Volume 37 — New Jersey Equity Reports

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

<p>A bequest of a battery was made to the state, and another of funds to finish it before delivering it. A suit to test the validity of the bequest was instituted and prosecuted by and in behalf of the decedent’s estate, and the bequest was sustained. Held, that neither the representatives of the estate in the litigation, nor persons brought in by them as defendants as possible claimants, and who proved to be actual claimants, were entitled to costs or counsel fees out of the proceeds of the sale of the battery.</p>

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

<p>Bill for injunction. On motion for mandatory injunction. On order to show cause. On bill and answer.</p>

<p>Bill for relief. Motion for preliminary injunction.</p>

In partition. On petitions of the lieirs-at-law and the administrator of Catharine Hedden, deceased, and answer thereto.

<p>On bill for construction of will.</p>

<p>In a suit for divorce, evidence of defendant’s adultery, committed in a brothel, is not to be rejected because given by witnesses who are keepers of or employed in such resorts, if their testimony appears credible otherwise.</p> <p>Note.—Except in cases involving character, such as rape, crim. eon., breach of promise &c., proof that a witness was a common .prostitute, offered to impeach her testimony, is incompetent, 1 Whart. Evid. § 562; also, La Beau v. People, 33 How. Pr. 66; 34 N. Y. 223; MacBride v. MacBride, 4 Esp. 242; Southard v. Rexford, 6 Cow. 254; Ketchingham v. State, 6 Wis. 426; State v. Larkin, 11 Nev. 314; State v. Shields, 45 Conn. 256; State v. Corkle, 16 W. Va. 742, 761; Sidelinger v. Bucklin, 64 Me. 371; Smitherick v. Evans, 24 Ca. 461; see Com. v. Murphy, 14 Mass. 387; Indianapolis R. R. v. Anthony, 43 Ind. 183; People v. Blakely, 4 Parker Cr. Rep. 176; Bowers v. State, 29 Ohio St. 542; Thomas v. David, 7 C. & P. 350; Rudsdill v. Slingerland, 18 Minn. 380; Holland v. Barnes, 53 Ala. 87; Evans v. Smith, 5 Mon. 363; Anonymous, 1 Hill (S. C.) 251; Van Houten v. Van Houten (MS), 1 Stew. Dig. 522 § 813; 2 Taylor’s Evid. $ 1436; Reg. v. Holmes, L. R. (1 C. C.) 334; State v. Morse, 67 Me. 428; Wood v. State, 48 Ga. 192, 292; State v. Shields, 13 Mo. 236; Day v. State, Id. 422; State v. Jones, 71 Mo. 590; Johnson v. State, 61 Ga. 305; Boles v. State, 46 Ala. 204; Ford v. Jones, 62 Barb. 484; Wright v. Paige, 36 Barb. 438. Also, proof that the witness has had a bastard child, Weathers v. Barksdale, 30 Ga. 888; Morse v. Pineo, 4 Vt. 281; Com. v. Moore, 3 Pick. 194; Tillson v. Bowley, 8 Me. 168; Merriman v. State, 3 Lea 393; see Anonymous, 37 Miss. 54;. or been guilty of adultery, Dimick v. Downs, 82 Ill. 570; Washburn v. Washburn, 5 N. H. 195; People v. Knapp, 42 Mich. 267. See Frazer v. People, 54 Barb. 306.</p> <p>A divorce was refused on tbe testimony of an ignorant prostitute, Banta v. Banta, 3 Edw. Ch. 295; State v. Cook, 3 W. G. L. (Ohio) 407. So, on the uncorroborated testimony of two prostitutes, Turner v. Turner, 4 Edw. Ch. 566; or their accomplices, Adams v. Adams, 2 C. E. Gr. 337; Hume v. Scott, 3 A. K. Marsh. 261; see State v. Parker, 7 La. Ann. 86; Cunningham v. State, 65 Ind. 377; Pence v. Dozier, 7 Bush 133. The evidence of one employed to watch and detect a person charged with adultery is competent, but of little weight, Anonymous, 17 Abb. Pr. 48; Ciocci v. Ciocci, 26 E. L. & Eg. 604; Berry v. People, 19 Alb. L. J. 336; 77 N. Y. 688; Blake v. Blake, 70 Ill. 618; Com. v. Downing, 4 Gray 29; Com. v. Graves, 97 Mass. 114; Wright v. State, 7 Tex. App. 574; St. Charles v. O’Malley, 18 Ill. 407; see Bennett v. Waller, 23 Ill. 97; and so of a pimp, Adams v. Adams, 2 C. E. Gr. 334; Whitenack v. Whitenack, 9 Stew. Eg. 474; or the keeper of a house of ill-fame, the landlord who rents it for that purpose and the person who furnishes it, Hewitt v. Morris, 12 Jones & Spen. 557. As to a gambler, see Long v. State, 22 Ga. 40; English v. State, 35 Ala. 428. See, also, Va. Law Journal, July, 1880.—Rep.</p>

<p>A and Lis wife conveyed their farm to B, the husband of their granddaughter, in consideration of B’s agreement, secured by B’s bond and mortgage on the premises, to pay A an annuity of $250, on the 1st day of April, for his life, and if A’s wife survived him to pay her an annuity of $200 for her life. A’s wife outlived him, and afterwards died on September 19th, 1881.— Held, that her annuity, having been evidently given for her support, was apportionable.</p> <p>Note.—Ordinarily, annuities are not apportionable, Smyth, ex parte, 1 Swanst. 349, note; Price v. Williams, Cro. Eliz. 380; Reg. v. Treasury Comm’rs, 16 Q. B. 357; Leathley v. Trench, 8 Irish Ch. 401; Ausman v. Montgomery, 8 U. C. C. P. 364; Thacker’s Trusts, 28 L. T. (N. S.) 56; Franks v. Noble, 12 Ves. 484; Tracy v. Strong, 2 Conn. 659; Heizer v. Heizer, 71 Ind. 526; Wiggin v. Swett, 6 Metc. 194; Manning v. Randolph, 1 South. 144; Irving v. Rankine, 13 Hun 147, 79 N. Y. 636; Stewart v. Swaim, 13 Phila. 185; except where given for the maintenance of infants, Hay v. Palmer, 2 P. Wms. 501; Dexter v. Phillips, 121 Mass. 180; Weston v. Weston, 125 Mass. 268; see Ellerbe v. Ellerbe, Spear’s Ch. 329; or a wife, living separate, Howell v. Han-forth, 2 W. Bl. 1016; Sweigart v. Frey, 8 S. & R. 299; Fisher v. Fisher, 5 Pa. L. J. Rep. 178; but not where living with her husband, Anderson v. Dwyer, 1 Sch. & Lef. 301.</p> <p>If the annuitant lives until the morning of the day whereon the annuity is payable, his representatives are entitled thereto, although not demanded by him, Paton v. Sheppard, 10 Sim. 186; Robinson v. Robinson, 2 Irish C. L. 370.</p> <p>See, further, Earp’s Will, 1. Pars. Eq. 453; Griswold v. Griswold, 4 Bradf. 216; Waring v. Purcell, 1 Hill Ch. 193, 199; McLemore v. Blocker, Harp. Eq. 275; Fassit’s Case, 11 Phila. 134.—Rep.</p>

<p>On petition for divorce. On final hearing on pleadings and proofs.</p>

<p>1. An assignee for the benefit of creditors can take no exception to the validity of a chattel mortgage given by his assignor, on the ground that it was not filed in the county where the mortgagor actually resided. He is bound by the equity to which the property was subject when it came to his hands from the assignor.</p> <p>2. A description of “ all the stock, fixtures, goods and chattels of every name and' kind ” in a designated store, is specific enough to identify the property intended to be covered.</p> <p>Note.—An assignee for the benefit of creditors cannot impeach a mortgage given by his assignor, for defect in registry, Van Heusen v. Radcliff, 17 N. Y. 580; Lyle v. Palmer, 42 Mich. 314; Hawks v. Pritzlaff, 51 Wis. 160. Contra, Lockwood v. Sterin, 26 Ind. 124; Hanes v. Tiffany, 25 Ohio St. 549; see Dey v. Dunham, 2 Johns. Ch. 188; Erwin v. Shuey, 8 Ohio St. 509; Sixth Ward Assn. v. Willson, 41 Md. 506; Pillsbury v. Kingon, 6 Stew. Eq. 287, and note.</p> <p>An assignee in bankruptcy was permitted to assail such a mortgage in Barker v. Smith, 12 Bank. Reg. 474; Leland’s Case, 10 Blatchf. 503. See Field v. Baker, 12 Blatchf 438.</p> <p>An executor or administrator was allowed to object to the validity of a chattel mortgage given by the decedent, for want of or defect in its registration, in the following cases: Killbourne v. Fay, 29 Ohio St. 264; Becker v. Anderson, 11 Neb. 493; Dorsey v. Smithson, 6 Harr. & Johns. 61. Contra, Griffin v. Wertz, 2 Bradw. 487; Sumner v. McKee, 89 Ill. 127; Hext v. Porcher, 1 Strobh. Eq. 170; Evans v. Pence, 78 Ind. 439. See Bump’s Fraud. Conv. 444.</p> <p>A creditor before judgment cannot attack such a mortgage, Stewart v. Beale, 7 Hun 405, 68 N. Y. 629; Jones v. Graham, 77 N. Y. 628; Kennedy v. Nat. Union Bank, 23 Hun 494; Gill v. Pinney, 12 Ohio St. 38; except where the estate is insolvent, Currie v. Knight, 7 Stew. Eq. 485.—Rep.</p>

Bill to foreclose mortgage on land in Jersey City. On final hearing on pleadings and agreement as to facts admitted and questions submitted for decision.

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

<p>The defendant had driven piles at the shore line in front of complainants’ several fishery, and was about erecting a platform, with a roof over it, as a landing-place.—Held, that a preliminary injunction, which prohibited the defendant from finishing the landing, should be modified so as to allow it to be finished, since complainants’ right to relief on final hearing would not be prejudiced thereby. -</p>

<p>A trustee under a will had, for thirty years, the sole management of a large amount of real estate, involving great responsibility and care, and the expenditure of large sums of money, in repairing and renting and collecting the rents of several dwelling-houses thereon.—Held, that the fact that he, several years ago, received presents from one of the tenants and from some of the mechanics who were employed by him to repair the houses, which he openly admitted at the time and since, and which caused no loss whatever to the estate, was not sufficient proof of malfeasance to deprive him of his commissions, although he must account to the estate, of course, for the moneys so received by him. By the decree of this court on final hearing, he had been acquitted of the charges of intentional fraud and mismanagement made against him in the bill, in which the receiving of the presents was included.</p>

<p>The firm of James Horner & Co., composed of James Horner and JamesLudlum, was dissolved by the death of Horner in 1874. His executrix filed a bill in chancery in 1874, against Ludlum, for an account and settlement of the partnership estate, which consisted of lands, factories, and a large amount of personalty. The bill also prayed for the appointment of a receiver, and Ludlum was appointed, with the usual powers, and also with leave to bid at his sales, and with power also to redeem with the funds any of its estates from mortgages thereon. The title to the partnership lands was, afterHorner’s death, in his devisees and in Ludlum, and those lands were covered by two mortgages held by Corning. On their foreclosure, Ludlum was made a defendant as owner, but not as receiver, and a decree pro confesso was rendered against him, while the other defendants therein answered. Corning bought all of 'the lands at foreclosure sale, in 1877, and through Ludlum, as his agent, bought personal property belonging to the firm at the master’s sale thereof in 1876. They organized a corporation after the sale of the personal property, and transferred all that (the personal) property to the corporation. Ludlum was removed as receiver in 1879, and Kirkpatrick appointed in his place.—Held, that Kirkpatrick could not, as receiver, redeem the premises from the foreclosure sale, on an allegation that the mortgages were usurious and void by the lavr of New York, where they were made, on the ground that Ludium ought to have been a party defendant in the foreclosure suit as receiver as well as individually; nor on the ground of fraud and collusion between Ludlum and Corning, at the foreclosure sale, as to certain water rights which had been held by the firm, and a renewal of which was obtained in the name of Ludlum’s wife before that sale, or of fraud and collusion as to the sale of the personal property; held, further, that the bill was multifarious as to the corporation, in that it prayed general relief against the corporation as to the firm’s lands, as well as personalty, when the corporation, in fact, had no interest in those lands.</p>

<p>Bill for construction of will. On final hearing.</p>

<p>1. A testator gave to the trustees of a designated church $1,000 for a particular purpose, “ whenever said church shall remove and build a new church in Paterson, or rebuild one” &c. He also gave $500 to the trustees of another church (in Whippany) “towards building a parsonage for said church, provided a sum sufficient be subscribed and raised to pay the balance of said parsonage” &c., * x r’ “and when either of the said M. E. churches shall have complied with the conditions of said bequests, then the moneys above willed may be paid over as bequeathed, respectively.” The testator died in 1868. The 1’aterson church, in 1872, began building a new edifice, but when it was partly finished it was sold under foreclosure, and afterwards there were some additions and alterations made to and in the old church building. It does not appear that the church intends to remove and build a new church or rebuild one, and the testator has been dead fourteen years. The Whippany church has the refusal of buying, for $700, a house suitable for a parsonage, and offers to raise and pay therefor the $200 over and above their legacy.— Held,</p> <p>(1) That the legacy to the Paterson church has lapsed for failure to perform the condition annexed thereto.</p> <p>(2) That the Whippany church may buy instead of building a parsonage, and that, under the circumstances, a reasonable time should be given to that church to comply with the condition annexed to its legacy.</p> <p>2. The testator also gave the residue of his estate, after his wife’s death, to be equally divided into five shares, of which his brother James should take one, his nephew, James, one, the issue of his brother Robert one, the issue of his bother Thomas one, and the issue of his sister Susannah one. By a codicil he gave to each of the children of his brothers Robert and Thomas, an amount equal to the sum to be paid under the will to each of the children of his sister, Susannah. At the widow’s death, Susannah had four children living, and, consequently, each of them was entitled to one-fourth of one-fifch, i. e., one-twentieth of the residue.—Held, that each one of the children of testator’s brothers, Robert and Thomas, was likewise entitled to one-twentieth of the residue, and that testator died intestate as to the remainder of the shares originally given to the issue of Robert and Thomas, respectively.</p>

<p>A testator gave several specific legacies, and also made special provisions for his wife. He then directed that his executors should sell all the residue of his estate, and, after paying all just claims and legacies from the proceeds thereof, divide the balance equally among his children or their heirs. By the next section of the will, he directed that, in relation to the several gifts and devises to his children in the will, if any of his children should die leaving heirs, their portion should go to such heirs; if not, it should be equally divided among his surviving children.—Held, that these two sections of the will must be construed together, and that the object of the latter clause was to provide that the property given to the testator’s children should not go out of the family in case of their death, before they should be entitled to receive it, and therefore that the interest of one of testator’s sons in the proceeds óf the residue which he had actually received was absolute, and could not be defeated by his subsequent death without issue.</p>

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

<p>1. Where, without her husband’s knowledge and against his will, the wife took in her own name the title to lands, for which he paid the purchase-money and all the taxes, and assessments, and costs of improvements, and he continuously occupied the property up to her death—Held, that a trust resulted in his favor, and that he was entitled to relief as against her heirs-at-law.</p> <p>2. General certainty is sufficient in pleadings in equity.</p>

<p>Bill to rectify release of mortgaged premises and to foreclose mortgage. On final hearing on- pleadings and proofs.</p>

<p>Objections to an answer to a bill as it stood before amendment cannot be made after amendment, unless the defendant, after being duly called upon to file his answer to the bill as amended, or voluntarily waiving such call, chooses to let it stand as the answer to the amended bill.</p>

<p>1. As a general rule, an injunction will not be granted until the complainant’s legal right has been established at law, yet in a case where his right appears to be clear, though it has not been established at law, and the defendant denies it, and' the complainant has, for a long time, been in the enjoyment of the right, and the acts of the defendant, in violation of it, áre recent, a court of equity may properly take jurisdiction of the question of legal right, and decide that as well as the other questions involved in the litigation.</p> <p>2. A party asking to have a nuisance abated by injunction, will be entitled to relief by that process whenever he can clearly demonstrate two facts: first, that the injury of which he complains is such, in its nature and extent, as to call for the interposition of a court of equity; and, second, that the right on which he grounds his title to relief is clear, whether that fact has been made plain by the action of the appropriate tribunals for the adjudication of questions of legal right, or is so by the settled law of the state, when applied to the facts of his particular case.</p> <p>3. A mandatory injunction is awarded as of course, whenever it is the necessary and appropriate process for carrying the decree of the court into effect.</p> <p>4. A court of equity will not take jurisdiction of a question of damages, pure and simple.</p> <p>5. A party who, by the obscurity or ambiguity of his inquiry, leads another to make an erroneous statement respecting his rights, or by his artful silence entraps another into an admission he would not have made if a fair opportunity had been given to him to declare the truth, is in no position to claim the benefit of an equitable estoppel.</p> <p>Note.—-In Martyr v. Lawrence, 3 De G. J. & S. 261, the plaintiff was tenant of a one-storied shop, having over it a flat, leaden roof. The defendant was tenant of a cottage abutting on the shop, and having a window opening on the roof of the shop. Both buildings had long been held under the same landlord. In 1849, the shop was demised to one Corke, the landlord to have the exclusive use and enjoyment of the leaden roof, and to cover the same with earth for a lawn or flower garden, or for any other use or purpose not injurious to Corke. In 1861, the shop was demised to the plaintiff, “ as the same mas late in the occupation of Senry Corke, together with the appurtenances thereto belonging.” In 1863, the defendant rented the cottage, with the right to use the leaden roof to erect a light building thereon to be used by defendant as a photographer, and defendant did so erect and use it.—JHeld, that the above italicised words in the plaintiff’s lease were only intended to identify the premises and not to restrict their use, and that consequently plaintiff was entitled to have the building removed from the leaden roof.</p> <p>In Berkeley v. Smith, 27 Gratt. 892, a decedent was the owner of two lots, one on the corner of the street, which was wholly occupied by a store extending back the full depth of the lot, seventy feel, and the other occupied by a store extending back only fifty-five feet, leaving in the rear of the latter store a lot twelve by twenty feet, which was unoccupied except by a privy. The first lot was devised to decedent’s son J., together with the east side', or half of the privy, and the second lot to another son, W. Afterwards W. sold his lot to B., subject to the rights of the owner of the first lot to the east half of the privy. After S.’s death, and during the minority of his heirs-at-law, B., while occupying S.’s store as a tenant, removed the privy, blocked up the door in-S.’s store opening into the space in the rear of B.’s lot, through which S.’s heirs had access to the privy and also light and air, and also extended the first story of his own storehouse to the rear line of his lot so as to cover the entire space, and covered the extension with a flat roof, upon which he erected another privy accessible from the second stories of both store-houses over the flat roof, and for that purpose cut a door in the second story of the west wall of S.’s store-house. Two actions at law were brought by S.’s heirs against B., and damages of one cent and costs recovered by them in each action. A mandatory injunction to remove the extension was then obtained. The court of appeals, however, citing Isenberg v. East India House Estate Co., 10 Jur. (N. S.) 221, held that, although the rights and privileges of S.’s heirs had been seriously invaded, yet the extent of the injury was capable of ascertainment and pecuniary compensation, and the inconvenience to S.’s heirs, in the premises, insignificant compared with B.’s should he be required to remove the extension, and therefore the decree of the chancellor ordering a mandatory injunction was reversed, and an inquiry as to the damages sustained by S.’s heirs was directed.</p> <p>That an injury sought to be restrained has been completed before the filing of the bill, does not prevent the court from granting a mandatory injunction to remove it, Durell v. Pritchard, 11 Jur. (N. S.) 576, L. R. (2 Ch.) 244; Rankin v. Huskisson, 4 Sim. 13; City of London Co. v. Tennant, L. R. (9 Ch. App.) 212, 219; Rogers Loco. Works v. Erie R. R. Co., 5 C. E. Gr. 389; see Martin v. Headon, L. R. (2 Eq.) 425; Curriers Co. v. Corbett, 11 Jur. (N. S.) 719; Atty.-Gen. v. N. J. R. R. Co., 2 Gr. Ch. 136; Bell v. Blount, 4 Hawks 384; Atty.-Gen. v. Heishon, 3 C. E. Gr. 410; Washington University v. Green, 1 Md. Ch. 97; Stanley v. Shrewsbury, L. R. (19 Eq.) 616.</p> <p>Where the inconvenience of removing the obstacle is great, the court will allow a reasonable time for the defendant to remove it, Atty.-Gen v. Colney Hatch Asylum, 19 L. T. (N. S.) 708, L. R. (4 Ch.) 146. See McKelway v. Armour, 2 Stock. 115, 118.</p> <p>That the public may be put to inconvenience, is no ground for refusing such writ, Raphael v. Thames Valley R. R. Co., L. R. (2 Ch.) 147; Atty.-Gen. v. Chicago R. R. Co., 35 Wis. 425; see Atlanta v. Ga. R. R. Co., 40 Ga. 471; Hicks v. Dorn, 42 N. Y. 47; Eason v. Perkins, 2 Dev. Eq. 38; Bradsher v. Lea, 3 Ired. Eq. 301; Dilworth’s Appeal, 91 Pa. St. 247.</p> <p>Only so muck of the erection as causes the obstruction should be removed, Wood on Nuisances §§ 814, 834-836.</p> <p>Where the use of the building constitutes the nuisance, the building itself cannot be demolished, Brightman v. Bristol, 65 Me. 426; Barclay v. Com. 25 Pa. St. 503; Welch v. Stowell, 2 Doug. (Mich.) 332; Moody v. Supervisors, 46 Barb. 659; Gray v. Ayres, 7 Dana 375; Ely v. Supervisors, 36 N. Y. 297; Brown v. Perkins, 12 Gray 89; State v. Paul, 5 R. I 185; Miller v. Burch, 32 Tex. 208; Chenango Bridge v. Paige, 83 N. Y. 178; Metropolitan District v. Hill, L. R. (6 App. Cas.) 193; see Hamilton v. Whitridge, 11 Md. 128; Haag v. Vanderburgh Co., 60 Ind. 511.</p> <p>An apprehended noxious use of a building is not sufficient to justify its removal, Atty.-Gen. v. Paterson, 1 Stock. 624; Dumesnil v. Dupont, 18 B. Mon. 800; Rhodes v. Dunbar, 57 Pa. St. 274; Ellison v. Comrs., 5 Jones Eq. 57; Baines v. Baker, Ambler 159, 3 Atk. 750; see Hepburn v. Lordan, 2 H. & M. 345; Cleveland v. Citizens Gas Light Co., 5 C. E. Gr. 201.</p> <p>Mandatory injunctions have been allowed—to compel a railroad company to pull down walls which they had built in order to prevent another railroad company’s track from crossing their line, North of England R. R. Co. v. Clarence R. R. Co., 1 Coll. 507; Deere v. Guest, 1 M. & C. 516; to enforce a building covenant as to projections into the street, Child v. Douglass, Kay 560, 5 De G. M. & G. 739; Linzee v. Mixer, 101 Mass. 512; Kirkpatrick v. Peshine, 9 C. E. Gr. 206; Gawtry v. Leland, 4 Stew. Eq. 385; Manners v. Johnson, L. R. (1 Ch. Div.) 673; see Riddle v. Ash, 2 Ashm. 211; to pull down a wall or building that obstructed ancient lights, East India Co. v. Vincent, 2 Atk. 83; Jessel v. Chaplin, 2 Jur. (N. S.) 931, 37 E. L. & Eq. 472; Gale v. Abbott, 8 Jur. (N. S.) 987; Dent v. Auction Mart Co., L. R. (2 Eq.) 255; Smith v. Smith, L. R. (20 Eq.) 500; Athey v. McHenry, 6 B. Mon. 50; to compel the removal of tiles that obstructed the passage of smoke from a chimney, Hervey v. Smith, 1 K. & J. 389, 22 Bear. 299; to remove a building erected over a passageway, Krehel v. Burrell, L. R. (7 Ch. Div.) 551, (11 Ch. Div.) 146; Schwoerer v. Boylston Market, 99 Mass. 285; Tucker v. Howard, 128 Mass. 361; see Mitchell v. Seipel, 53 Md. 251; Lexington Bank v. Guynn, 6 Bush 486; Kean v. Asch, 12 C. E. Gr. 57; to remove a mill-dam, Bemis v. Upham, 13 Pick. 169; Hammond v. Fuller, 1 Paige 197; Raleigh v. Hunter, 1 Dev. Eq. 12; Hahn v. Thornberry, 7 Bush 403; see Wheeler v. Steele, 50 Ga. 34; Yolo Co. v. Sacramento, 36 Cal. 193; to remove a building erected in violation of a covenant in a deed, Clark v. Martin, 39 Pa. St. 289; Tate v. Devlin, 3 Irish Jur. (N. S.) 341; to compel a defendant to alter stairs already built, so as to conform to his contract, Gregory v. Ingwersen, 5 Stew. Eq. 199; Pettis v. Johnson, 56 Ind. 139; to remove fences illegally obstructing a passage-way, Shivers v. Shivers, 5 Stew. Eq. 478, 8 Id. 562; McDonogh v. Calloway, 6 Rob. (La.) 442; Langsdale v. Bonton, 12 Ind. 467; see Houck v. Wachter, 34 Md. 265; or a toll-gate in a highway, Columbus v. Rodgers, 10 Ala. 37; State v. Flannagan, 67 Ind. 140; to remove water-pipes laid in a highway without the consent of the owner of the fee, Goodson v. Richardson, L. R. (9 Ch. App.) 221. See Johnston v. Hyde 5 Stew. Eq. 446, 6 Id. 632.</p> <p>Mandatory injunctions have been refused, where the excess in building was. trifling and the injury not irreparable, The Warden &c. v. Southeastern R. R. Co., 9 Hare 489; Manko v. Chambersburg, 10 C. E. Gr. 168. Where, notwithstanding defendant’s rebuilding, the plaintiff is in as favorable a position as before, Low v. Inness, 10 Jur. (N. S.) 1037; Wilson v. Cohen, Rice’s Eq. 80, See Shiras v. Olinger, 50 Iowa 571. Where a party-wall projected, unintentionally, a few inches beyond the line, Mayer’s Appeal, 73 Pa. St. 164; Guttenberger v. Woods, 51 Cal. 523. Where an adjoining land-owner inserted the joists of his building into plaintiff’s building illegally, Rankin v. Charless, 19 Mo. 490; Roberts v. White, 2 Robt. (N. Y.) 425. Where a wharf, on tidewater, did not cause a public nuisance, People v. Davidson, 30 Cal. 379; Larson v. Furlong, 50 Wis. 681. See Gawtry v. Leland, 4 Stew. Eq. 385. To remove an ice-house erected in front of a riparian owner, Alden v. Finney, 12 Fla. 348. See Clark v. St. Clair Ice Co., 24 Mich. 508. To remove a wooden building erected within the “ fire limits ” of a city, Dunning v. Aurora, 40 Ill. 481; St. Johns v. McFarlan, 33 Mich. 72. To remove a business sign erected ■by defendant, and containing the same words as complainant’s sign on the adjoining store, Gray v. Koch, 2 Brown (Mich.) 119.</p> <p>If a building be illegally removed or destroyed, the parties injured may enforce its restoration, Morrison v. Marquardt, 24 Iowa 35. See Bradford v. Cressey, 45 Me. 9; Meyers v. Smith, 15 Grant's Ch. 616.—Rep.</p>

<p>On final hearing on bill and answer and proofs taken before a master.</p>

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

<p>1. Any order, writing, or act which makes an appropriation of a fund is a good assignment in equity.</p> <p>2. A provision in a contract, that if the contractor fails to pay for labor done or materials furnished -in the performance of the contract, the other contracting parties may withhold the moneys earned under the contract, and apply them to the payment of such debts, does not deprive the contractor of his right of alienation, and -his assignees, notwithstanding such a provision, will be entitled to the moneys earned under the contract in the order in which they acquired title to them,</p>

<p>1. Declarations made by an agent in the course of a transaction in which he is authorized to represent his principal, are the declarations of his principal, but to entitle them to this effect the relation of principal and agent must first be established by competent evidence.</p> <p>2. Declarations of the person alleged to be the agent, are not competent to establish the fact of agency.</p> <p>Note.—As to proving the existence of the agency before allowing the agent to testify, see Bunting ads. Allen, 3 Harr. 299; Ayres v. Van Lieu, 2 South 769.—Rep.</p>

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

<p>1. A person rendering services under a contract invalid by the statute of frauds, may recover their value in an action on the quantum meruit.</p> <p>2. A prior judgment, pronounced by a competent court, between the same parties, »n the same cause of action, and which decides the merits of the cause of action, is conclusive upon the parties.</p> <p>3. A prior judgment concludes only parties and privies, not strangers. A judgment against the surviving member of a firm does n'ot conclude the representatives of the deceased partner</p> <p>4. Trusts which fall within the proper, peculiar and exclusive jurisdiction of courts of equity are not subject to the statute of limitations.</p> <p>5 Courts of equity are not within the terms of the statute of limitations, and while they follow it by analogy, they will not apply their rules, founded on analogy, when it is against conscience to do so.</p> <p>6. A creditor of a firm may have relief in equity, for the payment of his debt against the separate assets left by a deceased partner, if. the surviving partner be insolvent and the firm assets exhausted.</p> <p>7. The representatives of a deceased partner cannot set up the statute of limitations against a creditor of the firm, so long as the surviving partner continues liable for the debt and has a right to seek contribution, from the estate of the deceased partner, for the payment of the debts of the firm.</p> <p>8. One partner eannot set up the statute of limitations against the other, in a case where there have been dealings, in respect to the partnership affairs, within six years, whether they consist in the conversion of assets into money, or the application of assets in discharge of liabilities.</p>

<p>1. A principal is bound by the acts of his agent within the authority expressly given, and also for such acts as it is necessary for the agent to do to accomplish the object of his appointment.</p> <p>2. Where a contract is made by an agent, without disclosing his principal, and the other contracting party afterwards discovers the principal, he may waive his right to look to the agent and resort to the principal.</p> <p>3. And in such a case, parol evidence is admissible to show who the principal was, even when the contract is in writing.</p> <p>4. But the rule that an unnamed and unknown principal shall stand liable-for the contract of his agent, does not apply to a demise under seal. The relation between the owner of land and those who occupy it is of a purely legal character; and the fact that a lessee takes a lease for an unnamed principal, but in his own name, will not render'the unnamed principal liable for the rent.</p> <p>Note.—In Kiersted v. Orange and Alex. R. R. Co., 1 Hun 151, 69 N. Y. 343, a lease under seal, executed by an agent as lessee, in his individual name, and which did not purport to be executed on behalf of the principal, was held, in an action on the lease an.d for use and occupation, not binding on the latter, although the fact of the agency was recited therein, and although it appeared by extrinsic evidence that the lessee acted as agent. The principal occupying the premises during the term, no assignment of the lease being shown, was, in the absence of evidence, presumed to have entered as subtenant. See Durand v. Curtis, 56 N. Y. 7; Brewer v. Dyer, 7 Cush. 337; Sanders v. Partridge, 108 Mass. 556; Haywood v. Brunswick Build. Soc., L. R. (8 Q. B. D.) 403.</p> <p>In Van Schaick v. Third Ave. R. R. Co., 8 Abb. Pr. 380, 30 Barb. 189, 49 Barb. 409, 38 N. Y. 346, it was held that a lease taken by. A, in trust for a corporation thereafter to be formed, creates, on the formation of such corporation and upon its receiving an assignment of such lease, with knowledge of the terms upon which it was executed and received from the lessor by A, a liability jn equity, on the part of such corporation, to pay the rent to the lessor. See, also, Wright v. Pitt, L. R. (12 Eq.) 408; Lorillard v. Lorillard, 4 Abb. Pr. 210; Borrell v. Newell, 3 Daly 233; Morgan v. Yard (Pa.), 14 Rep. 759; 1 Addis. on Cont. *213; Nicoll v. Burke. 78 N. Y. 580.—Rep.</p>

<p>On motion to dissolve, heard on bill and affidavit and answer and affidavit.</p>

<p>On final hearing on bill, answer and proofs taken before a, master.</p>

<p>1. A non-patentable invention or improvement is not the subject of an exclusive right or property, but is common property, open to all the world.</p> <p>2. A covenant by which the covenantor restrains himself, generally and absolutely, without limitation as to time or place, from exercising his skill and knowledge, is repugnant to public policy and void.</p> <p>8. An injunction should never be granted in a doubtful case.</p>

<p>1. The court cannot approve of suspending the examination of witnesses before the master, in order to have s'ettled whether or not portions of testimony offered are relevant.</p> <p>2. A witness cannot decide for himself whether or not he will answer the questions propounded, except where the answer will have a tendency to expose him to a penal liability, or any kind of punishment, or to a criminal charge, or to the forfeiture of his estate, of to degrade his character.</p>

<p>1. A sale of chattels to a corporation may be rescinded where credit there» for was given to the corporation on the strength of cotemporaneous representations of the officers as to its solvency and prosperity, which representations are shown to ha-ve been false and fraudulent when made.</p> <p>2. Where the treasurer of a corporation pays for some of its capital stock, bought and claimed by him individually, out of the funds of the corporation, and also endorses the notes of a customer, for his accommodation, in the name of the corporation, bona fide sales made thereafter to the corporation may be rescinded, and the goods reclaimed.</p>

<p>' 1. After an injunction bill had been filed to restrain proceedings at law on a note given by complainant to defendant’s testator, an account, compromise and release of all matters between the parties was effected. Subsequently, a supplemental bill was filed, which alleged that the settlement and release had been obtained from complainant during his mental incapacity to transact business, and to this an answer and plea were filed, setting up the account stated and release.—Held, that the burden of proving his incapacity lay on the complainant.</p> <p>2. Where the matters of account were equally within the knowledge of both parties, and there was no surprise, but considerable deliberation, and complainant allowed the settlement to stand for five years unquestioned, the court will not disturb it, although one party thereto was the agent of the other.</p>

<p>' A man who himself has been guilty of ante-nuptial incontinence with the woman whom he afterwards marries, is not entitled to a divorce because she happens to have been pregnant by another at the time of his own transgression, concerning which she deceives him. s</p> <p>Note.—A marriage obtained by fraud or duress, may, like any other contract, be annulled, Le Brun v. Le Brun, 55 Md. 496; Pyle v. Pyle, 10 Phila. 58; Stevenson v. Stevenson, 7 Phila. 386; Robertson v. Cole, 12 Tex. 356; Ferlat v. Gojon, Hopk. 478; Sloan v. Kane, 10 How. Pr. 66; Tilby v. Hayes, 27 Hun 251; Finn v. Finn, 62 How. Pr. 83; Bassett v. Bassett, 9 Bush 696; Keyes v. Keyes, 22 N. H. 553; Lyndon v. Lyndon, 69 Ill. 43; Barnes v. Wyethe 28 Vt. 41; see Elzey v. Elzey, 1 Houst. 308; Cronise v. Cronise, 54 Pa. St. 255; Clarke v. Clarke, 11 Abb. Pr. 228; Tomppert v. Tomppert, 13 Bush 326; Wier v. Still, 31 Iowa 107; Withee v. Brooks, 65 Me. 14; Reg. v. Swanson, 7 Mod. 101; but a marriage performed while the husband is under arrest as the putative father of a bastard, is not void for duress, Sickles v. Carson, 11 C. E. Gr. 440; Jackson v. Winnie, 7 Wend. 47; Williams v. State, 44 Ala. 24; Johns v. Johns, 44 Tex. 40; Benton v. Benton, 1 Day 111; but see Scott v. Schufeldt, 5 Paige 43; Collins v. Collins, 2 Brews. 515.</p> <p>A marriage void on account of duress, may be ratified by the innocent and injured party, Hampstead v. Plaistow, 49 N. H. 84.</p> <p>A marriage invalid because one of the parties was an infant, may be ratified afterwards by the infant, Case LXXXIV. Jenk. *95; Lockharts Trusts, 11 Irish Jur. (N. S.) 459; Blumenthal v. Tannenholz, 4 Stew. Eq. 195, note.</p> <p>As to consenting to a fraudulent marriage, Templeton v. Tyree, 27 L. T. (N. S.) 429.</p> <p>A wife’s ante-nuptial incontinence is not valid ground for a divorce, Perrin v. Perrin, 1 Addams 1; Leavitt v. Leavitt, 13 Mich. 452; Varney v. Varney, 52 Wis. 120.</p> <p>Nor the fact, which her husband knew, that she had had a bastard child, Farr v. Farr, 2 McArth. 35; Smith v. Smith, 8 Oreg. 100.</p> <p>Nor the fact, which her husband knew, that the woman was the wife of another, Tefft v. Tefft, 35 Ind. 44.</p> <p>If a wife fraudulently conceals her pregnancy at the time of the marriage, and represents herself to her husband as virtuous, a divorce may be decreed, Morris v. Morris, Wright 630; Baker v. Baker, 13 Cal. 87; 1 Cent. L. J. 383; Ritter v. Ritter, 5 Blackf. 81; Guilford v. Oxford, 9 Conn. 321; Reynolds v. Reynolds, 3 Allen 605; see Frith v. Frith, 18 Ga. 273; Porritt v. Porritt, 16 Mich. 140; Montgomery v. Montgomery, 3 Barb. Ch. 132.</p> <p>In Allen’s Appeal, 99 Pa. St. 196, whether the concealment of her pregnancy by a woman at the time of her marriage, amounted to fraud entitling her husband to a divorce therefor, was held to be a question for the jury.</p> <p>That the husband, having had sexual intercourse with the woman whom he afterwards married, and that she represented to him that she was pregnant of a child, of which he was the father, and thereby-induced him to marry her, •whereas in fact he was not its father, is not such fraud as will avoid the marrriage, Scroggins v. Scroggins, 3 Dev. 535; Foss v. Foss, 12 Allen 26; Crehore 1. Crehore, 97 Mass. 330; Long v. Long, 77 N. C. 304; Hoffman v. Hoffman, 30 Pa. St. 417; see Barden v. Barden, 3 Dev. 548; Hedden v. Hedden, 6 C. E. Gr. 61.— Rep.</p>

<p>1. After a legatee has made her election under the will and acted thereon, for seventeen years, it is too late for her administrator to elect differently.</p> <p>2. Where all of decedent’s estate was given to his wife (who was also an executrix) for life, with power of disposition during her lifetime, and with an absolute gift over of most of the estate after her death—Held, that the power of disposition did not enlarge her estate to a fee.</p> <p>3. Where a life tenant has destroyed or lost the evidence of the amount of the principal fund, she must, for the benefit of the remaindermen, be charged with the last statement of the principal ascertainable, and interest thereon from the time of her decease.</p>

<p>Under a statute authorizing the work, the defendants, as a corporation, had almost finished the erection of a dam to drain and reclaim lands overflowed by tide-waters, for sanitary and agricultural purposes.—Held, that the court would not, the evidence as to the effect of the dam upon the public health being conflicting, enjoin the erection of the dam on the ground that it was a nuisance.</p> <p>Note.—The word “nuisances,” in a sanitary act, must be construed to' mean only matters detrimental to health, Great Western R. R. Co. v. Bishop, L. R. (7 Q. B.) 550. See Banbury Sanitary Authority v. Page, L. R. (8 Q. B. D.) 97.</p> <p>Effluvia that cause sick persons to become worse, though not injurious to-persons in sound health, are a nuisance, Malton Board of Health v. Malton Manure Co., L. R. (4 Exch. Div.) 302.</p> <p>The owners of wet lands are not guilty of a public nuisance because they neglect to drain them, Woodruff v. Fisher, 17 Barb. 224; or fail to remove natural obstructions from streams, Mohr v. Gault, 10 Wis. 513.</p> <p>Equity will not enjoin the re-erection of a mill-dam authorized by law, although the health of complainant’s family had been much improved while the dam was down, Eason v. Perkins, 2 Dev. Eq. 38; Bradsher v. Lea, 3 Ired. Eq. 301; Wilder v. Strickland, 2 Jones Eq. 386; so, although complainant alleges that it would be utterly destructive to the health of himself and his family, and highly injurious to that of several of his neighbors, Barnes v. Calhoun, 2 Ired. Eq. 199; Daughtry v. Warren, 85 N. C. 136; Vail v. Mix; 74 Ill. 127; but see Norwood v. Dickey, 18 Ga. 528.</p> <p>Under what circumstances a dam becomes a nuisance because deleterious to health, Douglass v. State, 4 Wis. 387; Com. v. Webb, 6 Rand. 726; State v. Close, 35 Iowa 570; Com. v. Clarke, 1 A. K. Marsh. 323; People v. Townsend, 3 Sill (N. Y.) 479; especially when built under a charter, Stoughton v. State, 5 Wis. 291; Eames v. New England Worsted Co., 11 Metc. 570; State v. Gainer 3 Humph. 39; Nichols v. Pixly, 1 Root 129; McNally v. Smith, 12 Allen 455; Ensworth v. Com., 52 Pa. St. 320; Lee v. Pembroke Iron Co., 57 Me. 481.</p> <p>Commissioners authorized by statute to drain lands, cannot be enjoined in their work, Hartwell v. Armstrong, 19 Barb. 166; see Dixon v. Metropolitan Board of Works, L. R. (7 Q. B. D.) 418; Belknap v. Belknap, 2 Johns. Ch. 463.</p> <p>In some cases of injury to health from dams, injunctions have been allowed, Bell v. Blount, 4 Hawks 384; White v. Forbes, Walk. Ch. 112; although an indictment for the same cause was pending, Raleigh v. Hunter, 1 Dev. Eq. 12; or one of the neighbors had recovered damages therefor at law, Miller v. Truerhart, 4 Leigh 569; Hill v. Sayles, 12 Cush. 454; Wason v. Sanborn, 45 N. H 169; see, further, Rooker v. Perkins, 14 Wis. 79; Gherkey v. Haines, 4 Blackf 159; Wooten v. Campbell, 7 Dana 204; Trabue v. Macklin, 4 B. Mon. 407; Mayo v. Turner, 1 Munf. 405; Smith v. Waddell, 11 Leigh 532; Shepard v. People, 40 Mich. 487.—Rep.</p>

<p>A marriage by one under lawful arrest for seducing a minor, under promise of marriage, is not void, as obtained by fraud or duress, nor because the woman was a prostitute and over twenty-one years of age, nor because the justice demanded excessive bail, nor because, after the woman had assented to a postponement of the marriage ceremony, the minister, who was present, and the constable who had arrested complainant, and the justice who issued the warrant, advocated its immediate performance, nor because the parries did not cohabit after the ceremony.</p>

<p>Trustees are never permitted, without the aid of the court, to buy the proprty which they hold as such.</p>

<p>1. The testator devised to his son a farm, for which the son was to pay $80 per acre. He also gave to the son one-seventh of his entire estate. The son dying soon after the testator, and without having expressed any intention as to his election—Held, that the presumption is that he elected to accept of the provisions of the will in his behalf, because beneficial to him.—Held, also, that the payment required is a lien on the land, which, if not discharged by the heirs-at-law of the devisee, can be enforced by the executor.</p> <p>2. Where a testator directs legacies to two of his children, to be invested and the interest paid to them, and legacies to five without any qualification, except this general one—“ Should any of my children die not leaving lawful issue, the shares that would be due to them to be equally divided anlong my living children and the survivors of them ”—Held, that the qualification as to the five last named refers only to the period of distribution.</p> <p>3. The court prefers such a construction as will prevent a partial intestacy.</p> <p>4. He who accepts a benefit under a will must bear the burden imposed.</p>

<p>Appeal from a decree of the orphans court of Hudson county.</p>

<p>On application to admit claim not exhibited to administrator within the time limited by order of court.</p>

<p>1. Where administrators act in good faith and with ordinary prudence and discretion in selling their intestate’s chattels after an, as yet, unproved and apparently unfounded claim therefor has been made, they should be allowed, out of the estate, the costs and reasonable counsel fees of a trial afterwards brought at law by the claimant, wherein he recovered a judgment for the value of the chattels so claimed.—Held, under the circumstances of this case, that they should not be indemnified for the difference between the amount realized at their sale of the chattels and the value of the chattels as fixed by the verdict.</p> <p>2. Administrators cannot be allowed for taxes on their intestate’s land, assessed and paid by them after his death.</p>

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

<p>Where a mother was appointed guardian of her child, but failed to give the bond within the time limited by the court, and the court, without notice, appointed a stranger in her stead—Held, that the appointment of the latter was not warranted.</p>

<p>An executor received from the estate railroad stock, which he had the power, under the will, to assign to himself as trustee under a marriage settlement. In the exercise of reasonable care and caution, he sold the stock, in the course of administration, after it had depreciated considerably in value.—-Held, that he was not required to consult or obtain the assent of the beneficiary under the marriage settlement, before effecting the sale, and was not personally liable for the loss sustained by the estate through the sale, although the market value of the stock afterwards increased.</p> <p>Note.—Executors or trustees have been held liable for not selling stocks •&c. which were not sanctioned by law as investments, in the following cases :</p> <p>For not collecting a bond of their testator, while the obligor was solvent, Lawson v. Copeland, 2 Bro. C. C. 156; Powell v. Evans, 5 Ves. 839; Bullock v. Wheatley, 1 Coll. 130; Chapman v. Shepherd, 24 Gratt. 377; Pierce v. Prescott, 128 Mass. 146; Darrell v. Eden, 3 Desauss. 241; see East v. East, 5 Hare 343; Holcomb v. Holcomb, 3 Stock. 281, 301; Ashurst v. Potter, 2 Stew. Eq. 625, 632; Lacey v. Stamper, 27 Gratt. 42; Livingston v. Jones, Harring. (Mich.) 165.</p> <p>For investing a legacy in bank stock and retaining it long after the bank was insolvent, Ackerman v. Emott, 4 Barb. 626.</p> <p>For investing in Exchequer Bills, in 1846, although, if they had been retained until the time of entering the decree, there would have been no loss, Knott v. Cottee, 16 Beav. 77.</p> <p>For retaining Crystal Palace shares, which were at a premium when the testator died, but subsequently fell below par, Hughes v. Empson, 22 Beav. 181.</p> <p>For retaining bank stock of the testator for more than eighteen months after his death, Gillespie v. Brooks, 2 Redf. 349; Goodwin v. Howe, 62 How. Pr. 134; McKenzie v. King (N. B.), Stevens’s Dig. 666 § 13.</p> <p>For retaining bank stock turned over to him by his predecessor in the trust, Mills v. Hoffman, 26 Hun 594; Gilbert v. Welsch, 75 Ind. 557.</p> <p>For retaining canal shares for three years after the time fixed by order of the court to sell them, Davenport v. Stafford, 14 Beav. 319.</p> <p>For investing in and holding stock in a navigation company, which paid very large dividends for eight years thereafter, Worrell’s Appeal, 9 Pa. St. 508; 23 Pa. St. 44.</p> <p>For delaying in selling cotton of the estate for fourteen months, under the belief that it would advance in price, Pulliam v. Pulliam, 10 Fed. Rep. 53.</p> <p>For subscribing for new stock under a privilege offered by the corporator in which testator already held stock, Lacey v. Davis, 4 Redf. 402; see Brinley v. Grou, (Conn.) 14 Rep. 173.</p> <p>For paying an assessment on stock standing in the testator’s name, Snow’s Estate, Meyrick 97; Mills v. Hoffman, 26 Hun 594. See Ripley v. Sampson, 10 Pick. 371.</p> <p>For transferring to himself bank stock standing in testator’s name, Jameson v. Shelby, 2 Humph. 198.</p> <p>For buying city bonds or scrip in addition to those of the same city donated by testator, Trustees v. Clay, 2 B. Mon. 385.</p> <p>For promissory notes turned over to and not collected by his successor, Foster’s Case, 15 Hun 387. See Lacey v. Stamper, 27 Gratt. 42.</p> <p>For not selling an unfinished yacht of testator for more than a year after his death, Lufberry’s Estate, 12 Phila. 6.</p> <p>They were held not liable in the following eases:</p> <p>For allowing testator’s investment in Mexican bonds to remain a year and seven months after his death, and then selling them at a lower price than an earlier sale would have produced, Buxton v. Buxton, 1 Myl. & Cr. 80.</p> <p>For retaining part of the assets in turnpike bonds, when directed to invest in other specified securities, Robinson v. Robinson, 1 De G. M. & G. 247; see Murray v. Feinour, 2 Md. Ch. 418; Contee v. Dawson, 2 Bland 264, 289; Barrister v. McKenzie, 6 Munf. 447.</p> <p>For bona fide retaining stock in a steamboat company, Williams v. Maitland, 1 Ired. Eg. 92.</p> <p>For shipping and selling cotton in Liverpool instead of Charleston, whereby a loss ensued, Bryan v. Mulligan, 2 Hill Ch. 363; see Clary v. Sanders, 43 Ala. 287; Callaghan v. Hall, 1 S. & R. 241.</p> <p>For retaining a ward’s estate in stock of the Bank of the United States for four years, Boggs v. Adger, 4 Rich. Eq. 408; Nyce's Estate, 5 W. & S. 254; French v. Ourier, 47 N. H. 88, See Brisbane v. Bank, 4 Watts 92.</p> <p>For accepting from his predecessor and retaining judgment-bonds, which afterwards became ivorthle’ss through an extraordinary depreciation in real estate, Jack's Appeal, 94 Pa. St. 367. See Dietterich v. Heft, 5 Pa. St. 87.</p> <p>For depreciation in stock during the continuance of an injunction which restrained the administratrix from disposing of the stock, Greiner v. Greiner, 8 Stew. Eq. 134. See Bolling v. Tate, 65 Ala. 417.</p> <p>For retaining, to await the result of a suit pending against the estate, the stock of a bank which was then considered safe, but failed before the suit was ended, Dugan v, Hollins, 11 Md. 41; see Doster v. Arnold, 60 Ga. 316; Lafont v. Ricard, Bail. Eq. 487; Mickle v. Brown, 4 Baxt. 468; Matthews v. Downs, 1 Jones Eq. 331; Latimer v. Hanson, 1 Bland 51.</p> <p>For holding railroad stock until it had greatly depreciated, McRae v. McRae, 3 Bradf. 199.</p> <p>For exchanging notes of a manufacturing company held by testator for stock of another manufacturing company, Brown v. Campbell, Hopk. 233; see Lovell v. Minot, 20 Pick. 116, Adair v. Brimmer, 74 N. Y. 539; Pray’s Appeal, 34 Pa. St. 100.</p> <p>For retaining railroad stock for six years, during great fluctuations in its-price, and a financial panic, Weston v. Ward, 4 Redf. 415; affirmed, N. Y. Ct. of App., March, 1883; Troup v. Rice, 55 Miss. 278, Bowker v. Pierce, 130 Mass 262; see Foscue v. Lyon, 55 Ala. 440, 450; Gray's Case, 27 Hun 455.</p> <p>For relinquishing several thousand dollars’ worth of stock invested by the testator, by way of compromise, Pierson v. Thompson, 1 Edw. Ch. 212.</p> <p>For retaining for four months an ostrich which had belonged to decedent and which then died, Secondo Bosio’s Estate, 2 Ashm. 437.</p> <p>For retaining bank and navigation company’s stock, then supposed to be unexceptionable as investments, Barton’s Estate, 1 Pars. Eq. 24; Rush’s Estate, 12 Pa. St. 375; see McMurtrie v. Pa. Co., 9 Phila. 529, 75 Pa. St. 304; Duncan v. Jaudon, 15 Wall. 165, 174.</p> <p>For assets of a dissolved insurance company in which both the intestate and the administrator had been stockholders, Harris v. Parker, 41 Ala. 604,</p> <p>For holding second-mortgage railroad bonds, which were worth at testator’s death about £150 each, for fifteen months, when they were worth about £54 each, although frequently pressed meanwhile by one of the legatees to sell, Marsden v. Kent, L. R. (5 Ch. Div.) 598; but see Brown v. French, 125 Mass. 410; McDonald’s Case, 4 Redf. 321; Clark v. Anderson, 13 Bush 111.</p> <p>For leaving an investment in stock of the United States Bank, under a discretion given to the trustees so to do, so long as they might deem it most for the interest of testator’s family, Hogan v. De Peyster, 20 Barb. 100; Gray v. Lynch, 8 Gill 403. See Smith v. Smith, 7 J. J. Marsh. 238.</p> <p>For allowing government bonds of the estate to be kept, as testator had done, by his nephew, who converted them, McCabe v. Fowler, 84 N. Y. 314.</p> <p>Fox leaving in a savings bank funds deposited there by the testator, the bank having failed within a year after testator’s death, Seidler's Estate, 5 Phila. 85.</p> <p>For rents that might have been obtained by a more efficient agent than the one whom the testator had employed and his executors retained, Beck’s Estate, 12 Phila. 74.</p> <p>Whether the trustees are to be charged with the money improperly invested, or with the value of the stock, at any time during the continuance of the investment,' 10 N. Y. Leg. Obs. 321; Livermore v. Wortman, 25 Hun 341.—Rep.</p>

<p>On appeal from a decree by the ordinary, whose opinion is reported in Claypool v. Norcross, 9 Stew. Eq. 524.</p>

<p>This case was affirmed on the merits.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Combes v. Cadmus, 9 Stew. Eq. 382.</p>

v. Trustees of Public Schools, 9 Stew. Eq. 16. The receiver of the New Jersey West Line Railroad Company, one of the defendants in the above suit, applied for leave to bring an action of ejectment against the receiver of the Central Railroad Company of New Jersey to try the title to and recover possession of the premises described in the bill of complaint.

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Elkins v. Camden and Atlantic R. R. Co., 9 Stew. Eq. 467.</p>

The power given by the will of Caleb H. Camp, deceased, to his daughter, Mary Ann Baldwin, vested immediately on the probate of his will, and she had good right to exercise it, in the appointed method, at any time thereafter. Second.

<p>On appeal from a decree advised by Joseph E. Randolph, Esq., special master.</p>

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

<p>A husband and wife assigned policies of life insurance held by the wife on the life of her husband, to secure their assignee from loss as administrator of the husband’s deceased partner, to whose estate the husband was largely indebted.—Held,</p> <p>(1) That while such an assignment was valid, yet as the administrator had released an endorser on the note which represented his or his intestate’s claim against the husband, the wife was entitled to have the policies surrendered and transferred to her, although she had allowed the assignment to remain unquestioned for several years thereafter.</p> <p>(2) That the fact that the premiums on the policies had been paid by the husband out of his own funds, could not be raised by the defendants, because the pleadings had not been framed so as to include that question.</p>

<p>Bill for relief. On petition of judgment creditors.</p>

<p>Motion to quash subpcena ad respondendum</p>

<p>A court of equity will not assume jurisdiction of Hie sale of chattels for the payment of creditors and encumbrancers having legal liens thereon, on the sole ground that such a sale can be made more advantageously for all parties as to price than it can he at law.</p>

<p>Bill for injunction. On order to show cause and depositions taken thereunder.</p>

<p>1. A trust to buy a burial plot, and erect thereon a monument to the testator’s memory, to cost not more than 550,000 and not less than $4.0,000, and a fence to protect the monument, is valid. A testator has a right to provide for such things by his will, and the exercise of the right cannot be denied or abridged by the consideration of the inappropriateness of the provision, whether in view of the amount of his property or his station in life.</p> <p>2. A’gift of a fund to keep, with the interest, testator’s “ family monument and burial place” in repair, not being a charity, is void for perpetuity, and so also is a gift of a fund to' equip and maintain, with the interest forever, a brass band, to be called by testator’s name, which was directed to march to his grave on the recurring anniversary of his death, as well as on holidays “ and other proper occasions,” and there play a funeral march and other appropriate music.</p> <p>3. The question whether a will was duly executed, is not within the jurisdiction of this court.</p> <p>4. A gift by a codicil is not, without words showing such intention, entitled to preference over other gifts in the will, and it will therefore abate proportionately in case of deficiency.</p> <p>5. Lands expressly directed to be sold by a testator in order that the proceeds may be used to pay legacies or carry out objects provided for by the will, need not be sold if the proceeds are not needed to carry out the purposes of the will.</p> <p>6. After bequeathing certain gifts and funds in trust to designated persons, the testator provided that his surplus estate should be divided among them equally; and there was no other residuary provision. • Some of the gifts were void.'—Held, that the estate being insufficient to pay all the legacies and raise the trust funds, there was no surplus within the meaning of the provision,, and that the testator died intestate as to the amount of the unlawful trust funds.</p> <p>Note.—Whether a bequest for a monument to the testator is valid, see Qilmer v. Gilmer, 42 Ala. 9 ; Emans v. Hiekman, 12 Hun 425; Eraser’s Case, 92 H. Y. 239; Duckey’s Estate, 4 Redf. 96. See Wilson v. Stoats, 6 Stew. Eq. 528, note; Laird v. Arnold, 25 Hun 4; Mermes v. Ridley, 2 Grants Ch. 544.</p> <p>The court will not, on their petition and before auditing their accounts, order executors to erect a monument to their testa^ir, although so directed by him, Hirsts Estate (Pa.), 12 W. N. G. 323.</p> <p>That a gift to keep a monument or tomb in repair is void, see Thompson v. Pitcher, 3 M. & S. 643, 6 Taunt. 359, 369; Fowler v. Fowler, 33 Beav. 616; Dawson v. Small, L. R. (18 Eq.) 114; Hunter v. Bullock, L. R. (14 Eq.) 45 ; Birkett’s Case, L. R. (9 Gh. Div.) 576; Hornberger v. Hornberger, 12 Heisk. , 635; Piper y. Moulton, 72 Me. 155; Bates v. Bates{Mass.)^27 Alb. L. J. 243 ; also Gravenor v. Hallum, Amb. 643; Durrour v. Motteaux, 1 Ves., Sr. 320;' Willis y. Brown, 2 Jur. 987; Lloyd v. Lloyd, 2 Sim. (N. S.) 255; Swasey v. Amer. Bible Soe., 57 Me. 527 ; Jones v. Habersham, 3 Woods 443, 4¶0, Bradley, J.; 27 Alb. L. J. 294 (U. S. S. C.), Gray, J.; Fraser’s Case, 92 Ff. Y. 239.— Hep.</p>

<p>1. Where the receiver of an insolvent bank refuses to bring suit, a creditor and stockholder thereof may, for the benefit of himself and of such other creditors and stockholders as .elect to join him, maintain a suit against the president and directors for gross official neglect and mismanagement, whereby the bank was financially ruined.</p> <p>2. Particular instances of official misfeasance and carelessness,' which standing alone might not fix personal liability, are sufficient, when connected with general allegations of official misconduct and culpable negligence, to sustain a bill in such case on general demurrer.</p> <p>3. That some of the defendants have been directors longer than others is no ground of demurrer, because the court can discriminate between them, and hold those elected recently only liable for losses incurred during their term of office.</p> <p>4. Damages for such negligence may be assessed in equity in a case where an adequate remedy at law does not exist.</p>

<p>1. A trustee may employ, and pay out of the fund, such assistants as are necessary in executing his trust.</p> <p>2. A trustee purchased certain lands at a foreclosure sale of his mortgage thereon. He afterwards sold them and realized about §1,700 above the amount of the original loan, besides interest and costs.—Held, that this surplus was not payable to the life tenant of the trust fund, but should be held by the trustee as part of the corpus, or to meet any future losses on investments, if they should occur.</p> <p>[In this case there were fifteen different points raised by the exceptions and decided, but as all except the ninth and twelfth involved only facts, they have not been published.—Rep.]</p> <p>Note.—Profit on the sale of stock belongs to the corpus of the estate, and not to the life tenant, Whitney v. Phcenix, 4 Redf. 180 ; and also premiums received from or paid for investments, Van Blarcom v. Pager, 4 Stew. Eq. 783, and note ; PollocWs Case, 3 Redf. 100; Speabnan’s Appeal, 71 Pa. St. 35; and appreciation in value of unproductive property, before sale by the executors, Outcall v. Appleby, 9 Stew. Eq. 78.—Rep.</p>

<p>1. On a bill by executors for the construction of a will, and for directions, the court will not adjudicate upon the nature of 'the estate of the devisees under the will, where the executors, as such, have no interest in the question; and so also, of course, as to the question whether a tenant for life may, without committing waste, convert part of the woodland on his devised premises into arable land.</p> <p>2. A gift “ to E. H., the interest of $3,000 her lifetime, and after her death to her son, J. H., his lifetime,” and “ to J. H. the interest of $2,000 his lifetime,” gives to each of them the interest only for life, although no disposition is made of the principal after their deaths.</p> <p>3. A testator gave legacies, amounting in the aggregate to $12,000, to all his grandchildren, some contingent and some vested, and then provided that all his “ railroad stock, bank stock and government bonds be kept at interest, and dividends be paid to my living grandchildren until all my grandchildren’s legacies he paid, then the dividend of stock and interest of bonds be equally divided” between his four children, naming them. There was no residuary clause. The specified stocks and bonds amounted to $43,000, and the other personalty to $58,000.—Held, that the executors were to retain the specified stocks and bonds, and appropriate the income therefrom to paying the grandchildren’s legacies until they had all been paid in full; that, thereafter, the four named children were entitled absolutely to the principal of those stocks and bonds; and that testator had died intestate as to so much of the $58,000 as was not needed to pay his other legacies, debts &c.</p>

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

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

<p>On a bill to set aside as fraudulent a mortgage given to indemnify the mortgagee against his liability as endorser on certain promissory notes—Held, that the holders of the notes are necessary parties.</p>

<p>1. A plea by an administrator setting up a settlement of his account in the orphans court, is no defence to a bill by a legatee praying discovery as to the character of the security in which her legacy is invested, and for such action in this court as will protect her interests therein.</p> <p>2. A defendant cannot, by means of a cross-bill, litigate matters between himself and another defendant which are not the subject of the suit.</p>

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

<p>The fact that an answering mortgagee to a bill for foreclosure alleges ,and establishes the priority of his mortgage over that of complainant, does not entitle him thereafter to conduct the suit as if he were the complainant.</p>

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

<p>Bill for partition and account. On exceptions to master’s report.</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>A testatrix directed her executors to sell all of her lands and divide the proceeds among her legatees “ within eighteen mofiths of the date of my death.” •She gave one-sixth of the residue to her daughter Emma, and Emma’s children, who were to have one-third of Emma’s share, “ each to receive the income of that share in equal portions * * * till he, she or they shall each become of lawful age,” and another sixth to each of her sons, John, Henry and William, and their respective children, the same as Emma’s; and one-sixth absolutely to each of her daughters Maria and Margaret; and also provided that if any of her grandchildren “ should die before reaching their majority, * * the surviving brother or sister is to receive the share so as before herein devised and bequeathed.” Testatrix died in May, 1874. Emma then had two children, but now has three, John had and has four children, Henry two and William five. All the grandchildren are living.—Held,</p> <p>(1) That the interests of the grandchildren vested at testatrix’s death subject to defeat by death before attaining majority, and that consequently the last child of Emma took no interest.</p> <p>(2) That the provision as to dividing the proceeds of the land was merely directory, and that therefore the executors could legally exercise the power of sale after the expiration of the eighteen ninths specified in the will.</p>

<p>On exceptions to master’s report on the receiver’s account.</p>

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

<p>A testator gave the use of all of his property to his wife for life, and to hie.' son, after her decease, his homestead and twelve acres of land, “ together with the whole stock of farming utensils, horses and all other animals, wagons, harness, with all the appurtenances belonging to said farm and homestead,” and also all the furniture &c. in the said homestead as the same should be at his “said wife’s decease.” Testator died in 1882, his wife before him in 1873.— Held, that the homestead and twelve acres of land vested in the son at the testator’s death; also the furniture &c., as it was then; also certain hot-bed sashes which were considered by the testator appurtenances; but not the hay,,loose bedding for animals and manure not spread on the ground.</p>

<p>Bill to quiet title. On general demurrer.</p>

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

<p>Land was conveyed in fee with a provision in the deed that the grantee was not to have the right to sell or dispose of it during the lifetime of the grantor or his wife, “ but [the land] is to remain in the possession of” said grantor and his wife during their natural lives, and after their deaths to said grantee, his heirs and assigns forever. The grantor’s wife is living, but her husband is dead, and the grantee is also dead.—Held, that the grantee had power in his lifetime to mortgage his interest in the premises, although he could not sell or dispose thereof in the lifetime of the grantor and his wife.</p>

<p>A defendant to a foreclosure bill, who is made a party as a judgment-creditor of the mortgagor, in respect of a judgment recovered after the latter parted with his title to the mortgaged premises, cannot, by his answer in the nature of a cross-bill, litigate the validity of the mortgagor’s conveyance of the lands as being in fraud of creditors, where he alleges that the execution on his judgment has never been returned.</p>

<p>A testator gave all his books, furniture, plate &c. (not including moneys or . evidences of indebtedness), at his residence, to his wife absolutely; and, after giving two annuities, he also gave her the use and income of all his remaining estate for life. The wife survived him only eight days. She executed her will three days before her death. After certain specific bequests, she gave, by the fourth clause, all the rest and residue, of whatever kind or nature, which she owned or was possessed of prior to the death of her husband, to four persons, to be equally divided among them. She next gave all the property and estate which might have been devised or bequeathed to her by the will of her late husband, “ to his legal representatives.” In addition to other property which she owned before her husband’s death, she held two policies of insurance on his life, payable to her or her assigns, in case she survived him. The company paid the amount of them to her executor.—Meld, that it passed by the fourth clause of her will; held, also, that by the gift to her husband’s “legal representatives,” she intended a gift to his executors ; and, further, that this gift, being specific, is not liable to contribute to testatrix’s debts, until after the exhaustion of the personal property not specifically bequeathed.</p>

<p>Where an agreement for the sale of lands does not mention the character of the title to be given, an implication ordinarily arises that the title to be conveyed is to be a good one, free from encumbrances. Bat such implication may be rebutted by parol proof of the vendee’s notice of the existence of .encumbrances on the lands at the time of the agreement.</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>1. To warrant a court of equity in exercising its power to reform written instruments, on the ground of mistake, the proof, in demonstration of mistake, must be clear and satisfactory.</p> <p>2. A mistake, in a legal sense, is the doing of an act under an erroneous conviction, which act, but for such conviction, would not have been done.</p>

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

<p>1. At common law, a will would not pass lands acquired by a testator subsequent to the date of his will.</p> <p>2. By statute, lands acquired By a testator after the date of his will, will pass by his will, provided it contains words sufficient to pass them had he owned them when he made his will.</p> <p>3. But after-acquired lands will not pass under a will which declares that the estate given by it consists of personalty only.</p> <p>Note.—General expressions in a residuary clause that will pass testator’s personal property acquired after executing his will, do not pass after-acquired lands, Loveren v. Lamprey, 22 N, H. 484, 442, and eases died ; Sharpe v. Allen, 5 Lea 81; Girard v. Philadelphia, 4 Rawle 823 • Lyndes v. Townsend, 33 N. 7. 558 ; see Perry v. High, 3 Head 349 ; Russell v. Chell, L. R. (19 Ch. Div.) 4'32 ; Dunlap v. Dunlap, 74 Me. 402; Douglas v. Douglas, Kay 400 ; Tolar v. Tolar (3 Hawks 74), 14 Am. Dee. 576, note.</p> <p>When After-Acquired Lands Do Pass.—Under a devise of the proceeds of lands directed to be sold by executors, Byrnes v. Baer, 86 N. 7. 210.</p> <p>Where a testatrix, who, at the time, owned no reaj estate, made her will disposing of “ all my property,” Gushing v. Aylwin, 12 Meta. 169.</p> <p>“ All the balance of my property and effects,” Henderson v. Ryan, 27 Tex. 670.</p> <p>After a general bequest of personal property, “ all my real estate now possessed by me,” Lent v. Lent, 24 Hun 436.</p> <p>“All that dwelling wherein D.'now resides,” Midland B. R. Co. v. Otley Branch, 34 Beav. 525.</p> <p>“ All that part of a certain farm which I now own, lying east of the road &c.,” Garrison v. Garrison, 5 Dutch. 153; see Emuss v. Smith, 2 De G. & Sni. 722; Castle v. Pox, L. R. (11 Eg.) 542; Smith v. Puryear, 3 Heisk. 706.</p> <p>“ The real and personal estate whereof I am in anywise seized or otherwise possessed, either in possession or reversion, which I have any power to dispose of,” Roney v. Stiltz, 5 Whart. 381.</p> <p>A testator, possessed of only personalty, gave “ all the rest, residue and remainder of my goods, chattels, stock in trade, estate and effects of what naiure or kind soever,” O’ Toole v. Browne, 3 E. & B. 578.</p> <p>One having only the possession of lands in B., and owning neither lands nor personalty,'gave H. the land whereon his (testator’s) father lived, and the lands in B. and ten slaves, Turpin v. Turpin, Wythe (Va.) 137; see also Miller’s Estate, 43 Cal. 165; Smyth v. Smyth, L. B. (8 Ch. JDiv.) 561; Harper v. Blean, 3 Watts 471; 4 Jarm. on Wills (B. <6 T. ed.) 6O4.</p> <p>When Aetee-Acq,tjieed Lands Do Not Pass.—A devise of “ all the real and personal estate I now possess,” Quinn v. Harderibzook, 54 N. Y. 83; see Cole v. Scott, 1 Macn. & G. 518; Brewster v. McCall, 15 Conn. 874; Hutchinson v. Barrow, 6 H. & N. 583.</p> <p>A general .charge on testator’s “ estate,” Warner v. Swearingen, 6 Dana 195.</p> <p>“ Such worldly estate as it hath pleased the Almighty to bless me with,” Marshall v. Porter, 10 B. Mon.. 1. ' -v</p> <p>After authority to dispose of property to pay his debts, a contingent gift of “ the whole of my property,” Smith v. Edrinyton, 8 (Jranch 66.</p> <p>After disposing of various articles of personal property, “ should my executor find other property belonging to me not herein anywise disposed of,” Newell v. Toles, 17 Hun 76.</p> <p>A testator gave to his sister a tract of forty acres, all the land he then owned, and gave to his mother “ all my other property, consisting of horses, cattle, hogs and money and effects whatsoever,” Smith v. Hutchinson, 61 Mo. 83.</p> <p>“All my real estate situated in S., also all the residue of my personal estate and possessions of whatever kind or name,”Blaisdell v. Hight, 69 Me. 306.</p> <p>“ The balance of my estate remaining in Carolina to be collected and sold and equally divided among my lawful heirs,” Meador v. Soi-sby, % Ala. 71%; see Jepson v. Key, % H. & C. 873; Miles v. Miles, L. B. (1 Eq.) 46% ; Cox v. Bennett, L. B. (6 Eq.) 4%%.</p> <p>Where a testator devised all the remainder of his real estate, and then enumerated the lands comprised in such remainder, Crombie v. Cooper, %%' Cranl’s Ch. %67, %4 Id,. 4¶0.</p> <p>Whether a gift of a mortgage will pass the land covered thereby, which land was afterwards acquired by testator, Van Wagenen v. Brown, % Dutch. 196; Ballard, v. Carter, 5 Pick. 11%; Brigham v. Winchester, 1 Mete. (Mass.) 390; Martin v. Smith, 1%4 Mass. Ill; Woods v. Moore, 4 Sandf. 579; Pruden v. Pruden, 14 Ohio St. %53; Tardley v. Holland, L. B. (%0 Eq.) 4%8; see Laiining v. Cole, % Hal. Ch. 10%; Scaife v. Thompson, 15 S. C. 387; Warren v. Taylor, 56 Iowa 18%; Napton v. Deaton, 71 Mo. 858; Leeds v. Munday, 3 Ves. 848; Hancock v. Hancock, %% N. Y. 568; Humphreys v. Humphreys, % Cox 184-</p> <p>How far a devise executed before the statute authorizing after-acquired lands to pass, is controlled by a codicil executed after that enactment, York v. Walker, 1% M. & W. 591; Emuss ,v. Smith, % De 6. & Sm. 7%% ; Jones v. Shew-maker, 85 Qa. 151; Smith v. Puryear, 3 Heisk. 706.—Rep.</p>

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

<p>1. The complainants execute and deliver a deed to the defendant, conveying to him a lot of land adjoining another lot owned by Mrs. Pope, on which is a large building, which deed contains this reservation and covenant: “ And the parties of the first part do hereby reserve out of the above-described property a spaoe three feet wide, running from the rear of Pope’s Hall, or where the water is taken from the said hall, across the said lot to Prospect street, for the purpose of carrying off the water and sewages from the said hall, and also nothing shall be built or erected on the said lot to obstruct the light from the said Pope’s Hall.”—Held, that the phrase “Pope’s Hall” included not only a single room used as an audience-room, but the entire building, and that the defendant should be enjoined from erecting any building on the lot conveyed to him that will interfere with the reasonable use of the light in said hall.</p> <p>2. A grantee accepting a deed containing such a covenant becomes the covenantor; and the rule that covenants are to be construed most strongly against the covenantor, applies to him.</p>

<p>1. The statute under which these proceedings are had cannot be limited or controlled by the testator.</p> <p>2. The statute deals with contingencies, not with presumptions, and consequently a married woman of the age of fifty-eight is within the provisions of the act.</p> <p>3. Where the testimony shows a decline in value of the estate from the inability of the life tenant to make the necessary repairs to the lands and fences •us well as to the buildings, a sale will be ordered if it appears that such sale will promote the interests of all.</p> <p>Note.—Courts have presumed that women were past child-bearing after they had reached a certain age: In Leng v. Hodges, Jae. 585, at sixty-nine ; in Miles v. Hnighl, IS Jur. 666, at sixty-eight; in Brown v. Pringle, 4 Hare 184, at sixty-six; in Dodd v. Wake, 5 De G. & Sm. SS6, at sixty-five; in. Brandon v. Woodthorpe, 10 Bean. 463, at sixty-three ; in Danis v. Bush, 8 Jur. 1114, at fifty-nine; in Edwards v. Tuck, 83 Bean. 371, 3 De G., M. & G. 40, at fifty-seven; in Jjyddon v. Ellison, 19 Bean. 565, at fifty-six; in Haynes v. Haynes, 35 L. J. Gh. 303, at fifty-three; in WiddmdS Trusls, L. B. (11 Eq.) 408, at fifty-five ; in Forty 'v. Beay, 1 Dart’s V. & P. (4th ed.) 330, at fifty-three; in Mükier’s Estate, L. B. (14 Eq.) 845, at forty-nine; in Groves v. Groves, 13 W. B. 45, at fifty; in Davidson v. Hiinpton, L. B. (18 Oh. Div.) 313, at fifty-four ; in Bacot’s Case, MS. Oct., 1888, Van Fleet, V. C., at sixty-two.</p> <p>In Payne v. Long, 19 Ves. 571, an inquiry as to the age of the mother was directed, and payments were made to the residuary legatees where, from the age of the mother, it became highly improbable that there would be any more-children.</p> <p>In Coke upon Littleton Jfl $ 58, it is said that “ a woman above three-score years old hath had a child.” In Overkill’s Trusts, 17 Jur. 21$, 1 Sm. & Qiff. 262, the court refused to presume that a woman aged forty-nine was past childbearing ; in Fraser v. Fraser, Jac. 586, note, at fifty-five; in Reynolds v. Reynolds, 1 Lick. 374, at sixty-two ; in Jee v. Audley, 1 Cox 325, at seventy; in Croxton v. May, L. R. (9 Ch. Liv.) 388, at fifty-four; in Condwit v. Soane, 24 L. T. {N. S.) 656, at fifty-seven and fifty-two; in List v. Rodney, S3 Pa. St. 483, at seventy-five. See some remarkable cases referred to in 1 Beak’s Med. Jur. (10th ed.) 650; also 2 Ban. Ch. Pr. (5th ed.) **1795.</p> <p>The court refused to make an analogous presumption against a man, in Trevor v. Trevor, 2 My. & K. 675, 677, at eighty; in Lushington v. Boldero, 15 Beav. 1, at ninety-five; see Wms. R. P. *53 ; 2 Bl. Com. *125; Coke on Litt. *28 a; Lomax v. Uolmden, 2 Stra. 940 ; Alsop v. Bowlrell. Oro. Jac. 541.</p> <p>Where a gift is to a married woman for life, with remainder to her children for life, and a gift over to the grandchildren, evidence that the married woman was, at the date of the will, upwards of sixty years of age, and hence past the age of child-bearing, was held not admissible for the purpose of showing that children then living were meant, so as to make valid a gift over which otherwise was void for remoteness, Sayer's Trusts, L. B. (6 Eq.) 319.</p> <p>There is no presumption of law that a deceased married woman was childless, Hays v. Tribble, 3 B. Mon. 106; or a deceased married man, Wilbur v. Tobey, 16 Pick. 177; Campbell v. ileed, 34 Pa. St. 498; Dudley v. Orayson, 6 Mon. 359; Oladson v. Whitney, 9 Iowa 367; Payne v. Payne, 39 Vt. 173; Stinehfield v. Emerson, 53 Me. 465; Sprigg v. Mode, 38 Md. 497; Pile v. MeBratney, 15 Ill. 314; see Allen v. Dyons, 3 Wash. C. C. 4-75; Emerson v. White, 39 H. H. 483; Harvey v. Thornton, 14 Ill. 317; Boring v. Stineman, 1 Mete. (Mass.) 311; King v. Fowler, 11 Pick. 303; Crouch v. Eveleth, 15 Mass. 305; University v. Johnson, 1 Hayio. 373.</p> <p>Contra, as to an unmarried man, MeComb v. Wright, 5 Johns. Ch. 363 ; Miller v. Beates, 3 S. efe R. 490 ; Banning v. Qrijjin, 15 East 393 ; Rowe v. Has-land, 1 Wm. Bla. 404; see Oldnall v. Deakin, 3 C. & P. 403, 8 B. & C. 33; Hammond v. Inloes, 4 Md. 138.—JRep.</p>

<p>An administrator and administratrix found a sum of money in their intestate’s safe, and counted/it twice, and it was taken by the administrator. The inventory, signed by both, contained but one item of cash, stated as “ purse, §692.12.” In 1877, the administratrix was removed from her trust because of her marriage and failure to give bonds thereafter. In 1878, the administrator filed his account and charged himself with “ cash on hand, not inventoried, §5,235.31.” The testimony of the administratrix showed that the amount found in the safe was §7,555; that of- the administrator was rendered incredible by the place, the character and the amount of his entry of the transaction in his account-books.—Meld, that he must account to the estate for the §2,319.68, with interest.</p>

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

<p>1. Where the attestation clause of a will shows a compliance with the statutory requirements as to the execution of the will, the burden of proof of showing that the testatrix did not declare the instrument to be her will, is on the caveators.</p> <p>2. The mere fact that the testatrix could neither read nor write does not, in the absence of any evidence of imposition on her, render it necessary for the proponent to prove that she knew the contents. The execution of the paper according to law raises a presumption in such a case, as it does when the testator is not illiterate, that she understood its contents.</p> <p>Note.—I. Query, as to the validity of a gift for masses, West v. Shuttleworth, 8 Myl. & IC 684; Atty.-Gen. v. Fishmongers Co., 8 Beav. 151, 5 Myl. & Or. 11; Blundell’s Trusts, SO Beau. S60; Heath v. Chapman, 8 Brew. 417; Bougherty’s Estate, 18 Phila. 70 ; Power’s Estate, 35 Leg. Int. 68; Rhymer’s Appeal, 93 Pa. St. 148; 84 N. Y. Beg. 81. See Yeap Oheah Neo v. Ong Ohmg Neo, L. B. (6 P. O.) 381.</p> <p>II. A will may be void in part and valid as to the residue, as where a legacy is set aside for undue influence by the legatee, Trimelstown v. B’Alton, 1 Bow. & Ol. 85; Guillamore v. O' Grady, 8 Jones & Lat. 810; Haddock v. Trot-man, 1 E. & F; 31; Billinghurst v. Vickers, 1 Phillim. 187; Moms v. Stokes, 81 Ga. 558 ; Welsh’s Case, 1 Bedf. 839; Florey v. Florey, 84 Ala. 841; Harrison’s Appeal, 43 Conn. 808 ; or a part was not read over to the testator, Hippesley v. Horner, T. & B. 48, note; or part interpolate dsurreptitiously. Powell y. Monchett, 6 Madd. 816; Morrell v. Morrell, L. B. (7 P. B.) 68; Oswald’s Goods, L. R. (3 P. & B.) 168; see Iddings v. lddings, 7 S. & B. Ill; or one devise is void for illegality, Salmon v. Sluyvesant, 16 Wend. 381; Radley y. Kuhn, 88 Hum 573 ; Barbour v. Be Forest, 61 How. Hr. 181; Wyndham y. Ohetwynd, 1 Burr. 489; Abercrombie y. Ahererombie, 87 Ala. 489; see Tee y. Ferris, 8 H. & J-357; or the scrivener omitted the amount of a legacy, Comstock v. Iladlyme, 8 Conn. 854; Freeman v. Freeman, 8 Yin. Abr. Devise § 51; Fatherly v. Fatherly, 1 Coldw. 461; Snyder v. Warbasse, 3 Stock. 463; Sessoms v. Sessoms, 3 Der, & Bat. Eq. 453; see-Downhall v. Catesby, Moore 356; Whitlock v. Wardhm, 7 BAch. 453; Langston v. Langston, 8 Bligh (N. S.) 167; or one gift be void for uncertainty, George v. George, 47 N. II. 87; Kerr v. Dougherty, 59 How. Pr. ■44; or c.ertain premises do not pass under one devise, Coulson v. Holmes, 7 Cent. L. J. 446.</p> <p>Whether any question as to the construction of a will can prevent its probate, Cobb’s Case, 1ft Cal. 699 ; Prater v. Whittle, 16 So. Car. 1ft.</p> <p>As to the jurisdiction of chancery to set aside a part of a will for fraud, after the entire will has been probated, Allen v. McPherson, 1 H. L. C. 191; Perrin •v. Perrin, 19 Grant’s Ch. 859 ; see Johnson v. Glasscock, 8 Ala. 318.</p> <p>A decree of a probate court approving a will not appealed from, does not render valid void bequests in the will, Bent’s Appeal, 35 Conn. 583, 88 Id. 34.—Rep.</p>

<p>A beneficiary under a will may, as the proponent, be a witness in proceedings on a caveat to establish the will.</p> <p>Note.—An executor who has accepted the trust and acted under it, is a competent witness to establish it, Comstock v. Hadlyme, 8 Conn. 254; Tucker v. Whitehead, 59 Miss. 594; Key v. Holloway, 7 Baxt. 575; Rugg v. Rugg, 21 Hun 388, 88 N. Y. 592; Childrens Aid Soc. v. Loveridge, 70 H. Y. 387 ; Richardson v. Richardson, 85 Vt. 238; Snyder v. Bull, 17 Pa. St. 54; Reeve v Oi-osby, 3 Redf. 74; Marta v. Marte, 25 Cratt. 361; see Bembien v. Oicotte, 12 Mich. 459; Jones v. Larrabee, 47 Me. 474; Piper v; Moulton, 72 Me. 155; Lord v. Lord, 58 N. H. 7. The beneficiaries under a will are also’competent witnesses, Sugden v. Lord St. Leonards, L- R. (1 Prob. I)iv.) 154; Shailer v. Bumstead, 99 Muss. 112 ; Garvin v. Williams, 50 Mo. 206 ; Pruyn v. Brinkerhoff, 7 Abb. Pr. (N. S.) 400; Dietrich’s Estate, 1 Tuck. 129 ; Conoly v. Gale, 61 Ala. 116; Eunk v. Eggleston, 92 Id. 515; see Dickey v. Maleahi, 6 Mo. 177; Haa'ding v. Harding, 18 Pa. St. 340; Burke’s Will, 5\Redf. 369; Schoonmaker v. Wolford, 20 Hun 166. How far a widow, claiming title to chattels adversely to her husband’s administrator, is competent, Baxter v. Knowles, 12 Allen 114; Hyneman’s Estate, 11 Phila. 135; Johnson v. Hall, 9 Baxt. 351; or claiming dower, Wentworth v. Wentworth, 71 Me. 72; Miltenburger v. Miltenburger, 8 Mo. App. 306; Bothwell v. Dobbs, 59 Ga. 789.</p> <p>The plaintiff in a suit in equity, brought to establish a lost or destroyed will against the administrators and next of kin of the alleged testator, is not a competent witness in his own behalf, Timón v. daffy, 45 Barb. 438, 41 N. Y. 619 ; see Howell v. Taylor, 11 Hun 214. So in an action to set aside a will, Rich v. Bowher, 25 Kan. 7. See note to Brague v. Lord, 2 Abb. N. Gas. 8.</p> <p>The acts or declarations of one of several executors or legatees are inadmissible in evidence as against the others, Shaüer v. Bumstead, 99 Mass. 112, (overruling Atkins v. Sanger, 1 Pick. 192); Houston v. Heuston, 2 Ohio St. 488; Thompson v. Thompson, 13 Ohio St. 856; Osgood v. Manhattan Co., 3 Cow. 612; Boyd, v. Ely, 8 Watts 66: Hanbergar v. Root, 6 W. & S. 431; Clark v. Morrison, 25 Pa. St. 453; Dillard v. Dillard, 2 Strobh. 89; Blakey v.Blakey, 38 Ala. 611; Bunyard v. McElroy, 21 Ala. 311; Dye v. Young, 55 Iowa 433 ; but see Armstrong r. Farrar, 8 Mo., 627; Allen v. Allen, 26 Mo. 327; Reagan v. Grim, 13 Pa. St. 508; Beall v. Cunningham, 1 B. Mon. 899; Rogers v. Rogers, 2 B. Mon. 324; Milton v. Iimter, 13 Bush 163 ; Peeples v. Stevens, 8 Rieh. 198; Garvin v. Williams, 50 Mo. 206; Southern Ins. Co. v. Wilkinson, 53 Ga. 535. They are admissible as against themselves, Morris v. Stokes, 21 Ga. 552; MeC'aine v. Clarke, 2 Mnrphey, 317; Nussear v. Arnold, 13 S. & R. 323; Burton v. Seott, 3 Rand. 399; Brown v. Moore, 6 Yerg. 272 ; Seale v. Chambliss, 31 Ala. 19; Dennis v. Weeltes, 46 Ga. 514.—Rep.</p>

<p>Where an executor sought by false representations and suggestions calculated and intended to excite apprehension in the mind of the residuary legatee, and by taking advantage of her poverty to induce such legatee to sell her interest in the estate to him for a small price, about one-fourth of its value—Held, that in so doing he was guilty of such an abuse of the trust and confidence reposed in him as justified his removal.</p> <p>Note.—In Wiggin’s Case, 29 Hun 271, the fact that an insolvent trustee has made a settlement with certain of his cestuis que trust, whose portions he had converted to his own use, was held not to prevent the court from removing him, on the ground of misconduct, upon the application of another cestui que trust, although the latter’s portion is in the hands of other trustees, and properly invested.</p> <p>In Marks v. Wiikousi, 16 La. Ann. 341, a trustee signed a petition to the court praying for the sale of his wards’ lands, “ believing the same to be for their interest.” After the court had ordered the sale, and because his co-trustees refused to divide the commissions with him, he filed a protest against the sale, and appeared and opposed the sale, which was, on that account, adjourned.—Held, that his removal was justifiable.</p> <p>In Spaulding v. Wakefield, 53 Tt. 660, it was held to be negligence for an executor to pay a legatee more than the amount of his legacy—that is, to deliver to him a $1,000 U. S. bond, worth in the market $1,200, in satisfaction of his legacy of $1,000.</p> <p>See further, as to sufficient grounds for removing a trustee, guardian &c., Broughton v. Bradley, 34 Ala. 694; Crutchfield’s Case, 3 Yerg. 335; Crain v. Barnes, 1 Md. Ch. 151; Waller v. Armistead, 2 Leigh 11; Pileds Case, 45 Wis. 391; 2 Am. Prob. Hep. 336, note; Peacoclee v. Lejfier, 74 Ind. 327; Nickels v. Philips, 18 Pla. 782; Faust v. Levy, 4 Lea 320; Livingston’s Case, 34 N. Y. 554; Kellberg’s Appeal, 86 Pa. St. 129; McFadgen v. Council, 81 N. C. 195.</p> <p>In Thomson v. Eastwood, L. B. (2 App. Cas.) 215, the court set aside -an agreement and release obtained by a trustee from his cestui que trust by his representations as to the latter’s illegitimacy, whereby he induced the cestui que trust to assign his residuary share of the estate to him for a very inadequate consideration.—Rep.</p>

The statute determines the facts which give jurisdiction. The seventieth section of the act respecting corporations declares “that when any incorporated company shall have become insolvent or shall suspend its ordinary business for want of funds to carry on the same, it shall and may be lawful for any creditor or stockholder to apply by petition or bill of complaint to the chancellor,” and directs that the chancellor may proceed in a summary way to hear the proofs; and if…

Bill of interpleader. The bill sho.ws the corporate existence of the ISTew Jersey Midland Railway Company and the issue by it of certain bonds, secured by a mortgage to trustees, the default in the payment of the moneys so secured, and a foreclosure by the trustees to recover the same; that pending such suit a committee of trustees was formed, on behalf of the holders of such mortgage bonds, and for protecting the interest of such of them as should accept and comply with the…

<p>1. A bill stowing that the public, authorities are about to extend a public street under a claim of title, over a wharf erected on lands in the possession of the complainant and which he claims, does not lay any ground for an injunction.</p> <p>2. Where an injunction is ashed on the ground of a legal right, a ease of pressing necessity for the interference of equity must be shown.</p>

Art action of assumpsit was commenced in the supreme court by the appellants, Robert C. Crane and John M, Crane, against the respondent, Enoch A. Ely, to recover the sum of $4,077.21, balance of an account stated in the bill of particulars annexed to the declaration. The items of this account on the plaintiff’s side were three promissory notes, a check, cash loaned and goods sold and delivered. Credits are allowed to the defendant, Ely, for notes, checks, goods and sundries.

<p>A mortgage on a house and lot of land in Jersey City, given after the charter of 1-871, will be postponed to the lien for water rates assessed for water taken from the city water works, and used on the premises subsequent to the date of the mortgage.</p>

<p>On appeal from a decree of the ordinary, whose opinion is reported in Pomeroy v. Mills, 8 Stew. Eq.</p>

<p>Whenever it appears that the object of a suitor filing a creditor’s bill is to aid a person who has placed his property in the name of another to hinder and defeat creditors, to regain control of such property, a court of equity will refuse its assistance.</p>

On July 5th, 1882, Shampanore sold to one Porter the property in a newspaper office for $3,382. Of this, $500 was paid in cash. The remainder, $2,882, was secured by a note, which note was accompanied by a chattel mortgage, each made the day of the sale, which mortgage was placed on file for record two days thereafter. After the making and delivery of this mortgage. Porter, on the same day, made another mortgage upon the same property to one Thomas, to secure the sum of $500.

<p>1. In a partition suit where lands are sold, and a .minor has an undivided interest, an agreement between buyers who bid at the sale that their purchases should be reported by the commissioners in the name of a person to whom no land was struck off, will not bar the infant heir from a right in equity to recover from the original purchasers the full amount of the consideration-money expressed in the deed executed to the substituted grantee, who paid a part by his bond secured by mortgage.</p> <p>2. In this case such grantee delivered a declaration to said buyers, stating that he held title for himself and them, in trust, to sell the lands and divide the profits pro rata, but making no covenants as to losses.—Held, that a scheme of this nature could not exempt the defendants connected therewith, and who were familiar with the entire transaction, from an equitable liability to the minor heir for any deficiency in the proceeds of the sale of the mortgaged premises to pay the full amount due upon the bond, in the absence of an express release on arriving at legal maturity.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Field v. West Orange, 9 Stew. Eq. 118.</p>

, whose opinion is as follows: The parties in this cause resided at Milford, in the county of Hunterdon, in this state, at the time of the filing of this bill, and their marriage is proved.

<p>On appeal from a decree of the Ordinary, whose opinion is-reported in Hollinger v. Syms, 10 Stew. Eq. 221.</p>