Volume 38 — New Jersey Equity Reports

<p>If a bill for an account filed by an administrator against the surviving partner of his intestate anticipates the defence of an account stated and charges fraud therein, the defendant, if he sets up an account stated, must also traverse the alleged fraud.</p>

<p>The complainant claims the franklinite ore in certain land known as the northerly half of Mine Hill, under deeds made, one in 1848 and the other about a year afterwards. The defendant Trotter also claims that ore as lessee of a person who claims under a deed of the same grantor made in 1848. The complainant’s deeds do not include the land in question in the description, though it says it was intended that the description should embrace those premises, and the bill is filed for rectification of the description so as to include the premises in dispute. The complainant, and those under whom it claims, had possession of the land from 1848 up to September, 1882, when Trotter took possession and fenced it out. In 1881 he recovered damages against the complainant’s grantor in a federal court, in trespass, for taking franklinite from the property, and shortly afterward the complainant’s grantor filed a bill in a federal court for rectification of the description, and applied for an injunction to restrain Trotter from mining the franklinite, which was denied. On motion for injunction in this suit to restrain Trotter from mining — Held, that an injunction should be allowed to preserve the property in question pendente lite. Also that the complainant was not disentitled to relief by laches in applying for the reformation of the description, notwithstanding the error was known as early as 1853, since its right was not questioned until Trotter obtained his lease, which was in 1879.</p>

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

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

<p>Where a right of way is appurtenant, and has been expressly granted to the adjoining land-owners, their heirs and assigns forever, non-user alone will not forfeit or extinguish it.</p>

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

<p>On a suit for deficiency, after the foreclosure of a mortgage, against a vendee of the premises, whose assumption of the payment of the mortgage appears in his deed, the defence that he never assumed its payment and that the assumption was inserted in his deed by mistake, ought to be set up by cross-bill, and if set up by answer the burden of proof still remains on him.</p>

<p>Complainant and defendants were the incorporators of the Standard Bubber Co., a company whose business was to be the manufacture of rubber goods. It was, according to the certificate of incorporation, to begin business with a capital of $8,400, divided into eighty-four shares; that two of the defendants subscribed together for twenty-eight shares, the other defendant for twenty-eight shares, and the complainant for twenty-eight shares; that it was agreed between the parties that the capital should be $15,000, divided into shares (one hundred and fifty) of §100 each, of which two of the defendants should take and pay for forty-two, and the other for the same number, and that the complainant should devote his time, skill and attention to the manufacture of the goods, and should receive therefor §20 per week, and also the regular dividends upon the twenty-eight shares of the stock subscribed by him, which dividends should be applied to the purchase of the stock until the twenty-eight shares had been issued to him at par — i. e., fourteen shares by the two defendants and fourteen by the third ; that complainant should have the right to vote on the twenty-eight shares meanwhile, and if he failed to render the stipulated service, the agreement to be void ; that the agreement should continue for three years, unless sooner determined by complainant’s failure to render the services required, or by his purchasing the twenty-eight shares out and out, or by mutual consent. Complainant further avers that he did perform his part until prevented by the defendants; that thereafter he tendered his services, which they refused; that none of the stock has been issued to him, and that he believes considerable profit has been realized by the company from his services, and that more would have been realized but for defendants’ interference. On demurrer to a bill for specific performance and for general relief— Held, that the contract was with the defendants individually, and that the corporation was not bound; that complainant’s remedy was at law, except perhaps as to the issuing of the stock, as to which there is no direct allegation that any dividends were ever declared or even earned, nor that the stock has such a value that damages at law for the breach of the contract will not fully compensate complainant; and, further, that a decree of specific performance would require defendants to restore complainant to his former position in the company’s service, while it does not appear that it is in their power to do so; and that the agreement was not a contract of partnership.</p>

<p>In April, 1877, one Short recovered a judgment at law against tne defendants’ receiver. He gave to his attorney a note for his costs and professional services in that action and in a foreclosure suit then pending in this court, and agreed that the attorney should hold the judgment as collateral security for the note. Short died in June, 1877, and nothing has ever been paid on account of the note. In August, 1878, the receiver obtained a decree for deficiency, against Short, in the foreclosure suit. — Held, that the attorney was entitled to receive from the receiver, payment of the costs of the suit at law, in full, with interest from the date of the judgment, and that he was entitled to receive the dividends on the rest of that judgment, or bo much of them as will be sufficient to pay his note and interest, the receiver s claim to ofiset the decree for sufficiency against the judgment being disallowed.</p>

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

<p>A testator, by Ms will made in 1863, gave to his wife for life the use of his homestead farm (together with the furniture &c.), excepting the house then occupied by his son Abraham, with certain appurtenances. He gave to his son David the land whereon David then lived, and for which he had given David a deed in 1858, and also $800 which he had given David in 1863, as David’s full share. He gave his daughter Dorothy, for life, after his wife’s death, if Dorothy should survive his wife, the use of the house, garden &c., and also $3,000, to be invested by his executors, the interest to be paid to her annually, and if insufficient for her support, then a specified part of the principal yearly, and if Dorothy should die “ without heirs,” her share was to be equally divided between David and Abraham. He then gave Abraham his homestead farm after the death of his (testator’s) wife, excepting Dorothy’s right therein. He also gave to his three grandchildren ?1,000 each when they should arrive at the age of twenty-five years. Testator died in 1881, and his wife predeceased him. He had no real estate other than that devised, and his personal estate is not sufficient to pay the debts and legacies. — Held, that the legacies are not charged on the land and must abate proportionally, and that testator did not die intestate as to the amount of the legacy given to one of the grandchildren, which was adeemed during testator’s lifetime.</p>

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

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

<p>A bill seeking to charge certain lands with, a trust to sell, if necessary to raise money to pay the settlor’s debts, and the expenses of recovering the premises (which were then adversely held), and to compound for the same, averred that the premises had been sold by the trustee and conveyed by a warranty deed in 1821 — Held, that under the alleged terms of this trust, the purchaser was not bound to see to the application of the purchase-money, and that, consequently, the lands now in defendant’s hands were discharged of the trust.</p>

<p>Bill for relief. On final hearing On bill and answer of James A. Wells.</p>

<p>A bill was filed to prevent the continuance of an alleged nuisance by a railroad company, which consists in drilling cars and allowing cars loaded with cattle to stand for an unreasonable time on defendant’s tracas m a public street whereon complainant’s dwelling is located. The defendant’s answer denies the commission of the nuisance, and sets out defendant’s rights and privileges in occupying the street. — Held, that that statement of rights and privileges would not be struck out as immaterial, but that an averment in the answer that complainant’s house was built after defendant’s tracks had been laid in that street, was objectionable and would be struck out.</p>

<p>A testator gave his residuary estate to his four children, George, Mary, Henry and Charles, to be equally divided among them, and “ in case of the death of any one or more of my children without leaving lawful issue, it is my will and I direct that the share or shares of the one or more so dying shall go to the survivor or survivors of my children; but if any of my children shall die leaving lawful issue living, such issue to take the share his, her or their parent would have taken, share and share alike.” The will was dated May 10th, 1869, and testator died February 11th, 1870. At his death he had the four children mentioned, and they are still living. George and Henry have children; Mary and Charles are unmarried. — Held, that the intention of the testator was to give to each of his children an absolute estate in the residue, subject only to be defeated by the death of the child in testator’s lifetime.</p>

<p>Bill for partition of land. On final hearing on pleadings and proofs.</p>

<p>Bill for relief.</p>

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

<p>The will of a non-resident was refused probate by the surrogate of the .county where the testator had his domicil, but, after an appeal therefrom, a compromise was effected, and, by order of the appellate court, the surrogate was directed to admit the will to probate, and that the compromise be carried out. By that compromise, the complainants, who were the residuary legatees, were to have one-half of the estate remaining after paying certain charges and expenses. Testator owned lands of small value (but no other property) in this state. The bill was filed for a decree directing sale of the lands and payment of one-half of the proceeds to the complainants, and that this court should decide who, under the compromise, are entitled to the other half, as heirs or next of kin of the testator. — Held, that this court would not, under the circumstances, entertain the suit, inasmuch as the complainants have power, under the will, to sell, and the question as to who are entitled, under the agreement of compromise, should be left to the courts of New York, where the bulk of the estate is.</p>

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

<p>Motion to vacate order staying operation of final decree pending appeal. On affidavits.</p>

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

<p>A bill filed by a surety against three of his four co-sureties on an official bond, for contribution, alleged that a judgment at law had been recovered against all of the sureties for a breach of the condition of the bond; that complainant liad, after execution and levy on his property, paid the amount due thereon, and had taken an assignment of the judgment; that the principal has fled the state, and, as complainant is informed and believes, is not possessed of any property here; that one of the sureties is dead and has left no property ; that complainant has applied to the three surviving co-sureties, Frick, Behmer and Booney, to pay him their equitable share of the judgment, which they have refused; that Frick has property, but not enough to pay complainant’s equitable claim against him ; that Behmer and Booney have conveyed away their property fraudulently in order to deprive complainant of his equitable right of contribution. Behmer and Booney have answered, and on demurrer by Frick — Held, (1) That the allegations as to the principal’s insolvency, and as to the complainant never having been re-imbursed by his co-sureties, are sufficient; and (2) that Frick cannot set up that the bill is multifarious as to Behmer and Booney’s fraudulent conveyances and the discovery asked of them, because he is not required to answer those allegations.</p>

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

<p>A legatee alleged that by means of false representations made to her, she had been induced to withdraw her caveat to the probate of the will, which was thereupon admitted to probate. — Held, that, as her bill showed that the representations had been made to her by persons not interested in the estate, and that no person interested therein was chargeable with them, it should be dismissed.</p>

<p>One who advances money to another, to enable him, therewith, to make a loan to a third party on the security of an equitable mortgage, is not entitled to subrogation merely on the ground that he so advanced the money.</p>

<p>Defendants, thirty years ago, changed the course of a natural stream of water that ran through defendants’ land and drained complainants’ lands, and substituted therefor a sewer, presumably by consent of the owner of complainants’ lands. They have obstructed the sewer and recently built an embankment near the complainants’ line so as to back the water on complainants’ said lands. —Held, that this court would compel them to remove the embankment, and either to restore the natural stream to its original course or to remove the obstructions from the sewer and rebuild it, although there is an allegation that if either be done the water will be discharged on the lands of other persons, and also that the defendants are pecuniarily unable to do either.</p>

<p>A municipal charter, passed in 1871, provided that assessments for improvements should be a lien on the premises, notwithstanding any alienation or encumbrance thereof. A supplement, in 1873, provided that former assessments might be adjusted and confirmed, and should then be new assessments and a lien, and collected as provided in the original charter. A mortgage on lands in the city was given in 1873, after an assessment had been laid; this assessment was, after the mortgage ivas given, adjusted and confirmed, the confirmation taking place in 1874. — Held, that the lien of the assessment was, under the charter, paramount to that of the mortgage.</p>

<p>Bill to redeem. On motion to dissolve injunction. On pleading and affidavits.</p>

<p>A testator gave a life estate in certain lands to his wife, with remainder in fee to his executors, with directions that, after her death, they should convert the property into cash and divide the proceeds among his children when the youngest should have attained twenty-five years of age. — Held, that the executors could, with the widow’s consent, sell the lands in question in her lifetime.</p>

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

<p>Petition for divorce a vinculo.</p>

<p>The defendants condemned for their railroad a part of certain lands covered by a mortgage, without making the mortgagee a party. Afterwards the mortgagee foreclosed, without making the defendants a party, and bought the premises at a price which left a large balance due. The mortgagee then brought suit to compel the defendants to redeem. — JECeld, that the defendants cannot redeem by paying such 'a proportion of the mortgage debt as will be equal to the relative value which its condemned land bears to the whole tract.</p>

<p>Bill for relief. On motion to strike out answer of Abram S. Myrick, administrator. Submitted on briefs.</p>

<p>Where a mortgagee of lands recovered a judgment on his bond, sold the mortgaged premises under execution, and purchased them himself, the mortgagor is not, ipso facto, entitled to an injunction to restrain him from selling other lands of the mortgagor under his judgment, on the ground that the purchase of the equity of redemption extinguished the mortgage debt, but the mortgagor may enjoin such other sales until it shall have been determined, in this court, whether the mortgagee ought to be permitted to raise any more money, by execution, on account of the debt, and if so, how much.</p>

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

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

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

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

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

<p>1. Prior to the statute of 1851, defining the meaning of the words “ dying without issue,”a bequest over to a second legatee, limited to take effect on the death of the primary legatee without issue, the words “dying without issue” were to be construed as meaning an indefinite failure of issue, unless it appeared, from tbe face of the will, that they were used in a different sense.</p> <p>2. A bequest of personal property, limited to take effect on sn indefinite failure of issue of the first taker, is void for remoteness.</p> <p>3. A will must be construed according to the law in force at the time it takes efiect.</p>

<p>The petitioners claimed to have supplied the former receiver of an insolvent railroad, appointed by this court, with large quantities of materials for (he use of the railroad. They applied for an order directing the present receiver -of the railroad to pay for those materials, and also for an order giving them leave to sue him at law for the damages which they allege they have sustained at his hands by reason of his non-fulfillment of his predecessor’s contracts with the petitioners for other materials, similarly supplied. — Held (1), that this court, before granting the petition, would, by a preliminary examination of the transaction, determine whether the matter cannot be disposed of here ; (2) that the present receiver is not, as such, liable to he sued at law on the contracts of his predecessor; and whether the railroad property is bound by the contracts of the former receiver, is a question of which this court has exclusive jurisdiction.</p>

<p>1. If a party against whom an incompetent witness is called, with full knowledge of his incompetency, allows the witness to be sworn and examined, without objection, he will be considered to have waived the objection to his competency.</p> <p>2. Though the party against whom an incompetent witness has given evidence may have lost his right to object to his evidence, yet the court may, on its own motion, if it appears that the evidence is opposed to the .policy of the law and dangerous to the administration of justice, suppress it.</p>

<p>On petition of William Farley.</p>

<p>1. A son, knowing his father’s financial embarrassments, and taking a conveyance of the title for all his father’s real estate, only giving back therefor a mortgage, without a bond, for $2,047.62 and a check for $200, the father at the same time surrendering a note against the son for $200, cannot hold the real estate against the creditors of his father.</p> <p>2. The son was indebted to his father on a bond and mortgage for $2,500, given for part of the purchase-money of a lot of land. This mortgage the father surrendered to the son for cancellation for certain alleged accounts which the son claimed he held against his father, the greater portion of which, if they existed in the form of accounts at all, were prior to the execution of the mortgage. — Held, fraudulent.</p> <p>3. After these events, the wife of the debtor conveyed her interest in dower in the farm to her son and took from the son a mortgage on the farm for $1,000, the alleged price of the dower, which sum, in consideration of her age, if her husband had been dead, was more than twice its value. — Held, fraudulent.</p> <p>4. The debtor was executor of his father’s will, by which he was directed to secure a legacy of $2,047.62 upon the said real estate to his sister and her children, legatees; he toek the mortgage named above to himself as executor and trustee, to secure that sum, in which it was expressly declared that it was in execution of the power and in favor of the trust, without the knowledge of the cestuis que trust. — Held, good as against creditors.</p>

<p>Judgment was obtained against a guardian and his sureties for breaches of all the four conditions in his bond. On a reference to have the damages assessed against the sureties — Held, that the sureties could not object because the master assessed damages under one of the conditions as to which they claimed they were exonerated by the action of the new guardian, because, if that were a defence in should have been raised in the action at law; and that they could not claim allowance for taxes on the ward’s land paid by the guardian, because such taxes, if paid by the guardian, ought to have been charged by him in his account, and further that the ward could not object, on account of the guardian’s misconduct, to the master’s allowance of commissions to the guardian, which had been fixed by the orphans court, because the action of the orphans court could not be questioned in that collateral way.</p>

<p>On exceptions to report of surrogate, to whom it was referred to ascertain and report the amount of damages.</p>

<p>Appeal from decree of Warren orphans, court.</p>

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

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

<p>On appeal from a decree of the chancellor, whose opinion is reported in Baldwin v. Flagg, 9 Stew. Eq. 48.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Kirkpatrick v. Corning, 10 Stew. Eq. 54.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Carson v. Marshall, 10 Stew. Eq. 213.</p>

<p>1. An executor who deposits money to his credit, in his official capacity, in a bank of good standing, will not be liable for its loss by the failure of such bank.</p> <p>2, The executor, under the facts of this case, held to be not liable.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Union Bank Case, 10 Stew. Eq. 420.</p>

At the time of his death, January 23d, 1883, Peter Ballantine was a member of the firm of P. Ballantine & Sons, malsters and brewers of ale, and of the firm of Ballantine & Company, brewers of beer; the business of both firms being carried on at Newark, N. J. The firms were both composed of the same members; the former began business January 1st, 1857; the latter, about July 1st, 1879.

<p>This is an appeal from a decree of the prerogative court, admitting to probate the will of Sarah P. Dale, reported in Dale v. Dale, 9 Stew. Eq. 269.</p>

<p>On appeal from a decree of the ordinary, whose opinion is reported in Van Dyke v. Van Dyke, 9 Stew. Eq. 521.</p>

<p>A telegraph company erected their poles on complainant’s land without any authority whatever. The complainant, after consultation with his counsel, took down the poles and filled up the holes in the ground, and instructed his counsel to apply for an injunction to prevent the company from again erecting their poles on his land without compensating him therefor. A lawyer, who afterwards signed the bill as counsel, but who. was not at’that time-complainant’s counsel, although he had undertaken, at the request of complainant’s solicitor, to ascertain the company’s corporate name, was informed by the company’s counsel, whom he casually met, that the company would not again erect their poles on complainant’s lands, but would probably select another route, which they eventually did. This information, however, was not communicated to complainant or his solicitor. Complainant filed his bill- and obtained an injunction, after which the cause went to final hearing. — IiAd, that the complainant, having filed his bill in good faith, was entitled to costs.</p>

<p>The defendants sold certain lots to complainant and others, adjoining a park of about twenty acres, laid out and dedicated by them, the deeds thereof conferring on the lot-owners “the free use and enjoyment of the park in common with other lots at Sea Girt, and a passageway therein for foot passengers only, forever; ” afterwards the complainant was, by deed, given “ the full right and privilege to have and use a carriageway * * * to and from the rear of his lots * * * into and through the park.” The complainant has built upon and graded and improved his lots. — Held, that, on his application, the defendants should be perpetually enjoined from opening a highway across the park and from destroying the trees and shrubbery therein, and from laying it out into building lots and selling them.</p>

<p>Bill for relief. On motion to dissolve injunction and cross-motion for the appointment of a receiver. On bill and answer and affidavits annexed.</p>

<p>Bill to foreclose. On motion for a receiver.</p>

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

<p>Bill for injunction. On final hearing on bill and answer and stipulation- of counsel.</p>

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

<p>1. A purchase-money mortgage on a tract of several acres of land contained a provision that if the purchaser should, at any time before the mortgage fell due, sell any portion of the premises, the holder of the mortgage should release from the lien of the mortgage a proportionate part thereof on receiving an equivalent proportion of the amount thén due; and, further, that if any portion of said premises should be sold during that time, the mortgage should be apportioned according to the number of acres sold.</p> <p>2. The purchaser sold all the premises to one buyer, Wiswall, who subsesequently sold two lots of one and a half acres each to two different persons, and the mortgage was released as to those tracts on their each paying 11,413.— Held, that the apportionment clause was personal to the first purchaser (the mortgagor) only, and that Wiswall’s grantees of the unreleased part were not entitled to the benefit thereof on the foreclosure of the mortgage.</p>

<p>Bill to foreclose. On final hearing; the first two cases on pleadings, and the last on pleadings and proofs.</p>

<p>1. A national bank, organized under the law of 1864, cannot, even by specific provisions for the purpose in its articles of association and in its by-laws, acquire a lien on its own stock held by its debtor.</p> <p>2. A statement in the inventory of an assignee in insolvency that certain stock therein inventoried was “ valued at nothing above encumbrances,” is not evidence that the assignor encumbered the stock by a pledge to any particular person, and therefore is no evidence for such person to establish a claim to an encumbrance thereon in his favor.</p>

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

<p>Bill for relief. On plea in bar.</p>

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

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

<p>In 1864, a father caused foreclosure proceedings to be instituted against himself and at his own expense, and the premises at the sale thereunder were bought by his son. In 1872, the son’s creditors attached his interest therein, as a non-resident debtor, and the son entered an appearance to the attachment, whereupon the applying creditors proceeded to obtain judgments on their claims, and on those judgments issued executions under which the son’s interest in the premises was sold to complainant in 1874. — Held, that the father would not be permitted to enforce a secret trust in the son in his behalf as to the property, and that his grantee, under a deed (made a month after the attachment had issned) stands in no better position.</p>

<p>Bill for relief. On exceptions to master’s report, on exceptions to receiver’s account.</p>

<p>Bill to foreclose. Application for rehearing.</p>

<p>Bill to foreclose. Motion to settle form of decree.</p>

<p>A lawyer was employed by the defendant to draw a deed for lands from him to a third party, and one from the third party to defendant’s wife, and also a declaration of trust from her to the defendant. The first deed and the declaration of trust were duly executed on the same day, hut the second deed was not executed until some time afterwards. The lawyer then advised that a new declaration of trust should be given by the wife, which was done. In a controversy between the husband and his wife over the new declaration of trust, the lawyer was called as a witness by the wife, to testify as to what was said by the part ies in those transactions, and objection was made to his testimony on the ground that what was said to him by the husband was privileged.— Held, that the objection could not be maintained.</p>

<p>Bill for relief. On stipulation of counsel. Question of .amount of compensation of executors.</p>

<p>A judgment creditor of a decedent, whose estate is insolvent, and whose administrator refused to bring suit, filed a creditor’s bill to set aside, as fraudulent, certain mortgages given by the decedent to his son-in-law,’which were foreclosed after decedent’s death, and the premises bought at the sheriff’s sale under the foreclosure by the son-in-law, the defendant. On demurrer to the bill — Held, (1) that the administrator is not a necessary party, and (2) that the-bill sets forth grounds for equitable relief.</p>

<p>On January 11th, 1879, Mrs. Totten, without her husband joining in the deed, because the parties supposed and were advised that it was unnecessary, conveyed a farm belonging to her to Mr. and Mrs. Allen, for §3,200, subject to a mortgage of §5,000. Of the consideration, §200 were paid in cash by Mr. Allen, and §3,000 in his three notes of §1,000 each, payable to Mrs. Totten. These notes were shortly afterwards endorsed by her to complainant for a prior indebtedness. The complainant, when they were unpaid, brought suit on them in a court in New York, and Allen then proposed that the complainant should accept a deed for the farm in payment of the claim on the notes, which he did. On January 12th, 1879, the defendant issued an attachment against Mr. and Mrs. Totten, who were non-residents, and thereunder seized and sold the farm. — Held, that whether there was fraud or not in the conveyance from Mrs. Totten to the Allens, the complainant was not affected thereby and his title, founded on the equitable one of the Allens under Mrs. Totten’s deed to them, would prevail against the defendant’s title under the sheriff’s sales on his attachment.</p>

<p>Where the payment of vested legacies was postponed by the operation of another clause in the testator’s will, for the benefit of his widow, until after her death — Held, that the legatees were ratably entitled to interest on their legacies from the expiration of one year after testator’s death.</p>

<p>Bill to foreclose. Motion for decree pro confesso,</p>

<p>1. Where several railroad corporations have by authority of law been consolidated, this court has no jurisdiction, upon the application of a bondholder and stockholder of one of the original corporations, to put an end to the existence of the consolidated company, upon the alleged ground that it had its origin in a fraudulent design, and was created to answer a fraudulent purpose, nor upon the ground that the proceedings for consolidation had been defective.</p> <p>2. The bill also seeks relief against a construction company, to which, complainant alleges, certain shares of stock and certain bonds of the original company were fraudulently transferred by the directors of the original company, and asks that the stock and bonds be surrendered. — Held, that the directors of the construction company were proper parties, with a view to a discovery.</p> <p>3. Several defendants, who could not have been compelled to join in one demurrer, demurred separately, but all appeared by the same solicitor and counsel. — Held, that only one bill of costs should be allowed them, but that that might embrace the costs of drawing, engrossing and filing all of the demurrers, and drawing, taking and filing the affidavits thereto.</p>

<p>A testator gave “ to my beloved wife all my real estate and all my personal- and movable property, be the same situated, lying and being wheresoever it may be found, for her use and benefit for her lifetime, and during her remaining widow, with the privilege to sell and dispose of the same at her own free will, but only during her said widowhood, and also in case.of necessity to borrow money on said property in her name during the said term of widowhood &c. with a different provision for her in case of her remarriage.” A subsequent clause provided that “ in case of her death as widow, * * * the whole hereditament ” be equally divided among testator’s children. On a bill filed by the widow, who is unmarried, and the children, for the construction of this clause — Held, that it conferred upon her a power to sell and convey the fee of the lands, provided the power should be exercised during her widowhood..</p>

<p>A superintendent of the work of constructing a railroad, without any obligation on his part, voluntarily, and supposing that the company was solvent, and merely to befriend the' workmen employed, advanced his own money to pay them for their work. There was no assignment of their claims to him, and no agreement that he was to have the benefit of their lien. Afterwards the company became insolvent. — Held, that he was not, by subrogation, entitled to the workmen’s statutory lien for those payments.</p>

<p>1. A mortgage of a stock of merchandise which contains an authority to the-mortgagor, authorizing him to sell in the usual course of his business, is not, Per se> fraudulent.</p> <p>2. The question whether such a mortgage is fraudulent or not is a question of fact, to be determined by proof in the same manner as other questions of fact are determined.</p>

<p>1. An infant may make a valid contract for necessaries, but he is only invested with such capacity when in a state of need.</p> <p>2. A guardian has no power to bind either the person or the estate of his ward by contract.</p> <p>3. A guardian may be authorized, by a court of competent jurisdiction, to make a contract for his ward, but, in such case, he does not exercise a power belonging to his office, but an extraordinary power granted to him for a special purpose.</p>

<p>1. Land on a lower level is under a natural servitude to that located above it, to receive' the water flowing down to it naturally.</p> <p>2. It is the natural right of each of the owners of two adjacent mines, neither being subject to any servitude to the other, to work his own mine in the manner most convenient and beneficial to himself, though the natural consequence may be that some injury will accrue to his neighbor.</p> <p>3. For damages resulting from natural causes, or from lawful acts, done in a proper manner, the law gives no redress, but when one of two adjoining mine-owners conducts water into his neighbor’s mine, which would not otherwise go there, or causes water to go there at different times, and in larger quantities, than it would naturally go there, he is answerable for the damages.</p> <p>4. Equity will restrain one .of two adjacent mine-owners from removing the supports which prevent the surface of his mine from caving in, when it appears-that such removal will result in the destruction of his neighbor’s mine.</p> <p>-5. Mandatory injunctions are rarely granted before final hearing, and are, as a general rule, strictly confined to cases where the remedy at law is plainly inadequate.</p>

<p>On application for leave to take the testimony of non-resident witnesses.</p>

On application for injunction; heard on bill and affidavits on the part of complainant, and answering affidavits on the part of the defendant.

On petition by the complainant in foreclosure proceedings to compel the purchaser at a sale made by the sheriff to complete his-purchase.

<p>• The annual accounts of a guardian which have been audited and ordered to be recorded, are to be taken, on his final accounting, as prima facie correct, as well in respect to his disbursements as his receipts. Actual notice on citation to the ward is not necessary before filing such annual accounts. The surrogate’s fees for auditing and stating them may be allowed.</p>

<p>Two wills were offered for probate, one by decedent’s brother, the other by his widow, and a caveat filed against each will by the proponent of the other. Both parties applied for the appointment of an administrator pendente lite, and the orphans court thereupon appointed a person not interested in the estate nor related to either party, and required him to give a bond for $10,000. From this appointment the brother appealed. — Held, that, as he had himself applied for the appointment of such administrator, and had no claim to the office, and as the selection of the appointee and the amount of security required •of him were wholly within the discretion of the court, the brother was not “ a ,party aggrieved ” by the order, and consequently not entitled to an appeal.</p>

<p>1. After a surrogate’s jurisdiction over the probate of a will has been taken away by the filing of a caveat thereto, and the orphans court has made an order fixing a time for bearing upon the caveat, the surrogate’s jurisdiction is not restored merely by the withdrawing of the caveat.</p> <p>2. A caveat against admitting a will to probate was filed January 25th. On the 30 th, the orphans court made an order fixing the 15th of February then next, for the hearing upon the caveat. On the 2d of February, the caveator, by an endorsement on the caveat, withdrew it, and requested that the will be admitted to probate, and the surrogate thereupon, on the same day, without any order of the orphans court, admitted the will to probate. — Held, that the surrogate had no jurisdiction to admit the will to probate.</p> <p>3. A party opposed to the will appealed from the decree of the surrogate to the orphans court, and the orphans court affirmed the decree. He thereupon, by demand of appeal, signed with his name as appearing by next friend, by his proctors, appealed to this court. — Held, that an objection that the consent of the orphans court to his filing his petition of appeal there by next friend was not obtained, could not be entertained here, the objection not having been made in that court; and that the appeal to this court would not be dismissed because the demand of appeal to this court was signed with his name as appearing by next friend, by his proctors.</p>

<p>After the residuary legatee of an estate had cited the executor to file an account, which was done, and had excepted thereto and also t;o the executor’s amended accounts, he presented a petition to the orphans court alleging that the executor had converted all the available assets of the estate to his own use; that he was a non-resident and insolvent, and asked that he might be removed. On the hearing of this petition, the court ordered the executor to file another account showing the securities in which he had invested the estate, and that he should also give additional bonds in $6,000, and that the further hearing of the matter be postponed to a designated day. He gave the bonds so required, and on the designated day, after evidence and hearing, was removed from office. — Held, that the order requiring him to give the additional security, and his compliance therewith, did not oust the court of its jurisdiction to remove him.</p>

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

<p>On appeal from a decree of the chancellor, whose opinion is reported in Ackerman v. Halsey, 10 Stew. Eq. 356.</p>

Master’s Report: In pursuance of a decree made in the above cause, bearing date the 5th day of February, in the year 1880, and a supplemental order dated the 12th day of January, 1881, whereby it was referred to the undersigned, one of the masters of the said court, to take the account and to ascertain and report what was the value of the said lands so sold by the defendant at the time of the sales, and the amount due to the complainants for their half of the value of said…

<p>On appeal from a decree of the chancellor,' whose opinion is reported in Trustees &c. v. Wilkinson, 9 Stew. Eq. 141.</p>

Cory, 10 Stew. Eq. 198. Lewis Cory died January 2d, 1863. He was married to Eliza, daughter of George Brown, in 1831. He resided in Rahway, in this state, until 1849, when be removed to California and resided there until his death.

Two defences are put in to this — first, that such a sale works a dissolution, which, under the articles, can only be done in and through the court; and, second, that the complainant is not entitled to the relief he asks, because he is not willing to comply with the terms of. the agreement of sale in their true spirit and meaning. I think the first defence cannot prevail.

<p>1. Under the “Act to authorize the sale of lands limited over to infants, or •in contingency, where such sale would be beneficial” (Rev. p. 1052), the court has power, in a proper case, to direct a sale of the vested estates of persons legally competent, against their will. Qucere, whether the court has the power to order sale of estates which were so vested before the statute was passed.</p> <p>2. In the present case, it clearly appearing that a sale would be injurious to the interests of the tenant in possession, and it not being evident that it would promote the interests of the remaindermen, the court refused to order a sale.</p>

The difficulty with me has arisen from the part taken by Louis Dovell, the son of complainant, and the second teller, in the unlawful transactions, and his near relationship to and influence over the complainant. I think, however, that principles which would reject a prayer by him would be more merciful to her. Her advanced age, too, justifies a court of equity in considering more favorably the circumstances attending the individual case.

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Speer v. Miller, 10 Stew. Eq. 498.</p>

The mortgage of the complainant is on “all that certain lot of land with the brick factory thereon erected, * * * together with the steam engines, boilers, shafting, belting, gearing and all other machinery appertaining to said premises, now upon said premises, or that shall hereafter be placed or erected thereon.” As between the contracting parties, this was, unquestionably, a pledge of the land, the brick factory and “all machinery áppertaining to said premises,” then upon…

The bill in this cause is filed by David Mixsell, a surety on the bond of Edmund Teel, collector of Warren county, to compel contribution from the executor of a deceased surety. On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is as follows: On the 12th day of May, A. D. 1876, Edmund Teel was elected collector of the county of Warren for the third time. On that day he entered into bond with Lewis M. Teel, Jesse F. Carhart, Francis McDermott, Jos.

<p>1. An agreement for a consideration to renounce an executorship, is illegal, because against public policy.</p> <p>2. Trustees cannot use their relations with trust property to their personal advantage.</p> <p>3. The law will not aid either party to an illegal contract, but will leave-the parties where it finds them.</p> <p>4. If the contract be executory it will not be enforced, and if already executed, the price paid will not be restored.</p>

<p>On appeal from the court of chancery. The opinion of the chancellor is reported in Traphagen v. Hand, 9 Stew. Eq. 384.</p>

<p>When an executor and trustee, charged with the care and renting of real estate, is shown to have received for his personal use, gifts in money from those employed by him to make repairs, and from tenants, a decree merely requiring him to account to the estate for moneys so received, does not impose an adequate penalty for such misconduct. Upon such proof in ordinary cases the trustee should be deprived of commissions ; but when the circumstances show that his services have been such that the deprivation of all commissions would impose too heavy a penalty for the offence, the court will, in consideration thereof, deprive him only of so much as will serve to mark the court’s disapprobation of his conduct, and to be a warning to others.</p>

<p>On appeal from a part of the decree of the chancellor (not disposed of by the appeal reported in Hackensack Water Co. v. De Kay, 9 Stew. Eq. 548), whose opinion is reported in De Kay v. Voorhis, 9 Stew. Eq. 37.</p>