Volume 49 — New Jersey Equity Reports

<p>1. In a hearing upon bill and answer, the facts well pleaded in the answer will he tahen as true, whether they be responsivo to the averments of the bill or not.</p> <p>2. The charter of the city of Paterson, as revised in 1861, did not expressly provide that taxes on lands within the city limits should be a lien thereon paramount to other encumbrances, yet the provisions of that charter, that such lands should be assessed for taxes'to the owner thereof at their full value, that the assessment should he valid notwithstanding any error or omission in naming the owner, and that the mortgagee, tenant, or any person having a legal or equitable interest in the premises, might redeem the same when sold for non-payment of taxes, impliedly gave taxes such paramount lien.</p> <p>3. In the exercise of its sovereign power of taxation, the state may displace prior encumbrances, although such displacement maybe prejudicial to individual right.</p> <p>4. A sale of land for non-payment of taxes after the expiration of the lien of the taxes upon such land is ultra vires and void.</p> <p>5. Under'the charter of the city of Paterson of 1871, unpaid taxes remain a lien upon lands, on account of which they are assessed, for at least five years from the time when they were payable.</p> <p>6. Under the statute of April 2d, 1869 (Rev. p. 1045 \ 15), in an action in which a tax title is in issue, the proper municipal officer’s deed, executed with due formalities and purporting, generally, to be made pursuant to authority of law, is conclusive evidence of the title it purports to convey, and, since that statute has been in force, an answer setting up a title under such a deed need not aver the performance of acts which are essential prerequisites to the lawful exercise of the power of sale. It need only show that such a deed has been made and delivered.</p>

<p>On order to show cause why injunction shall not issue.</p>

<p>1. The owner of a mortgage, by an unrecorded assignment, is bound by proceedings in foreclosure of a prior mortgage in this court, to which his assignor was made a party defendant by reason of his apparent ownership of the mortgage, so far as the mortgaged premises are concerned, although he was not a party to such proceedings.</p> <p>2. Although the decree in such foreclosure proceedings may have been founded upon misconception of fact, it cannot be challenged collaterally. It must be attacked, if at all, by direct application to the court that made it, or in due course of appellate procedure.</p>

<p>On order to show cause why injunction shall not issue. Heard, upon bill, answer, affidavits and exhibits.</p>

'On bill for partition, answer and agreed state of facts. John N. Lippincott, of the township of Little Egg Harbor, in Burlington county, died in September, 1844, seized of a house and lot.

<p>A receiver of an insolvent corporation of tliis state, appointed by this court,, compromised with the creditors of the corporation by paying them fifty per cent, in full of their claims. Among the creditors was one Lee, of New York state, who assigned, for the benefit of his creditors in New York, to one Rutan-The assignment created preferences. W., a creditor of Lee, resident in this-state, obtained an order of this court permitting him to attach the rights and credits of Lee in the hands of the receiver, and afterwards made attempts to-obtain garnishment. Before he effected his purpose the receiver negotiated for a compromise of Lee’s claim with Rutan, the assignee. W. had notice of this negotiation, and did not object to it. After the compromise agreement was completed W. secured garnishment, and then applied to this court to restrain the payment of the compromise money to Rutan, it being sufficient in amount to satisfy his claim, and as well the claims of creditors applying under his attachment. The relief he asked was first denied by this court, and then was denied by the court of appeals, upon the ground that the attachment bound the funds in the hands of the receiver. Pending the appeals the receiver paid the money to Rutan, who took it to New York and distributed it according to the requirements of Lee’s assignment. W. pushed his attachment in this state to judgment, prosecuted his suit to restrain the receiver’s payment to Rutan, and, at the same time, presented his claim to Rutan and received a dividend upon it in part, at least, from the moneys which Rutan had from the receiver. The receiver now seek to enjoin him from enforcing his judgment.in attachment. — Meld, (1) That the assignment was void as to creditors of Lee resident in this state. (2) The receiver’s agreement with Rutan was one of compromise with respect to Lee’s estate, and will not be regarded in equity as a novation. (3) The money agreed to be paid in the compromise stood as Lee’s money, subject to the attachment. (4) The silence of W. during the receiver’s negotiation with Rutan, in view of the fact that he had the unrevoked permission of this court to attach Lee’s moneys in the hands of the receiver, did not prejudice him further than to limit his right in recovery to the amount agreed to be paid in the compromise. (5) By accepting a dividend from the moneys paid by the receiver to Rutan, W. did not acquiesce in that payment or elect to recognize the assignment as valid in this state.</p>

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

<p>1. Until dower is assigned, the right of a widow in the land of her husband is a mere chose in action.</p> <p>2. At law, if the demandant in an action of dower dies before judgment-of seizin is executed, her right to an estate in dower is determined; if before the damages are assessed, her right to damages is gone.</p> <p>3. A somewhat different rule prevails in equity. There, if the widow dies pending a bill for dower, her death does not deprive her personal representative of the arrears of dower, but he may revive the suit and recover mesne profits. But if no suit be pending in equity when the widow dies, her right to damages dies with her, and, in that case, her personal representative cannot recover mesne profits.</p>

<p>1. A defendant in a judgment at law, who has a defence which he might', have made successfully at law had he had an opportunity to set it up, but who-was prevented from doing so by accident, unmixed with negligence or fraud on his part, may still have the benefit of his defence by suit in equity.</p> <p>2. Accident is an unforeseen and unexpected event, occurring external to the party affected by it, and of which his own agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right, or becomes subjected to some legal liability, and another person acquires a corresponding legal right which it would be a violation of good conscience for the' latter person, under the circumstances, to retain.</p> <p>3. Where a plaintiff in attachment recovers a judgment against the defendant, by concealing the invalidity of the claim on which his attachment is-founded, a court of equity will, in case ivlief cannot be had at law, interpose to protect the defendant against the judgment.</p> <p>4. Ho one but a creditor of a non-resident or absconding debtor has a right to sue out an attachment, and it is essential to the exercise of his right that the plaintiff shall have a valid cause of action against the defendant.</p> <p>5. Where the conduct of a plaintiff in attachment clearly shows that his object in suing by attachment was to obtain a judgment on a disputed claim, without the defendant having an opportunity of being heard in his defence, and it is also clearly shown that the judgment is not supported by a valid cause of action, the defendant will be entitled to relief in equity against the judgment.</p> <p>6. An auditor in attachment should not make a report in favor of a claim-which will not support an action at law. His functions are precisely like-those of a jury, and he must decide every question submitted to him according to law and the evidente.</p>

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

On application for an injunction. Heard on bill and affidavits •on the part of the complainant, and affidavits on the part of the defendant.

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

<p>On hearing on petition, notice and affidavits.</p>

<p>1. When a legacy is given to a creditor of the testatrix equal to or exceeding the amount of the debt, the presumption is that it was intended to be a. discharge of the debt; but slight circumstances, such as a direction to pay debts, or any inequality between the gift and the debt, or imposition of any condition unfavorable to the creditor, or any want of similitude between the-gift and the debt, will be laid hold of to overcome the presumption.</p> <p>2. The gift of goods and chattels of uncertain value will not be regarded as having been intended to satisfy the debt.</p> <p>3. Nor will the devise of land be presumed to have been made in discharge-of a bond secured by a mortgage on lands devised-.</p>

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

<p>1. Where lands are devised to trustees with directions to apply the rents- and profits to the support of the testator’s widow and children, and with the further direction to sell the same at the expiration of ten years after his death, and to divide the proceeds amongst his children and his widow, but in case of the remarriage of his widow, then to pay her a certain sum in cash in lieu of' her equal interest, the legatees take a vested interest.</p> <p>2. In such case the legatees may elect to take the lands in lieu of the proceeds of the sale, and filing their bill asking for-a sale of the lands and the-determination of the trust is such an election.</p> <p>3. Being thus entitled, and all being sui juris, they may ask the aid of the-court to declare the trust determined and for a sale of the lands before the-expiration of the ten years.</p>

On bill for direction &c. Heard on pleadings and proofs. The complainants are the executrix and executors of the will of Lydia H. Leeds, deceased, and the complainant Mary A. H. Cox is the residuary legatee named in that will. Lydia H. Leeds was the surviving executrix of the will of her husband, John Leeds, who died in March, 1866.

Heard on bill and answer. The complainants and the defendant Boyd each claim the title to a silk mill plant in the city of Paterson, by virtue of chattel mortgages executed to each of them, respectively, by the defend.ant Lindsay, who was at their date the owner and in possession of the mortgaged chattels.

<p>A father made his promissory note for §1,000 in favor of his daughter A, •closing with these words, “ Witness my hand and seal,” signed it, caused it to be witnessed by a neighbor, but did not, so far as appeared, place upon it any seal or scroll, or device in place of a seal, and delivered it in escrow for his •said daughter. He made similar provisions-for four other daughters, which latter were recognized by his executors, and paid or satisfied. The daughter A survived her father, and, having died intestate, her husband, as administrator, demanded the amount due upon the note. — Held, that the consideration •of love, affection and parental duty was sufficient to authorize a court of equity ito supply the seal and enforce the note against the executors of the maker.</p>

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

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

<p>1. An instrument defective as a deed will be enforced as a contract only in cases in which a valuable consideration has passed between the parties.</p> <p>2. The ground on which equity interferes in favor of a person who has gone into possession of real estate under a voluntary written contract or parol promise, and has made improvements, is to prevent a fraud being practiced upon him.</p> <p>3. The expenditure of money to make such a promise enforceable must be made by the promisor, on the faith of the promise, with the knowledge of the promisor.</p> <p>4. The doctrine will not be applied in favor of one who has improved property with notice of a defect in his title, nor against his tenant in common, when partition can be made which will give him his share with his improvements on it.</p>

On bill and answers. This bill is filed by the complainant on behalf of himself, a stockholder in the Chicago Junction Railways and Union Stockyards Company, and all other stockholders therein who shall come in and contribute to the expenses of this suit, to enjoin the parties thereto from carrying into effect a certain agreement made by the directors of the said company, dated July 27th, 1891, with the defendants, Armour & Company, Nelson Morris & Company and Swift &…

<p>1. When a fund is held in trust for the benefit of ohe person for life and •another in remainder, and part of that fund is lost; because of the' insecurity •of a particular investment, such loss is to be apportioned between the life-tenant and remainderman in the proportion which the principal sum involved ■in the insufficient security bears to the interest due upon it at the time when the security is realized upon and the amount of the loss is determined, and when the loss is not ascertained until after the death of the life-tenant, the interest upon the principal sum involved, from the death of the life-tenant to the date of the ascertainment of the loss, is to be added to and form part of ■such principal sum.</p> <p>2. In suoli case, taxes assessed against the security, while it is held pending: realization upon it, must be charged against and paid out of the amount apportioned to the life-tenant.</p>

Anthony Straub was a resident of this state. He died at Elizabeth, in Union county, on the 7th of November, 1889, leaving a will. On the 18th of the same month, no caveat having been filed, his will was proved before the surrogate without notice to the next of kin.

The present controversy arises upon the petition of Job Male,. George W. Fenno and John W. Harrison, for probate of an. alleged nuncupative will of Job Male, deceased, in which they were named as executors. Upon presentation of the petition,, citations were issued to the next of kin and heirs at law, two of whom had theretofore filed caveats against the admission to probate of anything purporting to be a. will of the decedent, named.

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Springer v. Lawrence, 2 Dick. Ch. Rep. 461.</p>

<p>1. The stipulation to pay an allowance to the wife contained in articles of separation will be enforced in equity.</p> <p>2. No consideration extraneous of the stipulation and the execution of the agreement of the wife to live separate is necessary.</p> <p>' 3. The stipulation to live apart will not be decreed to be specifically performed.</p> <p>4. In order to give affirmative relief to a defendant, there must be a cross-bill, or an answer in the nature of one.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Ocean Beach Association v. Yard, 3 Dick. Ch. Rep. 72.</p>

<p>1. If a railroad company is enjoined to abate a nuisance, the court of chan•cery will not entertain the excuse that its agents and servants have disobeyed the «-instructions given them to remove it. The company must obey the order -of the court even if it has to discontinue the running of trains upon its road. Until the injunction is modified or removed, the company must conform to it.</p> <p>2. If the employe of the company exercises the authority with which he is -clothed by the company, in good faith, with an intention and purpose to the best of his ability to enforce obedience to the order of the court, he will not "be in contempt.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Vreeland v. Vreeland, 3 Dick. Ch. Rep. 56.</p>

<p>In the absence of ambiguity in a written agreement which is complete, oral evidence cannot be introduced to explain or vary it. If, through mistake, an agreement in writing does not express the contract which the parties intended to make, the remedy is in equity to reform it, but until it is so reformed it is unassailable by parol testimony.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Ruckelshaus v. Oehme, 3 Dick. Ch. Rep. 436.</p>

<p>On appeal from a decree of the' ordinary, whose opinion is reported in 1 Dick. Ch. Rep. 515.</p>

Wyckoff, deceased, and for a decree charging the lands, of which he died seized, with the payment of an annuity to his widow, the respondent, bequeathed to her by his will.

<p>A person occupying a confidential relation to another in respect to certain lands, procured a conveyance of such lands to himself by deception and for an inadequate consideration, and then conveyed them, through a third person, to his wife. — Held that, under the circumstances, the wife’s claim to be a bona fide purchaser for valuable consideration was negatived.</p>

<p>On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in 2 Dick. Ch. Rep. 215.</p>

<p>On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in 3 Dick. Ch. Rep. 532.</p>

<p>1. The effect of a notice, under the third section of the Mechanics Lien law (Rev. p. 668), is to work an assignment pro tanto of that which is due or to become due from the owner to the contractor, from the time of the service of the notice.</p> <p>2. If the payment to be given to the contractor for the building is land,, such notice will fix a right in the workman or materialman who gives the-notice to be paid from such land, which equity will enforce.</p> <p>3. The recovery of judgment against the contractor for the amount demanded will not destroy the right acquired by the notice.</p>

<p>1. Where an officer, who conducts a public sale, pursuant to an order of the-chancellor, in the intelligent and bona fide exercise of his discretion, refuses an adjournment, his action will not constitute a reason why the sale shall not be-confirmed.</p> <p>2. Mere inadequacy in the price bid at a fairly and regularly conducted sale-of the character above indicated, will- not justify refusal to confirm the sale.</p> <p>3. A bidder, at such a sale, will not be deprived of the advantage of his bid because other persons offer to bid, upon a.resale, twenty-one per cent, more for the property.</p>

Specific performance will not be decreed where the title, which the complainant has agreed to convey, depends for its validity upon information which is not fully presented to the court, and upon the doubtful construction of the limitations of- a deed and the terms of a statute, each of which is not only peculiar, but is also inartificially drawn. On bill for specific performance, answer, replication and proofs.

<p>1. Where a will imperatively required the executors thereof to sell real estate in fee after a short time, and during that time to control the property by leasing it, collecting the rents, paying the taxes, insurance and repairs,' and incidental expenses in its management, and made no other disposition of the property — .22eld, that the fee went to the executors in trust for the purposes aforesaid.</p> <p>2. Where a testator imperatively provided that his real estate should be sold by his executors, and that the sale should take place upon the. request or by the consent of a majority of his “said children,” he having previously named his children — Held, (a) that a majority of the whole number of children, although some are dead, must unite in the request or consent; (6) that the provision for the request or consent of the children, in view of the scheme of the will, did not confer upon them discretion to defeat a sale.</p> <p>3. If the spirit of the whole direction of the will clearly exhibits that the testator intended that his real estate should, in all events, be converted into money, then, notwithstanding discretion may have been given to his children as to the time when the sale would take place, the real estate must be considered as converted into money from the testator’s death.</p> <p>4. A testator having directed divisions of moneys among his children from time to time after his death, provided that the issue of any child “ who may hereafter decease” should “receive the share or portion” to which their pax-ent would be entitled if living — Held, (a) that the parents respectively took vested estates in each of the sums to be divided, subject to being defeated by their dyixxg before distribution or payment of the respective sums; (b) upon< the death of a parent, his or her issue take, by substitution for him or her, a vested estate; (c) the issue surviving the parent take, although they do not survive the pei-iods of distribution of the sevei'al sums; (d) they take as joint tenants and not as tenants in common.</p>

On motion to strike out part of the answer of Rebecca Roth-* stein. The bill is filed to foreclose a mortgage dáted on the 29th of July, 1890, given to secure the payment of $11,000 on the 29th of July, 1893; with interest, payable on the 29'th days of January and July in each year.

<p>Courts of equity ordinarily act in obedience and in analogy to the statute of limitations, but they will not allow the bar of that statute to prevail where it would further manifest injustice, hence it is a well-settled rule in equity that in eases of fraud the time limited within which the action must be brought will not commence to run until the discovery of the fraud, or until the complainant was in a situation where, by the exercise of reasonable diligence, he would have discovered the fraud.</p>

<p>1. A person who, for more than four years, has had the exclusive use of a machine, and has, for all that time, tested it by actual use, is in a position where he cannot be deceived by false representations a? to its capacity or efficiency, for his use of the machine has given him all the knowledge respecting its capacity and efficiency that anybody can have.</p> <p>2. A promise to make an invention or a new discovery, whereby a defective mechanical instrument shall be perfected or made more efficient, is not a fraud, though never performed.. Such a promise is.not the assertion of. a fact, but amounts to a mere expression of an opinion in relation to a matter about which there can be no such thing as certainty.</p> <p>3. A party defrauded in á bargain may, on discovering the fraud, do one of two things — he may rescind and demand back what 'he has parted with, or he may affirm the contract and sue for damages. If . he elects to rescind, he must do so as soon-as circumstances permit after the discovery of the fraud. He cannot speculate on the chances and wait until he can see whether it will he most to his advantage to rescind or abide by the contract.</p> <p>4. Equity can only help the diligent; it discourages laches and neglect.</p>

<p>1. In the absence of statutory regulation or an independent practice, this •court follows the practice of the court of chancery of England, and the rule of practice of that court is, in such a case, the law of this court.</p> <p>2. A complainant, whose suit has been stayed by order until he files security for costs, does not relieve himself from the stay, so as to put the defendant in • default for not pleading, by simply filing security, but, to place the defendant in a position where time will run against him, the complainant must, in addition to filing security, give notice that security has been filed.</p>

On application for the appointment of a receiver, heard on bill and affidavits and answer and affidavits, and the oral examination of witnesses on the part of the complainant before the court.

<p>1. Where an executor mingles trust moneys with his own, or invests them in-personal or real estate, his entire estate, either in his own hands or in the-hands of his administrators, will be liable for the payment of such funds in-preference to his own creditors.</p> <p>2. In such case, in making payment of his own indebtedness, the presumption is, that he disbursed his own moneys and retained the moneys held im trust.</p> <p>3. In ease of insolvency, the cestui que trust is entitled to be first paid.</p> <p>4. The statute of limitations will not be applied in equity to an express-trust unless it appears that the trustee has held the funds claimed, adversely, for the statutory period.</p> <p>5. The rule to bar creditors does not embrace the claims of cestuis que trust so long as trust property or money can be traced.</p> <p>6. The statutory presumption of death of a person will not arise until all reasonable doubt of his death, at a given time, is removed. As to when such person was last heard from, the testimony of those who knew him, and especially relatives or members of the same family, is entitled to much greater weight than the testimony of those who did not know him, but had-simply heard of him.</p>

<p>1. In case a husband, against whom his wife has filed a petition for divorce; upon the ground of adultery, asking for alimony and counsel fees, enters into an agreement with his wife in and by which he promises that if she will dismiss her suit and return to him and live with him as his wife he will execute- and deliver to her a deed for the house and lot in and upon which they had< been living, and she accepts his offer, dismisses her suit and returns to his 1'iome in good faith, he will be required to specifically perform such contract,, even though it be by parol.</p> <p>2. The statute of frauds was not designed to protect the wrongdoer in case-the remedy at law is wholly inadequate and there has been a partial performance of the contract.</p> <p>3. After husband and wife have been separated and they enter into contracts, which are reasonable, to become reconciled and to continue there-conjugal relations, it is not against public policy to enforce such contracts.</p>

<p>Petition by the landlord for rent.</p>

<p>A husband who, without justifiable cause, separates himself from his wife,-, and neglects to provide for her such a support and maintenance as this court shall adjudge, “that the nature of the case and the circumstances of the parties render suitable and proper,” is guilty of “ refusing and neglecting to maintain and provide for her” in the sense in which those words are used in the-twentieth section of the act concerning divorces.</p>

<p>Act March. 5th, 1850 (Pub. Laws 1850 p. 194), incorporating a cemetery company, by section 2 declared that the corporation should be composed only of persons who were or should be owners of lots in the cemetery; empowered it to purchase land owned by the corporators, and by them already laid out for a cemetery; and provided that it should hold the land for the following uses: (1) The corporators, their successors or assigns, might dispose of the lots, and take the proceeds “ to their only proper use and behoof,” and might erect such accommodations as they should deem suitable; (2) such lots should be conveyed to the purchasers in fee, to be occupied only as burial places, with use of walks &c., subject to rules of the association; (3) the care and management of the cemetery should be confided to the corporators and their successors, who should be chosen at the annual election from the lot-owners, each lot-owner to have one vote for each lot owned, with authority to employ officers and agents, and cause the grounds to be kept in good order. Annexed to and made a part of the deed conveying the land to the company were its by-laws, providing that, the corporators being entitled to compensation for the land, the proceeds of the sales of lots should belong to them, their heirs and assigns; that the proceeds should be divided into a certain number of shares, for which certificates should issue; that all debts and expenses, salaries of officers &c, should be paid before any part should be divided among the shareholders. — Held, that the proceeds of the lots, subject to the lots’ proportional share of the expenses, went to the corporators individually, and not to the corporation, which was to be composed of the owners of lots purchased from the company; and therefore parties to whom the corporators, by deed of the corporation, conveyed all the unsold lots, in fulfillment of an agreement between the grantees and the corporators that the grantees should have all the interest of the corporators in consideration of assuming all the company’s debts, do not hold in trust for the corporation, but are entitled to the proceeds of sale to individual lot-holders, subject to the proportional expense.</p>

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

<p>1. A promise by one to make a particular testamentary disposition of property for the benefit of another, is unenforceable unless founded upon a sufficient consideration.</p> <p>2. A cross-bill praying relief, based upon such a promise, stricken out because it fails to disclose such consideration,</p>

<p>1. A deed of conveyance from husband directly to wife, and having a nomimal consideration, held to pass an equitable estate in fee, the holder of which is •entitled to have the legal title from the heirs of the husband.</p> <p>2. A common law judgment against the wife creates ho lien upon her equitable estate under such a conveyance.</p> <p>3. A mortgage duly executed by a married woman, separate and apart from her husband, but in which he does not join, creates no lien, either in law or in •equity, upon the land comprised in it.</p> <p>4. A mortgage, for value, executed by both the fraudulent grantor and fraudulent grantee, is good as against the creditor without judgment, intended to be •defrauded, though the mortgagee had notice that the conveyance was made- for the purpose of defrauding that particular creditor, provided the purpose of the mortgage is not to defraud creditors.</p> <p>5. An absolute payment and discharge, in whole or in part, of a debt is sufifi•cient to make the creditor a bona fide purchaser for a valuable consideration, under the twenty-second section of the act concerning mortgages.</p> <p>6. Complainant ’recovered a common law judgment against one of the defendants, who, at the commencement of the action, was seized of an equitable estate in certain lands; pending suit she conveyed them to her daughter. After judgment complainant brought suit in equity against mother and daughter to have the conveyance set aside and the equitable estate subjected to the lien of her judgment, which suit resulted in a decree in complainant’s favor and an execution out of chancery for the sale of the lands to pay the complainant’s judgment, under which the premises were purchased by'complainant for a price which was credited on her judgment; after judgment, but before bill filed, the mother and daughter joined in a mortgage to secure a debt due by one or both to a third party, who, however, failed to have his mortgage recorded until after the decree in equity had been made. — Reid, that the mortgage was void as ;against complainant’s title under her decree and sale.</p>

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

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

<p>An assignment under the statute, by a debtor, of all his property, real and! personal, for the benefit of his creditors, will carry his vested interest as a-residuary legatee of an estate, though such interest was not included in the-inventory, and it was not his intention to assign it.</p>

<p>Complainant contracted in -writing with the defendant J., by which the latter agreed to build several houses for complainant, for a specified amount. The contract was filed in the county clerk’s office. The houses were erected and the complainant took possession. The bill alleges that notices have been served on the complainant by creditors of J. for materials &c. furnished for the houses, aggregating more than §3,593.83, the amount due J. J. had filed a mechanics’ lien claim, and commenced an action thereon, and J.’s creditors had either begun or threatened suits on their claims. Complainant alleged that a certain amount was due which she was ready to pay, but could not safely do so, and sought to have defendants interplead. On filing the bill, and! paying into court, the amount stated to be due, an injunction was issued restraining the further prosecution of the suits by J. or the lien claimants. Defendant J. answered the bill, alleging that the amount tendered and paid into court by complainant was not the correct amount due, but that she owed) him the full payment named in the contract as well as a bill for extra work,, and that he had filed his lien and commenced his action thereon. — Held that, as complainant’s 'liability to J.’s creditors arose under the Mechanic’s Lien law, and was limited to the amount due J., complainant was entitled to have ■the cause retained until the amount of her indebtedness to J. was ascertained ; ■and, to that end, the injunction should be dissolved as to J.’s prosecuting his suit, but retained as to the other defendants.</p>

<p>On bill and answer and proofs in open court.</p>

On motion to dismiss said application. David Fisher died, at his residence in Middlesex county, on the'17th day of May, 1892. On the 21st of the same month the paper, which is now offered for probate as his will, was delivered, for safe keeping, to Benjamin F. Howell, who was then the surrogate of Middlesex county.

<p>On appeal from a decree of the Camden county orphans court»</p>

<p>Josiah Wallace died intestate at Palmyra, in Burlington county, on the 11th of May, 1891, leaving an estate valued at nearly $500,000. On the 19th of May, in the same year, George D. O’Neil, claiming to be his grandson, caveated against the grant of administration upon his estate. On the 23d of the same month Ann S. Budderow, the only sister of the decedent, renounced her right to administer, and asked that William B. Lippincott, Albert C. Heulings and Israel Boberts, one only of whom, William B. Lippincott, is of kin to the decedent, be appointed administrators of the estate in her stead, and a few days later twenty-four of the nephews and nieces of the decedent, children of his deceased brothers and sister, composing all but one or two of their class, asked for the appointment of the same gentlemen. The right to administration was tried by the orphans court, between George D. O’Neil upon the one part and the sister and nephews and nieces of the decedent on the other part. The issue was as to the legitimacy of the relationship claimed by O’Neil. After hearing the evidence offered, the court decided, using the language of its decree, “ not to ignore one set of claimants against the other,” and proceeded to appoint two disinterested persons administrators. Upon appeal to the prerogative court, the decree of the orphans court was reversed, administrators of the estate, pendente lite, were appointed and the prerogative court proceeded to determine the right of administration upon the evidence produced in the orphans court, and, as well, upon additional proofs taken under its own order. The ¡present decision determines the right to administration.</p>

<p>Where the final distribution of an estate by an executor is, by the will, •deferred for a considerable time after the settlement of his account, he will not, in the allowance of commissions upon that accounting, be paid for that distribution, or be paid commissions at the highest rate permitted by the statute The court will reserve a portion of that which it may allow for his final compensation, when he shall have completely performed his duty.</p>

<p>1. J. L., by his will, gave the use of $3,000, which, at the date of the will, was invested in mortgage upon lands in Virginia, to his sister for her life. The executor of the will collected the interest from the mortgage until the mortgagee became bankrupt, and then, finding that the mortgaged premises had so greatly depreciated in value that he could not sell them for enough to realize the principal sum secured by the mortgage, took the rents and profits of the land, they being less than the interest upon the mortgage, until the mortgagee died, and then, at a public sale, managed by one son of the mortgagee, sold the mortgaged premises to another son of the mortgagee for $1,500, and paid the son who managed the sale, he being a lawyer, §100, besides disbursements, for his services. The lawyer and the purchaser-were nephews of the executor.</p> <p>2. In accounting, the executor charged himself with the income he received and with the $1,500 realized at the sale, and prayed allowance for his disbursements concerning the sale. Upon exceptions to his account — Held, (1) that the executor should have charged himself with the principal sum secured by the mortgage, §3,000, and asked allowance for his disbursements and also the loss from the fund by reason of the failure of the investment, and thus have assumed the burden of showing the propriety of his conduct. (2) That he was excusable for continuing the investment and delaying the sale of the mortgaged premises, but that it is incumbent upon him to make it clearly appear that his sale was fairly conducted in interest of his trust, and that the value of the property was realized thereat.</p>

<p>1. In case of intestacy, where there is no widow, administration must be ■granted to one of the next of kin, if any one of them, against whom no disqualifying objection exists, will accept it.</p> <p>2. The right of administration grows out of the right to distribution, and those, therefore, who are entitled to the intestate’s clear estate, have an exclusive primary right to administration.</p> <p>'3. While the court is not bound to approve the nominee of the majority in interest, still, where they select one of their own number, against whom no •objection exists, it will, as a general rule, appoint their nominee.</p> <p>4. Where the appointing power has a discretion to select one or more from a class, and there are several claimants, it should, in deciding to whom the •grant shall be made, give full consideration to the moral fitness and integrity ■of the several claimants.</p>

<p>1. When a judgment has been entered by force of proceedings in attachment, a court of chancery may intervene and set aside or control such procedure if the same has been tainted with fraud.</p> <p>2. Such jurisdiction will not obtain on the mere ground that the claim in suit was unfounded.</p> <p>3. When it appears that a plaintiff in attachment knows that the claim he .seeks to enforce has no legal efficacy, and he obtains a judgment and sale of the defendant’s property by a surreptitious use of regular process and proceedings, such judgment will be opened and the sale set aside in equity.</p>

<p>A bill by a judgment creditor stated that the defendant in the judgment had transferred the greater part of his property to various persons in fraud of creditors, and had also, for the same purpose, made a statutory assignment for the benefit of creditors. The special prayer for relief was, that all these transfers, as well as the assignment, should be set aside. — Held, that such assignment should be retained, if such course was more beneficial to creditors. Such a bill is not demurrable.</p>

<p>On appeal from a decision of the ordinary, whose opinion is reported in Eberhardt v. Perolin, 3 Dick. Ch. Rep. 592.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney,, whose opinion is reported in Cox v. Wills, 4 Dick. Ch. Rep. 130.</p>

<p>On appeal from a decree of the chancellor, whose opinion is-reported in Watjen v. Green, 3 Dick. Ch. Rep. 322.</p>

<p>On appeal from an order advised by Vice-Chancellor Pitney, as follows:</p> <p>This matter being opened to the court, in the presence of Bedle, Muirheid, McGee & Bedle, Jr., the counsel with the complainant, and Albert P. Condit and John W. Taylor, esquires, for defendant, and it appearing that an order was entered in this cause on the 15th day of October last requiring the defendant to show cause on the 26th day of October last why he should not be adjudged guilty of contempt, and suitably punished by commitment to the common jail of Essex county, or otherwise, as for a contempt of this court in disobeying the final decree made in this cause on the 24th day of December, 1890, in the particulars set forth in the petition on which said order to show cause was founded, which petition is on file in this proceeding, and that said defendant has filed his answer to said petition and has been heard personally before the court, and depositions having been taken, and said Albert P. Condit and John W. Taylor, esquires, of counsel with the defendant,, having been heard, and the court being of opinion that said defendant is guilty of a breach of said final decree of December 24th, 1890, in the matters set forth in said petition : it is, on this 23d day of November, 1891, ordered that the defendant, John O’Rourke, be and he hereby is adjudged guilty of a breach of said final decree in the respects in said petition set forth, and that he is guilty of a contempt of said court in violating said decree, and that he pay the costs of the complainant in this proceeding to be taxed, and also a counsel fee therein, for said contempt, of $250, and that sentence, by way of fine or imprisonment for said contempt, be suspended until the further order of the court, and that said John O’Rourke do appear before this court, when required, for such further order and sentence as may seem meet to the court.</p>

<p>The allegation of insolvency, made with respect to a railway corporation in a bill for a receiver, is sustained by proof that the corporation had acquiesced in the construction of its road-bed by a companion corporation, which had either paid for or pledged its own credit for the cost of such construction, and that debts honestly due and owing therefor were outstanding and suits pending that the defendant corporation had neither means nor prospects of settling.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in McCullough v. Absecon Beach Land and Improvement Co, 3 Dick. Ch. Rep. 170.</p>

<p>On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in 3 Dick. Ch. Rep. 549.</p>