $ $$83; Gen. Stat. of Ky. 1878 p. 834 $9; Bev. Stat. of Mo. 1879 vol. l.p. 680 § 3965.</p> <p>A power of testamentary disposition, reserved in a marriage settlement, may be exercised by a, feme covert after her marriage, Michael v. Baker, 1$ Md. 158; Buchanan v. Turner, $6 Md. 1; Neivlin v. Freeman, 4 Ired. Eg. 31$; Mullins v. Lyles, 1 Swan 337; Mitchell v. Holder, 8 Bush 368 ; Harris v. Harbeson, 9 JBush 397 ; Albrecht v. Pell, 11 Hun 127; where the husband survives, Schley v. McCeney, 36 Md. 266; Gackenbach v. Brouse, 4 Waits & Serg. 546 ; Trimmell v. Fell, 16 Beav. 537; whether the property so devised is liable, after her .death, for her debts, Shattock v. Shattock, L. R. (2 Eq.) 182; Vaughtm v. Vanderstegen, 2 Brew. 165, 363; Hobday v. Peters, 28 Beav. 354; Blatchford v. Woolley, 2 Br. & Sm. 204; Smith v. Oherill, L. R. (4 Eq.) 389; Rogers v. Hinton, Phil. (N.G.) Eq. 101,63 N. G. 78 ; Stewart v. Ross, 50 Miss. 776 ; Triplett v. Rornine, 33 Grait. 651; see McTier v. Hunter, Riley 159; Rodgers v. Brazeale, 34 Ala. 512.</p> <p>As to the formalities requisite in the execution of such a power, Porcher v. Baniel, 13 Rich. 349; West v. West, 3 Rand. 373; Whitfield v. Hurst, 3 Ired. Eq. 242; Heath v. Withington, 6 Gush. 497; Ela v. Edwards, 16 Gray 01; Heyer v. Burger, Hojfm. Gh. 1; Thorndike v. Reynolds, 22 Gratt. 21; Foos v. Scarf, 55 Md. 301; Funk v. Eggleston, 92 III. 515; Brett v. Yealon, 101 III. 242; Blake v. Hawkins, 98 TJ. S. 315; see Bilderback v. Boyce, 14 S. C. 528; Bunn’s Appeal, 85 Pa. St. 94; Noble v. Willock, L. R. (8 Gh. App.) 778; Hollister v. Shaw, 48 Oonn. 248 ; and the power of courts of equity over the matter, Lawrence v. Bartlett, 2 Allen 36; Lant’s Appeal (Pa.), 10 Rep. 645; Hughes v. Wells, 13 E. L. & Eq. 389; Shaw v. Bawsey, 1 McMull. 247. — Rep</p>

<p>Bill to foreclose. On motion to set aside the sheriff’s sale and open decree.</p>

<p>1. A power to mortgage is sometimes implied in a power to sell.</p> <p>2. Where power of sale is given to raise a particular charge only, and the purpose c.an be answered better by mortgage than by sale, and that method is not violative of the intention of the grantor of the power, the former mode of raising the money should be preferred to the latter.</p> <p>3. A will contained this clause, “ If it should seem necessary at any time to dispose of a portion of my real estate for the payment of my debts, I hereby give my executors power to do so, either at public or private sale.” The estate included a very large tract of land, which could only be sold to advantage as a whole, and whose value would be greatly depreciated by selling any part or parts of it, and by reason of its character and value a purchaser could only be-obtained exceptionally and by effort. On an application by the executors (in which the beneficiaries under the will joined) — Held, that authority to mortgage it to raise sufficient money to pay the debts after applying the personal estate, should be given.</p> <p>Note. — Whether a power to sell authorizes an executor to mortgage, Ferry v. Laible, 4 Slew. Eq. 566, note; also, Bussell v. Plaice, 18 Beav. 81; Beery v. Hamilton, 41 Iowa 16 ; Golesbury v. Bart, 61 Ga. 680 ; Watson v. Jzmes, 15 La. Ann. 886; see Patapseo Go. v. Morrison, 8 Woods 395; Bloomer v. Waldron, 8 Hill (N. T.) 361; Adams v. Borne, 59 Ga. 769 ; Stokes v. Payne, 58 Miss. 614 ; Hoyt v. Jaques, 189 Mass. 386 ; Starr v. Moulton. 97 III. 585.</p> <p>That a court may authorize an executor to mortgage lands to pay testator’s debts, Holme v. Williams, 8 Sim. 557; Selby v. Cooling, 83 Beav. 418; Fraser v. Fishburn, 4 Bich. (N. S.) 314; see Williamson v. Field, 8 Sandf. Oh. 533; or a guardian, Bileis Estate, 8 Phila. 587.</p> <p>Statutory power to sell lands to pay debts was held not to authorize an order to mortgage, Melledge v. Bryan, 49 Ga. 397 ; Patapseo Go. v. Mon-ison, 8 Woods 895; or to encumber the estate by an easement, Brown v. Van Buzee, 44 VU 589; see Bossnkrans v. Snover, 4 G. E. Gr. 480. — Rep.</p>

<p>1. Where the relation of A to B is one of great trust and confidence, A’s conduct will be regulated by a law of jealousy. He will not be permitted to keep anything obtained from B under the guise of a contract, unless his title is entrenched in the utmost good faith. It must have been acquired openly, and on a full and frank disclosure of every fact likely to influence B’s conduct; and the conduct of A must be shown to be just and honest in every particular.</p> <p>2. The general interests of justice, and the safety of those who are compelled to repose confidence in others, demand that the courts shall inflexibly maintain the rule declaring that an agent employed to sell cannot make himself the purchaser, nor, if employed to buy, can he himself be the seller.</p> <p>3. The moment an agent ceases to be the representative solely of his employer, and places himself in a position towards his principal where their interests may conflict, no matter how fair his conduct may be in the particular transaction, he ceases to be that which his service requires and his duty to his principal demands.</p> <p>4. In such eases the courts do not stop to inquire whether the agent has obtained an advantage, or whether his conduct is fraudulent or not, but if the fact is established that he has attempted to assume two distinct and opposite characters in the same transaction, the courts will not speculate concerning the merits of the transaction, but at once pronounce it void as against public policy.</p> <p>5. The reason of the rule is, that owing to the selfishness and greed of human nature, there must, in the great mass of transactions, be a strong antagonism between the interests of the seller and buyer, and universal experience shows that the average man, when his interests conflict with his employer’s, will not look upon his employer’s interests as more important or entitled to more protection than his own.</p> <p>6. The object of the principle is to elevate the agent to a position where he cannot be tempted to betray his trust. To guard against uncertainty, all possible temptation is removed, and the prohibition against the agent acting in a dual capacity is made broad enough to cover all -his transactions.</p> <p>7. The rights of a principal will not be changed, nor the capacity of the agent enlarged, by the fact that the agent is not invested with a discretion, but simply acts under authority to purchase or sell a particular article at a specified price.</p> <p>8. The right of a vendor of lands to a lien in equity for unpaid purchase-money, is now a part of the established jurisprudence of this state, and will he enforced, not only against the purchaser, hut all who claim under him as volunteers or donees.</p> <p>9. A trustee is bound to make safe investments, such as will yield a reasonable income, and a return of the principal when desired, and he ought not, as A general rule, to invest in second mortgages, hut he will not be held personally liable simply because he has done so, in the absence of proof that loss has ensued or will probably ensue.</p>

<p>1. Whatever destroys free agency, and constrains a person to do what is against his will, and what he would not do if left to himself, is undue influence, whether the control be exercised by physical force, threats, importunity, or any other species of physical or mental coercion.</p> <p>2. Undue influence is not measured by degree or extent, but by its effect.</p> <p>3. When a deed is attacked on the ground of want of capacity in the grantor, the test is, did the grantor possess sufficient mind to understand, in a reasonable manner, the nature and effect of the act he was doing ?</p> <p>4. A witness is not entitled to credit, whose testimony is inconsistent with the common principles by which the conduct of mankind is usually governed.</p>

<p>1. Alimony and counsel fees were originally allowed in divorce suits, be* cause the wife was without other means of support, or of obtaining the money necessary to defray her expenses in the suit.</p> <p>2. When the wife has sufficient separate property, the reason for giving her either temporary alimony, or money to defray her expenses in the suit, does not exist, and she is not entitled to either.</p>

<p>1. An assignee of a lease for years empxoyea an attorney in executing a mortgage on his interest in the demised premises. Several years afterwards the defendant employed the same attorney to investigate the title of the same premises before taking a mortgage on the fee. — Held, that the defendant was not bound by the attorney’s former actual notice of the existence of the leasehold mortgage.</p> <p>2. A lease for years contained a provision that the owner of the fee should pay the lessee, at the end of the term, the value of any buildings put up by the lessee on the demised premises, who afterwards erected buildings thereon. The lease was acknowledged and recorded as a deed. The lessee mortgaged his interest to the defendant during the term, which mortgage was duly registered as a mortgage of lands. At the expiration of the term, but while the lessee still remained in possession, the owner of the fee mortgaged his interest to the complainant. — Held, that the record of the lease and of the mortgage on the lessee’s interest was constructive notice to the complainant, so as to render defendant’s mortgage a prior lien on the buildings.</p>

<p>A creditor recovered a judgment against thirteen joint and several debtors, and issued an execution against them all, under which levies were made, ample to satisfy the judgment debt; twelve-thirteenths of the whole amount of the judgment had been paid by twelve of the defendants, each one payingi one-thirteenth — Held, that, since the creditor could make the whole debt out of the property under levy, this court had no jurisdiction to entertain a bill filed by the creditor to set aside fraudulent conveyances made by thei thirteenth debtor, (the defendant), in order to defeat the complainant’s attempt! to satisfy the remaining unpaid one-thirteenth of the judgment out of the/ defendant’s property.</p>

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

<p>On order to show cause why injunction should not issue. Heard on bill and affidavits and answer and affidavits.</p>

<p>1. There is no estate applicable to the payment of legacies until the testator’s debts are paid.-</p> <p>2. Though a creditor may be barred of his action against the executor of his debtor, he is entitled to a remedy against his debtor’s legatee, if the legatee has received his legacy.</p>

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

<p>1. After the issue of common stock by a railroad company, a supplement to its charter was passed, which authorized the issue of preferred stock, on the following conditions: “ That when so issued, * * * the holders thereof, respectively, shall be entitled to receive dividends on the same, not to exceed seven per centum per annum, before any dividend shall be set apart or paid on the other and ordinary stock of said company.” In some years, dividends <uf seven per cent, or less were declared on the preferred stock alone, and in other years, such dividends were declared on both the preferred and common stock. — Held, that a holder of the preferred stock was not entitled to annual dividends thereon at a fixed rate, but only to dividends out of the annual profits, but when such profits had been earned, he was entitled to a dividend of seven per cent, therefrom, before any dividend could be paid on the common stock.</p> <p>2. The silence or failure of a former owner of such preferred stock to object to the declaring of any dividends on the common stock until after he had been paid seven per cent, on his own, will not estop, the present owner thereof from asserting his claim to re-imbursement to that extent out of the future profits.</p>

<p>1. A contract between two connecting railroads for the division of earnings, according to the distance which each corporation shall have carried the passenger or freight for which the money is paid, is within the discretionary powers of the directors, and its execution cannot be enjoined at the instance of a stockholder, who does not show a dishonest or fraudulent purpose on the part of the directors in making such contract, and that he will be injured thereby.</p> <p>2. A stockholder applied for an injunction to prevent the execution of a contract between connecting railroads, for the division of earnings on freight and passengers carried over such roads, making only the company of which he was a stockholder, a defendant. — Held, that the other railroad company with which the proposed contract was to be executed, was a necessary party.</p>

<p>Where, on a bill filed for the partition of lands, they are sold under the statute, and a defendant, without filing. plea or answer, accepts of all she is entitled to, excepting her share of the portion invested for a brother during his lifetime, under the will of their father, all her interest is thereby converted into personalty.</p>

<p>Where the wife, surviving the husband, or her representative, after his death, claims money remaining in the homestead on the death of the husband, it is not enough to show that she once earned money, nor that she received a portion from her father’s estate, nor that her husband at times gave her money, without further identifying such sums and showing that the moneys in question are the same, or that the moneys so earned or received by the wife passed to the husband without a lawful consideration. It must appear that at the time of his death he was her debtor.</p>

<p>Evidence that testatrix, after she made the will in question, denied that she had made a will, and said she would not make any, but would leave her children to share equally in her property, while it is competent to show that the will is spurious, and that the testatrix had not testamentary capacity, is not competent to show undue influence.</p>

<p>On appeal from decree of Passaic orphans court refusing to-admit to probate a paper writing, purporting to be the will of Sarah P. Dale, deceased.</p>

<p>On appeal from decree of Hudson orphans court.</p>

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

<p>By the sixth clause of the statute of descents, a great-uncle of an intestate is of equal degree of consanguinity with a cousin of such intestate.</p> <p>Note. — For cases showing the application of the rules of descent, see Bailey v. Boss, 5 Stew. Eq. 544, note; also Hoffman v. Bacon, 60 Ind. 379; Bruce v. Baker, Wils. (Bid.) 463; Wetter v. Habersham, 60 Ga. 193; Van Sickle v. Gibson, 40 Mich. 170 ; Pond v. Bergh, 10 Paige 140 ; Pilchard v. Turner, 3 Hawks 435; Caldwell v. Black, 5 Ired. 463; Affliek’s Case, 3 McArth. 95; Oliver v« Vance, 34 Ark. 564. — Bep.</p>

Murphy, 8 Stew. Eq. 88. The will of William S. Malcom, dated December 18th, 1871, after creating certain trusts in favor of his wife Ac., contained the following clauses, viz.: “And after the death of my said wife, I hereby empower-and direct my said trustees or trustee for the time being of this my will, 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…

<p>1. Several depositors in a savings bank cannot join in a bill against the directors, on the ground that they were severally induced by the false publications of such directors to put their money in such institution, the same proving to be insolvent, such cause of complaint not being joint.</p> <p>2. Nor can such depositors proceed in their own right, without making the corporation a party, to call the directors to account for the loss of the capital of the bank by the neglects and misconduct of such officers, such bank being the person primarily injured by such cause.</p>

<p>Where, on petition, heirs-at-law claim a fund in court, on the ground that it is to he treated as real estate, the administrator of the ancestor through whom such heirs claim, is a necessary party to the procedure.</p>

<p>On appeal from an order of the court of chancery, discharging a rule to show cause why a preliminary injunction should not issue.</p>

<p>On bill for specific performance of an agreement for tbe purchase and sale of land, where the defendant’s refusal to perform is based on alleged defects in the complainants’ title, full statement and proof of the title will be required.</p>

<p>1. If a judgment creditor have notice of the execution of a prior unregistered mortgage, it is of the same effect, as to him, as if it were registered.</p> <p>2. Where there is no fraud shown, the fact that a judgment creditor knew that a mortgage was intended and being prepared, will not deprive him of the right which a creditor has to secure a just debt by greater vigilance and promptness.</p> <p>3. Where the bill calls for an answer under oath, and it is given directly responsive to the bill, it is the ordinary rule that the burden is cast on the complainant to prove the charge in his bill by more than one witness, or by the evidence of one witness corroborated by facts or circumstances equivalent to another witness. But where the defendant does not rely on his answer alone, but offers himself as a witness, he may refute himself by his own evidence, and eireumstanees added may overcome the answer.</p> <p>4. The doctrine of notice of an unrecorded mortgage giving priority of lien, is based on fraud.</p> <p>5. When payment of prior mortgages on taking a new mortgage does not give the right of subrogation.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Kelly v. Boylan, 5 Stew. Eq. 581.</p>

<p>The charter of Elizabeth. requires that in laying out and opening streets compensation must be made to the owner or owners “of lands and real estate taken for the improvement. — Held, that this does not require compensation to be made to mortgagees specifically; that the compensation is to include the value of all the interests burdened by the public easement, and is to be paid to the owner of the land if no other claimant intervenes, and if, in any case, such owner ought not in equity to receive the whole, timely resort must be had to the court of chancery, which will see to the equitable distribution of the fund.</p>

Eichard Corlies died January 2d, 1879, leaving a will, of which Levi G. Irwin and Aaron E. Johnson were the executors. At the time of the death of Mr. Corlies there were, in the possession of one Annie Jones (a grandchild who lived with him), two mortgages made to the deceased by the complainant, Elizabeth E. Johnson, who is his daughter.

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, refusing a divorce to the appellant.</p>

<p>A mortgage on lands was duly executed and acknowledged by the defendant and also by her daughter and son-in-law, and the latter delivered it to the complainant. The premises had, shortly before the mortgage was given, been conveyed to the defendant by the son-in-law, who represented that he still retained some interest in the lands, and who was authorized by the defendant to negotiate and obtain the loan secured by the mortgage. The money was paid by the complainant to the son-in-law when the mortgage was delivered. — Held, on foreclosure, that his failure to pay over the money to the defendant was no defence, and that the defendant’s answer under oath, alleging that the mortgage was not delivered, was not of itself enough to overcome the presumption of delivery arising from the mortgagee’s possession of the mortgage, duly executed and acknowledged.</p>

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

<p>In 1873, the complainant and two adjacent land-owners agreed in writing with the defendant to convey to him a strip of land for a road, with an exception or reservation to the vendors of a right to use the road. By a mistake of the scrivener, who was chosen by the defendant, the complainants deed did not state that the strip was conveyed for a road, and also omitted the exception or reservation of his right to use it. The road was used by the complainant from 1871 to 1881, when the defendant denied his right to use it The complainant discovered the mistakes in his deed in 1879. — Held, that the deed should be reformed so as to state that the land was conveyed for use as a road, and also complainant’s right to use it.</p>

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

<p>The complainants sold the defendant a lot of land, the bargain being made through a firm consisting of defendant’s husband and one Nones. The complainants, afterwards needing this lot to build a stable on their adjacent land, agreed with defendant’s husband that she should take another lot belonging to complainants in exchange for the one first sold to her, and the complainants further agreed with 'defendant’s husband to build a stable for her on the exchanged lot, and did so. Thereupon complainants built part of their own stable on defendant’s first-mentioned lot. It did not appear that the husband had any authority to bind his wife. — Held, that an injunction to restrain defendant from proceeding at law to recover her first-named lot, could not be allowed.</p>

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

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

<p>A testator gave all his residuary estate (real and personal) to trustees, with a discretionary power to sell the real estate and to pay the income of the whole estate to his widow for life, or until her remarriage. The estate consists of mortgages, the homestead, which the widow occupies, and some unimproved city lots, which cannot now be sold advantageously. There is therefore no income or revenue except the interest on the mortgages. The widow insists that the taxes on the unimproved property should not be paid out of that interest, but from sale of the lots. — Held, that the trustees must pay the taxes on the lots out of the interest received from the mortgages.</p>

<p>The defendant in a judgment- which had been paid off but not canceled of record, bona fide negotiated a sale of it as a valid judgment to a bona fide purchaser for value, without notice, to whom the plaintiff in the judgment assigned it, covenanting that the whole of the money for which it was recovered was due. The holders of a subsequent judgment brought suit to compel cancellation of the judgment, on the ground that it was paid off when the assignment was made. — Held, that equity would not aid them, the purchasers having bought in good faith, for value and without notice.</p>

<p>Bill for relief. On motion to strike out part of amended answer.</p>

<p>A master’s report had been duly and regularly confirmed, and a party against whom it was obtained applied to set aside the order of confirmation, to the end that he might except. The order was set aside on terms that the other party have leave (for which he applied) to take further testimony on the subject-matter of the exception.</p>

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

<p>Bill to foreclose. On final hearing on bur and answer. •</p>

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

<p>Bill for directions to trustee. On final hearing on bill and answers.</p>

<p>On bill for relief. On motion on the part of Frank M. "Ward and Jacob C. Van Horn to set aside attachment for contempt against them, and motion on the part of the complainant for a like attachment against Nathaniel S. Rue, president of the defendant.</p>

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

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

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

<p>On September 13th, 1881, the complainant, on behalf of himself and other-creditors, filed a bill against the New York Silk Manuf. Co., a foreign corporation doing business in this state, alleging that it was insolvent and praying for the appointment of a receiver of its assets in this state, and for an injunction restraining it from receiving any of the debts due to it, and from paying or transferring any of its debts, money or effects. On October 21st, 1881, the injunction was issued, and early in November, 1881, a receiver was appointed.. On October 3d, 1881, the defendant issued an attachment out of the Hudson, county circuit court, under which all the silk company’s property in this, state was attached and other creditors came in. On October 29th, 1881, the-defendant issued another attachment out of the same court, under which the same property was seized, and other creditors came in. Both attachments were afterwards removed into the United States circuit court for New Jersey, and the president of the corporation entered an appearance in the attachments in December, 1881. On demurrer to a supplemental bill filed by the complainant against the defendant and the other creditors admitted under the attachment and the auditor — Held,</p> <p>(1) That the complainant had no standing as a party; that the suit, if maintainable, ought to have been brought in the name of the receiver.</p> <p>(2) That the power of the court, in insolvency, over foreign corporations is-mainly over their property or assets in this state; that the lien of the defendants and other creditors under the attachments was, under the circumstances, entitled to preference as against the receiver, and that the United States court had jurisdiction, and this court therefore could not interfere.</p>

<p>A testator gave to his executor power to sell his lands, with the assent of a majority of the devisees, who were his wife, his brother and his three sisters, in case of their inability to make a partition. The executor, his brother (one of the devisees), gave to his sisters a mortgage for $8,000 on his interest in the premises, or in the proceeds, if the land should be sold, for moneys loaned by them to him, and also to indemnify them as sureties on his bond as executor. A mortgage on the premises was also given by him and his sisters to the widow to secure to her $1,000 due her from the testator, and also to secure to her an annuity in lieu of her claims under the will. Upon the devisees’ request, they being unable to make partition, the property was sold by the executor. — Held,</p> <p>(1) That the claim of the sisters tinder their mortgage, to be paid from the executor’s share of the proceeds of the sale, was superior to that of his individual creditors, who had obtained judgments against him before the sisters’ mortgage was given.</p> <p>(2) That the devisees giving the widow a mortgage for the debt due her from the testator, did not deprive them of the power to consent to a sale of the premises under the will.</p>

<p>The legislature directed that the taxes on all entailed property, or property held in trust or for life, should be paid out of the income, or by the person or persons having the present beneficial interest therein. P. L. of 1879 p. Bf. Under that act, assessment of the tax on a mortgage taken in the name of the state for the investment of money in chancery was, in 1880, made on the person to whom the interest of the fund was payable. The legislature, by an act passed in 1882 (P. L. of 1882 p. 120), provided that taxes assessed on such persons for such funds since the act of 1879, should be paid by the person who, claimed deduction of the mortgage from his taxable property, and allowed out of the interest. — Held, that the assessment was validated by the act óf 1882.</p>

In insolvency. On petition of the receiver of the Oxford' Iron Company, for instructions in reference to certain property.. On petition and answers thereto.

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

<p>On final hearing on bill, answer and proofs taken in open court.</p>

<p>On application for an injunction. Heard on bill and affidavits and answer and affidavits.</p>

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

<p>1. In a suit for divorce, for adultery, a decree should not be granted on the uncorroborated evidence of a witness standing to the parties in the relation of an accomplice.</p> <p>2. Where the conduct of a defendant in a suit for divorce admits of two-interpretations, equally consistent with probability, one involving guilt and the other consistent with innocence, the court should always adopt that which favors innocence.</p>

<p>On application for injunction, heard on bill and affidavits and answering affidavits on the part of the defendants.</p>

<p>1. The lien of a vendor for unpaid purchase-money is entitled to be preferred to any other subsequent equal equity, unconnected with a legal advantage, or an equitable advantage which does not give such advantage a superior claim to the legal estate.</p> <p>2. A prior debt is a sufficient consideration to give a mortgage the character of a bona fide mortgage for value against a secret equity unsupported by any legal right.</p> <p>3. A wife may execute a valid mortgage to secure the debt of her husband, but if such mortg*age is voluntary, so far as the wife is concerned, it cannot be upheld against her creditors.</p> <p>4. A vendor’s lien for unpaid purchase-money is entitled to prevail against the vendee’s donee, whether the donee claims under a deed absolute or a mortgage.</p>

<p>1. A deed absolute on its face may, where such was the intention of the parties, be declared to be a mortgage, but its character must be determined by the mind of the parties at the time of its execution and not at a subsequent date.</p> <p>2. A grantee for value of a mortgagee under a deed absolute on its face, who acquires title without notice that the deed was a mortgage, will hold the land free from the equities of the mortgagor.</p> <p>3. The title upon record is a purchaser’s protection if he purchases in good faith.</p> <p>4 The direct and positive answer of a defendant, responsive to the charges of the bill, respecting matters within his own knowledge, in a case where the complainant has required him to answer under oath, must prevail unless overcome by two witnesses, or by evidence equivalent thereto.</p>

<p>In 1842, Shinn, who was seized of an undivided moiety of a tract of land' with Price, agreed to sell his moiety to Price for a certain number of cattle, and in pursuance thereof executed a deed to Price and had it recorded, but Price refused to receive the deed when tendered to him, or to deliver the cattle. In 1855, Crammer, who then owned Price’s moiety, and Shinn executed mutual releases for the land, and the release given to Crammer was recorded shortly afterwards, but Shinn did not have his release recorded until 1870. In. 1869, Crammer’s administrator executed a deed to the defendant, reciting that said Crammer became seized of the one-half of said premises by deed from Shinn, dated and recorded &c. The defendant also claimed the land, or some interest in it, through Eidgeway, to whom Price’s heirs-at-law had executed a deed. — Held, that the recitals in the deed of Crammer’s administrator to. himself were enough to put the defendant on inquiry, and further, that he was bound by a statement by one of Price’s heirs (his son) to Eidgeway, made when their deed was given, that his father never owned, or claimed to own, the property, and that they (Price’s heirs) had no claim on it.</p>

<p>R. loaned Ms own money, taking a bond and mortgage as security therefor, in the name of his wife, and having the mortgage recorded without making any other delivery thereof to his wife, which appears to have been one of a number of transactions avowedly done, with the knowledge of the wife, to hinder creditors. — Held, that such transaction cannot be upheld as a gift against the creditors of the husband who have liens by judgment or attachment.</p>

<p>On bill to foreclose, and prayer for deficiency.</p>

<p>1. A petitioner asking for divorce, on the ground of desertion, will not be-entitled to a decree if it appears that at any time during the continuance of the statutory period he consents to the desertion.</p> <p>2. If the separation was caused by the cruelty of the husband, inflicted not in the exercise of any marital right, such cruelty is a continuing bar.</p> <p>3. If it appears in such case that during the separation his affections have-been given to another, this is also a bar.</p>

<p>1. In case a father enters into a parol agreement with two of his sons that if they will take charge of his farms and earn for him a given sum, he will then give up the farms to them; and they take charge and earn the sum named, and thereafter, until the father’s death, by his consent, retain all the issues and profits, the taxes on the farms being assessed to him in their presence, no foundation is laid for a decree in favor of the said sons against the other heirs-at-law of the father to convey said farms.</p> <p>2. In such case, the alleged agreement being with both respecting the same subject-matter, the result of which they were mutually and equally interested in, they cannot testify in behalf of each other as to transactions with or statements by the intestate.</p>

<p>Appeal from order of Passaic orphans court.</p>

<p>A testator gave to his wife the income from certain property during her life, with remainder to their children. At the time of her death, there were due to her from his executors about $3,400 on account of accrued income. The minor children, who are the sole legatees under their mother’s will, and under it entitled to all her property, and are non-residents with a guardian duly appointed at their domicil, applied for authority for their guardian to receive the money and remove it to the place of their domicil, under the act authorizing the payment of funds here to the guardian of non-resident infants. The executors resisted the application, on the ground that the money can only be recovered by the legal representative of the mother’s estate here, and that they cannot be required to pay to any one else. The objection was ¡sustained! and the order refused.</p>

<p>On appeal from sentence of the orphans court of Somerset county.</p>

<p>Appeal from decree of Burlington orphans court. Motion to dismiss appeal.</p>

, rendered in the Burlington circuit court, on the following opinion: On the 8th day of March, 1872, Joseph Grubb was seized of a tract of land situated in the township of Burlington, in this county, containing twenty-two and seventy-one hundredths acres. On the 9th day of April, 1872, said Grubb executed a mortgage on the whole of said premises to Caleb Wilkins, to secure the-sum of $1,000.

Denton, 9 Stew. Eq. 4-19. Bill for the specific performance of a contract for the purchase of lands. The defendant set up that the title of complainant was defective. The complainant in the court below, who was the respondent in the appeal, acquired title as follows: Hosea F. Clark, husband of the complainant, died seized of the premises in question, and his will contained the following clauses, viz.: “ Item,.

<p>1. A diversion of a water-course by the authority of a riparian proprietor to enable a company to supply, in part, a village with water, is a legal wrong to another riparian owner who thereby sustains a perceptible and substantial damage.</p> <p>2. As between co-proprietors such a diversion is not a reasonable use of the common property.</p> <p>3. After entertaining a bill for such a wrong, and settling on final hearing the legal right of the complainant, a court of equity will not send him to law for redress, but will enjoin the defendant from making such diversion.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in James’s Case, 8 Stew. Eq. 58.</p>

The case in the court of chancery is reported in 9 Stew. Eq» 87, under the name of De Kay v. Voorhis. The Hackensack Water Company was incorporated by an act of the legislature, approved March 12th, 1869, with a capital of $50,000, with the privilege of increasing the same to the amount of $100,000. P. L. of 1869 p. 188.

Martin Shea and Constandt Schnorr became partners in the business of brewing, by articles of partnership dated November 16th, 1876 — the partnership to continue four years from that date, unless sooner dissolved by death or by mutual consent.

Bispham, 9 Btew. Eq. SS4-. Smith Coddington died on the 11th of May, 1868. 'By his ■will he appointed Walter Brewster and John C. Coddington executors. Besides personal estate, the deceased was seized of a house and lot in Rahway. The testator bequeathed pecuniary legacies to several of his children, and charged the payment thereof on his lands in case of a deficiency of his personal estate to pay the sainé. The residue he gave to his children in equal shares.

<p>On appeal from an order dismissing an order to show cause why an injunction should not issue, advised by Vice-Chancellor Bird.</p>

— On March 4th, 1876, Birch & Bender, under whom the respondents claim title, filed a mechanics lien against the entire premises shown on the above diagram. The circle on said diagram marked A, represents the reservoir of the appellants. B, C, I) and E represent, respectively, the parcels covered by the mortgages of the Real Estate Trust Company, Gerard and the Manhattan .Life Insurance Company.

Ludlow, 8 Stew. Lq. J¡80. A writing, purporting to be the last will and testament of William A. Ludlow, deceased, bearing date November 28th, 1879 (the true date being October 28th, 1879), was propounded by the executors to the surrogate, appealed to the orphans court of the county of Essex, and admitted to probate. On appeal to the prerogative court, the decree of the orphans court was reversed, and probate refused.

<p>1. When, upon a caveat against the probate of a will, the orphans court ¡ertifies the questions involved to the circuit court for trial by jury, pursuant lo section 19 of the orphans court act (JBev. p. 756), and on the coming in of the finding the orphans court decrees-accordingly, an appeal to the ordinary opens for consideration not merely the propriety of the decree, but the right to probate of the will. On such appeal, the ordinary may decide the question on the evidence before the j ury, or on additional proofs taken in accordance with the practice of the prerogative court.</p> <p>2. On an issue whether a will is the product of undue influence, the declarations of the testator respecting previous occurrences which are alleged to have exerted the influence, are not evidence to prove or disprove such occurrences.</p> <p>*3. The fact that a will was drawn by a favored legatee, while it calls for suspicious scrutiny of the circumstances, does not of itself invalidate the will.</p>

<p>On appeal from a decree of the ordinary, affirming an order of the orphans court of Somerset county, allowing the executor’s account, reported in Barcalow’s Case, 2 Stew. Bq. 88®.</p>

It is dated May 1st, 1877, and consequently came due May 1st, 1880.

<p>1. By the terms of an instrument creating a trust, the liability imposed on and assumed by the trustee may be limited. If there be a clause fixing the trustee’s liability, the rule.for measuring such liability must be sought in that clause properly construed. A strict rule of construction will be applied as against such limitation on such liability, and the construction must he consistent with the object and purpose of the trust.</p> <p>2. "Where a clause in an instrument creating a trust exempts the trustee from liability, except for willful and intentional breaches of trust, the trustee is not exempted from liability for losses arising from his having made sales or investments without instituting proper inquiries and exercising a reasonable judgment in respect to the value of the consideration or securities received, nor" for losses arising from investments of trust-funds in second mortgages, where no circumstances are shown to justify a resort to such hazardous securities. The fact that the trustee neither made, nor intended to make, any personal gain from his acts, does not exonerate him from liability under that clause.</p>

<p>On appeal from a decree advised by "Vice-Chancellor Van Fleet, whose opinion is reported in Sweeny v. Williams, 9 Stew. Eq. 459.</p>

<p>1. The petition to open a decree should state newly-discovered evidence.</p> <p>2. A rehearing will not be granted if the evidence proposed to be offered be merely cumulative.</p> <p>3. Mistake or error of judgment in counsel is no ground for rehearing.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Van Liew v. G-altra, 9 Stew. Eq, 861.</p>

<p>1. That a wife, after her dissolute husband had left her, contributed periodically to his support for more than three years, is not, of itself, sufficient evidence of connivance to prevent her obtaining a divorce for his desertion.</p> <p>2. Where a husband deserts his wife, without cause on his part and without fault on hers, there is not the same obligation on the wife to endeavor to effect a reconciliation that there would be on the husband were the case reversed.</p>