Volume 44 — New Jersey Equity Reports

<p>1. Under Rev. p. 637 §5, a married woman may contract to sell her real estate.</p> <p>2. Afler her husband’s death, specific performance of such a contract may be decreed.</p> <p>3. Specific performance of such a contract will be decreed against one who purchases with knowledge of, and expressly subject to, the agreement.</p>

<p>1. Where a judgment at law was recovered against an executor for his testator's tort, and there is a deficiency of personal assets to pay the judgment, a bill in equity will lie against the heirs and devisees to subject real estate-descended, to that payment.</p> <p>2. In such a suit, where there is question under the will, whether the real estate was devised in trust for certain cestwis que trustent for life and thereafter-for their children, or whether it descended to the testator’s heirs at law, and the heirs at law, trustee and cestuis que trustent for life, in present enjoyment. are before the court, the court will not delay the complainant’s relief to settle the question of title.</p> <p>3. To the settlement of the question of title the cestas que trustent in remainder are necessary parties, while they are not necessary parties to the complainant’s suit.</p>

<p>Where a bill is filed under the statute “ to compel the determination of claim's to real estate in certain cases, and to quiet the title to the same” (Rev. p. 1189), an allegation that the defendant, by virtue of a judgment and execution at law against the complainant’s grantor, has seized upon and is about to sell lands to which complainant has the legal title, presents no equitable ground for enjoining such sale.</p>

<p>Although a bidder at a sheriff’s sale under a foreclosure may, by his own wilfulness, have put himself in a position where the court would not, on his application,’■relieve him ijrom the consequences of his bid, yet the court will refuse to compel the specific performance of such a bid, where its enforcement must be unjust to the bidder and' uniconscionabiy advantageous to the mortgagee. ' ’ 1</p>

<p>A testator, by his will, provided that at any time after his son Stephen should attain the age of twenty-one years, “and a majority of the heirs so directing, the real estate may be sold either by public or private sale, as a whole or in lots, and upon such terms as a majority of the heirs shall decide upon,” and that one-third of the proceeds of such sale should be given to his wife, and the remaining two-thirds of such proceeds should be divided among his six children share and share alike; and then appointed his wife and one of his sons executrix and executor of the will. — Held, that the exeGutor and executrix have power to sell when a majority of those to whom the land descended exercise the discretion required of them by the will, and that it will be the executors’ duty to distribute the proceeds of sale. Also, that the discretion to be exercised involves the determination whether the real estate shall be sold at public or private sale and as a whole or in lots, and also the “terms” of sale; and that by the word “terms” is meant the cash to be required at the time of the bargain and at the time of the conveyance, the limit of credit to be allowed in money, time and security, the character of the vendees, the restrictions of the uses to which the lands sold shall be put, and the like.</p>

<p>On demurrer to bill, to establish a trust &e.</p> <p>The bill is exhibited by Emma Plaut, the widow and one of the executors of the will of Leopold S. Plaut, deceased, and represents that, prior to Mr. Plaut’s death, he was engaged in the dry goods business in the city of Newark; that because of ill health he constituted his brother, Louis Plaut, his attorney in fact to conduct his business for him; that he occupied, as his place of business, the basement and first floor of three adjoining houses on Broad street, in the city of Newark, and desired to obtain a lease of the upper floors of the same buildings; that the complainant and the defendants, Solomon and Louis Plaut, in course of the transaction of Leopold’s business, secured a lease of those floors for him, but for convenience, took the lease in their individual names; that the leased premises were used in Leopold’s business and the first month’s rent was paid with his money; that in taking the lease it was understood, by all parties, that it was taken for Leopold, and that the lessees named in it have no beneficial interest therein; that before the second month’s rent became due, Leopold died, leaving a will by which he appointed the complainant executrix, and his brother Solomon ■executor, thereof; that the persons thus named proved the will, ■had letters testamentary duly issued to them, and assumed the duties of the office to which they were appointed; that a firm composed of the complainant and her husband’s brothers, Louis and Moses, and one Oscar Michael, have purchased Leopold’s business, and now conduct it in the buildings which were leased to Leopold; that the lease in question is valuable, and that the firm did not buy it from Leopold’s estate; that the complainant has executed an assignment of that lease to the executors cSf her husband’s estate, and has requested Louis and Solomon to join in such assignment, but that they refused to do so, and threatened to transfér the lease to the above-mentioned firm.</p> <p>The bill prays that Louis and Solomon may be directed to assign the lease to the executors of Leopold, upon being indemnified against loss, or that they may be decreed to hold it in trust for his estate, and that they may be restrained from transferring the lease to others, and that such other relief may be granted as shall be equitable.</p> <p>The executors of Jacob Speer, who are the lessors, are made parties defendant, because the lease contains a covenant that it shall not be assigned without their consent.</p> <p>To the bill, Louis and Solomon Plaut demur; first, because Solomon has not been made a party in his character as executor of his brother’s will; second, because the complainant is not a party as an individual, but merely as executrix of her husband’s will; and third, because the bill does not present a case for equitable relief.</p> <p>The executors of the will of Jacob Speer also demur upon the first and third of these grounds.</p>

<p>On final hearing on pleadings and proofs taken before the •court.</p>

<p>On final hearing on pleadings, and proofs taken orally.</p>

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

<p>1. On a loan of money, the rate of interest agreed upon, or, if no rate be agreed upon, the rate allowed by law, at the date of the contract, will be the rate which the contract will bear until the money is paid.</p> <p>2. And this will be so while the contract remains in force, notwithstanding any change in rate which may, in the meantime, be made by law.</p> <p>3. Parties dealing for themselves may, however, enter into contracts by which the rate to be paid may change whenever the legal rate changes.</p> <p>4. Where a testator directs his lands to be sold, and a part of the purchase money to be invested on the land sold, in such manner as that the interest thereon shall be paid annually to his widow, and the principal to his executor on her death, the rate of interest allowed by law, at the date of the investment, cannot be changed subsequently, to the prejudice of the widow, without her consent.</p> <p>5. A trustee cannnot use his position to make a profit out of his cestui que trust.</p>

<p>1. A defendant cannot deprive the complainant of his right to an answer by-filing a disclaimer.</p> <p>2. A defendant cannot file a disci timer except when it is proper, on his disclaimihg any interest in the subject of the litigation, to dismiss the bill against him.</p> <p>3. If a defendant disclaims when he ought to answer, the court may order his disclaimer taken from the files.</p>

<p>1. Possession of a bond or other instrument for the payment of money by the payee, raises a presumption of delivery sufficient to make out a prima facie case.</p> <p>2. Courts of equity alone can give a remedy on a contract made between a husband and his wife, and this is so whether redress is sought by one of the original parties, or by or against the legal representative of one or both of the original parties.</p> <p>8. No particular words are necessary to make a writing under seal obligatory, provided it contains words acknowledging an indebtedness or binding the maker to pay a debt.</p> <p>4. A husband who receives the principal of his wife’s separate estate is bound to account to her for it.</p>

<p>A map annexed to a bill or answer, the accuracy of which is verified by affidavit, and used on an application for an injunction, cannot be taxed as an affidavit upon the assumption that it represents as many folios of written matter as a skilled person could have written in the same number of hours, required for making the map.</p>

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

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

<p>A mortgagor assigned a policy of insurance to his mortgagees as collateral security. He desired additional insurance on the premises, and one of his mortgagees promised to notify the company whose policy he held, but failed to do so. The mortgagor, however, obtained the other insurance. The premises were destroyed by fire, and, in an action at law against the first-named company, the mortgagees were held not entitled to recover because that company had not been notified of and consented to the subsequent insurance. Query, are the mortgagees liable, in equity, to the mortgagor on such promise.</p>

<p>1. When a married woman voluntarily joins with her husband in executing a mortgage on her own real estate, to secure a pre-existing debt of his, a new or independent consideration is not required.</p> <p>2. Where the creditors of the husband induced his wife to join with her husband in giving a mortgage on her real estate to secure his debt, by telling her that her husband had been guilty of the crime of embezzlement, and could be imprisoned for it, and that another, who was interested, had j ust said he would see him in jail before he would do anything to relieve him, and it appears that such statements created fear or j ust apprehension, the reasonable conclusion is that the free agency of the wife was overcome; that the execution of the mortgage was obtained by undue pressure, and that it cannot be enforced against the wife’s real estate.</p>

<p>1. The holder of two bonds, each of which is secured by a mortgage on the same premises, who procures an attachment to be issued on the amount due upon one bond, and has the goods of the obligor, which are in the dwelling on the mortgaged premises, levied upon by the sheriff, who leaves the goods where he finds them, but puts a man in charge of them, who, to do so, sleeps in the dwelling, and who is instructed to let Mrs. Flagg, the obligor, and husband, enter at all' times, is not liable, as mortgagee, for rents and profits, and for waste, on a bill filed to foreclose the mortgage to secure the other bond, although the creditor paid such watchman.</p> <p>2. Where a non-resident asks the aid of the courts of this state, and then refuses to submit himself to examination as a witness, the court may dismiss his bill, or assume as true the material facts alleged, about which he refuses to appear and testify.</p>

<p>F., a shareholder in the defendant company, procured a loan of $2,000 from said company, with the understanding that it should be advanced in parcels as required by F. to pay for the erection of a house on the lot which was given in mortgage as security; and to carry out this purpose the money was paid to S., one of a committee, who had special control. S. and F. had the further understanding that all of this money should be used towards the payment for lumber and materials required to build said house, and these facts were communicated to B., who furnished lumber for the house. 8. appropriated $358.94 of these moneys to pay his own debt against F. — Held, that such appropriation by S. was unlawful, and that B. could bring his suit to recover that sum and any additional sum to the extent of his claim which had not been used according to the understanding, unless so used by the consent of B.</p>

<p>The defendants were carriers of merchandise in the city of Salem. While not so employed they would spend their time with their horses and wagons in the public street, in front of the complainant’s dwelling, and to such an extent that unpleasant and noxious odors were created, which were, at certain times, carried into the dwelling of the complainant, making his home uncomfortable. Held, that this was an unlawful use of a public street, and that the complainant is entitled to the aid of this, court because he suffered special injury, and that his motives in filing his bill or in prosecuting his suit cannot be inquired into.</p>

<p>A bequest for the distribution of books in which the author describes the system by which the land-owners of the country hold the title to their lands as robbery, is not such a charity as the courts will enforce.</p>

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

<p>1. Possession of a deed formally executed by the grantee therein is presumptive evidence of its delivery to him.</p> <p>2. The fact that the grantor retains actual possession of a deed is evidence of its non-delivery, but there may be delivery, though he retain such possession.</p> <p>3. To show delivery, there must be proof of that which evinces an intention on the part of the grantor to part with the deed and pass the title, and this intention may be shown either by the circumstances of the transaction or by the words or acts of the grantor.</p> <p>4. The acknowledgment of the execution and delivery of the deed before a proper officer, and the recording of the deed, by the grantor, are acts of such (significance that their proof establishes, prima facie, delivery of the deed.</p> <p>5. A son executed a mortgage for $8,000 to his father, and duly acknowledged delivery, before a master in chancery, and four months thereafter caused it to be registered. After his father's death, being executor of his father’s will, he admitted that he was then indebted to his father’s estate, among other moneys, in the sum of $8,000. Four years thereafter, while the estate remained unsettled, he wrote upon the mortgage that he, as executor, had received payment in full of both principal and .interest, and then caused the registry of the mortgage to be canceled — Held, that the mortgage must be taken to have been delivered, and that the evidence establishes a prima facie case as to the indebtedness of the son to the estate.</p> <p>6. In such a Case the executor will not be permitted to show, by his own testimony, that the mortgage was mere security for his payment of notes that the testator had endorsed for him.</p> <p>7. Where an executor is indebted to bis testator’s estate in the sum of $5,000, for which he gave the testator a note which he afterwards caused to be inventoried as part of the estate, and shows that he has not been able to pay •the principal of the note, but does not show that he has been unable to pay tlie interest upon the principal, he will be charged with that interest.</p> <p>8. An executor, largely indebted to his testator’s estate, will not be allowed •to pay a claim that he holds against that estate out of the cash in his hands, but will be required to offset his claim and indebtedness.</p>

<p>On appeal from a decree of the orphans court of Salem county.</p>

<p>1. The ordinary may, in cases on appeal, where the subject-matter of the litigation is one over which he has original, as well as appellate jurisdiction, order new proofs to be taken, to be used in connection with the proof sent up from the court below, or if the proofs taken before the court below have not been preserved, he may order new proofs to be taken, and hear the appeal on such new proofs.</p> <p>2. A legacy given by a debtor to his creditor, will, in the absence of any state-ment to that effect in the will, be presumed to have been given in payment of the debt, if the legacy is as great or greater than the debt, but no such presumption will be made where the debt is contracted subsequent to the date of the will, or where the testator, by his will, directs that his debts shall be paid.</p> <p>3. So long as an executor acts in good faith, and with ordinary discretion, and within the scope of his powers, his acts cannot be successfully assailed.</p> <p>4. An executor may do anything within the scope of his powers, without risk of personal liability for the consequences of his acts, provided he exercises the care and judgment of a man of ordinary prudence and sagacity.</p>

<p>1. A decree in equity is a judgment, and as such stands equal in rank with a judgment at law in the distribution of the assets of an insolvent estate.</p> <p>2. Under the statute directing that judgments entered of record against a decedent in his lifetime shall have the preference and be first paid, distribution is to be made pro rala if there are not assets sufficient to pay all in full.</p>

<p>On appeal from a decree of the Chancellor, whose opinion is reported in Stockton v. Newark, 15 Stew. Eq. 531.</p> <p>The facts of this case will be found fully stated in the opinion of the Chancellor.</p>

Wortman, the debtor, which real estate he had conveyed to his two children, Isaac and Mary. Prior to the conveyance the complainant had recovered a judgment for $427.26 against the defendant, John V. Wortman, for malicious prosecution. An appeal was taken from such judgment to the supreme court, and, during the pendency of such appeal, on the 15th of October, 1885, John V. Wortman conveyed all his real and personal estate to his said two children.

An order to show cause was awarded. Is Anglesey entitled to a .preliminary injunction as the case now stands ? Taking the statements of the bill, it appears that one Kelley was formerly the owner of four lots of land which were plotted and mapped on the map of Jersey City, and numbered 93, 97, 98 and 99.

Read, 16 Stew. Eq. 18. Wilson Read died April 23d, 1882. By his will, duly executed, and bearing date January 12th, 1881, the testator, after devising a farm to his son Thomas, among other things, provided as follows: “ I give and bequeath to my beloved wife, Cornelia, all the interest and profits arising from the residue of all my personal or real estate of whatsoever kind, and wheresoever found, for her own personal use and benefit, or as much thereof as she may require or…

Hillsborough Insurance Co., 15 Stew. Eq. 459; and also from a decree advised by Vice-Chancellor Bird, on a demurrer to the amended bill, who filed the following conclusions: The history of this case, in detail, appears in the opinion of Chancellor Runyon, filed February 17th, 1887 (15 Stew. Eq. 459), with the exception of one allegation, which has since been made by an amended bill.

When the contract was made $5 were paid in cash, and a receipt given therefor in writing, showing that it was for the purchase of a certain lot. The vendor resists the specific performance on the ground of uncertainty of description. But the bill describes the lot by metes and bounds, and otherwise fixes its location with great certainty, and the answer says that that is the lot which the defendant actually agreed to sell. That seems to be certain enough.

Farrington, 13 Stew. Fq. 353. Under the plea there held to be sufficient, the cause has been heard by me. Has the plea been sustained? The plea sets up an accounting and a settlement; are these allegations true? The defendant says he had taken an account of stock and shown the result to Harrison. He also says that he had a settlement of the interest of the deceased co-partner with Harrison, the administrator, in August, 1876.

P. Armstrong. The first step in the transaction was the sale by Armstrong of the right of way to James Roe and William H. Bell — the title being conveyed by him to the Sussex Railroad Company, and the deed delivered to Bell. There is no evidence that shows any authority from the company for this. I am unable to perceive any legal method by which the company can be bound.

<p>A vendor of an engine, boiler and machinery, knowing that they were to be annexed to real estate, took a chattel mortgage upon them for a part of the price, but failed to register it. The mortgagor of the chattels afterwards annexed them to real estate upon which he had already given a mortgage.— Held, that the lien of the chattel mortgagee should be protected, so far as it would not diminish the security which the real estate mortgagee would have had if the annexation had not been made.</p>

<p>On appeal from order denying motion to dissolve injunction, made by the Chancellor.</p>

The proof satisfies my mind that Mrs. Osborn has been guilty of adultery with one Stratton. Stratton was a married man ; he had a wife and two children, and not very long after his intimacy with Mrs. Osborn began, he abandoned them. Very soon after his acquaintance with Mrs. Osborn there was very great familiarity between them. They would take Mr. Osborn’s horse and carriage and ride out together.

<p>On appeal from a decree of the Chancellor (Runyon), whose opinion is reported in Kerr v. Little, 15 Stew. Eq. 528.</p>

This action was for the reformation of two deeds, one from complainant Jacob Vreeland, trustee, to the Equitable Land Company, and the other from the land company to John A. Fowler.

Three mortgages on lands in the township of Readington were given to the Chancellor for moneys, the interest of which was. payable annually to the appellant during her life, in lieu of her dower in those lands, which, under the Chancellor’s order, had been sold free from the lien of her dower.

The bond and mortgage were given to the complainant on the 12th of January, 1874, the bond - by Borden and the mortgage by him and his wife upon real estate of his in Shrewsbury township, in Monmouth county. The instruments were given to secure the payment of $2,700 then lent by the complainant to Borden, in one year, with interest at the rate of seven per cent, per annum.

<p>On appeal from a decree advised by Vice-Chancellor' Bird, whose opinion is reported in Reeve v. Beekman, 15 Stew. Eq. 613.</p>

<p>1. Where a power of sale, given by a will to executors, of necessity implies a trust, confidence or reliance in the individuals who are named as the executors, such power cannot be exercised by another than those individuals; but where the power is given to an executor raiione officii, it may be exercised by any one who may succeed to the office.</p> <p>2. Where a testator, with the design of providing a fund for the payment of his debts and preserving a portion of his personal property from sale, authorizes his executors to sell his real estate, and adds to the authority the words “for such price as in their judgment shall be right,” those words will be held not to impose such a special trust and reliance in the individuals named as executors as to preclude the exercise of the power by the administrator de bonis non cum testamento annexo.</p>

<p>1. Where a testator, by his will, directs that certain debts, for which the testator is secondarily responsible, and which are secured by mortgage upon lands of the original debtor, shall be paid, and that the mortgages shall be charged to a specified share in the distribution of his estate, the executors will not be allowed credit for the payment of those debts until they secure assignments of the mortgages, and are in position to charge themselves with those mortgages for the purposes of distribution.</p> <p>2. Where allowance is asked for the payment of a judgment, and exceptants desire to object to the allowance because the judgment was fraudulently and collusively suffered to be procured by the accountants, their exception should specify facts from which fraud or collusion may be inferred.</p> <p>3. If executors, in bad faith, allow a judgment to be recovered against the estate they represent, for the purpose of unduly charging it, they will not be allowed credit for the payment of the judgment in their account.</p> <p>4. Executors are entitled to the advice and services of counsel and attorneys, in matters where it is necessary to invoke their professional skill, and to reasonable payments as compensation therefor, but they will not be allowed such payments for work that does not require that skill, and which they might themselves do. If, without prudent scrutiny, executors pay extravagant bills for legal services, they will not be allowed, upon their accounting, more than would have been reasonable compensation for those services.</p>

<p>A testator appointed three persons, A, B and C, as executors of his will, -and devised his estate to them in trust. He then made the following provisions : “ In case my son, D, shall, at the time of my decease, be of the full age of twenty-one years, and all the persons herein appointed be living, I do hereby nominate and appoint my said son executor in the place and stead of C; but in case of the death of either of the said three named executors at the time of my decease, I nominate and appoint my said son executor in the place and stead of the one then deceased. In case of the death of either of the said execntors after my decease, the two surviving may nominate and appoint another, who, with those surviving, shall be the executors. * * * The consent of two of my executors shall authorize any sale or investment. * * * No sale or investment shall be made without the concurrence and action of at least two of my executors.” The executor B died before the testator, and at the death of the testator the son, D, was not twenty-one years of age. — Held, that the testator did not intend that' his son should become an executor, unless he should be twenty-one years of age at the father’s death.</p>

<p>On bill for instructions to trustees.</p>

<p>Creditor’s bill. Heard on bill, answers, cross-bill and proofs.</p>

<p>1. It is not requisite to a decree for divorce that there shall be direct proof •of adultery.</p> <p>2. The burden of proof is upon him who asserts the adultery.</p> <p>3. To establish adultery by inference, the circumstances from which the inference is drawn must be such as would'lead the guarded discretion of a reasonable and just man to the conclusion of guilt.</p> <p>4. If the circumstances in proof, taken singly and together, admit of two interpretations, that which favors innocence should be adopted.</p>

<p>1. Executors, who were charged with the investment of $400 for A during his minority, and with the investment of $5,000 for the testator’s widow for her life, and the distribution of that $5,000 at-her death, and with the investment of other moneys for the life of a daughter of the testator, combined all those moneys in a single investment, and ultimately suffered one of their number to convert the entire fund to his own use. — Held, that, to a suit for an accounting and distribution, upon the death of the widow, A is a necessary .party.</p> <p>2. To a suit in which the ascertainment and disposition of the residue of an estate is sought, all persons interested in such residue must he made parlies.</p> <p>3. If a trustee, or person standing in a similar capacity, sell a trust estate and himself become the purchaser, the cesluis que truslent are entitled, as of right, to have the property resold, or, at their election, to acquiesce in the sale, and hold the trustee responsible for the proceeds ; and this, though the sale to the trustee may have been had at public action, in good faith, and for a fair price.</p> <p>4. If a trustee use trust funds in the purchase of property for himself, it is a violation of his duty as trustee, and the profits of such purchase or business must enure to the benefit of the cestuis que trustent, though any loss must fall exclusively upon the trustee.</p>

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

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

<p>•On final hearing on bill and answer and proofs taken orally.</p>

<p>On motion to dismiss bill, on notice under ¶ 224 of the Rules.</p>

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

<p>1. A court of equity may remove a trustee, but not an executor. It may, however, restrain an executor from acting, and even take the estate out of his hands and place it in the custody of a receiver.</p> <p>2. The objection of multifariousness merely raises a question of convenience in conducting the suit, but does not go to the merits of the complainant’s case.</p> <p>3. A bill is multifarious when a party is able to say that he is brought as a defendant upon a record with a large part of which, and of the case made by which, he has no concern whatever, but multifariousness does not exist in a case where it appears that the complainants have a common interest, and the defendants are interested in all the different questions raised on the record, and the suit has a common object.</p>

<p>On hearing on demurrer.</p>

<p>1. A license under the Wharf act of 1851 confers no right on the licensee, unless he is the owner of upland abutting on tide-water. His license is conditional, dependent on his having title to a ripa lying behind the public domain covered by his license.</p> <p>2. A person acquiring land abutting on a navigable stream takes title only to the high-water line, and that line is limited by the outflow of the medium high tide between the spring and neap tides. All below that line belongs to the State. But, in virtue of a local custom, now having the force of established law, the adjacency of the land of such an owner to the stream, invests him with a license to fill in and dock out on the public domain in front of his land, to such an extent as does not interfere with public rights, and this license, when executed, becomes irrevocable.</p> <p>3. Under a deed granting only a qualified fee, the grantee has, while his estate continues, the same right to the exclusive possession and enjoyment of the land granted, and as complete dominion over it, for all purposes, as though he held it in fee simple absolute.</p> <p>4. Where the State invests a corporation with the prerogative of eminent domain, for the purpose of enabling them to construct and operate a public highway, and they take land, by force of their charter, for the purposes of such highway, the grant to them should be construed, not as investing them with capacity to take a fee, but as merely giving them power to acquire such an easement in the land taken as will enable them fully to accomplish the purposes for which they were created.</p> <p>5. Such grants, like all public grants, are to be strictly construed. What is not plainly given is to be understood as withheld.</p> <p>6. In cases where the Morris Canal and Banking Company have, by force of their charter, and not by grant, taken land for a part of their right of way, there they have simply acquired such an easement in the land-as it was necessary for them to have to fully accomplish the purposes of their creation, leaving the fee in the owner of the land, with good right on his part to make any use of the land which will not prevent the canal company from having the full enjoyment of their easement.</p> <p>7. The acquisition by a railroad or canal company of an easement for a right of way over the land of a riparian owner, along or on the shore of his land, does not, according to general principles of law, deprive such owner of his right or equity to preserve or improve the connection of his land with the adjacent tide-water.</p>

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

<p>A court of equity will grant leave to amend a bill, at almost any time, when the amendment is necessary in order that the real matter in controversy may be fairly tried and justly decided.</p>

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

<p>1. In a suit for divorce for adultery, the time when, and the place where, and the person, if known, with whom the offence was committed, must be stated in the pleading, but in laying the time, it will be sufficient if the month and year are given, without specifying the particular day.</p> <p>2. The complainant is not required to prove that the adultery was committed at the precise time alleged in the bill, but it must be proved to have been committed so near that time, that the variance between the allegation and proof shall not operate to the defendant’s prejudice.</p> <p>3. The evidence of the defendant and his alleged paramour, in denial of the adultery charged, while not entitled to the weight which would be given to the evidence of a fair and disinterested witness, is nevertheless competent, and in a case of doubt, will be sufficient to defeat the complainant’s claim to a divorce.</p> <p>4. The evidence of a single witness, uncorroborated and unsupported, and improbable in its details, is not sufficient to establish a charge of adultery, against the evidence of the defendant and his alleged paramour, fully and explicitly denying the truth of the charge.</p>

<p>1. A complainant, suing in his own right, and_ alone, cannot, after he has-parted with his whole interest in the subject-matter of the litigation, further-prosecute the action.</p> <p>2. Where a defendant files a plea which goes to the whole equity of the bill, and a motion is afterwards made in the cause which confesses the truth of the-plea, the court may deal with the cause as though an order had been made-allowing the plea.</p> <p>3. The allowance of a plea, which either constitutes a full defence to the-complainant’s whole case, or deprives him of all power to further prosecute his action, will, if he holds an injunction, entitle the defendant to its dissolution, but a motion for that purpose must be made.</p> <p>4. The difference between an original bill in the nature of a bill of revivor, and an original bill in the nature of a supplemental bill, is this: Under an original bill in the nature of a bill of revivor, the defendant is absolutely bound by the former proceedings in the cause, but under an original bill in the nature of a supplemental bill, he has a right to avail himself of any new equity ordefence which has arisen since the original bill was filed, or which he may have a right to urge against the new party coming into the litigation, but which did not exist against the original complainant.</p> <p>5. Where a sole complainant, suing in his own right, transfers his whole interest in the subject-matter of the litigation, the complainant, being no longer able to prosecute the suit for want of interest, and his assignee claiming by a title which may be litigated, the benefit of the former proceedings cannot be obtained by a mere supplemental bill, but must be sought by an original bill in the nature of a supplemental bill.</p>

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

<p>On bill for partition, on final hearing on pleadings and proofs.</p>

<p>1. An answer cannot be stricken out, on motion, on the ground that it admits all the equity claimed in the bill.</p> <p>2. No presumption arises in favor of the defendant that an execution is satisfied, from the fact that the plaintiff therein levied on sufficient chattels of the defendant to realize the amount of his claim, if it further appears that those ■chattels were afterwards surrendered to the defendant by plaintiff’s direction.</p> <p>3. A debtor may mortgage all his chattels to secure his creditor, and he ■cannot claim, upon the enforcement of the mortgage, the same exemption that a defendant in execution is entitled to under the statute.</p>

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

<p>1. As this case is presented, under the amended answer, it appears that both Leeds and Penrose ax-e guilty of laches, or if the one was too slow in commencing suit, the other was too aggressive in making the improvements for which he claims compensation, after the notice which he had. The complainants are entitled to a conveyance of the lands as prayed for, and Penrose is entitled to’ be reimbursed to the extent that the expenditures made by him resulted in permanent impx-ovements. The improvements consist in changing very low, wet land into building lots, the value of which has been fixed by the testimony offered by Penrose. The complainants can reimburse by paying him the amount found to be due for such impi'ovements, either in cash or by releasing to him the lots named.</p> <p>2. Query: Can one in such case make very radical changes, and justly claim, compensation for them as against the true owner ?</p>

<p>On bill, answer and proofs.</p>

<p>1. The testator gave to his wife the interest, dividends and income arising from the sum of $50,000, and then added: “ After the death of my said wife, the said principal fund of $50,000, and the securities and properties which may constitute the same, shall form and be a part of my estate for distribution and-disposal as hereinafter provided.” He gave to a daughter the interest arising from the “one-third part of the residue of all my [his] estate, real and personal,” and in a similar manner gave the interest of the other two-thirds of the said residue, and finally disposed of all the principal out of which the interest for his said daughter and the other two legatees for life were to receive their interest. — Held, that the $50,000 was included in the residue, and was effectually disposed of.</p> <p>2. The testator gave the interest of said one-third to his daughter, as above mentioned, for her lifetime, and after her death to her child, or to her children, so long as they should severally live; and at their death he gave the principal to the next of kin of said deceased child, in every case, in such share and manner as if said child was the absolute owner and should die intestate. At the death of the testator, his daughter had one child living. — Held, that the gift to the child, or children (should others be born), was valid, but that the gift to her grandchildren was void, being too remote.</p> <p>3. A legacy in payment of a debt, or to a minor child, or to a child in loco parentis, or an annuity, or to th-e residuary legatee, where the interest is payable to him for life and the principal goes over, or where there is some special equity in the case, o>r where by following the general rule injustice would be done, bears interest from the death of the testator.</p> <p>4. In this case, the widow was permitted, by the will, to select securities to the amount of the principal sum, the interest of which she was given. — Held, that so far as she made such selection, she was entitled to all the interest accruing thereon from the death of the testator, and that so far as she made no selection, her legacy fell under the general rule as to interest.</p>

<p>Ou appeal from a decree of the orphans court of Middlesex county.</p> <p>Samuel L. Pyatt died intestate, on January 11th, 1868, leaving his widow, Mary N. Pyatt, and his daughter, Mary E. Pyatt, and three other children, him surviving. He died seized of the farm, upon which he had lived with his wife and children, and possessed of some personal estate. Letters of administration, upon his estate, were granted to his widow and her father, Samuel D. Kelly.</p> <p>Ou August 18th, 1874, the widow was appointed the guardian of her daughter, Mary E. Pyatt, by the orphans court of Middlesex county. On October 5th, 1876, the daughter became of age, and on April 7th, 1887, she petitioned the orphans court of Middlesex county to cite her guardian to account. Later in the same month, the guardian filed an account in obedience to the citation, whereby she charged herself with $537.32, and prayed allowance for $2,093.23. Among the items, for which allowance was asked, was a charge of $1,872, for the board and maintenance of the ward, from Jauuary 1st, 1875, to December 31st, 1886, at the rate of $3 per week, and also charges, for “counsel fee and making account,” commissions as guardian, court and' surrogate’s fees on'the accounting, and the costs of the citation to-account and the proceedings thereon, amounting in all to the-sum of $68.</p> <p>The guardian, in disregard of her duty under the statute, had never before accounted. After her husband’s death, she and her children continued to make the farm their home and to reside together, as one family. The widow’s dower was not assigned toiler, and the children did not ask for a division of the property. The mother controlled the management of the farm and of all-money matters, and, in all things, was the head of the household. The daughter, Mary, who is the appellant in this matter, lived in-the family as a member of it until about January 1st, 1887.</p> <p>To the account rendered, the appellant filed exceptions, by which she objected to the charge for her board and maintenance and, as well, to the allowances asked for costs, commissions,, counsel fee &c.</p>

<p>1. Where a claim is presented to an assignee for the benefit of creditors, which, for its sufficiency, depends upon the validity of a mortgage of property of ihe assignor as against his creditors, and exceptions to it are filed, which properly aver the mortgage to be void, as against those creditors, for fraud, the orphans court is the proper tribunal to hear the proofs and allegations of t'he parties and determine the question of fraud.</p> <p>2. Such an assignee is regarded as the representative of the creditors, and, as such, may, for the benefit of creditors, set aside conveyances by the assignor in fraud of them, to the extent that property is needed for the payment of debts.</p> <p>3. Where a mortgage is made with intent to defraud creditors, and the circumstances are such as should awaken the suspicion of the mortgagee and put him upon inquiry as to the intent with which the mortgage is made, he will be charged with notice of that intent.</p> <p>4. Where a mortgage was executed for the purpose of defrauding the mortgagor’s creditors, and was taken by a mortgagee-with knowledge of that purpose, and to aid its execution, it is void as to those creditors, even though it be founded on a perfect consideration.</p>

<p>On appeal from a decree of the orphans court of Middlesex county.</p>

<p>1. The defrauded party to a contract has but one election to rescind, which he must exercise with reasonable promptitude after the discovery of the fraud ; and when he once elects he must abide by his decision.</p> <p>2. Delay in the rescission of the contract, payments in pursuance of it, and continued dealing with it and with reference to the fraudulent transaction, after discovery of the fraud, may be shown as evidence of an election to treat a fraudulent contract as valid.</p> <p>3. Where, after knowledge of fraud in the sale of a skating rink, the purchasers, without complaint of the fraud which had been practiced upon them, paid portions of the purchase-money and repeatedly promised to pay the remainder of it, dealt with the rink as their property, made changes in it and in the method of conducting its business, advertised it for sale, and negotiated for the disposition of it, they were held to have elected to abide by their contract.</p>

<p>On appeal from a decree of Chancellor Runyon, whose opinion is reported in Hurlbut v. Hatton, 15 Stew. Eq. 15.</p>

<p>A will contained this clause: “ The residue of my estate to be kept in reserve for further consideration in the way of charitable purposes, in a liberal way, not to any particular creed or sect of religion.” — Held, first, that the clause did not contain a gift of the fund, but reserved it for the further consideration of the testatrix herself. Second, that if the fund was given the gift was void, as no beneficiary was indicated, nor any person appointed to select such beneficiary.</p>

Gummere, Esq., Advisory Master, who filed the following conclusions : The bill in this cause is filed for a strict foreclosure of mortgaged premises, under the following… Held: in order that he might be protected in the event of his father’s death; and that he and his father subsequently went to the office of J. Newton Voorhees, an attorney-at-law, of Elemington, and that there a written statement of the arrangement between them was drawn up and executed by them.

His son Isaac was made administrator, and soon afterwards sold all the goods and chattels. In the month of November, 1883, the said children, excepting only Jacob X., agreed to sell all said farm, and did sell to one of their own number, Abram. After this sale, but on the same day, as the testimony stands, Isaac, the administrator, discovered three releases, which are the cause of this controversy.

Hans C. Birkholm, a resident of Middlesex county, died August 3d, 1856, seized of a farm in the township of South Amboy, containing one hundred and thirty-three acres, lying on both sides of the road. He left a widow and one child, William H. Birkholm, then about two months old. Hannah A. Birkholm, the widow, a few years after the death of Birkholm, married Charles H. Wardell.

<p>An inquisition in the nature of a writ de lunático inquirendo must show that ^le imbecility of mind is such as to render the imbecile unfit for the govern-of himself, as well as of his property. A return that the imbecile is an idiot, or a lunatic, or non compos mentis, or of unsound mind, will be regarded as sufficiently showing this fact, because these terms are technically used to express a deprivation of sense to that degree; but a return, that the party “ is not a lunatic, but that her mind is impaired by age and other causes, and that (or, so that) she is not capable of managing her own . affairs ” is insufficient, and should be quashed.</p>

<p>A contract between the Bell Telephone Company of New York and the Domestic Telegraph and Telephone Company of Newark, New Jersey, stipulated that, at its termination, the Domestic company should have the first right to a new contract respecting the same matter, upon terms to be fixed by the Bell company. Three trustees (directors) of the Bell company, members of its executive committee, which committee had, by resolution of the board of trustees, been given entire charge of the conduct of its business, made a proposition to a committee of the Domestic company for such a new contract upon terms either specified or capable of being made certain, and upon condition that the Domestic company should buy the plant of a competing company which it was the interest of the Bell company to have purchased. Shortly after the proposition was made, the Bell company entered into an agreement providing for the creation of the Metropolitan Telephone and Telegraph Company, which was to succeed the Bell company, and it thereby became the interest of that company to have said plant purchased. The executive committee of the Bell company consisted of four persons. The meeting of the committee at which the proposition was made was a special one, and no notice thereof was given to the absent member, and one of the members present was a director and stockholder in the Domestic company. — Held, (1) That whether or not the •executive committee of the Bell company had acquired authority to bind that ■company by such a proposition, the committee was not then so constituted as to be capable of exercising any authority, because (1) no notice of the meeting ■had been given to the absent member, and because (2) one of the members present was incapacitated-from acting by reason of his interest in the Domestic company, and so no quorum was present. Afterward the Domestic company accepted the proposition, and performed the condition by purchasing the plant i-n question for the price of S>11,500. The purchase was made from the Metropolitan company, and the check of the Domestic company for the price was given to the Metropolitan company. The amount (except some rebate) has been retained. — Held, (2) Although the executive committee of the Beil •company was not so constituted as to bind the company by making such a proposition, if authority to that effect had been conferred on the committee, yet the facts show a ratification and validation of the proposition and a resulting contract which should be ordered to be performed, and the Metropolitan •company is estopped from denying the existence of the contract or its liability thereon.</p>

<p>Cash to pay off a mortgage was left by the mortgagor in the hands of B. In collecting this sum, the mortgagee accepted B.’s note in lieu of a part of the cash, and purposely concealed this fact from the mortgagor for a period of ten years. — JSeld, that the conduct of the mortgagee was a continuing admission to his mortgagor that he had received the cash on his mortgage, and that he is estopped from asserting rights inconsistent with such admission.</p>

<p>'The obtaining of a decree of foreclosure on a mortgage fixes the amount •of the debt, and, as the decree draws but six per cent, interest, if the mortgagor, for several years thereafter, by mistake, pays seven per cent, (the legal rate when the bond was given, and for which it was drawn), he is entitled to have the one per cent, excess credited on the decree.</p>