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I^eadin^ liQ^al Periodickl^ of tl\e "U"i)ited ^tkte^. 


17 Albany Law Journal {187 S) p. 155. 

This volume, the twenty-eighth in the series known as the New Jersey 
Equity Reports, is a mrxiel in every respect. The reporter has done his work 
in the best manner ; the decisions are published promptly after their delivery, 
and the mechanical execution of the volume is excellent. 

12 American Law Review {1877) p. 518. 

We are much pleased with the method of reporting in this volume, and only 
wish all reporters would be as concise and thoughtful as Mr. Stewart. We 
also wish to call attention to his valuable annotations of some of the more 
important cases. 

35 Legal Intelligencer ( 1878) p. 180. 

This is the twenty-eighth volume of the New Jersey Equity Reports, or 
first Stewart. It is the first report published by Mr. Stewart, who has already 
made himself known to the profession, by his digest of the New Jersey Re- 
ports, three parts of which have already been published, and tlie fourth or 
final one will, we understand, be shortly presented to the profession. As New 
Jersey is one of the few states that still maintain separate courts of equity and 
law, its equity reports are always looked for with interest. 

There are a large number of important cases reported in this volume, and 
the learned reporter has, in some instances, added his notes to the decisions, 
giving many late citations. * * * This is a hurried reference to some of 
the causes reported in this volume. The reports of the courts of New Jersey 
stand high as authority in other states, and the equity reports are especially 
sought after. This volume is at least equal to its predecessors, and we think 
it not necessary to say more to our readers than that it is published, for all 
know its high value. 




18 Albany Law Journal {1S7S) p. 360. 

The cases in. this volume are excellently reported, and the elaborate notes- 
appended to them make the report an exceedingly valuable law book. We 
trust the time will come when reporters generally will bestow upon their work 
the care and labor displayed in this volume. 

6 Central Law Journal {187S) p. 139. 

To the equity lawyer this will be a valuable book. The cases reported here 
are some of them decided twice; first, by the chancellor at the hearing, and 
secondly, by the court of errors and appeals. Consequently, in not a few cases 
the opinions of two courts are found in one volume. Many of the cases are of 
great interest, particularly that of Williamson v. New Jersey Southern B. R. (p. 
227), which contains an elaborate and learned review of the nature of rolling 
stock of a railroad. To the cases of * * * the reporter has appended 
lengthy and valuable notes. In every respect his work is worthy of his repu- 
tation. The cases reported — about one hundred and fifty in all — were decided 
at the different terms during the year 1877. 

7 Central Law Journal {1S7S) p. 480. 

This series of reports is of particular value to the equity practitioner, and 
commands large sale, as we are informed, throughout all the states of the 
Union. Mr. Stewart's manner of reporting is excellent, and his notes are very 
valuable. The annotations to this volume are more than ordinarily frequent 
and thorough, and enhance its value greatly. The volume contains nearly 
seven hundred pages, and the printing and binding are all that could be 

4 Southern Law Bevitw {1878) p. 602. 

It is evident that the previously high standard of the New Jersey Equity 
Reports is not to be lowered in the hands of Mr. Stewart. The volume before 
us is but a pamphlet of three hundred and seventy-six pages, forming, pre- 
sumably, one-half of the reporter's second volume. But as far as it goes it is 
complete in form, with the head-notes, index and table of cases. It is in readi- 
ness to be incorporated in the entire volume, when completed, as a part 
thereof. It thus furnishes the exact and very satisfactory contrast to the 
method employed in Rhode Island of issuing the reports in " parts," as pointed 
out in the last number of the Review. 

The quality of these reports is no less excellent and useful. There are but 
four cases reported from the prerogative court, whose jurisdiction is that com- 
monly called the probate or orphans court, and thirteen cases in the court of 
errors, on appeal. The bulk of the pamphlet is made up of cases originally 
decided in the court of chancery. These cases exhibit all the variety and 
utility natural to a commercial and manufacturing state like N-ew Jersey. 
A marked feature of Mr. Stewart's work is that two of the cases are by the re- 
porter annotated with exceeding fullness. McKinley v. Union County (p. 164), 

Cjncerns the power of the county authorities to bridge, at the expense of the 
taxpayers, a water course which carries away only occasional surface-water, 
and is not a stream. De Camp v. Dobbins {p. 36), concerns charitable 
bequests, their validity at common law and under the English statutes, and 
the rules applicable thereto in this country. The reporter's notes in these 
cases furnish citations from all the more important English and American 
cases on all the points involved, and make the volume containing them of far 
more than ordinary or average value to the practitioner. 

4 Southern Law Review (1S7S) p. 775. 

We called attention in the last number of the Review to Mr. Stewart's hand- 
some pamphlet issue of part one of the volume which in complete form is 
now before us. We note with pleasure that the distinctive feature of this 
series of reports, namely, the addition of extended notes to certain of the re- 
ported cases, is displayed with considerable fullness in the present volume, and 
gives assurance of practical usefulness. 

No less than eight cases in this volume are thus annotated. 

12 Western Jurist {1S78) p. 635. 

New Jersey has adhered with consistent wisdom to her court of chancery, 
and her chancellors have established for her a most enviable reputation in the 
matter of equity jurisprudence. The equity reports of that state are second to 
none in this country or in England, unless it be the reports of the decisions 
of Chancellor Kent, found in the seven volumes of Johnson's Chancery Reports. 
The volume before us is the twenty-ninth of the series known as New Jersey 
Equity Reports, and is the second volume by the present very able reporter, 
John H. Stewart, Esq. Mr. Stewart is the author of the New Jersey Digest, 
Law and Equity, recently published, the examination of which brought us so 
much satisfaction, and extorted from us as much of commendation as any 
■digest we have ever examined. 

The head-notes are clear and comprehensive. To a few of the cases the 
learned reporter has annexed, in a foot-note, a reference to other authorities 
than those cited by the court in the opinions, and some of the notes are quite 
extended and exhaustive. 

The paper is unusually heavy, and of a very clear white. The type used is 
excellent, and not a blemish is to be found on any page, and the binding iS 
equal to the best of our law reports. 


19 Albany Law Journal {1S7D) p. 443. 

This is one of a series of model reports of very learned and excellent courts. 
The volume contains a number of useful and elaborate notes, but the ar- 
rangement of them at the foot of the pages is a blemish upon the otherwise 
admirable typographical execution of it. 

13 American Law Review (1S79) p. 736. 

These are among tlie best of contemporary reports ; they are neat, concise 
and accurate, and worthy of the courts whose decisions they record, decisions 
which show all the learning and ability for which the New Jersey courts have 
long been honorably known. Mr. Stewart, indeed, is a reporter of a kind 
always scarce, and now nearly unknown ; for he not only does his duty well 
in reporting the cases, hut also adds very elaborate and valuable notes of his 
ow'n, collecting the authorities wiiere any important principle comes in 
question. * * * 

Tiiere are other cases of interest in this volume, and even the uninteresting 
ones seem to have been carefully considered ; not the least merit of the book 
is its prompt publication ; it contains the cases of March term, 1879. 

S Central Law Journal {1S79) p. 507, 

Perhaps it is. because there is but little litigation in the chancery courts of 
New Jersey, that Mr. Stewart is able to find time to make his reports the 
reports par excellence of this country. No other state reporter exceeds him 
in the care with which the ordinary work of a reporter— the statement of facts,, 
the writing of the syllabi, the making of the index — is in each volume of his 
series performed. But, besides this, he has got into the way of annotating 
many of the cases, and thus bringing together in a note all the aulhoiities 
bearing on the question discussed in the opinion. The purchaser of one of 
his volumes thus obtains, in addition to the judgments of the courts, a dozen 
or more monographs on important and mooted questions. 

36 Legal Intelligencer {1879) p. 279 

As is well known, New Jersey is one of the few states that still has a sepa- 
rate court of equity. These reports, for that reason alone, would be of more 
than general interest. But, in addition to the well-known ability of Chancellor 
Eunyon and Vice-Chancellor Van Fleet, who have delivered most of the 
opinions in this volume, the reporter, Mr. Stewart, has added some very full 
and very exhaustive notes to some of the decisions. * * * This refer- 
ence to a few of the decisions will give our readers a slight idea of the value 
and interest to the profession that these reports are ; but if a lawyer once gets 
them in his library he will never do without them, for each number seems 
more valuable than its predecessor. 

2 N. J. Law Journal {1879) p. 63. 

The first part of third Stewart contains nearly all the opinions filed prior ta 
January 1st, 1879. It is well worthy the praise which Mr. Stewart's Reports 
have already received. The head-notes of the chancellor's opinions, which 
are prepared by the reporter, are remarkable for their clear and concise state- 
ment of the facts as well as the law of a case. This volume contains a few 
carefully prepared notes, in which the cases are collected, concisely stated and 


. 2 N.J. Law Jow-nal {1879) p. 193. 

The second part of third Stewart completes the volume. It fully sustains 
Mr. Stewart's reputation as a reporter, and the credit which the state of 
New Jersey enjoys for thoroughness and accuracy in the opinions of her 
judges. This volume includes many of the opinions of the court of chancery 
at the February term, and those of the court of appeals, filed at the March 
term. It is difficult even for the New Jersey Law Journal to get ahead of 
such prompt reporting as that. But we may add, for our own credit, that 
some of the cases reported in this second part of third Stewart appeared in 
the Law Journal last November. We are very glad to hear that the price 
of these parts of Stewart's Reports has been reduced to $1.25, and that the 
whole volume, bound, will be sold at f 3. 

5 Southei-n Law Review {1880) p. 439. 

The New Jersey Equity Reports are, we believe, the only separate series 
of cases of purely equitable cognizance now published in this country. In our 
judgment, they are entitled to a high rank among American Law Reports. It 
will be remembered that they consist of selected cases, and that they are decided 
by a numerous bench. The work of the reporter seems to have been very 
well done. In equity causes, where the appellate court reviews the whole 
case upon the facts as well as the law, the judge who writes the opinion neces- 
sarily states the court's conclusions upon the facts, and thus precludes the re- 
porter from making a separate statement. Tliere is nothing left for him but 
to make the head-notes. Mr. Stewart has supplemented this easy task by the 
self-imposed labor of annotating the principal decisions. It must not be in- 
ferred that he appends brief notes to nearly every case, as some editors do ; 
this is obviously not his plan, but when the court decides or applies an im- 
portant principle, he enriches the decision with a note evidently intended to 
collate the whole learning on the subject. These notes must necessarily 
greatly enhance the value of each volume. 

13 Western Jurist {1879) p. 94. 

This is part one of volume three of Stewart's New Jersey Equity Reports, 
the second volume of which we had occasion so cordially to commend in a 
previous review. As an author of head-notes, Mr. Stewart ranks second to 
none either in the brevity, accuracy or perspicuity of his syllabi. He also 
adds notes to several important cases, evincing very much of research, and 
constituting to a great degree an exhaustive statement and classification of all 
the decisions upon the points, both in his own and other states. This is a 
valuable feature of Mr. Stewart's Reports. 

This mode of publication of reports places before the profession at the 
earliest practicable time, the decisions of the courts, and this promptness of 
publication is a matter very grateful to the profession. 

13 Western Jurist {1879) p. 334. 

This is the third volume of this valuable series of reports by Mr. Stewart, 
being the thirtieth of the series known as New Jersey Equity Reports. We 


have before had occasion to notice and commend the merits and excellencies 
of Mr. Stewart's Eeports. This volume is equal to any of its predecessors. 

The head-notes are prepared with manifest care, and are very perspicuous 
and reasonably concise. 


21 Albany Law Journal {1S80) p. 99. 

This volume of this excellent series, among the three or four of the best 
that reach us, is full of interest. We should prefer the notes at the end of the 
several cases instead of at the foot of the pages. 

20 Albany Law Journal {1879) p. 380. 

Doctors disagree and so do law editors. The New Jersey Law Journal, 
speaking of the thirty-first New Jersey Equity Reports, remarks : " We con- 
fess we do not care for notes in a book of reports, and do not think Mr. Stew- 
art's Eeports depend at all upon them for their high reputation for excellence 
in every quality which belongs to books of reports as such." On the other 
hand, the Western Jurist says : " Mr. Stewart, as a reporter, commands 
praise in another particular. He annexes, in the form of a note, to some of 
the leading cases an exhaustive reference to decisions in other states upon the 
same subject, with a concise statement of what those decisions are.'' We vote 
with the latter party. We never saw a note in a volume of reports so slight 
or poor as not to be of some use, and Mr. Stewart's notes are always excellent. 
Mr. Stewart, however, meets the fate of prophets who are not without honor 
save in their own country. 

10 Central Law Journal [1880) p. I4.O. 

Mr. Stewart's fourth volume is fully up to the standard of his previous ones, 
and he may be set down as the most industrious of the reporters, as nowhere 
else can we find the evidence of such labor as the notes in the New Jersey 
Equity Eeports at present exhibit. 

In the present volume, Mr. Stewart's notes on the subjects of Devises to 
Illegitimate Children, Powers of Sale, Bills of Review, the Construction of the 
Word " May," Statutes of Limitations, the Execution of Wills, and the Domi. 
cil of Infants, are nothing short of monographs on their various topics. 

36 Legal Intelligencer {1879) p. 4^6. 

As usual, this, although only part first of volume IV., is full of interesting 
opinions. We will refer to a few of them. * * * 

There are other interesting and important cases in this part of volume IV., 
but we have not space to allude to any others. 

2 N. J. Law Journal {1879) p. 319. 

* * * This volume contains several other notes, citing numerous cases. 
We confess we do not care for notes in a book of reports, and do not think 

Mr. Stewart's Reports depend at all upon them for their high reputation for 
excellence in every quality which belongs to books of reports as such. 

S N. J. Law Journal {1880) p. 64. 

Fourth Stewart has appeared so promptly that we have been unable to 
publish in our journal a number of interesting cases which we expected to give 
to the public in advance of the reports. 

This volume contains a large number of interesting cases, many of which 
have already been mentioned in this journal, and the reporter's industry in the 
preparation of notes has been well directed and applied to subjects upon wliich 
notes will prove useful. 

5 Southern Law Review {1880) p. 729. 

The present volume, like the previous ones of Mr. Stewart's, is enriched by 
numerous notes, which the reporter has industriously compiled. 

5 Southern Law Review {1880) p. 876. 

We call the attention of the profession to the fact that this is the only series 
of American chancery reports published. This fact, together with the stand- 
ing of the courts from which it emanates, and the further fact that the reporter 
is so diligent as to append extensive notes of his own to many of the principal 
decisions, ought to commend this series of reports to chancery lawyers in other 

U Western Jurist {1880) p. 188. 

This is volume thirty-one of the series, and the fourth volume of the New 
Jersey Equity Eeports by the present very able and painstaking reporter, 
John H. Stewart, Esq. 

We have before had occasion to commend Mr. Stewart as a reporter. In 
one respect, at least, he is manifestly superior to any reporter in this country. 
That respect is in the addition of notes to the leading and important cases, 
wherein he refers to and gives a brief analytical statement of the decisions of 
other courts upon the subjects discussed in the opinion, whereby he fur- 
nishes, practically, an exhaustive inV/upon the points involved in the case, so 
that, in some respects, his reports of the equity decisions of the courts of 
New Jersey become a reference or digest of other reports upon the same 
subjects. We do not know that Mr. Stewart is excelled as a reporter in any 
respect. His head-notes are very concise and accurate, and his index is very 
full, the cross-references therein being very complete. The volume contains 
about eight hundred and seventy-five pages, is printed on very fine white 
paper, and is both neatly and substantially bound. 

The equity reports of New Jersey have heretofore ranked deservedly high 
throughout this country. The present ability of that court is recognized as 
equal to the best, and the good fortune of the court in its reporter will doubt- 
less give to the New Jei-sey Equity Reports an increased sale, and a conse- 
quent increased influence to the court in the jurisprudence of this country. 


13 Western Jurist {1879) p. 476. 

The liigh standing of the equity court of New Jersey give to this series of 
reports an unusual value, and the great excellence of Mr. Stewart as a re- 
porter is calling a new and increased attention to the series. The regard by the 
reporter for the wants of the profession, especially of his own state, as manifested 
by the issuing of his reports with paper covers in advance of the accumulation 
of sufficient material for a full volume, is certainly deserving of recognition 
and commendation. Mr. Stewart as a reporter commands praise in another 
particular ; he annexes in the form of a note to some of the leading cases an 
exhaustive reference to decisions in other states upon the same subject, with 
a concise statement of' what those decisions are. 

The paper is excellent and the type very clear. 


ff Albany Law Journal [ISSO) p. 257. 

This volume of this most admirable series is full of interest. The following 
cases are annotated in the most thorough manner by the reporter. * * * 

13 Central Law Journal {1880) p. 319. 

The fifth volume of Mr. Stewart's New Jersey Equity Keports, being the 
thirty-second volume of the series, is just out, and, as usual, contains a variety 
of matter of great value, not the least of which are the full annotations of the 

3 N. J. Law Journal {1880) p. 319. 

This volume contains the opinions delivered in the court of chancery and 
prerogative court at the February and May terms, 1880, and in the court of 
errors and appeals at the March and June terras, 1880, at least a month before 
the opening of the October term of the court of chancery, and two months 
before the next session of the court of errors, the opinions delivered at the 
preceding terms have been printed and published in a bound volume. The 
work of the reporter has been done promptly but not hastily. The cases have 
been carefully prepared. In every important case in the court of errors, the 
arguments of counsel have been stated, and their citations have been fully 
collected. Long and careful notes have been written upon a great number of 
the opinions. The substance of each case has been clearly stated in head-notes, 
which, in the case of ti>e chancellor's opinions, wei'e written by the reporter, 
and the index is complete and well arranged. The printing, too, has been well 
done, and the volume presents an excellent appearance. We are quite willing 
that this volume of the Equity Reports of New Jersey should be compared in 
substance, in arrangement and appearance with the reports of any other state 
in the Union. This volume contains a great number of interesting and 
valuable cases. 


U Wtdtrn Jurist {ISSO) p. 426. 

This is the thirty-second volume of the series of New Jersey Equity Re- 
ports, and is the fifth vohime thereof by the present very able and industrious 
reporter, John H. Stewart, Esq. The high cliaracter of ithe chancery court of 
New Jersey, together with the fidelity and excellence of the reporting of its 
opinions, combines to create a demand for the reports not surpassed by the 
demand for any other state reports. We have before had occasion to commend 
Mr. Stewart as a reporter. His excellence therein consists not alone in the 
clear and accurate statements contained in the syllabi prepared by him, but he 
adds thereto the merits of a digest by the exhaustive notes which he prepares 
to most of the leading or important cases in each volume. These notes are 
placed at the bottom of the pages occupied by the respective opinions, and 
consist of citations of cases decided by other courts, and bearing upon the 
questions discussed in the opinions, and the reporter does not content himself 
with a mere citation of the cases, but he states very concisely and perspicuously 
the substance of the ruling in each case cited. 

The volume contains nearly nine hundred and forty pages, is printed oa 
very firm, clear white paper and most substantially bound. Take it all in all, 
it is very difficult to surpass the fifth volume of S ewart's New Jersey Equity 


23 Albany Law Journal {ISSl) p. 519. 

The present volume of this most admirable series is as interesting as any of 
its predecessors. * * * The volume contains many other valuable notes 
by the reporter. 

4 N. J. Law Journal {1881) p. 224. 

The cases are unusually interesting and important, and there are many 
valuable notes. 

15 Wt&Urn Jurist [1881) p. 381. 

This is the sixth volume of the series by this very excellent reporter. We 
have in our notices of other volumes of this series spoken of the high standing 
of the New Jersey court of equity, and of the marked excellence of Mr. Stewart 
as a reporter, and the consequent great value of the reports. This volume is 
fully equal to any of its predecessors, and contains cases of almost uniform 
general value and interest throughout all the states. 

The publisher's work is done by W. S. Sharp, and is in keeping with the 
merits of the volume, which is in all its parts a model. 


25 Albany Law Journal {1883) p. I40. 

Of former volumes of this unique and invaluable series we have so often 
spoken, that it is unnecessary to say more of this than that it is equal to its 


predecessors. Judge Stewart's notes continue excellent, and are more numer- 
ous than evier ; but we wish the printer would put them at the end of the cases, 
instead of at the bottom of the pages. The cases are generally important. 

U Central Law JoumaL {1882) p. 09. 

We know of no state reports in which the reporter takes the pains to append 
to the more important opinions, such admirable and exhaustive notes as are to 
be found in this volume. 

5 N. J. Law Journal {1882) p. 64. 

We have received the bound volume of seventh Stewart. It contains the 
•decisions rendered by the court of errors on December 19th, 1881, and was 
issued within a month after that day. It is hard work for the Law Journal 
to keep ahead of such prompt reporting. 

The last volume of the New York Reports, which has just appeared, contains 
only the cases decided in March and February, 1881. 

Seventh Stewart contains a good many important cases. The citations made 
by counsel are often given, and there are several notes by the reporter. 

16 Western Jurist {1882) p. 567. 

There are few courts in the country whose opinions are as able and clear in 
their reasoning as those of the state of New Jersey, and few have been as ably 
reported as they appear in this volume. The head-notes contain a concise 
statement of the point decided in each case, and extracts are given from briefe 
of counsel, when of value. 


17 American Law Review {1883) p. 96. 

This thirty-fifth volume of New Jersey Equity Eeports does honor to the 
care, diligence and learning of the reporter. He has at times fearfully over- 
loaded his report with citations from briefs of counsel — over sixty pages in 
one instance — but his own presentment of the points decided is unusually ex- 
cellent. His notes appended to some of the opinions evince industrious learn- 
ing, and give the book a general value quite beyond the ordinary state re- 
ports. Thus, in Cutter v. Kline {p. 534), where the court ruled, as we should 
expect, that a judgment at law imports absolute verity, and that the chancellor 
cannot decree the judgment to be special when it is in form only general, 
although it is conceded, in fact, that it was by mistake of the clerk that the 
entry was not special also, Mr. Stewart accompanies the case with a very 
elaborate note on mistakes of this nature, showing when a court of equity will 
and will not relieve against clerical mistakes of other courts and oflBcials, 
with full citations. 

Cornell v. Andrews {p. 7) is a case similarly annotated to illustrate the 
ruling of Chancellor Kunyon, that where a conveyance was to A, president of 


the North American Trust and Banking Company, his successors and assigns, 
without words of inheritance, the title was so questionable that chancery will 
not compel a specific performance of a contract to buy. 

One who has to examine such questions finds his work largely done to his 
hand when he meets a case thus annotated. 

15-Central Law Journal {1S82) p. 339. 

There are few states blessed with such a reporter as Mr. Stewart. We 
have recently given our readers a touch of his quality in the very elaborate 
notes to the cases of Cornell v. Andrews, 15 Cent. L. J. S, and Cutter v. Kline, IS 
Cent. L. J. 289. Such notes as these scattered through his volumes are no in- 
considerable addition to their practical value. As precedents increase in 
multitude so grows the demand for facilities for searching them out and ar- 
ranging them. 

S9 Legal Intelligencer [1882) p. 394. 

* * * To all these cases and others, the reporter has appended valuable 
notes, grouping the decisions, British and American, down to the latest, bear- 
ing upon the matters decided. The index is full and satisfactory. 

17 Western Jurist {1883) p. 149. 

The reporter's work is admirably done throughout. Extracts from the briefs 
of counsel are given when valuable, and many of the cases are extensively 
annotated. The publisher's work is a model of neatness. 


17 Central Law Journal {1883) p. 160. 

This volume abounds in interesting matter, not the least of which are Mr. 
Stewart's exhaustive and learned notes to many of the more important 

40 Legal Intelligencer {1883) p. 28. 

This series of reports is a very interesting and valuable one to the profes- 
sion, not only by reason of the reputation and ability of the courts which are 
reported, but because also of the manner of reporting, which appends to each 
case citations of English and American decisions bearing upon the subject of 
the case reported. 

G N. J. Law Journal {1883) p. 9G. 

The first part of ninth Stewart has appeared. It contains important cases 
and foot-notes by the reporter, giving all the authorities which Mr. Stewart's 
diligent research could discover on several interesting topics. 


6 N. J. Law Journal {1SS3) p. 22^. 

This volume contains the chancery rules promulgated October 17th, 1882, 
Nos. 212 to 215. The cases reported include those decided by the court of 
errors at the Marfh term, 1883. There are a number of valuable notes by Mr. 
Stewart. The index is full and well arranged. It would be worth while in 
his next volume lo add an index of the notes. 

11 WesUm Jurist {1SS3) p. 440. 

The New Jersey court is one distinguished for its ability, and its decisions 
are correspondingly of a high order and entitled to great weight as authority. 
To the more important opinions the reporter has added valuable annotations, 
and his work throughout is among the best and most complete to be found in 
the country. 

RULES 2i6-2i8 

Court of Chancery. 

RULES 216-218. 

[promulgated NOVEMBER 7th, 1883.] 

216. Hereafter, upon any suit in the court of chancery be- 
coming abated by death, marriage or otherwise, or defective by 
reason of some change or transmission of interest or liability, it 
shall not be necessary to exhibit a bill of revivor or supplemental 
bill to obtain the usual order to revive, or the usual or necessary 
decree or order to carry on such proceedings ; but an order to 
the effect of the usual order to revive, or of the usual supple- 
mental decree, may be obtained as of course upon an allegation 
supported by affidavit, or petition duly verified, of the abatement 
of sucli suit or of the same having become defective, or of the 
change or transmission of interest or liability; which affidavit or 
petition shall also state the grounds upon which the right to re- 
vive is claimed. An order so obtained, when served upon the 
party or parties who, according to the existing practice, would 
be defendant or defendants to the bill of revivor or supplemental 
bill, shall, from the time of such service, be binding on such 
party or parties in the same manner, in every respect, as if such 
order had been regularly obtained according to the existing 
practice. And such party or parties will thenceforth become a 
party or parties to the suit in like manner as if he or they had 
been duly served with process to appear to a bill of revivor or 
supplemental bill ; provided, however, that he or they may, within 
fifteen days after such service, apply to the chancellor to dis- 
charge such order; provided, also, that if any party so served is 
under any disability other than coverture, such order is to be of 
no force or effect as against such party until four days shall have 
elapsed after a guardian ad litem shall have been duly appointed 
for such party. 

217. The 108th rule is modified so as to provide that when 
depositions are taken stenographically before an examiner, the 
fees for taking them shall be divided between the examiner and 

the stenographer, as follows: one-third to the former and two- 
thirds to the latter. 

218. It shall be tiie duty of the examiner before whom testi- 
mony is taken to decide upon all objections to evidence, and his 
decision sh^ll be final unless reversed on appeal to the chan- 
cellor, which is to be taken as hereinafter provided. Though 
appeal be taken the examination shall nevertheless proceed, but 
in conformity with the ruling. Notice of appeal must be given 
and entered on the record immediately upon the making of the 
decision of the examiner, otherwise the right of appeal will be 
considered as waived. The notice will be merely oral. If there 
be notice of appeal, the objection and the ground of it and the 
examiner's decision thereon must, with a memorandum of the 
fact of the appeal, be entered on the record of the evidence at the 
place in the record where they occur. The entry will be in brief 
form, as follows, for example : 

Defendant objects to the evidence, on the ground that it is 
irrelevant to the issue. Objection overruled. Appeal. 

A. B., Examiner. Nov. 10th, 1883. 

The appeal shall he lieard, without further notice, on the next 
regular motion day, if three days intervene between the time of 
making the decision and that day, but if not, then on the next 
motion day thereafter. If the examination be held in the first 
or second equity district, the appeal shall be heard at Trenton ; 
if in the third or fourth, at Newark ; though it may, by consent 
of counsel, be heard at Jersey City or Camden on a regular 
motion day there. If the appellant shall not bring on the appeal 
at the time fixed, he shall pay costs of the notice, unless he give 
at least one day's notice to the solicitor or solicitors of the other 
party or parties to the issue that he has abandoned the appeal. 
Depositions, except where taken ex 'parte, shall be taken before 
an examiner to be agreed upon by the solicitors of the parties to 
the issue. If they are unable to agree thereon, the examiner 
shall be named by the chancellor or vice-chancellor sitting for 
him, on motion to be made on a regular motion day, on at least 
two days' notice. 

New Jersey Equity Reports/ 








The Court of Errors and Appeals, 



JOHN H. STEWART. Reporter. 


The W. S. Sharp Printing Co. 



Butered, according to act of Congress, in the year 1884, by 


In the oflSce of the Librarian of Congress at Washington, D. C. 









Hon. THEODORE RUNYON, Chancellor. 

" MERCER BEASLEY, Chief-Justice. 










Associate Justices 

of the 
Supreme Court. 







This volume contains the opinions delivered in the Court of 
Chancery and Prerogative Court at the May and October Terms, 
1883, and also those on appeal at the June and -November Terms, 
1883, of the Court of Errors and Appeals; and also the new 
Eules 216-218, promulgated November 7th, 1883. 

By the Chancellor's direction, the following opinions have not 
been published : 

May Tervi,188S — Ming y. Vliet; Gray v. Meyrick. 
October Term, 1883 — Frome v. Hance. 

N. B. — The appendix contains an index of all the Reporter's 
notes to the cases in the first ten volumes of Stewart's Equity 
Ilej)orts, 28-37 N. J. Eq. Reports. 





COXE, 1790-1795, . 
PENNINGTON (Pen.), 1806-1813, 
SOUTHARD (South.), 1816-1820, 
HALSTED (Hal.), 1821-1831, . 
GREEN (Gr.), 1831-1836, 
HARRISON (Hare.), 1827-1842, 
SPENCER (Spen.), 1842-1846, 
ZABRISKIE (Zab.), 1847-1855, . 
DUTCHER (Dutch.), 1855-1862, 
VROOM (Vr.), 1862- 

1 vol 




















SAXTON (Sax.), 1830-1832, . 
GREEN (Gr. Ch.), 1838-1845, . 
HALSTED (Hal. Ch), 1845-1852, 
STOCKTON (Stock.), 1852-1858, 
BEASLEY (Beas.), 1858-1861, 
McCARTER (McCart.), 1861-1862, , 
C. E. GREEN (C. E. Gr.), 1863-1877, 
STEWART (Stew. Eq.), 1877- . 

1 vol 

3 " 

4 " 

3 " 

2 " 

2 " 

12 " 

10 " 



Ackerman v. Halsey 356 

Ackerman, Snyder v 442 

Aclon V. Lloyd 5 

Albright v. Teas 171 

Allen, Provident Inst, v 36, 627 

American Dock Co. v. Trustees... 266 

Angel V. Penn. K. E. Co 92 

Apgar's Case 501 

Assiscunk Co., McNeal v 204 


Backer v. Denman 319 

Baldwin v. Taylor 78 

Ballantine v. Harrison 560 

Barrett v. Barrett 29 

Beam, Burhans v 593 

Beckraan v. Hoboken Bank 331 

Behrmann, Thompson v 345 

Bell, Pope V 495 

Bennett, Gogherty v 87 

Bentley, Long Dock Co. v 15, 330 

Bodine v. Morgan 426 

Borcherling V. Katz 150 

Bray, Rusling v 174 

Bnich, Phillipsburgh v 482 

Bucken, Chasmar v 415 

Buckingham v. Ludintn 137 

Bulgin, Cummins v 476 

Burhans V. Beam 593 


Cadmus v. Combes 264 

Camden and A. R. R. Co. v. El- 
kins 273 

Candy v. Globe Rubber Co 175 

Carpenter v. Gray 389 

Carson, Cleveland v 377 

Carson v. Marshall 213 

Cass V. Demarest 393 

Chadwick v. Chadwick 71 

Chamberlin, Ellicott v 470 

Chasmar v. Bucken 415 

City Pottery Co. v. Yates 543 

Claypool V. Norcross 261 

Cleveland v. Carson 377 

Colburn, Gove v 319 

Combes, Cadmus v 264 

Conover, Ruckman v 583 

Cooper V. Louanstein 284 

Corning, Kirkpatrick v 54 

Cory V. Cory 198 

Coulston V. Coulston 396 

Cowell, Hedden v 89 

Crane, Ely v 157 

Crane v. Ely 564 

Cummins v. Bulgin 476 


Daggers v. Van Dyck 130 

Demarest, Cass v 393 

Denise v. Denise 163 

Denman, Backer v 319 

Detwiller v. Hartmann 347 

Dixey v. Jennings 627 

Downie v. Knowles 513 

Dunham v. Ramsey 388; 


Earle V. Roberts. 315 

Edsall V.Merrill 114 

Elkins, Camden and A. R. R. 

Co. V 273 

VI 1 



[37 Eq. 

Ellicott V. Chamberlin 470 

Ely V. Crane 157 

Ely, Crane V 564 

Emraett, Left v 535 

Ewen, House v 368 


Farrington v. Harrison 316 

Fath, Huggv 46 

Field, West Orange v 434 

Field y. West Orange 600 

First Society, Lindsley v 277 

Fogg's Case 238 


Gardner v. Gardner 487 

GiflFord v. Landrine 127, 628 

Gilbert, Williams v 84 

Glen, Shaw v 32 

Globe Rubber Co., Candy v 175 

Gogherty v. Bennett 87 

Gove V. Colbiirn 319 

Gray, Carpenter v 389 

Green's Case 254 

Griffith, Powles v 384 


Halsey, Ackerman v 356 

Halsey v. Paterson 445 

Hankinson, Vanderbeck v 316 

Harrall v. Wallis 458 

Harrison, Balbntine V 560 

Harrison, Farrington v 316 

Hartman, Detwiller v 347 

Hayes v. King 1 

Hedden v. Cowell 89 

Hitchcock, Midland R. R. v 549 

Hoagland v. Shampanore 588 

Hoboken, Shannon v 123, 318 

Hoboken Bank, Beckmann v 331 

Hollinger v. Syms 221, 628 

Hollister, Thebaud v 402 

Hope, Fatten v 522 

House V. Ewen 368 

Howell, Miiir v 39 

Hoxsey v. Hoxsey 46 

Huber v. Mohn 432 

Hugg V. Fath 46 

luslee, Woodbridge v 397 


Jacobus V. Jacobus 17 

Jacobus V. Munn 48 

Jennings, Dixey v 627 

Jersey City, Vreeland v 574 

Johnson, Parker v 366 

Jones, Newark Sav. Inst, v 449 


Katz, Borcheriing v 150 

Keen, Weldon v 251 

King, Hayes v 1 

Kinney v. Stewart 339 

Kirkpatrick v. Corning 54 

Knowles, Downie v 513 


Lackawanna Iron Co. Case 26 

Lambert V. Miller 344 

Landrine, Gifford v 127, 628 

Lett V. Emmett 535 

Lindsley v. First Society 277 

Lippincott, Stockton v 443 

Lister v. Lister 331 

Lloyd, Acton v 5 

Long Dock Co. v. Bentley 15, 330 

Louanstein, Cooper v 284 

Ludlum, Buckingham v 137 

Luppie V. Winans 245 

Lyon, Stanford v 94 


Mackin v. Mackin 528 

McDonald, Williams v 409 

10 Stew.] 



-McNeal v. Assiscunk Co 204 

Male, Vail v 521 

Marshall, Carson v 213 

Merrill, Edsall v 114 

Michenor, Whitecar v 6 

Middaugh, Trimmer v 315 

Middleton, Polhemus v 240 

JMidland B. K. v. Hitchcock 549 

Miller, Lambert v 344 

Miller, Speer v 492 

Milligan, Walkins v 435 

Mills, Pomeroy v 578 

Mohn, Huber V 432 

Moore, Stoutenburgh v 63 

Morgan, Bodine v 426 

Muir V. Howell -Qd 

Miinn, Jacobus v 48 


Newark Sav. Inst. v. Jones 449 

Norcross, Claypool v 261 

Nugent, CMara v 326 


O'Mara v. Nugent 326 


Parker v. Johnson 366 

Paterson, Halsey v 445 

Patton V. Hope 522 

Paulv. Paul 23 

Penn. K. K., Angel v 92, Wyckoff v 118 

Phillipsburgh v. Bruch 482 

Polhemus v. Middleton 240 

Pomeroy V. Mills 578 

Pope V. Bell 495 

Powles V. Griffith 384 

Provident Inst. v. Allen 36, 627 


Raub V. Raub 263 

Ramsey, Dunham v 388 

Roberts, Earle v 315 

Ross V. Titsworth 333 

Ruckman v. Conover 583 

Rusling V. Bray 174 


Sever v. Seyer 210 

Shampanore, Hoagland v 588 

Shannon v. Hoboken 123, 318 

Shaw V. Glenn 32 

Snyder v. Ackerman 442 

Speer v. Miller 492 

Stanford v. Lyon 94 

States V. States 195 

Stevens v. Stevens 3 

Stewart, Kinney v 339 

Stockton v. Lippincott 443 

Stoutenburgh v. Moore 63 

Summerbell v. SiMnmerbell 603 

Swayze v. Swayze 180 

Syms, Hollinger v 221, 628 


Taylor, Baldwin v 78 

Teas, Albright v 171 

Thebaud v. Hollister 402 

Thompson v. Behrmann 345 

Titsworth, Boss v 333 

Trimmer V. Middaugh 315 

Trustees, American Dock Co. v... 266 

Turnure v. Turnure 629 

Union Bank Case 420 


Vail V. Male 521 

Vanderbeck v. Hankinson 316 

Vanderpool v. Willis 406 

Van Dyck, Daggers v 130 

Vreeland v. Jersey City 574 


[37 Eq. 


Wallis, Harrall v 458 

Watkins v. iftilligan 435 

Weldon v. Keen 251 

West Orange, Field v 434 

West Orange V. Field 600 

Wiiitecar v. Miehenor 6 

Williams v. Gilbert 84 

Williams, McDonald v 409 

Willis, Vanderpool v 406^ 

Winans, Liippie v 245 

Woodbridge v. Inslee 397 

Wyckoff V. Perrine 118 


Yates, City Pottery Co. v 543- 

Yawger v. Yawger 216 


Adams v. Hackett 7 Cal. 187 337 

Adams V. Woods 8 Cal. 152 338 

Adams v. Woods 9 Cal. 24 338 

Adnam V. Cole 6 Beav. 353 353 

Akers v. Akers 8 C. E. Gr. 26 2 

Albert V. Perry 1 McCart. 540 218, 253 

Alferey v. Alferey 1 Macn. & G. 87 ISO 

Alger V. Thaclier 19 Pick. 51 173 

Allen V. Richards 5 Pick. 512 486 

Anderson V. Berry 2 McCart. 232 579 

Annio V. Vandoren 1 McCart. 135 23, 202 

Apthorp V. Comstock 2 Paige 482 269 

Armstrong V. Kent 1 Zab. 509 23 

Ashford v. Cope 7 Sim. 641 280 

Atlantic Dock Co. v. Leavitt 54 N. Y. 35 311 

Atty.-Gen. v. Brown 9 C. E. Gr. 89 401 

Atty.-Gen. v. New Jersey R. R. Co 2 Gr. Ch. 136 400 

Atty.-Gen. v. Smythies 16 Beav. 385 28 


Bacon V. Bonham 6 Stew. Eq. 614 443 

Bainbridge's Appeal 97 Pa. St. 482 353 

Baldwin v. Johnson Sax. 441 5S0 

Baldwin v. Taylor 10 Stew. Eq. 7-< 169 

Ballard v. Biirgett 40 N. Y. 314 559 

Banks v. Goodfellow L. R. (5 Q. B.) 549 237, 273 

Barford v. Street 16 Ves. 135 202 

Barren V. Barren 10 C. E. Gr. 173 117 

Barrow v. Bispham 6 Hal. 110 ., 270 

Barrow v. Rhinelander 1 Johns. Ch. 550 190 

Beatty v. Montgomery 6 0. E. Gr. 324 81 

Benham v. Hendrickson 5 Stew. Eq. 441 372 

Bennet v. Bittle 4 Rawle 339 485 

Bennett V. Austin 81 N. Y. 308 215 

Berckmans v. Berckmans 2 C. E. Qr. 453 617 

Berckmans V. Berckmans 1 C. E. Gr. 122 616 

Berkeley V. Hardy 5 B. & C. 355 153 


xii CASES CITED. [37 Eq. 

Belts V. Betts 1 Johns. Ch. 197 610 

Bigelow Bli>e Stone Co. v. Magee 12 C. E. Gr. 392 444 

Billings V. Billings 11 Pick. 461 609 

Black V. Black 3 Stew. Eq. 228 616 

Black V.Lamb.. 1 Beas. 108 269 

Black V. Whitall 1 Stock. 572 581 

Blauvelt v. Ackerman 10 C. E. Gr. 570 51» 

Blight V. Blight 51 Pa. St. 420 28 

Bogardus v. Trinity Church 4 Paige 178 186 

Bogert V. Elizabeth 12 C E. Gr. 568 38 

Bolles V. Wade 3 Gr. Ch. 458 590 

Bonnel V. Dunn 5 Dutch. 435 43 

Booraem v. Wells 4 C. E. Gr. 87 215 

Bootlev Blundell 19 Ves. 494 269 

Bowlsby V. Speer 2 Vr. 351 601 

Briant v. Lyons 29 La. An. 64 45 

Bridge V. Abbott 3 Bro. C. C. 224 448 

Brinckerhoff V. Bostwick 88 N. Y. 52 362 

Bnokaw v. Hudson „ 12 C. E. Gr. 135 166, 448 

Brown V. Saltonstall 3 Mete. 423 485 

Browae v. McClintock L. R. (6 H. of L.) 456 270 

Brownell v. Brownell 2 Bro. C. C. 62 190 

Bruan v. Bragaw 3 Gr. Ch. 261 490 

Bnmnenmeyer v. Buhre.... 32 111. 183 13 

Brush \. Young 4 Dutch. 237 71 

Buckelew v. Snedeker 12 C. E. Gr. 82 117 

Bunnell v. Hay 73 Ind. 452 45 

Burbank v. Whitney... 24 Pick. 146 23 

Burgess V. Burgess 2 Hagg. 22S 607 

Burke v. S. E. R. R. Co L. R. (5 C. P. D.) 1 310 

Builin V. Masters 2 Phil. 289 272 


Cairns V. Chaubert 9 Paige 160 582 

Cambridge v. Lexington 17 Pick. 222 497 

Carlisle v. Cooper 6 C. E. Gr. 576 103, 112 

Carris v. Carris 9 C. E. Gr. 516 197, 213 

Carson V. Carson 1 Mete. 300 167 

Case V. Haight 3 Wend. 632 309 

Chambers v. Brailsford 19 Ves. 652 202 

Chambers V. Howell 11 Beav. 6 419 

Chappedelaine V. Dechenaux 4 Cranch 306 187 

Chappell V. Cox 18 Md. 513 43 

Charitable Corp. v. Sutton 2 Atk. 400 365 

Chester V. Halliard 7 Stew. Eq. 341 362 

Christie v. Griffing 9 C. E. Gr. 76 160. 

Citizens Build. Assn. v. Coriell 7 Stew. Eq. 383 362 

10 Stew.] CASES CITED. xiii 

Citizens Co. v. Camden H. E. Co 2 Stew. Eq. 299 46 

Citizens Loan Assn. v. Lyon 2 Stew. Eq. 110 362 

Clavering V. Westley 3 P. Wms. 402 -.. 154 

Clayton v. Lord Nugent 1 Coll. 363 269 

Clement v. Kaighn 2 McCart. 47 86 

Clutch V. Clutch Sax. 474 610 

Cole V.Scott IMacn. &G. 518 485 

Coleman v. Mellersh 2 Macn. & G. 309 190 

Colgate v: Colgate 8 C. E. Gr. 372 215 

Collet V. Lawrence 1 Ves., Jr , 268 202 

Conover v. Van Mater 3 C. E. Gr. 481 590, 592 

Constantine v. Constantine 6 Ves. 100 202 

Conway v. Halsey 15 Vr. 462 362 

Cool V. Higgins 8 C. E. Gr. 308. 354,386 

Coster V. Monroe Mfg. Co 1 Gr. Ch. 467...' 496 

Courtenay V. Williams 3 Hare 539 166 

Courter v. Howell 6 Stew. Eq. 80 202 

Cowley V. Watts 17 Jur. 172 451 

Cowx V. Foster 1 Johns. & H. 30 279, 283 

Cox V. Bishop 8 De G. M. & G. 815 156 

Craig V. Smith 8 Vr. 549 127 

Craige V. Morris 10 C. E. Gr. 467 405 

Creveling v. Fritts 7 Stew. Eq. 134 215 

Creveling v. Jones 1 Zab. 573 375 

Crone v.Odell 1 B. & B. 449 418 

Croskey v. E. & A. S'. Shipping Co 1 Johns. & H. KH 571 

Crowell V. Currier 12 C. E. Gr. 650 126 

Cuff V. Hall 1 Jur. (N. S.) 972 419 


Dalby v. Pullen 2 Bing. 144 280 

Dale V. Dale 9 Stew. Eq. 269 234 

Daniels v. Taggart... 1 Gill & Johns. 311 18-6 

Davidson V. Dallas 14 Ves. 576 419 

Davidson v. Thompson 7 C. E. Gr. 83 116 

Davison V. Johnson 1 C. E. Gr. 112 186 

Day V.Day 2 Gr. Ch. 549 527 

Deane v. Deane 12 Jur. 63 608 

Decker v. Boice 83 N. Y. 215 592 

Decker v. Caskey Sax. 427 270 

Deginther's Appeal 83 Pa. St. 337 448 

De Konge v. Elliott 8 C. E. Gr. 486 447 

Devaynes T. Noble 1 Meriv, 528 148 

Devonsher v. Newenham 2 Sch. & L 199 272 

De Witt V. Van Sickle 2 Stew. Eq. 209 590 

Doe V. Tomkinson 2 M. & S. 165 281 


Downing V. Bordeu 7 Vr. 460 202 

Dows V. McMichael 6 Paige 139 186 

Drayton V. Drayton 2 Desaus. 250 372 

Dunn V. English 3 Zab. 126 496 

Dyer v. Sandford 9 Mete. 395 309 


Earl Y. Halsey 1 McCart. 332 •. 215 

Eason v. Henderson 12 Ad. & E. (N. S.) 986 115 

Edwards v. Tuck 23 Beav. 271 503 

EUicott V. U. S. Ins. Co 7 Gill 358 338 

Elliott V. Elliott 15 Sim. 321 278, 283 


Fairly V. Kline 2 Pen, *755 282 

Farnam v. Brooks 9 Pick. 212 188 

Ferrier v. Jay L. R. (10 Eq.) 550 278, 283 

Fetters v. Humphreys 4 C. E. Gr. 471 100 

Finley V. Simpson 2 Zab. 311 304,307 

Fish V. Miller 5 Paige 26 186, 188 

Fisk V. Atty.-Gen L. R. (4 Eq.) 521 354 

Flagg V. Bonnel 2 Stock. 82 186 

Fowler V. Fowler 10 Jur. (N. S.) 648 354 

Freeholders v. State Bank 2 Stew. Eq. 268 60 

Freeland v. Heron 7 Cranch 147 188 

Freeman V. Staats 1 Stock. 816 269 

Fulton V. Whitney 66 N. Y. 548 215 

Fuselier v. Buckner 28 La. An. 594 43 


Galwayv. Fullerton 2 C. E. Gr. 389 125 

Gaston's Trust 8 Stew. Eq. 60 519 

Geroe V. Winter 1 Hal. Ch. 655 372 

Gheen v. Osborn 17 S. & R. 171 28 

Glfiford V. First Presb. Soc 56 Barb. 114 497 

Giffiird V. Thorn 1 Stock. 702 374 

Giles V. Little 104 U. S. 291 203 

Gold Company, In re L. R. (7 Ch. Div.) 701 545 

Golden V. Knapp 12 Vr. 215 308 

Goodson V. Richardson L. R. (9 Ch. App.) 221 563 

Goold V. G. W. Deep Coal Co 2 De G. J. & S. 600 308 

Grant v. Grant 2 Curteis 16 608 

Grassman V. Bonn 3 Stew. Eq. 490 125 

Gray V. Chiswell 9 Ves. 118 148 

Gray v. Minnethorpe 3 Ves. 103 202 

10 Stew.] CASES CITED. xv 

Green V. Green 3 Stew. Eq. 451 258 

Gregg, In re 3 Bank. Eeg. 131 35 

Greenwich v, Easton & A. R. E 9 C. E. Gr. 217 401 

Griffiths, In re 3 Bank. Keg. 179 35 

Grove v. Young 15 Jur. 810 272 

Gulick V. Gulick..... 10 C. E. Gr. 324 203, 376 


Hackensack Co. v. N. J. Mid. E. R 7 C. E. Gr. 94 46 

Hamersley v. Lambert 2 Johns. Ch. 508 148 

Hammer V. Freese 19 Pa. St. 255 45 

Harman v. Dickenson 1 Bro. C. C. 91 170 

Harris v. G. W. R. E. Co L. E. (1 Q. B. D.) 515 310 

Harris v. Harris 2 Hagg. 376 605 

Harris v. Vanderveer.. 6 C. E. Gr. 424 579 

Harrisson v. Duignan 2 Dru. & War. 295 145 

Heaton's Case 6 C. E. Gr. 221 504 

Heckert's Appeal 24 Pa. St. 482 145 

Henderson v. Eason 17 Ad. & E. (N. S.) 701 115 

Herring's Case 8 Stew. Eq. 359 509 

Higgins V. Senior 8 M. & W. 834 153 

Hillyer V. Schenck 2 McCart. 398 262 

Hilton V. Earl of Granville 1 Cr. & Ph. 284 561 

Hoag V. Sayre 6 Stew. Eq. 552 86 

Hoare V. Osborne L. E. (1 Eq.) 585 354 

Hodges V. N. E. Screw Co 1 E. I. 312 364, 413 

Hoke V. Herman 21 Pa. St. 301 122 

Holcombe v. Managers 1 Stock. 457.. 269 

Holmes V. McDowell.. 76 N. Y. 596 338 

Holsman V. Boiling Spring Co 1 McCart. 335 102 

Holton ads. White 3 Zab. 330 170 

Hope V.Hope 10 Beav. 581 269 

Hopper V. Malleson 1 C. E. Gr. 382 37,577 

Horner V. Corning ... 1 Stew. Eq. 254 60 

Hughes V. Blake 6 Wheat. 453 186 

Humphreys v. Humphreys 2 Cox Ch. 185 122 

Hutchinson v. Barrow 6 H. & N. 583 485 

Hyde v. Baldwin 17 Pick. 303 201 

Ide V. Ide 5 Mass. 500... 23 

Irwin V. Farrer 19 Ves. 86 202 

Iszard v. Mays Landing Co 4 Stew. Eq. 511 112 

Izard V. Bodine 3 Stock. 403 116 

xvi CASES CITED. [37 Eq. 

Jackson v. Mover 13 Johns. 53! 48& 

Jackson v. Eobins 16 Johns. 537 20S 

Jackson v. Sill 11 Johns. 202 485 

Jacobsen V. Dodd 5 Stew. Eq. 403 441 

James V. Lichfield L. E. (9 Eq.) 51 451 

Jersey City V. Hudson 2 Beas. 420 400 

Jersey City V. Lembeck 4 Stew. Eq. 255 435 

Jersey City v.Vreeland 14 Vr. 638 38 

Jewell V. West Orange 9 Stew. Eq. 403 435 

Jewett V. Miller 10 N. Y. 402 215 

Johnson V, Harmon 94 U. S. 371 269 

Johnson v. Poulson 5 Stew. Eq. 390 449 

Johnson V. Van Horn 16 Vr. 136 435 

Johnston V. Hyde. 6 Stew. Eq. 632 112 

Johnston V. Hyde 10 C. E. Gr. 454 562 

Jones V. Jones 2 C. E. Gr. 351 610 

Jones V. Stites 4 C. E. Gr. 324 218 

Judge V. Vogel 38 Mich. 569 592 

Kamena v. Huelbjg 8 C. E. Gr. 78 590 

Kanev. Bloodgood 7 Johns. Ch. 90 - 144 

Kearney v. Macomb 1 C. E. Gr. 189 202 

Kendall, Ex parte 17 Ves. 513 148 

Kendall v. Kendall 9 Stew. Eq. 91 202 

Kensington, Ex parte Coop. 96 269 

Kerlinv. West 3 Gr. Ch. 449 562 

Kirkpatrick v. Com'rs 13 Yr. 510 38 

Knappv. Hoboken 10 Vr. 394 559 


Lane v. Williams 2 Vern. 277 148 

Lanning v. Sisters of St. Francis 8 Stew. Eq. 392 71, 485 

Leake Orphans Home v. Lawrence 11 Paige 83 142 

Leech v. Schroeder L. R. (9 Ch. App.) 463 315 

Leighton V. Leighton 1 P. Wms. 671 272 

Leng V. Hodges 1 Jac. 585 503 

Lewis V. Levy 16 Md. 85 43 

Linn V. Wheeler 6 C. E. Gr. 231 339 

Lippincott v. Lippincott 4 C. E. Gr. 121 372 

Livingston v. Ten Broeck 16 Johns. 14 497 

Lloyd V. Lloyd 10 Eng. L. & Eq. 139 354 

Locander v. Lounsbery 9 C. E. Gr. 417 456 

Lockwood V. Thorne 11 N. Y. 170 187 

10 Stew.] CASES CITED. xvii 

Longv. K. K. Co 50 N. Y. 76 310 

Long V. Watkinson 17 Beav. 471 449 

Longwood Valley R. R v. Baker 12 C. E. Gr. 166 14 

Lord Say and Seal's Case 10 Mod. 40 311 

Lord Tenham v. Herbert 2 Atk. 483 272 

Loring V. Coolidge 99 Mass. 191 70 

Lyddon v. Ellison 19 Beav. 565 503 


McClane v. Shepherd » 6 C. E. Gr. 76 144, 186 

McCoury V. Leek 1 McCart. 70. 170 

McDonald v. Walgrove. 1 Sandf. Ch. 274 23 

McElroyv. Ludlum 5 Stew. Eq. 828 139 

McEwen V. Broadhead 3 Stock. 129 186 

McFarland V. Gilchrist 10 C. E. Gr. 487 590 

McLaughlin v. McLaughlin 7 C. E. Gr. 505 405 

McNeil V. Tenth Nat. Bank 46 N. Y. 325 559 

Marsh V. Marsh 1 Stew. Eq. 196 618 

Marsh V. Oliver 1 McCart. 259 144 

Marts V. Cumberland Ins. Co 15 Vr. 478 580 

Afcison V. Trustees &c 12 C, E. Gr. 47 203 

Masters V. Masters... 1 P. Wms. 421 353 

Matchin V. Matchin 6 Pa. St. 332 609 

Matthews v. Wallwyn 4 Ves. 118 190 

Mayer v. Mayer 6 C. E. Gr. 246 617 

Mayne V. Baldwin 1 Hal. Ch. 454 250 

Melick V. Voorhees 9 C. E. Gr. 305 366 

Mellick V. President &c 1 Jac. 180 352 

Merchani v. Thompson 7 Stew. Eq. 73 329 

M-ichoud v. Girod 4 How. (U. S.) 503 215 

Miller v. Miller 1 Gr. Ch. 139 610 

Millner's Estate L. R. (14 Eq.) 245 502 

Mitford V. Mitford 9 Ves. 87 35 

Mitford V.Reynolds 16 Sim. 105 353 

Mittnight v. Smith 2 C. E. Gr. 259 338 

Moore v. Zabriskie 3 C. E. Gr. 51 53 

Morgan v. Rose 7 C. E. Gr. 583 11 

Morris and Essex R. R. v. Prudden 5 C. E. Gr. 530 400 

Morrow v. Dows 1 Stew. Eq. 459 577 

Mortimer v. Mortimer 2 Hagg. 310 605 

Mount V. Mount 2 McCart. 162 617 

Murphy's Case 3 Zab. 180 580 

Myers V.Myers 2 McCord's Ch. 214 418 


Nat. Bank of Metropolis v. Sprague.... 5 C. E. Gr. 13 35 

Nat. Dock Co. V. Central R. K. Co 5 Stew. Eq. 755 278 

xviii CASES CITED. [37 Eq. 

Neligh V. Michenor 3 Stock. 539 443 

Newark & N. Y. R. R. v. Newark 8 C. E. Gr. 575 270 

Newton's Trusts L. R. (4 Eq.) 171 2 

Noouan V. 'Albany 79 N. Y. 470 602 

Norris V. Thomson 1 C. E. Gr. 218 1-21 

Nourse V. Prime 7 Johns. Ch. 69 187 

Noverre V. Noverre 1 Rob. 428 607 


Oakley V. Pound 1 McCart. 178 408 

Ogilvie V. Foljambe 3 Meriv. 52 451 

O'Mahoney v. Burdett L. R. (7 H. of L.) 388 81 

Osgood V.Franklin 6 Johns. Ch. 1 366 

Overend & Gurney Co. Case L. R. (5 H. of L.) 480 364 

Owen V. Owen 4 Hagg. 261 608 

Palys V. Jewett 5 Stew. Eq. 302 112 

Paterson v. O'Neil 5 Stew. Eq. 386 577 

Pearce v. Gardner 10 Hare 287 419 

Pender v. Lushington L. R. (6 Ch. Div.) 70 276 

Pennington v. Van Hoiiten 4 Hal. Ch. 272 82 

People V. Mercein 3 Hill 399 250 

People V. Steele 2 Barb. 397 13 

Perkins v. Hart 11 Wheat. 237 187 

Perkins V. Jewett 11 Allen 9 486 

Pickering v. Pickering .. 2 Beav. 31 190, 195 

Pillsbury v. Kingon 6 Stew. Eq. 287 35 

Pit V. Cholmondeley 2 Ves. Sr. 565 188 

Potter V. Coggeshall 4 Bank. Reg. 19 35 


Randall v. Latham 36 Conn. 48 309 

Rar. & Del. Bay R. R. v. Del, & Rar. 

Canal Co 3 C. E. Gr. 546 112 

Read v. Drake 1 Gr. Ch. 78 253 

Reed v. Proprietors 8 How. (U. S.) 274 496 

Regina v. Smith... 16 E. L. & E. 221 250 

Rhode Island V. Mass 14 Pet. 210 186 

Ricard V. Robson 31 Beav. 244 354 

Richards V. Patterson.. 15 Sim. 501 383 

Robinson v. Hook 4 Mason 139 145 

Robinson v. Smith 3 Paige 222 362 

Rogers v. Smith 4 Pa. St. 93 485 

Rogers Loco. Works v. Erie R. R 5 C. E. Gr. 379 14 

10 Stew.] CASES CITED. xix 

Komaine v. Hendrickson 12 C. E. Gr. 162 215 

Eowe V. White 1 C. E. Ur. 411 218 

Euckman v. Ransom 6 Vr. 565 580 

Euev. Alter 5 Deuio 119 44 

Rutan V. Hincliman 1 Vr. 255 140 

Eutledge v. Eutledge Harp. Eq. 65 28 


St. Lawrence Steamboat Co., In re 15 Vr. 529 275 

Sampson v. Sampson L. R. (8 Eq.) 479... 383 

Sayre V. Hewes 5 Stew. Eq. 652 590 

Schenck v. Vail 9 C. E. Gr. 538 493 

Scudder V. Van A.rsdale 2 Beas. 109 2 

Seeger v. Seeger 6 C. E. Gr. 90 372 

Seymour v. Long Dock Co 5 C. E. Gr. 396 159, 570 

Shaker's Appeal 43 Pa. St. 83 419 

Shannon V. Marselis Sax. 413 386 

Sheldon v. Dunlap 1 Harr. 245 153 

Shields V. Arndt 3 Gr. Ch. 234 103 

Shuldhum's Divorce 12 CI. & Fin. 363 609 

Sickels V.Carson ., 11 C. E. Gr. 440 212 

Sinclair v. Armitage 1 Beas. 174 443 

Skillman V. Van Pelt Sax. 511 218 

Smith V. Ballantyne 10 Paige 101 142 

Smith V. Clay 3 Bro. C. C. 639 147 

Smith V. Earl of Effingham 10 Beav. 589 269 

Smith V.Gaines 9 Stew. Eq. 297 493 

Smith V. Presb. Church 11 G. E. Gr. 132 278 

Smith V.Smith 4 Dutch. 208 140 

Smith V.Smith 14 Gray 532 201 

Smith V. Wistar 5 Phila. 145 28 

Smithurst V. Edmunds 1 McCart. 408 42 

Smyth V. Nangle 7 CI. & Fin. 405 270 

Snyder v. Warbasse 8 Stock. 463 166 

South Eastern E. R. v. Brogded 3 Macn. & G. 8 571 

Southall V. Jones 1 Sw. & Tr. 298 278 

Southmayd v. McLaughlin 9 C. E. Gr. 181 562 

Sparkman V. Gove 15 Vr. 252 S08 

Spering's Appeal 71 Pa. St. 1 364 

Staats V. Bergen 2 C. E. Gr. 297 215 

Stackhouse v. Horton 2 McCart. 202 236 

Stanford V. Lyon 7 C. E. Gr. 33 100 

Stanford v. Lyon 8 Vr. 426 101 

State V. Clover 1 Harr. 419 250 

State V. Hanford 6 Hal. 71 581 

State V. Kingsland 3 Zab. 85 580 

State Bank v. Plainfield Bank 7 Stew. Eq. 456 60 


Steevens's Trusts L. R. (15 Eq.) 110 2 

Sterndale v. Hankinson 1 Sim. 393 147 

Stevens V. Guppy 3 Euss. 171 „ 573 

Stevens V. "Newark & P. R. R 5 C. E. Gr. 126 46 

Stevens v. Stevens 9 C. E. Gr. 77 4 

Stevenson v". Brown 3 Gr. Ch. 503 218 

Stevenson v. Phillips 1 Zab. 70 580 

Stewart v. Piatt 101 U. S. 731 35 

Stone v. Clark 1 Mete. (Mass.) 378. 497 

Stont V.Hart 2 Hal. 414 121 

Stout V. Seabrook 3 Stew. Eq. 187 186, 194 

Stuart V. Walker! 72 Me. 145 : 203 

Sturton V. Richardson 13 M. & W. 17 115 

Superintendent &c. V. Heath 2 McCart. 22 127 

Sutherland (Countess) v. Northmore... 1 Dick. 56 280 

Sweeny v. Williams 9 Stew. Eq. 627 571 

Talbot V. Earl of Radnor 3 M. & R. 254 218 

Tatham v. Wright 2 Russ. & Myl. 1 273 

Taylor V. Bray 8 Vr. 182 493 

Teape's Trusts ,. L. R. (16 Eq.) 442 278, 283 

Terhune v. Midland R. R. Co 9 Stew. Eq. 318 275 

Tewksbury v. Tewsbury 4 How. (Miss.) 109 609 

Thompson v. Quimby 2 Bradf. 449 238 

Thropp v. Field 11 C. E. Gr. 82 14 

Todd V. Gordy 28 La. An. 666 45 

Todd V. Rafferty 7 Stew. Eq. 552 150 

Trenton Bank. Co. v. Rossell 1 Gr. Ch. 511 269 

Trust Co. V. Jenkins 8 Paige 589 93 

Trustees v. Bosseiux 3 Fed. Rep. 817 362 

Trustees of Huntington V. Nicoll 3 Johns. 566 275 

Trustees of Pub. Schools v. Trenton.... 3 Stew. Eq. 667 37, 577 

Trustees of Union Church v. Wilkin- 
son 9 Stew. Eq. 141 355 

Tucker v. Tucker 11 Jur. 893 608 

Union V. Durkes 9 Vr. 21 601 

Van Doren v. Todd 2 Gr. Ch. 397 590 

Van Duyne V. Van Duyne.. 1 McCart. 49 218 

Vane v. Henderson 1 J. & W. 388 2 

Van Epps v. Van Epps 9 Paige 237 215 

10 Stew.] CASES CITED. xxi 

Vernon V. Kirk 30 Pa. St. 218 528 

Vernon v. Vernon 53 N. Y. 351 218 

Villareal v. Mellish 2 Swanst. 533 250 

Voorhees v. Voorhees 3 C. E. Gr. 223 166 

Vredenburgh v. Burnett 4 Stew. Eq. 229 590 

Vreeland v. Jersey City 14 Vr. 638 577 

Wagner v. Sharp 6 Stew. Eq. 520 „ 3 

Walters v. Northern Coal Co 5 De G. M. & G. 629 155 

Wandesforde v. Carrick L. K. (5 Irish Eq.) 486 280 

Wanmaker V. Van Buskirk Sax. 685 144 

Warde v. Warde 16 Beav. 103 497 

Waring V. Kubinson Hoffm. Ch. 524 337 

Watkins v. Eymill L. R. (10 Q. B. D.) 178 310 

Watson V. Sutherland 5 Wall. 74 42 

Webb V. Lord Shaftesbury 11 Ves. 361 28 

Weed V. Smull 7 Paige 573 188 

Welby V. Duke of Rutland 6 Bro. P. C. 575 272 

Weller V. Smeaton 1 Bro. C. C. 572 272 

Welsh V. Crater 5 Stew. Eq. 177 2 

Westbrook v. Gleason 79 N. Y. 23 590 

Wheeler v. Home Willes 208 115 

Whitehead v. Gibbons 2 Stock. 230 449 

Widdow's Trusts L. R. (11 Eq.) 408 502 

Wightman v. Brenner 11 C. E. Gr. 489 127 

Wilkinson v. Wilkinson 2 Sim. & Stu. 237 367 

Williams, In re L. R. (5 Ch. Div.) 735 354 

Williams v. Riley 7 Stew. Eq. 398... ; 414 

Williams v. Vreeland 3 Stew. Eq. 576 175 

Williams V. Williams 1 Hagg. 299 606 

Williamson v. Chamberlain 2 Stock. 373 81, 219 

Williamson v. New Jersey Southern 

R. R 11 C. E. Gr. 398 591 

Willink V. Morris C. & B. Co 3 Gr. Ch. 377 59 

Wills V. Wills L. R. (20 Eq.) 342 65 

Wilson V. Wilson 1 Barb. Ch. 592 60 

Wingfield v. AVingfield L. R. (9 Ch. Div.) 658 2 

Winsor v. McLellan 2 Story 492 35 

Winter v. Innes 4 Slyl. & Cr. 110 149 

Woodruff V. Black Sax. 338 590 

Woodruflf V. Morristown Inst 7 Stew. Eq. 174 590 

Woolston V. Beck 7 Stew. Eq. 74 65 

Wrixon v. Vize 3 Dru. & War. 104 145 

Wurts V. Page 4 C. E. Gr. 365 83 


Young V. Frier 1 Stock. 465, S38 






MAY TERM, 1883. 

Theodore Eunyon, Esq., Chancellor. 

Abraham V. Van Fleet and John T. Bird, Esq^., 

Howard W. Hayes et al. 


Oliver King et a.. 

A testatrix gave all the residue of her estate, real and personal, to her 
mother, and provided that in case her mother should die before herself, it 
should go to her mother's heirs-at-law. Her mother did die before testatrix. 
Her heirs-at-law, at the death of the testatrix, were two children of her de- 
ceased sister, and three children of her deceased brother. — £eW. that testatrix's 
personalty should be divided among them per capita, and her real estate per 

Bill for construction of will. On final hearing on bill. 



Hayes v. King. 
Mr. Howard W. Hayes, for complainants. 

Mr. Henry A. Condict, for defendants. 

The Chancellor. 

The bill is filed for a construction of the will of Mary A. T. 
Vail, late of Morristown. By the will, the testatrix gave the 
residue of her estate, both real and personal, to her raotiier, 
Esther H. Tichenor, and provided that in case her mother should 
predecease her it should go to her mother's heirs-at-law. 
She owned both real and personal estate at her death. Mrs. 
Tichenor did in fact die before the testatrix. Her heirs, at the 
death of the testatrix, were the defendants, Oliver E.. King and 
Caroline P. Hudson, the two children of Nancy King, a deceased 
sister of Mrs. Tichenor, and the complainants, who are the three 
children of her deceased brother, David A. Hayes. 

The question submitted is. In what shares do the complainants 
and Oliver R. King and his sister take the residue? 

The language of the clause under consideration is : 

" All the rest and residue of my estate, both real and personal, of every kind, 
1 give, devise and bequeath to my mother, Esther H. Tichenor, and in case of 
her death before my decease, then to her heirs-at-law." 

The provision that the heirs of Mrs. Tichenor should, in case 
she should predecease the testatrix, take the residue, is merely 
substitutionary, denoting succession. Vane v. Henderson, 1 Jao. 
<t: Walk. 388, note. The rule to be applied in this case is that 
the term " heirs " is reddendo singula singulis, to be construed in 
reference to the species of property which is the subject of dis- 
position. Scudder v. Vanarsdale, 2 Beas. 109 ; Akers v. Akers, 
8 C. E. Gr. 26; WeLsh v. Crater, 5 Stew. Eq. 177 ; affirmed on 
appeal, 6 Stew. Eq. 362; Wingfield v. Wingjield, L. B. {9 Ch. 
Div.) 668 ; Newton's Triists, L. R. [4- Eq.) 171 ; Steevens's Trusts, 
L. R. {15 Eq.) 110. And it is those who at the testatrix's death 
stood in the relation who are to be held entitled to the gift. 
Therefore in this case the three children of Mr.. Hayes and the 

10 Stew.] MAY TERM, 1883. 3 

Stevens v. Stevens. 

two of Mrs. King are the persons entitled, and they will take the 
personal estate per capita ( Wagner v. Sharp, 6 Stew. Eq. 620), 
and the real per stirpes, according to the statute of descents. The 
testatrix merely intended to give her property of both kinds to 
her mother, and in effect to provide that if the latter should pre- 
decease her there should be no lapse, but that there siiould be 
succession ; that the property (both kinds) should go to those 
who would have been entitled to it by law if her mother had 
survived her, and then immediately died intestate. There is no 
-evidence that she intended that those who should be the heirs-at- 
law of her mother should take the property of both kinds in 
equal shares. She has contented herself with a bare provision 
for succession, leaving the rest to the law. 

Stevens's Executrix et al. 


Stevens's Executors et al. 

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

On motion for allowance of costs and counsel fees. 

Mr. W. L. Clarkson, of New York, for heirs of R. L. Stevens, 

Mr. Leon Abbett, for executors and executrix of E. A. Stevens, 


Stevens v. Stnvens. 

The Chancellor. 

The heirs of Robert L. Stevens, deceased, and the executrix 
and executors of Edwin A. Stevens, deceased, apply for an allow- 
ance of their costs and counsel fees in this litigation out of the 
proceeds of the sale of the vessel known as the Stevens Bat- 
tery. The suit was brought by the executrix and her children^ 
against her co-executors and others for advice, for a construction 
of the will of Edwin A. Stevens and the approval of the court 
as to action already taken by the executors in reference to 
trusts under the will. It raised various questions, one of which 
was as to the validity of the bequest of the battery to the state, 
and another as to the validity of the testamentary direction to- 
the executors to finish the vessel. The attorney -general of the 
state, the governor, the commissioners appointed by the state, in 
relation to the battery and the heirs of Robert L. Stevens, were 
made parties to the suit. The attorney-general filed a cro&s- 
iuforraation (a defence) for the protection of the interests of the 
state in the subject-matter of the controversy. Steveyis's JExecutrix 
V. Stevens's Executors, 9 C E. Gr. 77. The litigation was insti- 
tuted and prosecuted in behalf of the estate of Edwin A. Stevens 
and for the benefit of those interested therein. The result of the 
litigation as to the battery was everywhere in favor of the state. 
I see no ground on which either the executrix or the executors 
of Edwin A. Stevens, or the heirs of Robert L. Stevens, who 
were brought into this suit by the executrix and her children^ 
can claim indemnity for their expenses in the litigation out of 
the proceeds of the sale of the battery — out of the legacy to the 
state. The motion is therefore denied. 

10 S TEW.] MAY TERM, 1883. 

Acton V. Lloyd. 

Caspar W. Acton, executor &c., 


David S. Lloyd et al. 

Where the name of a legatee is erroneously stated in a will, and there is 
no reasonable doubt as to the person intended, the mistake will not defeat the 

Bill for construction of will and instructions. On final hear- 
ing on pleadings and proofs. 

Mr. M. P. Grrey, for complainant. 

Mr. W. T. Hilliard, for David S. Lloyd. 

The Chancellor. 

Margaret Lloyd, deceased, late of the city of Salem, in this 
state, by her will provided as follows : 

" After the decease of my said sister, Sarah Lloyd, I do hereby order and 
direct my said executors hereinafter named, to pay over the proceeds of the 
aale of my real estate and all my personal estate, after deducting necessary 
charges and expenses, unto my nieces, Sarah Lloyd, Mary Lloyd, Rebecca 
Lloyd, and my nephews, John Lloyd, William Lloyd, Thomas Lloyd and 
Dickey Lloyd, children of my brother, Thomas Lloyd, deceased, in equal 
shares or share and share alike." 

The testatrix's brother, Thomas Lloyd, was her only brother. 
He had, at the date of the will, June 20th, 1860, seven childrpn, 
all of whom are still living. Their names are Sarah, Mary K., 
Rebecca K., John M., William D. K., David S. and Thomas. 
There is none named Dickey, except that William's full name is 
William Dickey Kearns Lloyd. David S. is his twin brother. 
The complainant, by this suit, seeks instruction as to what person 
is designated in the gift to Dickey Lloyd. The testatrix's 
brother Thomas had onlv the seven children above mentioned. 


Wliitecar v Michenor. 

He died in Pennsylvania (where he lived) in 1854. The will 
was, a» before stated, made in I860.' The testatrix had no 
nephew of the name of Dickey Lloyd. It is quite evident that 
she referred to David S. Lloyd by the name of Dickey Lloyd,^ 
applying to him, by mistake, one of the Christian names of his 
twin brother William. The general rule is, that where the name or 
description of a legatee is erroneous, and there is no reasonable 
doubt as to the person who was intended to be named or described, 
the mistake will not defeat the bequest. There is no evidence 
that the testatrix intended to give William a double portion, but 
it is clear that by the name Dickey Lloyd she meant another 
person than he, and that person was his brother. She lived in 
Salem, and her brother Thomas and his family in Pennsylvania, 
and her mistake as to the name of one of his children is by no 
means surprising. It will be decreed that the gift to Dickey 
Lloyd was intended for David S. Lloyd. 

Charles H. Whitecar et al. 


Elwood Michenor et al. 

The trustees of a Methodist Episcopal church closed the church building 
against the duly-appointed preacher, on the ground that it was not for the 
interest of the church that he should be its pastor, and that he was appointed 
against the wish of the majority of the members. — Htld, that they had no right 
to do so, and, after answer, a mandatory injunction was issued requiring them 
to open the building to the preacher and the church. 

Bill for injunction. On motion for mandatory injunction. On 
order to show cause. On bill and answer. 

Mr. S. K. Bobbins and Mr. B. D. Shreve, for complainants. 

Mr. R. S. Jenkins, for defendants. 

10 Stew.] MAY TERM, 1883. 

Whitecar v. Michenor. 

The Chancellor. 

The complainants are Rev. Dr. Charles H. Whitecar, a min- 
ister of the Methodist Episcopal denomination, who has been 
duly appointed for the present conference year to the charge over 
the Methodist Episcopal Church at Moorestown, and certain of 
the members of that church. The defendants are the trustees of 
that church. The bill states that the defendants, on the 29th of 
March last, closed the church against the members and congre- 
gation, and have kept it closed ever since. It prays an injunc- 
tion to compel them to open it for the religious uses to which it 
was dedicated. It appears from the bill and the admissions of 
the answer, that the church was organized' under the rules, regu- 
lations and discipline prescribed by the general conference of the 
Methodist Episcopal Church in the United States, and was duly 
incorporated on or about the 21st of August, 1815, under the act 
" to incorporate trustees of religious societies," "by the name of 
" The Methodist Episcopal Church at Moorestown ;" that Rachel 
S. Andrews, in September, 1858, conveyed to Deacon Brock, 
Caleb Fenimore, Thomas Marter, James Moore, John Ireland, 
Isaac Browning and Paul Crispin, " trustees of the Methodist 
Episcopal Church at Moorestown, in the county of Burlington 
and State of New Jersey," the lot of land on which the church 
edifice is built, for the use and benefit of the members of the 
Methodist Episcopal Church at Moorestown, and that afterwards 

Note. — In the Methodist Episcopal Church, to worship as members, the 
preacher sent by the bishop must be accepted, Henderson v. Hunter, 59 Pa. St. 

Wliether elders and deacons of that church, appointed and ordained, are 
ministers, Roberts v. State Treasurer, 2 Root 381 ; Kibbe v. Antrum, 4 Conn. 
134; Goshen y . Stoninglon, Id. 209 ; see Com. y. Spooner, 1 Pick. 235 ; London- 
derry V. Chester, 2 N. H. 268 ; State v. Bray, 13 Ired. 289 ; State v. WilUs, 9 
Ark. 196 ; Howard v. American Peace Soc., 4^ Me. 288. 

An injunction was granted in the following instances : 

Where the Archbishop of Canterbury, by his will, gave all options which 
should fall to the defendants Chapman and others in trust, to present his son 
in the first place, and the others named in the will in succession. A vacancy 
happening, Chapman procured himself to be presented for installation and in- 
duction. Potter V. Chapman, 1 Dick. 146. 

To restrain the trustees of a church from electing as a minister and intro- 
ducing into the pulpit a person not duly licensed, Milligan v. Mitchell, 1 Myl. 


Wliitecar v. Michenor. 

the members of that church built tliereon the church edifice in 
question as a place of worship, according to the rules of faith of 
the Methodist Episcopal Church in the United States, and sub- 
ject to its discipline, and that the church edifice has been used as 
such from the time of its erection until it was closed by tiie 
trustees on the 29th of March last; that on the 27th of that 
month the Rev. Dr. Wiley, one of the bishops of the Methodist 
Episcopal Church of the United States, and in whom, by the 
, rules and regulations of the general conference, was reposed the 
power, and on whom was imposed the duty of appointing for the 
present conference year the ministers for the various churches 
constituting the New Jersey Annual Conference, to which annual 
conference the church at Moorestown belongs, appointed Dr. 
Whitecar to that church for that year (being his second annual 
appointment to that church) as minister in charge, and the latter 
accordingly entered upon the discharge of his duties, and in the 
course tliereof proceeded to the church building on the 29th of 
March for the purpose of holding the usual prayer-meeting there, 
but found the doors of the church locked and a notice thereon, 
dated that day, and purporting to be given by the board of trus- 
tees and signed by its secretary, that the church would remain 

& K. 446, 3 Myl. & Cr. 72; see Humbert v. St. Stephens Church, 1 Edw. Ch. 
308 ,- Lawyer v. Cipperly, 7 Paiye 281. 

■\Vhere the vestry of a Protestant Episcopal Church dismissed the rector 
without his consent, Batterson v. Thompson, S Phila. 251 ; see Youngs v. Man- 
som, 31 Barb. 49 ; Congregation v. Peres, 2 Coldw. 620. 

^Vhe^e a Roman Catholic bishop removed a priest arbitrarily, and forbade 
him to exercise the functions of his office, O'Hara v. Slack, 90 Pa. St. 477. 

To restrain one of two congregations entitled to the joint use of church 
building, from inviting another pastor and congregation to worship there, 
after its own minister had resigned, Cammeyer v. German Lutheran Church, 4 
Edw. Ch. 223. 

To compel the trustees of a church, who persisted in retaining a pastor after 
he had been cited before the church tribunals, and defied them, to permit 
clergymen in good standing to officiate, Shilton v. Webster, Brightly 203. 

Where a canon of the church required the bishop to consult with the war- 
dens and lay representatives of the parish before appointing a rector to fill a 
vacancy, which the bishop disregarded, Johnson v. Glen, 26 Grant's Oh. 162. 

To prevent the granting of a license to a minister to preach, where the 
trustees, who had the {(ower of selection, disregarded the statutory require- 

10 Stew.] MAY TERM, 1883. 9 

Whitecar v. Michenor. 

closed until further notice; that he and the members of the 
church there assembled were compelled to disperse without gain- 
ing entrance to the church ; that the members present appointed 
a committee of six of their number to call with the minister upon 
the president of the board of trustees and learn the cause of the 
closing of the church and preventing the minister and the mem- 
bers from holding service therein; that the committee called on 
the president and made the inquiry ; that at the time another of 
the trustees was present with the president ; that in reply to the 
inquiry the president said that he had not the keys and did not 
know where they were, and, at the same time, said to the com- 
mittee that the trustees had the power and authority to close the 
church, but gave no reason for doing so; that the committee, on 
the same occasion, asked him to show them the deed of the 
church property, but he, while admitting that he had it in his 
house, where the interview took place, refused to show it to them. 
It also appears, by like statement and admission, that the trustees 
have kept the church locked ever since the date mentioned, the 
29th of March, and have refused to permit it to be used for 
public worship or even for the meeting of the quarterly confer- 
ence, which is presided over by the elder of the district. The 

merits as to the residence, place of education and personal qualifications of 
their appointee, Atly.-Gen. v. Earl uf Powis, Kay 1S6 ; or where the mode of 
election of a vicar was irregular as to the voting, Edenborough v. Canterbury, 2 
Russ. 93; Atly.-Gen. v. Pearson, 3- Meriv. 352; but see Leslie v. Birnie, 2 Buss. 
114; Davis v. Jenkins, 3 V. & B. 151 ; or any informality, acquiesced in for a 
long time, in the mode of electing the trustees who appointed the vicar, Atty.- 
Gen. V. Cuming, 2 Y. & C. 139. 

To restrain a church warden from illegally preventing a chaplain's perform- 
ing divine service, Atly.-Gen. v. St. Cross Hospital, 18 Beav. 601, 8 De G. M. 
<£• G. 38. 

To exclude from a church- one not duly chosen as its pastor, but who with 
the aid of a minority persisted in preaching there and in locking out the right- 
ful trustees, Perry v. Shipway, 4 De G. & J, 353. 

To prevent the trustees from excluding the minister from the parsonage, 
Ward V. Hipwell, 8 Jur. {N. S.) 666; Spurgin v. While, 2 Giff. 473. 

To enjoin an illegal dismissal of a pastor, Dangars v. Rivaz, 28 Beav. 233, 
33 Beav. 621; see, also. Ally. -Gen. v. Litchfield, 5 Ves.825; Carter v. Q-opley, 
8 De G. M. & G. 680. 

To restrain a minister from occupying the pulpit and preaching in a church, 


Whitecar v. Michenor. 

defendants, by their answer, assert their loyalty to the Methodist 
Episcoj)^! Church in all respects, and their willingness to obey 
its rules, regulations and discipline, so far as they comport with 
their legal obligations, as they understand thera, under the before- 
mentioned deed of trust, and allege that their action in closing 
the church against Dr. Whitecar is in accordance with the 
expressed MMshes and determination of the majority of the mem- 
bers of the church, and because they are of opinion that the 
welfare uf the church demands that he should not be its pastor. 
On the argument of this motion it was stated in behalf of the 
defendants, and it is so averred in the answer, that their action in 
closing the church was due to tlus fact that in view of the trust 
in the deed for the land on which the church edifice is built, they 
considered it their duty to obey the wishes of the majority of the 
members of the church as to who, should officiate as its settled 
pastor, notwithstanding those wishes may be in conflict with the 
rules, regulations and discipline of the Methodist Episcopnl 
Church. This view, however, is entirely erroneous. Not only 
so, but there is, in fact, no ground whatever for assuming that, 
by reason of anything in the deed, they are under any obligation 
different from that which would devolve upon them merely as 

contrary to the rules and discipline of the church, although the majority of tlie 
congregation approved, Sarver's Appeal, SI- Pa. St. 183 ; Trustees v. Stewart, 
43 III. SI ; Hale v. Everett, 53 N. H. 9. 

To remove church trustees who were perverting or diverting the original 
trusts thereof, Kinakern v. Lutheran Church, 1 Sandf. Ch. 439 ; Atty.- 
Gen. V. Pearson, 3 Mer. 352, 7 Sim. 290; Field v. Field, 9 Wend. 394; 
Shore v. Wilson, 9 CI. & Fin. 355; Gass's Appeal, 73 Pa. St. 39 ; Lutheran 
Church V. Gristgan, 34 Wis. 328; Kisor'.'! Appeal, 62 Pa. St. 4^8; First Church 
v. Filkins, 3 T.& C (N. Y.) 279 ; Reformed Society v. Draper, 97 Mass. 349 ; 
Baptist Congregation v. Scannel, 3 Grant's Cos. 48 ; Bartholomew v. Lutheran 
Congregation, 35 Ohio St. 567. See Hullman v. Honcomp, 5 Ohio St. 237. 

Where the articles of incorporation provided that the trustees should admit 
all evangelical ministers of other churches "at any time the Methodists are 
not using the house themselves," and certain "Seventh- Day Ad^ntists" per- 
sisted in their right to use the building, they were attached for contempt, 
Slate V. Baldwin, 57 Iowa 266. 

An injunction was refused in the following insiances: 

Where the congregation was independent, or not connected with any par- 
ticular denomination, Trustee.i v. Proctor, 66 III. 11 ; Calkins v. Cheney, 92 

10 Stevy.] may term, 1883. 11 

Whitecar v. Michenor. 

trustees of the church, had the deed beeti made directly to the 
corporation and expressed no trust. The deed, as before stated, 
svas made not to the corporation, but to certain persons who, at 
the date of the conveyance, were the trustees of the church. It 
conveys the property to them with the addition of trustees oi the 
Methodist Episcopal Church at Moorestown, in the county of 
Burlington and state of New Jersey after their names, in trust 
for that church, and the only proper use and behoof of the mem- 
bers thereof. Neither the defendants nor any of them are j)arties 
to that deed, and neither they nor any of them claim by descent, 
grant or devise from the grantees therein. They are merely 
trustees of the corporation, elected in February, 1882. Neither 
the legal nor the equitable title to the property is in them. The 
latter title is in the corporation, and they merely represent the 
corporation as trustees holding the title of the corporation on a 
simple trust which makes them bare depositaries of the title. 
Morgan v. Hose, 7 C. E. Gr. 583. And the case would not be 
different if they held the legal title under the deed. But they 
do not hold that title. By the act of incorporation the trustees 
did not acquire the authority which they claim to close the 
ciiurch building at their discretion. Morgan v. Rose, ubi sup. 

III. 463; Smith v. Nelson, IS Vt. 511; African Church v. Clark, 25 La. Ann. 
282; Cooper v. Gordon, L. B. (8 Eq.) 249; Perry v. Shipway, 1 Giff. 1; 4 -De 
G. & J. 353 ; Lucas v. Case, 9 Bash 297 ; Grosveaor v. Society, 118 Mass. 78. 

Where the pastor withdrew from the synod with which the church was con- 
nected, attached himself to another, and introduced into the service practices 
not approved by the former synod, Lutheran Church v. Maschop, 2 Stock. 57. 
See Isham v. Dunkirk, 63 How. Br. 4^5 ; Dressen v. Brainier, 56 Iowa 756. 

Where an incumbent refused to allow the complainant, an attendant at an 
Episcopal church and one of the lay members of the synod, to partake of the 
communion ; and to prevent his threatened suspension or excommunication, 
Diunret v. Forneri, 25 Grant's Ch. 199. 

Where the minister of an independent church, who was only entitled to the 
voluntary contributions of the congregation, was dismissed, Forter v. Clark, 
2 Sim. 520. 

An action at law may be sustained by a minister illegally barred out of liis 
church, Lynd v. Menzies, 4 Vr. 162 ; St. Georges Church v. Cougle, 1 Hannay 

Whether certiorari will lie to remove an election of a minister, Ex parte Beek 
2 Bagsley 66. 


Wliitecar v. Michenor. 

Nor have they power, under the discipliue of the church, to 
close it against the duly-appointed preacher, though a majority 
of the members are desirous that they shouhl do so. Nor have 
(hey such power under the trust in the deed. The trust is that 
the grantees therein named, and the survivors of them, their suc- 
cessors and assigns, will hold the property for the only proper 
use and behoof of the members of the Methodist Episcopal 
Church at Moorestown, their successors and assigns, forever. It 
is admitted that that church was organized under the rules, regu- 
lutionc and discipline prescribed by the Genera! Conference of 
the Methodist Episcopal Church of the United States, and it is 
not denied that it has been so ever since. It was incorporated in 
1815, now nearly seventy years ago. The very name of the cor- 
poration indicates its character and connection. As a Methodist 
Episcopal Church it is subject to those rules, regulations and 
discipline. It is not alleged that the appointment of tlie preacher 
was unauthorized or irregular, but that a majority of the mem- 
bers of the church desire that the preacher appointed shall not 
be permitted to act as the pastor of the church — to discharge the 
duties of the place to which he has been duly appointed. It is 
not claimed that there is any warrant in the discipline of the 
church for the action of the trustees, nor that the discipline pr«- 
vides that the wishes of the majority of the members shall de- 

Mandamus will not He to compel an archbishop to examine a candidate for 
orilers, who has been nominated by a parish vicar, Rex v. Archbishop of Dublin, 
Ale. & Nap. £44. 

After a minister has been deposed by the church tribunals, the courts of 
law cannot interfere to protect his right to preach or to the emoluments of his 
place, unless he has been unlawfully deprived of some civil rights, Chase v 
Cheney, 58 III. 509 ; Walker v. Wainvxright, 16 Barb. 4^6 ; Runkel v. Wine 
muller, 4 Sarr. & McH. 4^9 ; Union Church v. Sanders, 1 Soust. 100 ; jBrosim 
v. Renter, 1 Harr. & Johns. 551 ; Dutch Church v. Bradford, 8 Cow. 457 ; see 
Connitt v. Reformed Church, 4 Lans. 339, 54 N. Y. 551 ; Trustees v. Seaford, 1 
Dev. Eq. 457; Forbes v. Eden, L. R. {1 Sc. App.) 568; CHara v. Slack, 90 
Pa. St. 477 ; Ferguson v. Earl of Kinnoul, 9 CI. & Fin. 251 ; Bouldin v. Alex 
under, 15 Wall. 131. 

After deposition, a clergyman may be required to surrender or convey 
church property in his possession, Sanson v. Mitchell, 6 Grant's Ch. 582 ; 
Bradbury v, Birchmore, 117 Mais. 569 ; Chatard v. O Donovan, 80 Ind. 20. — 

10 Stew.]. MAY TERM, 1883. 13 

Whitecar v. Michenor. 

termine whether the preacher appointed to the charge shall act 
as such or not. If the church belongs to the Methodist Episco- 
pal connection, as it is admitted it does, there is no warrant of 
law, discipline or usage for the acts of the defendants. What is 
known as the itinerancy of the preachers and the absolute power 
of the bishops over the appointments of the preachers to the 
churches, is part of the discipline. 

Chief-Justice Gibson said, in Commonwealth v. Cornish, 13 
Pa. St. 288, 290, that in the Methodist Episcopal Church in 
England and America the election and ordination of the priest- 
hood by the general or annual conference, the ordination of them 
by laying on of hands by a bishop and elders, and fixing of their 
appointments by the bishop, are cardinal points, the last of them 
a distinctive one. He adds that it is the rock on which the 
church is founded and on which it has prospered. Remove the 
church from it, he says, and it ceases to be methodistic ; and he 
also says that the election and ordination of elders, and the fixing 
of their appointments, are regulated by articles which are funda- 
mental. Said Judge Edmonds, in the case of People v. Steele, 2 
Barb. 397, 4-13 : "I am irresistibly conducted to the conclusion 
that the itinerancy of the priesthood, enforced by the power of 
the episcopacy, is now and for more than a century has been the 
well-established practice of this church, is clearly defined in the 
doctrines and discipline,' and has been again and again under- 
standingly and advisedly justified and defended by the highest 
ecclesiastical tribunal known in its constitution." In the case 
last cited, which is the leading case on the subject, and which 
ill its circumstances was substantially identical with this, the very 
question presented here as to the right of the trustees of a Metho- 
dist Episcopal Church to exclude the bishop's appointee was judi- 
cially decided against the trustees. There, as here, the trustees 
claimed to be supported in their action by the majority of the 
members of the church. See, also, B?'unnenmeyer v. Buhre, 32 
111. 183. 

But it is urged by the defendants that according to the prac- 
tice of this court there should be no mandatory injunction in this 
case before the final decision of the cause. On the filing of the 

14 CASES IN CHANCERY. . [37 Eq. 

Wliitecar v. Michenor. 

bill an injunction was granted, but it was not mandatory in its 
characten It indicated that in the judgment of the court, en the 
case made by the bill, the defendants ought to be restrained from 
clothing the church building against the preacher and the church. 
It did not, however, require them to open it, and they refused to 
open it under the non-mandatory prohibition. Their refusal was 
not a violation of the command of the writ, and tlie application 
for an attachment against tliem for contempt was therefore prop- 
erly denied. The present application was subsequently made to 
me for a mandatory injunction. I thereupon granted an order 
to show cause why such an injunction should not be granted, and 
the defendants then put in their answer. The whole case is now 
before me, and the defendants have been heard upon the appli- 
cation. I am of the opinion that judged by their answer, and 
assuming the truth of the facts therein alleged, they are without 
justification for the act complained of, and I see no reason, either 
jurisdictional or prudential, for refusing the writ. While the 
jurisdiction of the court to interfere by way of mandatory in- 
junction should be exercised with the greatest possible caution, 
yet where the right to restrain the violation of which the injunc- 
tion is asked for is clearly made out, and there is a present want 
of the use of that right, the court should not hesitate. The court 
is always very reluctant to grant a mandatory injunction on an 
interlocutory application, but where extreme or very serious dam- 
age would ensue from witliholding it, as in cases of interference 
with easements or other cases demanding immediate relief, it will 
be granted. Joyce Frin. Inj. 67 ; Rogers Locomotive Works v. 
Erie JL R. Co., 5 C. E. Gr. S79 ; Thropp v. Field, 11 C. E. Gr. 
S2; Longvcood Valley R. R. Co. v. Baker, 12 C. E. Gr. 166. In 
this case it is not reasonable, under the circumstances, to jjcrmit 
the defendants to deprive the church of the use of the edifice 
until the final hearing. The property is held by the defendants 
on a simple trust, and they are unwarrantably withholding the 
use of it from tliose for whose use they hold it. They have been 
heard and their defence fully laid before the court and considered. 
There will be an injunction commanding them to desist and re- 
frain from continuing to keep the church closed at such times as 

10 Stew.] MAY TERM, 1883. 15 

Long Dock Co. v. Bentley. 

to prevent the preacher, Dr. Whitecar, and the members of the 
church from using it fur the purposes of religious worship and 
church business. 

Long Dock Company 


Margaret E. Bentley et al, 

1. Equity only interferes with an action at law where there are equitable 
lircumstances wliich render it unjust, as against the defendant at law, that the 
suit should proceed. 

2. Held, in this case, that it constitutes no ground for such interference that 
the plaintiffs have no right to bring the action at law ; nor that, if they re- 
cover, they will hold the damages in trust, in part for the defendants at law; 
nor that the defendants at law should be allowed to retain so mucii of the 
damages recovered as would be payable to them as one of the cestuis que trust; 
nor that there has been no breach of the covenant which is the basis of the 
action ; nor (hat if there kas been such breach, equity ought to relieve 
against it. 

Bill for relief. Motion for preliminary injunction. 

Messrs. C. & R. Wayne Parker, for com})lainants. 

The Chancellor. 

The bill states that a conveyance of certain land, held by the 
grantors in trust for themselves and others, was made by Peter 
Bentley and Moses Taylor and their wives to the complainant; 
that Messrs. Bentley and Taylor were trustees and conveyed as 
such, < hough not expressly; that the complainant was one of the 
cestuis que trust ; that the deed contained a covenant on the part of 
the grantee, which was made with the parties of the first part in 
the deed, the grantors, Messrs. Bentley and Taylor and their 
wives ; that Messrs. Bentley and Taylor are dead, and that their 


Long Dock Co. v. Bentley. 

wives are now seeking by suit at law to recover damages for an 
alleged breach of the covenant. The claim to a preliminary in- 
junction is based on three grounds ; one is that the widows of 
the grantors are not trustees, and therefore ought not to be per- 
mitted to prosecute the suit; another is that the complainant 
here, which is the defendant in the suit at law, is one of the 
cestuis que trust, and so entitled to part of the damages which 
may be recovered ; and the other is, that the alleged ground of 
forfeiture is not such as to justify suit, and if it is, it is one of 
the kind against which equity will relieve. 

The widows of the grantors can maintain the action at law. 
If not, the complainant has no reason for coming here. If they 
can maintain the action and recover damages, they will hold 
them as trustees on the same trust on which their husbands 
would have held them if they had sued, and if necessary, equity 
will compel them to recognize and execute thai trust. The com- 
plainant will not, if it should appear to be inequitable, be com- 
pelled to pay all the damages which may be recovered, but will 
be allowed in equity to retain so much as would be its share as 
one of the cestuis que trust. If the alleged forfeiture is not one 
in fact, the court of law will so determine, and that question 
ought to be determined there. If it be one in fact, and equity 
ought to relieve against it,' relief can be given as well after judg- 
ment as before. Equity only interferes with an action at law 
where there are equitable circumstances which render it unjust as 
against the defendant at law, that the suit should proceed. 
Joyce Prin. Inj. 52. It seems to me that interference by this 
court would be unwarranted or premature, to say the least of it. 
A preliminary injunction is therefore denied. 

10 Stew.] MAY TERM, 1883. 17 

Jacobus V. Jacobus. 

Cornelius H. Jacobus 


Harriet E. Jacobus et al. 

1. Before an order for the distribution of the proceeds of a mortgage had 
been made, one of the distributees died intestate, and soon afterwards one of 
the decedent's children applied for his share of decedent's portion, but the 
executoi', who had charge of the fund, refused to pay him, or any one except 
decedent's administrator. Pending the appointment of such administrator he 
deposited the fund in a bank, in the name of himself, adding, " Estate of Has- 
sei C. Jacobus," his testator. The bank was then in excellent standing, but 
fiiiled before an administrator had been appointed. — Held, that the executor 
was not liable for the loss of the funds. 

2. Held, also, that the money which was part of the proceeds of the sale of 
land in partition, in which the intestate had an interest, and which was in- 
vested on bond and mortgage to answer a charge on the property, was personal 
and not real estate, the intestate's interest therein being a vested one. 

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

Mr. C. G. Garrison, for petitioners. 

Mr. JR. Wayne Parker, for respondent. 

The Chancei.lor. 

The children of Hassel C. Jacobus, deceased, being the owners 
in fee by devise under his will of certain real estate in this state, 
subject to a charge for the support &c. of a blind relative, John 
J. Jacobus, one of them, Cornelius H. Jacobus brought this suit 
in 1873 for partition of the property. The result was that the 
property was sold under the order of this court, free of the charge, 
and ^6000 of the proceeds of the sale invested on bond and 
mortgage to the chancellor, to provide for the support &c. of 
the beneficiary under the charge. The rest of the net proceeds 
was divided among the devisees in fee, each of whom, including 



Jacobus V. Jncobus. 

Catharine Hedden, received his or her share thereof. John J. 
JacobuS^died March 1st, 1881. On the 5th of April following, 
JBenjamin Roome, the sur%'iving executor of Hassel C. Jacobus, 
filed his petition in this suit, stating the death of John J. Jacobus, 
and that the mortgagor was ready to pay off the mortgage. On 
the same day an order was made directing him to receive the 
money, and account, before a master named in the order, for his 
disbursements for the support &c. of John J. Jacobus. The 
master reported and another order was made on the 25th of the 
same month of April, directing Mr. Roome to distribute the 
amount remaining in his hands, after deducting his taxed costs, 
among the persons entitled thereto, one of whom was Catharine 
Hedden. When he filed his petition, Mr. Roome, as aj)pears by 
his deposition, supposed her to be alive, but a few days afterwards 
learned, on inquiring of her sister, that she was dead. The fact 
of her death, however, does not seem to have been noticed in the 
proceedings, and the order of distribution directs payment of her 
share to her. He requested her sister to communicate with Mrs. 
Hedden's family, and' she did so. In September one of Mrs. 
Hedden's children came to him and asked for his share of the 
money. Mr. Roome expressed his willingness to pay to the 
proper person, and stated that he thought he could not safely 
pay any one except an administrator of Mrs. Hedden's estate. 
He deposited the money in the Mechanics National Bank at 
Newark very soon after it came to his hands. The deposit was 
in the name of " Benjamin Roome, estate of Hassel C. Jacobus." 
I'he bank failed October 29th, 1881. After the failure. Bowman 
S. Cox, the husband of the daughter of Mrs. Hedden, who had 

Note — A trustee who deposits iin)ney of the trust in his name as trustee, 
in a bank then in good credit, is not liable for the loss of the funds by the 
subsequent failure of the bank, 3 Wms. on Exrs. [i5i<?] ; France v. Woods, 
Tamlyn 172 ; Johnson v. Newton, 11 Hare 160 ; Fitzsimons v. Fitzsimons, 1 
Rich. [N. S.)400; Whitney v. Peddicord, 63 III. 252; Post's Estate, Myrick 
230 ; see Shipley v. Wood, 4 Md. 493 ; Livermore v. Wortman, 25 Hun 341 ; 
Springer v. Oliver, 21 Ga. 517. Otherwise, if deposited in liis own name, or 
where no necessity for such deposit existed, 3 Wms. on Exrs. [ISIS"] ; Staf- 
ford's Case, 11 Barb. 353; Jenkins v. Walter, S Gill & J. 218; Com. \. Mc- 
Alisier, 28 Pa. St. 480, 30 Pa. St. 536; Darke v. Martin, 1 Beav. 625; Ditmar 
V Bogle, 53 Ala. 169 ; Mason v. Whitthorne, 2 Coldw. 242 ; Crane v. Moses, 13 

IOStew.] may term, 1883. 19 

Jacobus V. Jacobus. 

taken out letters of administration on Mrs. Hedden's estate (but 
did not do so until after the bank failed), applied to Mr. Roome 
for the money. The latter was willing to turn over to him the 
dividends payable by the receiver of the bank on the deposit, but 
the administrator declined to receive them, and demanded the 
payment of the full amount of the share. Mr. Roome then paid 
the dividends into court. The present a])plication is by the 
heirs-at law and administrator, respectively, each asking for an 
order requiring him to pay the full amount of the share to them 
or him. 

The heirs-at-law insist that they are entitled to the money and 
that Mr. Roome is bound to answer to them for the full amount, 
because, as they insist, he was not justified in withholding pay- 
ment from them, on the ground that the share was personal prop- 
erty and consequently payable only to the personal representative 
of Mrs. Hedden, and that having unjustifiably withheld it until 
after the bank failed, he must bear the loss. They insist that the 
share was, at the death of John J. Jacobus, real estate in equity. 
If it was personal they have, of course, no claim to it. Mrs. 
Hedden, as before stated, received her share of the proceeds of 
the sale in partition, except the $6000 invested on bond and 
mortgage. When the proceedings in partition took place she was 
a widow and never remarried. She died in 1879. There is no 
ground for holding that her share of the $6000 investment con- 
tinued to be real estate up to the time of her death. The equi- 
table rule on the subject applicable to cases where the person en- 
titled to a share of real property sold in partition is a minor or 
of unsound mind, does not apply to a person who is sui juris. 

S. a 561; Twitty V. Houser, 7 Rich. [N. S.) 153; Williams v. Williams, 55 
Wis. 300 ; or, in case of subsequent neglect of the trustee, Challen v. Shippam, 
4 Hare 555; Wood \. Myrick, 17 Minn. 408; Willeford v. Watson, 12 Heislc. 
476 ; Baskin v. Baskin, 4 Lans. 90 ; see Goodwin v. American Bank, 48 Conn. 
550. Trustees are not responsible for the loss of the trust fund by robbery, 
Morley v. Morley, 2 Ch. Cos. 2 ; Jones v. Lewis, 2 Ves. Sr. 24O ; Seawell 
V. Greenway, 22 Tex. 691; Stevens v. Gage, 55 N. H. 175; Newsom v. 
Thornton, 66 Ala. 311 ; Furman v. Coe, 1 Cai. Cas: 96 ; State v. Meagher, 44 
Mo. 356 ; Fudge v. Burn, 51 Mo. 264 / McKnight v. McKnight, 10 Rich. Eq. 
157 ; Carpenter v. Carpenter, 12 R. 1. 544 ; McCabe v. Fowler, 84 N. Y. 314; 
«ee Bartlett v. Hamilton, 46 Me. 435 ; United States v. Thomas, 15 Wall. 337 ; 

20 CASES IN chancery; [37 Eq. 

Jacobus V. Jacobus. 

The reason for its application in tlie one case is not found in the 
other. There is no statutory provision on the subject. Mrs. 
Hedden, at any time during her life after the investment, might 
have disposed of her interest, which was a vested one, in the 
money invested. When she died, her interest in that money was 
personal property, and the fact that the money which constituted 
the fund was derived from the sale of her real estate would not 
change its character. Her heirs-at-law, therefore, had no claim to it. 
When the administrator applied for it, the loss by the failure of the 
bank had occurred. Under the circumstances, Mr. Roome was 
justified in depositing the money in the bank to await the de- 
mand of a duly qualified recipient. The delay in taking out 
letters and making the demand was in nowise attributable to him. 
The bank, when he made the deposit, and up to the day of its 
failure, was in the very best credit, and its failure was a most 
remarkable and memorable surprise to the entire business com- 
munity. He deposited the money, not in his own name, but as 
trust funds. Though he did not make deposit in his name as 
executor, he made it in such manner as to indicate the character 
of the fund — that it was not his own, but held by liim in trust. 
His conduct does not appear (o have been either obstructive or 
dilatory. The administrator is entitled to receive the money in 
court after paying Mr. Roome his costs of this application out 
of the fund ; and he is entitled also to an assignment from Mr. 
Roome of all claim against the bank or its assets on account of 
the deposit. 

McEachron v. New Providence, 6 Vr. 528 ; Muzzy v. Shatluck, 1 Den. 2SS ; 
Hennepin v. Jones, IS Minn. 199 ; or by death, Mikeil v. Mikell, 5 Rich. Eq. 
220 ; Secondo Bosio's Case, 2 Ashm. 4^7 ; Smith v. Rosaer, 37 Ga. 353; see 
Webbs V. Bellinger, 2 Desauss. 4^2 ; or by fire, Bailey v. Gould, 4 Y. & C 221 ; 
Dortch V. Dortch, 71 N. C. 224 ; see Eubottom v. Morrow, 24 Ind. 202 ; Oulberl- 
son V. Cox,29 Minn. 309 ; Wiggin v. Swell, 6 Mete. 104; Eagle v. Emmett, 4 Bradf. 
117 ; Fry v. Fry, 27 Beav. 146; Aldridge v. McClelland, 9 Stew. Eq. 288; 
Tuttle V. Robinson, 33 N. H. 104; Colburn v. Lansing, 40 Barb. 37; Herkimer 
V. Rice, 27 N. Y. 163 ; Lawson v. Orookshank, 2 Ch. Cham. {Can.) 426 ; or by 
less at sea, Johnson's Case, 11 Phila. S3 ; or act of the law, Mclntoth v. Ham- 
bleton, 35 Ga. 94 ; Williams v. Campbell, 46 Miss. 57. — Kep. 

10 Stew.] MAY TERM, 1883. 21 

Hoxsey v. Hoxsey. 

Margaret Hoxsey, executrix &g., 


Margaret Hoxsey et al. 

1. Where the language of a testator shows a clear intent to devise the fee of 
Jiis lands to his wife, words of recommendation or suggestion or advice as to 
the management or occnpatioa thereof by the family, contained in other 
clauses, will not limit her estate. 

2. "Where the first taker of an interest in lands has an absolute estate therein, 
a limitation over, by way of executory devise, is void. 

On bill for construction of will. 
Mr. J. 8. Barkalow, for complainant. 

Mr. S. Tuttle, for defendants. 

The Chancellor. 

The will of the late Thomas D. Hoxsey is as follows : 

"After the payment of my just debts, I give and bequeath unto my beloved 
wife, Margaret, all my estate, real and personal, wheresoever situate, for her 
use and enjoyment during the term of her natural life, and after her death it 
is my wish, unless she shall have earlier divided the same or disposed of it 
by will, that the same shall be equally divided among my children, part and 
part alike. Provided, however, that it is my wish that any essential advance 
made by me to any one or more of my children in my lifetime should be first 
deducted from the share of the child liaving such advance. It is my wish that 
my wife should sell and dispose in her lifetime of just so much of the real 
«state that I may die seized of as may be necessary to pay debts and to raise 
the necessary means on which she and my children, who may choose to make 
a home with her, may economically and plainly live and no more, though that 
is a matter of discretion with her and my children, who, I hope, will seriously 
and carefully advise her. It is my wish that my whole family, so long as 
they may remain single and so much longer as it may be found convenient, 
should live at our house at Haledon, which I greatly desire shall be kept and 
held so long as it can be kept, and that it shall be kept as the home of all my 
family, and for that end, trusting to the love and aflfection of my wife for her 
family, and the care and discretion of my family, which, I hope, may be care- 


Hoxsey v. Hoxsey. 

fully given her, I have by this, my last will, willed to my wife all my estate^ 
both real jjnd personal, to her and her heirs and assigns forever, untrammeled 
by any restrictions and conditions, and only controlled in the manner of man- 
aging the same, as far as my wishes above expressed mav control her in the 
manner of disposing of the same." 

The question presented for decision is, Wliat is the estate of the 
testator's widow, under the will, in the property left by her hus- 
band ? He gives her all his estate, real and personal. Though he 
adds that the gift is for her use and enjoyment during her life, 
and that it is his wish that after her death, unless she should 
have divided or disposed of the property by will, it shall be 
equally divided among his children. That is not intended as a 
liniitation of her estate to a life interest, with a gift in remainder 
to the children. It is not declaratory cf her interest, but, as 
appears by the subsequent part of the will, is a mere expression 
of his wishes, and was not intended to be obligatory on her in 
any way, or to bind or affect her or the property. He not only 
gives her, expressly, power to sell and dispose of the property in 
her lifetime, and recognizes her power to divide it or to dispose 
of it by will, which alone would be quite enough to establish his 
intention to give her absolute property in it, but he expressly 
declares his intention to give her absolute ownership of the per- 
sonal property and an absolute estate in fee in the real. 

" I have," he says, " willed to my wife all my estate, both real and personal, 
to her and her heirs and assigns forever, untrammeled by any restrictions and 
[or] conditions, and only [to be] controlled in the manner of managing the 
same so far as my wishes above expressed may control her in the manner of 
disposing of the same." 

In other words, he says it is his intention that her estate in the 
property shall be absolute, and that the expression of his wishes 
in the will as to her management and disposition of it, is to be re- 
garded as merely advisory. The gift over to the children is an 
executory devise and it is void. It being his intention to give 
to his wife absolute property in the estate, the limitation over is 
inconsistent with it. A valid executory devise cannot subsist 
where there is an absolute power of disposition in the first taker 

10 Stew.] MAY TERM, 1883. 23 

Paul V. Paul. 

expressly given or necessarily implied by the will. 4- Kent ^70 ; 
hie V. Ide, 5 Mass. 500 ; Burbank v. Whitney, 24- Pick. l^S ; 
McDonald v. Walgrove, 1 8andf. Ch. 274. > Armstrong v. Kent, 
1 Zab. 609; 8. C, 2 Haht. Ch. 637 ; Annin v. Vandoren, 1 
McGart. 135. 

Clitus Paul 
Henrietta Paul. 

In a suit for divorce, evidence of defendant's adultery, committed in a 
brothel, is not to be rejected because given by witnesses who are keepers of or 
employed in such resorts, if their testimony appears credible otherwise. 

Bill for divorce from the bond of marriage. On final hearing 
on pleadings and proofs. 

Mr. F. H. Pilch, for complainant. 

Mr. W. B. Guild, Jr., for defendant. 

The Chancellor. 

This is a suit by a husband against his wife for divorce, a tin- 
aula, for the cause of adultery. The parties were married in this 
state in 1868. They then and up to and at the time of the com- 
mencement of this suit were inhabitants of this state. The 
offence is alleged in the bill to have been committed with Wil- 
liam Leach, in the city of Newark, in this state, on different 
days in September and October, 1881, and at divers other times. 
Up to July in that year, the parties lived together as husband 
and wife for about seven years, in a 'house in Mechanic street in 
that city. In the last- mentioned month the complainant left the 
defendant and ceased to live with her, but she continued to live 
there until April, 1882. The bill was filed November 2d, 1881. 


Paul V. Paul. 

Leach boarded iu the house with the parties while they lived 
together^, and with the defendant afterwards, at various times, 
altogether for about four years. He boarded there until May, 
1881. When he left he went to the house of Mrs. Julia For- 
m:iu, wife of William Spencer Forman, in Commerce street, in 
Newark, where he lived, tending the bar in Mrs. Forman's 
saloon there. He remained there for about four months, he 
says, until Mr. Forman's death. 

The evidence shows, very clearly, criminal intimacy between 
the defendant and Leach iu the summer and fall of 1881. Mar- 
garet O'Neil, who lived in the house opposite that which was 
then occupied by the defendant, swears that the last of August 
or the first of September in that year, she saw Leach (who, it 
should be remarked, was a married man, but did not live with 
his family), put the defendant to bed in the latter's own house. 
She says that the defendant was at the time so drunk she could 
not walk. Richard O'Neil, son of Margaret, who lived with 
his mother, testifies that he saw Leach and the defendant in bed 
together in the defendant's house, in September, 1881. He tes- 
tifies also to other conduct on the part of Leach and the defend- 
ant there indicative of criminal' intimacy between them. The 

Note. — Except in cases involving character, such as rape, crim. con., breach 
of promise <&c., proof that a witness was a common .prostitute, offered to im- 
peacli her testimony, is incompetent, 1 Whart. Evid. § 562 ; also, La Beau v. 
People, 33 How. Pr. 66; 34 N. Y. 223 ; MacBride v. MacBride, 4 Esp. 242 ; 
Southard v. Rexford, 6 Cow. 254 ; Ketchingham v. State, 6 Wis. 4^6 ; State v. 
Larkin, 11 Neo. 314; State v. Shields, 45 Conn. 256; Slate v. Corkle, 16 W. Va. 
742, 761 ; Sidelinger v. Bucklin, 64 Me. 371 ; Smitherick v. Emm, 24 Oa. 461 ; 
see Com. v. Murphy, 14 Mass. 387 ; Indianapolis R. R. v. Anthony, 43 Ind. 
183; People v. Blakely, 4 Parker Cr. Rep. 176; Bowers v. State, 29 Ohio Si. 
542 ; Thomas v. David, 7 C & P. 350 ; Radsdill v. Siingerland, 18 Minn. 380 ; 
Holland V.Barnes, 53 Ala. 87 ; Evans v. Smith, 5 Mon. 363; Anonymous, 1 
Hill IS. C.) 251; Van Houten v. Van Houlen (3IS.}, 1 Stew. Dig. 522 § 813; 

2 Taylor's Evid. I 1436; Reg. v. Holmes, L. R. (1 C. C.) 334; State v. Morse, 
67 Me. 428; Wood v. State, 48 Ga. 192, 292; State v. Shields, 13 Mo. 236 ; 
Day V. State, Id. 422 ; State v. Jones, 71 Mo. 590 ; Johnson v. State, 61 Ga. 
305; Boles v. State, 46 Ala. 204; Ford v- Jones, 62 Barb. 484; Wright v. 
Paige, 36 Barb. 438. Also, proof that the witness has had a bastard child, 
Weathers v. Barksdale, SO Ga. SSS ; 3forse v. Pineo, 4 Vt. 281; Com. v. Moore, 

3 Pick. 194 ; Tillson v. Rowley, 8 Me. 163 ; Merriman v. Slate, 3 Lea 393 ; see 

10 Stew. J MAY TERM, 1883. 25 

Paul V. Paul. 

defendant admits that she called on Leach, at Forman's, at 
various times while he was living there, but alleges (and so does 
he) that her object in doing so was merely to endeavor to collect 
from him money which he owed her for board and room rent. 
It seems very clear, however, from the testimony, that some of 
the visits were for the purpose of illicit intercourse, and that 
such intercourse then took place between them. It is unneces- 
sary to speak more particularly of these occurrences. If the 
witnesses are to be believed, the proof is overwhelming. It is 
objected, however, on the part of the defendant, that the wit- 
nesses are, according to their own admissions, infamous, and 
therefore are unworthy of belief. It is true they admit that 
when tiie transactions of which they testify took place they were 
either keepers of houses of ill-repute or otherwise engaged in 
business in such disreputable places. But while the testimony 
of such witnesses is to be closely scrutinized, credit is not to be 
withheld if the testimony otherwise appears to be worthy of con- 
fidence. It is quite obvious that the infamous transactions of the 
visitors to brothels or places of similar character, can rarely be 
proved by any others than those who are engaged in the business 
of such resorts, or those who are visitors there. And the testi- 

Avonymous, 37 Miss. 54;. or been guilty of adultery, Dimick v. Downs, 82 111. 
570; Washburn v. Washburn, 5 N. H. 195; People v. Knapp, 42 3Ech. 267. 
See Frazer v. People, 54 Barb. 306. 

A divorce was refused on the testimony of an ignorant prostitute, JBanta 
V. Banta, 3 Edw. Ch. 295; Slate v. Cook, 3 W. O. L. {Ohio) 407. So, on the 
uncorroborated testimony of two prostitutes, Turner v. Turner, 4' Edw. Ch. 566; 
or their accomplices, Adavis v. Adams, 2 C. E. Ch: 337 ; Hume v. Scott, 3 A. 
K. Marsh. 261 ; see Slate v. Parker, 7 La. Ann. 86 ; Cunningham v. Slate, 65 
Ind. 377 ; Pence v. Dozier, 7 Bush 133. The evideixie of one employed to 
watch and detect a person charged with adultery is competent, but of little 
weight. Anonymous, 17 Abb. Pr. 48; Ciocci v. Ciocci, 26 E. L. <^ Eq. 604; 
Berry v. People, 19 Alb. L. J. 336; 77 N. Y. 688; Blake v. Blake, 70 III 618; 
Com. V. Downing, 4 Gray 29; Com. v. Graves, 97 Mass. 114; Wright v. Stale, 
7 Tex. App. 574; St. Charles v. 0' Motley, 18 111.407 ; see Bennett v. Waller, 23 
111. 97 ; and so of a pimp, Adams v. Adams, 2 C. E. Gr. 334; Whitenack v. 
Whitenack, 9 Stew. Eq. ^74; or the keeper of a house of ill-fame, the landlord 
who rents it for that purpose and the person who furnishes it, Hewitt v. Morris, 
12 Jones & Spen. 557. As to a gambler, see Long v. State, 22 Ga. 40 ; English 
V. State, 35 Ala. 4^8. See, also, Va. Law Journal, July, 1880. — Rep. 


Lackawanna Iron and Coal Co.'s Case. 

mouy of persons of the latter class is, to a certain degree at least, 
liable -to like criticism and objection, for a similar reason, with 
that of those of the former class. Those who visit such places 
for the purposes for which they are maintained, cannot reason- 
ably expect to overthrow the evidence against them as to their 
transactions there, given by those who are employed or with whom 
they consort in such resorts, by the mere fact that the employ- 
ment or errand of the witness in such places is disreputable. 
That the defendant, on several occasions, visited the disreputable 
house where Leach was engaged as a bar-tender she admits. She 
admits, also, that she drank beer there, one or two glasses at one 
time, and that she was introduced by him to the keeper of the 
house. The last-named person and her housekeeper both swear 
to conduct on the part of her and Leach, on some of her visits, 
which unmistakably shows that she had criminal intercourse with 
him then, and they swear, also, that she passed there habitually 
by an assumed name. The complainant is entitled to a decree 
of divorce. 

In the matter of the petition of the Lackawanna Iron and 
Coal Company. 

A and his wife conveyed their farm to B, the husband of their grand- 
daughter, in consideration of B's agreement, secured by B's bond and mort- 
gage on the premises, to pay A an annuity of $250, on the 1st day of April, 
for his life, and if A's wife survived him to pay her an annuity of $200 for 
her life. A's wife ouclived liim, and afterwards died on September 19th, 1881. — 
Jlelcl, that her annuity, havir/g been evidently given for her support, was 

Messrs. J. G. Shipman & Son, for the petitioners. 

The Chancellor. 

The question presented by the petition is whether a certain an- 
nuity is, under the circumstances, apportionable. The facts are 
that John Stiuson and his wife conveyed his farm to Nelson 

10 Steu-.] may term, 1883. 27 

Lackawanna Iron and Coal Co.'s Case. 

Vliet, the husband of their granddaughter, in consideration of 
an agreement on the part of the grantee (the performance of 
which was secured by his bond and mortgage of the property), 
to pay to Stinson $250 yearly, on the l^t day of April, during 
the lifetime of Stinson, and if Stinson's wife should survive him, 
to pay, or cause to be paid, to her, yearly, the sura of $200, 
during the term of her natural life. Mrs. Stinson outlived her 
husband. Her annuity being in arrear, she filed her bill in this 
court to foreclose the mortgage. There were subsequent encum- 
brances, and there was a decree that the farm be sold " subject to 
the annuity of $200 per year, to be paid to the complainant, 
Eleanor Stinson, on the 1st day of April of each year there- 
after, during the term of her natural life," and it was sold ac- 
cordingly. The petitioners are the owners of the property by 
conveyance from the purchasers at the sheriff's sale. Mrs. Stin- 
son died September 19th, 1881. The annuity to her was paid up 
to April 1st in thaC year, and the question presented is whether her 
personal representative is entitled to a proportionate part of the 
annuity for the period between that day and the day of her 
death, or, in other words, whether the annuity is apportionable. 
There is no doubt that the general rule is that where an annuity 
is payable on a fixed day during life, and tiie annuitant dies be- 
fore the day, his representative is not entitled to a proportionate 
part of the annuity for the time which has elapsed since the last 
day of payment. Interest due on a bond and mortgage was 
always apportionable on the ground that it accrued from day to 
day. 2 Spence's Eq. Jur. 578. But the rule as to annuities has 
established exceptions in the case where an annuity is given for 

Note. — Ordinarily, annuities are not apportionable, Smyth, ex parte, 1 
Sicanst. S4d, note ; Price v. Williams, Cro. Eliz. 3S0 ; Reg. v. Treasury Comm'rs, 
16 Q. B. 357 ; Leathley v. Trench, 8 Irish Ch. 4^1 ; Ausnian v. Montgomery, 8 
U. a a p. 364; T hacker's Trusts, 28 L. T. (iV. S.) 56; Franks v. Noble, Li 
Yes. 484; Tracy v. Strong, 2 Conn. 659; Heizer v. Heizer, 71 Ind. 526; Wty- 
gin V. Swett, 6 Mete. 194 ; Manning v. Randolph, 1 South, 144; Irving v. Ran- 
kine, 13 Hun 147, 79 N. Y. 636; Stewart v. Sivaim, 13 Phila. 185; except 
where given for the maintenance of infants. Hay v. Palmer, 2 P. Wms. 501; 
Dexter V. Phillips, 121 Mass. 180; Weston v. Weston, 125 Mass. 268 ; see 
EUerbe v. Ellerbe, Speai-'s Ch. 329 ; or a wife, living separate, Howell v. Han- 


Lackawanna Iron and Coal Co.'s Case. 

maintenance of a wife living separate from her husband, or for 
the support of minor children. 1 Story's Eq. Jur. § J1.SO ; Wms. 
on Exrs. 835. And the exception has been extended to the appor- 
tionment of the income of a fund belonging to a charitable cor- 
poration having for its object the support of poor persons. Atty.- 
Gen. V. Smythies, 16 Beav. 386. And also where an annuity- 
has been given in lieu of dower. Gheen v. Osborn, 17 S. & 
R. 171 ; Blight v. Blight, 51 Pa. St. 4£0. And where ground 
rents were devised to a widow with remainder over. Smith v. 
Wistar, 5 Phila. 11^5. And where the dividends of bank stock 
were given to husband and wife, and the survivor, for life, with 
remainder over. Putledge v. Rutledge, Harp. Eq. 65. Here it 
may be remarked, no day was fixed in the bond for the payment 
of the annuity to Mrs. Stinson, but it was payable yearly. It 
does not appear when Mr. Stinson died. A day was fixed in the 
decree in the foreclosure suit, but that was the act of this court, 
and will not injuriously affect her rights in the matter. Webb v. 
Lord Shaftesbury, 11 Ves. 361. The conveyance in considera- 
tion of which the agreement to pay the annuity was made, was 
evidently a family arrangement, and the only consideration of 
the conveyance of. the farm to Mr. Vliet was the agreement to 
pay the annuities. It would seem, too, that the object of Stinson 
in making the arrangement, was to secure the payment of the 
annuity to himself for life, and to his wife in case she should 
survive, for their support. She joined in the conveyance to bar 
her dower, and part of the consideration of her release was the 
agreement to pay the annuity to her for her life, in case she 
should outlive her husband. The principle of the cases which 
constitute the exceptions to the general rule, is applicable here. 

forth, 2 W. Bl. 1016; Sweigart v. Frey, 8 S. & B. 299; Fisher v. Fisher, 5 Pa. 
L. J. Bep. 178 ; but not where living with her husband, Anderson v. Dwyer, 1 
Sch. & Lef. 301. 

If the annuitant lives until the morning of the day whereon the annuity is 
payable, his representatives are entitled thereto, although not demanded bv 
him, Paton v. Sheppard, 10 Sim. 186 ; Bobinson v. Bobinson, 2 Irish C. L. 370. 

See, further, Earp's Will, 1 Pars. Eq. 4^3 ; Qiiswold v. Grisivold, 4 Brad/. 
ei6; Warivg v. Purcell, 1 Hill Gh. 193, 199; McLemore v. Blocker, Harp. Eq. 
e?5; Fassifs Case, 11 Phila. 134.—B.EP. 

10 Stew.] MAY TERM, 1883. 29 

Barrett v. Barrett. 

The annuity appears to have been a provision for support, and 
it is not to be supposed that it was intended that Mrs. Stinson 
should be liable to lose the benefit of the provision for the year 
in case she should not live till the end of that period. The an- 
nuity might constitute her sole means of subsistence, and if 
it had been understood that it was not apportionable, she could 
have obtained no credit upon it. Undoubtedly, the understand- 
ing and intention were the contrary, and it is equitable to hold 
that, under the circumstances, the annuity was apportionable, 
and consequently that her administrator is entitled to a propor- 
tionate part for the period in question. 

Aleena Barrett, 


Matthew Barrett. 

1. A husband, who was living with his wife in New York, deserted her 
there in 1864, and never thereafter contributed anything to the support of her 
or their children until about 1876, when the wife discovered that he was then 
living in Paterson, in this state, and removed there with her children. The 
husband theo supported his wife and family, although not living with them, 
until March, 1877, when he stopped, and complaint was made against him be- 
fore the civil authorities, and an order requiring him to pay a weekly sum for 
his family's support was obtained. In January, 1880, another similar order 
was obtained. — Held, that evidence by defendant's counsel that in 1877 he got 
defendant to consent to offer to take a house and live with his wife, and that 
defendant instructed him to inform her so, which he did, is not sufficient, in 
view of the facts of the case, to prevent a divorce for desertion. 

2. Where the evidence shows that both parties have resided in this state for 
tlie time requisite to confer jurisdiction, and that they also resided here when 
the petition was filed, the netition may be amended so as to state these facts, if 

On petition for divorce. On final hearing on pleadings and 


Barrett v. Barrett. 
Mr. J. F. Cahill, for petitioner. 

Mr. H. S. Drury, for defendant. 

The Chancellor. 

The petitioner sues for divorce from the bond of marriage on 
the ground of desertion. The parties were married in New York 
in 1844. They appear to have lived together in that city up to 
May, 1864, when the defendant left the petitioner, and he has 
lived aj)art from her ever since. Through proceedings taken in 
New York by the authorities there, he or his surety was com- 
pelled to contribute to the support of his wife and family for a 
few months after he left them. From that time he did nothing 
for them until his wife, eleven or twelve years afterwards, hav- 
ing discovered that he was living in Paterson, removed with her 
children to that city. From that time he appears to have sup- 
ported them (but living separate from them), up to about March, 
1877, when he refused to do so any longer, and complaint was 
made against him for non-support before the recorder of the city 
by the superintendent of out door relief of the city, and he was 
required to pay $6 a week for the support of his wife and family. 
It appears that another order was made by the recorder on like 
complaint in January, 1880. In September of that year an 
order for alimony was made against him in this suit. That the 
defendant in May, 1864, deserted his wife, and that he has ever 
since lived apart from her, there is no room to doubt. He 
admits facts. When he left her she had six children to 
support, and another was born eight months afterwards. After 
he left her he never communicated with her or his family, nor 
contributed anything to her or their support until she went to 
him in Paterson ; but he concealed his whereabouts from them, 
and they were all ignorant where he was until shortly before they 
came to Paterson. From that time he has not only lived apart 
from his wife, but has refused to live with her or to take her to 
board with him at his sister's, in Paterson, where he lived. 
From March, 1877, he has contributed nothing to her support 
except through the coercion of legal proceedings. He indeed 

10 Stew.] MAY TERM, 1883. 31 

Barrett v. Barrett. 

says that at one time, through his counsel, he offered to take a 
house in Paterson and live with her there, but she refused. 
She, however, on the other hand, denies that she ever refused to 
live with him. It appears that this offer was made when the 
first complaint for non-support was made to the recorder against 
him, which was March 21st, 1877. He himself says so. He 
says it was a few months after she came to Paterson. Mr. 
Springsteen, the superintendent of out-door relief, who made the 
complaint, was present, and says it was in 1877. The defend- 
ant's counsel says he "got" the defendant " to consent" to take 
a house and live with his wife, and the defendant instructed him 
to inform her so. The defendant made no proposition himself. 
He says in his testimony before the master, on the application 
for alimony, that he did not ask her to come and live with him, 
and he adds : " I don't know how she could refuse if she was 
not asked." It is evident from the language of his counsel on 
the subject (that he "got him to consent") that the defendant 
was reluctant to permit his counsel to make the proposition, and 
it is manifest, from his own testimony, that he would not make 
it himself. It may well be supposed that under the circum- 
stances the petitioner was distrustful of the sincerity of a propo- 
sition not made by the defendant but by his counsel, and when 
the defendant was before the recorder to answer a complaint of 
non-support. It is quite obvious that such an offer, made under 
such circumstances, is not enough, in view of the facts, to relieve 
the defendant from the charge now made against him, or deprive 
the petitioner of her claim to a divorce on the ground of willful, 
continued and obstinate desertion. It is too clear for remark 
that he was unwilling to live with her. He excuses himself for 
not having made the proposition referred to himself, instnad of 
through his counsel, on the ground of his unwillingness to talk 
to her. He does not profess to have made any offer to live with 
her, or any request to her to live with him in any way, whether 
through counsel or friends, or children, or otherwise, since that 
meeting before the recorder in the spring of 1877. On the con- 
trary there is evidence from his children of his refusal to live 
with her or to permit her to live with him. He claims that he 


Shaw V. Glen. 

was compelled to desert her in 1864 by reason of her unreason- 
able conduct and cruelty towards him. There is, however, great 
reason to believe, from the evidence, that his statements on this 
score are at least exaggerated. He did not, so far as it appears, 
give it as an excuse for leaving her, or make any reference to it 
in the course of the proceedings against him before this suit was 
brought, not even when, tiirough his counsel, he made the propo- 
sition to her to take a house and live with her therein, and he 
does not set it up in his answer. He is proved to have deserted 
his wife in 1864, and to have continued the desertion to this time, 
and it is evident that the desertion has been willful, continued 
and obstinate. There should be a decree of divorce accordingly. 
He is the owner of a business, a liquor store, in Paterson, and 
has money in investments outside of his business. He should be 
required to pay proper alimony and give reasonable security 
therefor. He must pay a reasonable counsel fee in addition to 
the costs of this suit. 

It was urged on the part of the defendant, on the hearing, 
that the petitioner makes no allegation on the subject of the resi- 
dence of the parties during ti)e three years next preceding the be- 
ginning of the suit. The proof shows that both parties residenil 
in this state during that period, and also that in fact they both re- 
sided here when the petition was filed. The petition may be 
amended in this respect. 

James M. Shaw et al. 


Charles T. Glen", assignee &c. 

1. An assignee for tlie benefit of creditors can take no exception to the 
validity of a chattel mortgage given by his assignor, on the ground that it 
was not filed in the county where the mortgagor actually resided. He is 
bound by the equity to which the property was subject when it came to his 
hands from the assignor. 

10 Stew.] MAY TERM, 1883. Z3 

Sliaw V. Glen. 

2. A description of " all the stock, fixtures, goods and chattels of every name 
and kind " in a designated store, is specific enough to identify the property 
intended to be covered. 

Bill^ to foreclose chattel mortgage. On final hearing on 
pleadings and proofs. 

Mr. M. J. De Witt and Mr. W. H. Reid, of New York, for 

Mr C. T. Glen, in pro. pers. 

The Chancellor. 

This suit is brought to foreclose a chattel mortgage given by 
John H. Marrin to the complainants, James M. Shaw & Co., of 
the city of New York, October 17th, 1882, to secure the pay- 
ment of a debt of $375 due from him to them, and for which 
he then gave them his note payable on the 30th of December 
then next. The mortgage was given in Newark, and was upon : 

• All the stock, fixtures, goods and chattels of every name and kind then 
being in Marrin's china, glass and house-furnishing store, No. 661 Broad 
street, in that city, and also any and all other stock, goods, chattels and fix- 
tures that might be placed in that store and building by him during the 
existence of the mortgage, whether placed there to replace any then being 
there or to add to those that were already there ;" 

and also the horse and wagon then owned by him and used by 
him in connection with the business and store. The mortgage 
was acknowledged on the day of its date, before Mr. Glon, the 
defendant, as a master of this court, and was recorded un the 
21st of October, two days afterwards, in Essex county, where 

Note. — An assignee for the benefit of creditors cannot impeach a mortgage 
given by his assignor, for defect in registry. Van Heusen v. RadcUff, 17 N. Y. 
580 ; Lyle v. Palmer, 4^ Mich. SU; Hawks v. Prifzlaff, 51 Wis. 160. Contra, 
Lockwood V. Sterin, 26 Ind. 124 ; Hanes v. Tiffany, 25 Ohio Si. 549 ; see Bty 
y. Dunham, 2 Johns. Ch. ISS ; Eminv. Simey, 8 Ohio St. 509; Sixth Ward 
Assn. V. Willson, 41 Md. 506 ; Pillsbury v. Kingon, 6 Stew. Eq. 287, and note. 

An assignee in bankruptcy was permitted to assail such a mortgage in 
Barker v. Smith, 12 Bank. Reg. 474; Leland's Case, 10 Blatchf. 503. See Field 
V. Baker, 12 Blatchf. 438. 



Shaw V. Glen. 

tlie grtods were, and where, as the complainant's agent and attor- 
ney, wlio took the mortgage for them, supposed (and had good 
rt-ason to suj)pose, from tlie mortgagor's conversation at the time) 
the latter resided. The mortgage described the mortgagor as 
of the city of Newark, and it appears to liave been read over to 
him before he executed it; once by the complainant's attorney, 
and then by Mr. Glen, his own attorney, and he knew he was 
described in it as residing in Newark. A few days after the 
mortgage was recorded in Essex county, he was informed by the 
complainant's attorney that it had been recorded there. He 
seems not to have said a word to correct the false impression as 
to his residence. On the 28th of December, 1882, two days 
before tlie maturity of the note, he executed an assignment to 
Mr. Glen for the equal benefit of his creditors, under the assign- 
ment act. The assignee at once took possession of the mort- 
gaged [)roperty then in the mortgagor's hands. Soon after that, 
the complainant's attorney discovered that it was claimed that 
the mortgagor resided, not in Newark, but in Elizabeth, when 
the mortgage was given, and he then caused the mortgage to be 
recorded in Union county. The deed of assignment was re- 
corded there two days afterwards. It appears that the mortga- 
gor, who had previously resided in Elizabeth, early in Septem- 
ber, 1882, removed to Newark, and resided there until the 17th 
of October following (two days before the giving of the mort- 
gage), when he removed back to Elizabeth. The mortgage was 
given in good faith in all respects. The complainant's debt was 
an honest one, and the mortgagor meant to secure its payment 
by the mortgage, in consideration of the time given him to pay 
it. Nor was there any intention on the part of the mortgagor 

An executor or administrator was allowed to object to the validity of a chat- 
tel mortgage given by the decedent, for want of or defect in its registration, in 
the following cases : Killboume v. Fay, 29 Ohio St. 264; Becktr v. Anderson, 
11 Neb. 493 ; Borsey v. Smithson, 6 Harr. & Johns. 61. Contra, Griffin v. 
Wertz, 2 Bradw. 4S7 ; Samner v. McKee, 89 III. 127 ; Hext v. Porcher, 1 Slrobh. 
Eq. 170 ; Evans v. Pence, 78 Ind. 4S9. See Bump's Fraud. Com. 444. 

A creditor before judgment cannot attack such a mortgage, Stewart v. Beale, 
7 Hun 405, 68 N. Y. 629 ; Jone.i v. Graham, 77 N. Y. 628 ; Kennedy v. Nat. 
Union Bank, 23 Hun 494; Gill v. Pinney, 12 Ohio St. 38 ; except where tJie 
estate is insolvent, Carrie v. Kaight, 7 Stew. Eq. 485. — Kep. 

10 Stew.] MAY TERM, 1883. 35 

Shaw V. Glen. 

to deceive or prejudice the complainants by anything he said on 
the subject of, or with reference to his residence, or in his 
omission to object to or remark upon the statement in the mort- 
gage that he resided in Newark. The defendant, the assignee, 
insists that the mortgage is void as to him because it was not 
recorded in Union county, where the mortgagor resided wlien it 
was made, before the assigament to him was delivered. The act 
provides (P. L. of 1881 -p. 227) that any mortgage or convey- 
ance intended to operate as a mortgage of goods and chattels, 
made after the approval of that act, which shall not be accom- 
panied by an immediate delivery and followed by an actual and 
continued change of possession of the things mortgaged, shall 
be absolutely void as against the creditors of the mortgagor and 
as against subsequent purchasers and mortgagees in good faith, 
unless recorded according to the directions of the act, which are, 
that it be recorded in the clerk's or register's office of the county 
where the mortgagor resides, if he resides in this state, but if he 
does not reside in this state, then it is to be recorded in the 
clerk's or register's office of the county where the property is at 
the time of executing the mortgage. But the mortgage was 
clearly valid, as against the mortgagor, when he made the as- 
signment, notwithstanding it had not been recorded according to 
law. Nat. Bank v. Sprague, 6 C. E. Gr. 13. And the assignee 
took his title to the property, subject to the equities to which it 
was subject in the hands of his assignor. Such is the rule as 
to assignees in bankruptcy. Such an assignee is not bound by 
the fraudulent conveyances of his assignor {Pillsbury v. K'mgon, 
6 Stew. Eq. 287), but in cases unaffi^cted by fraud, he is bound by 
the equities to which the property assigned was liable when it came 
to his hands from his assignor. Mitford v. Mitford, 9 Ves. 87 ; 
Winsor v. McLellan, 2 Story 1^2; Re Gregg, 3 B. R. 131. 
And this rule has been repeatedly applied in mortgage cases like 
the present. Re Griffiths, 3 B. R. 179; Potter v. 0>ggeshall, 
4. B. R. 19; Steioart v. Flatt, 101 U. S. 731. The same just 
rule is on every principle obviously applicable to assignees under 
the assignment act. The failure to record the mortgage does 
not render it invalid as aorainst the defendant. 


Provident Inst. v. Allen. 

The defendant also insists tliat the mortgage is invalid because, 
as he claims, the description of the mortgaged property, except 
the horse and wagon and store fixtures, is too general and vague. 
The property has been sold by the assignee, and it is admitted 
that the proceeds of the sale of the horse and wagon and store 
fixtures, and of other property which was in the store at the 
time of the execution of the mortgage, and which was subject 
thereto, if the mortgage is valid, are quite sufficient to pay the 
mortgage and the costs of this suit. The description of that 
mortgaged property was undoubtedly sufficient. Jones on Chat. 
Mort. §§ 65, 70. There will be a decree for the complainants 
for the amount due on the mortgage. 

The Provident Institution for Savings 


Martin B. Ai.len et al. 

1. The court of chancery may, in a foreclosure suit, determine the validity 
of statutory liens claimed upon the property, 

2. Water rents assessed on vacant lots in Jersey City under its charter, at 
rates adopted by its municipal board of public works, in its discretion, and 
without regard to special benefits or valuations, are illegal. 

8. Where the statute under which taxes are imposed is unconstitutional, the 
objection of laches cannot be set up by the city. 

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

Mr. C. H. Hai'tshorne, for complainant. 

Mr. Leon Abbeit, for Jersey City. 

10 Stew.] MAY TERM, 1883. 37 

Provident Inst. v. Allen. 

The Chancellor. 

The complainant, in its bill, attacks the validity of certain 
taxes, known as water rents, levied or assessed on the mortgaged 
premises (which are in Jersey City), under the authority of the 
charter of that city. It also insists that if the water rents are 
valid liens upon the property they are subsequent to its mort- 
gage, because they were levied subsequently to the recording of 
that instrument. The city, on the other hand, claims priority 
for those water rents over the complainant's mortgage, and denies 
the jurisdiction of this court to pass upon the question of the 
validity of the assessments. It also insists that if this court has 
such jurisdiction, it will, in exercising it, take into consideration 
the defence of laches in not having brought the question before 
the proper tribunal for decision, which the city now urges. 

The taxes were levied under the eighty-first section of the 
charter of Jersey City (P. L. of 1871 p. 1131), which authorizes 
the board of public works to fix prices for the use of the Passaic 
water, for the payment' whereof the owner and occupier of any 
house, lot or tenement where water shall be taken shall be 
liable, and to fix a sum to be assessed, annually, upon all vacant 
lots and lots with buildings thereon in which Passaic water is 
not taken, if they are situated upon any road, street, avenue, alley 
or court through or in which pipes for distributing the water are 
laid. The mortgaged premises are vacant lots, situated on a 
«treet in which the pipes are laid, but no water has been taken 
on the premises. 

Of the power of this court to determine when necessary, in a 
suit for foreclosure, the validity of statutory liens claimed upon 
the property, there can be no doubt. Hopper v. Exrs. of Mal- 
leson, 1 C. E. Gh\ 382, and Trustees of Public Schools v. City of 
Trenton, 3 Stew. Eq. 667, will serve as notable instances of the 
exercise of the jurisdiction. 

It has been authoritatively held that water rents assessed on 
vacant lots under the eighty-first section of the charter of Jersey 
Oity, are illegal, because the amount of tax imposed is determined 
by rates adopted by the board of public works in its discretion, 
without regard to special benefits or valuations. Jersey City v 


Provident Inst. v. Allen. 

Vreelaml, IJf, Vr. 638. Speaking of the provision under consid- 
eration in connection with the constitutional one that property- 
shall be assessed for taxes under general laws and by uniform 
rules, according to its true value, the court says in that case: 

" Under this constitutional provision, no tax can lawfully be laid upon 
projierty wliich is not determined either by a special benefit derived, or by a 
valuation of the property with respect to which it is laid, upon a uniform rule 
of valuation at its true value. The act under which this assessment was made 
does not conform to either essential of a valid tax law. The tax is laid on the 
class of property designated in the act, neither in proportion to special benefits 
nor upon a valuation of the property with respect to which it is laid. The 
rates which shall be payable by the owners of property of the specified class 
are such as the board of public works, in its discretion, shall adopt, without 
regard to special benefits or valuations." 

The objection of laches cannot avail the city ; for the taxes in 
question are invalid by reason of the unconstitutionality of the 
act under which they were imposed. Kirhpatrich v. Comnm- 
sioners, 13 Vr. 510; Bogert v. City of Elizabeth, 12 C. E. Gr. 

It is urged on behalf of the city that if the constitutional pro- 
vision is in conflict with the law authorizing the assessment of 
the water rents in question, it is, so far as that law is concerned, 
inoperative, because, as argued, it is in conflict with the provision 
of the constitution of the United States which declares that no 
state shall pass any law impairing the obligation of contracts. 
This objection is based on the allegation that those taxes were 
pledged by the charter before the adoption of the provision of 
the constitution of this state under consideration, for the payment 
of the bonds called Jersey City water scrip. It is a sufficient 
answer to this objection that the court of errors and appeals has 
declared that the taxes in question are invalid. Equity follows 
the law. 

The complainant's mortgage is entitled to priority over the 
taxes in question. 

10 Stew.] MAY TERM, 1883. 39 

Muir V. Howell. 

Sarah A. Muir 


William H. Howell et al. 

1. On a judgment against a married woman, a sheriff seized her chattels, 
consisting of household furniture &c. She was living with her husband, who 
was insolvent and contributed but little to the family's support, and she had 
for several j^ears almost entirely maintained him and her children. — Held, that 
her right to claim exemption under the execution act, as " a debtor having a 
family residing in this state," not being clear, she therefore was not entitled to 
an injunction restraining the sheriff from selling the chattels which she 
claimed were exempt. 

2. If her right had been clear, injunction in equity would have been appro- 
priate relief. 

Bill for relief. On general demurrer. 

Mr. E. C. Lyon, for demurrants. 

Mr. H. C. Pitney, for complainants. 

The Chancellor. 

This is a bill for an injunction merely. It seeks no other 
relief, and under the circumstances no other could be granted. 
The complainant is a married woman, living with her husband 
at Morristown, in this state. Her judgment creditor is proceed- 
ing by execution on his judgment against her goods and chattels. 
She claimed from the sheriff the benefit of the exemption secured 

Note. — A wife constitutes a "family," Kitchell v. Burgwin, 21 III. 40 ; 
Brovm v. Brovm, 68 Mo. 388 ; Bradley v. Bodelsperger, 3 Bich. {N. S.) 226. 
See Spencer v. Spencer, 11 Paige 159. 

One who marries after a judgment obtained against him and before sale 
thereunder, may claim to hold a homestead exempt, Trotter v. Dohhs, 38 Miss. 
198 ; Stone V.Darnell, 20 Tex. 11 ; Leichford v. Cary, 52 Mm. 791; Hawthorne 
V. Smith, 3 Nev. 182 ; Horton v. McCall, 66 N. C. 159; but see Beinbach v. 
Walter, 27 III. 393; Freeman v. Stewart, 5 Biss. 19; Elston v. Bobinson, 23 
lotoa 208 ; Pender v. Lancaster, I4 S. C. 25. 


Muir V. Howell. 

hy the statute to a " debtor having a family residing in this state." 
Her right to the exemption was denied by the creditor, and the 
slier iff refused to recognize it unless indemnified by her for so 
doing. Slie was unable to obtain the requisite security, and the 
sheriff was therefore proceeding to sell the goods, notwithstanding 
and in total disregard of her claim, when she filed the bill. She 
avers in the bill that she is the wife of Caleb M. Muir, and re- 
sides and has resided fur many years past in Morristown, with 
her husband, by whom she has two children^ who live with them j 
that both, of the children are unmarried ; that several years ago 
her husband, who had been engaged in business in Morristown, 
failed therein and became entirely poor, insolvent and bereft of 
all property whatsoever, and that she, in order to support the 
family, several years ago engaged in the business of keeping a 
millinery store in Morristown, and for that purpose rented a 
dwelling-house with a store beneath it there, in her own name, 
and has for more than eleven years past occupied the house and 
paid the rent from year to year, and has become the owner of 

The husband's temporary absence from home will not prevent his claiming 
the benefit of the exemption, Baswell v. Parsons, 15 Ccd. 266 ; Kenley v. JSudel- 
son, 99 111. 49S ; Ouy v. Downs, 12 Neb. 532; State v. Finn, S Mo. App. 261; 
Seaton v. Marshall, 6 Bash 430 ; Mark v. Slate, 15 Ind. 98 ; Carrington v. Her- 
rim, 4 Bush 624; Stewart v. Brand, 23 Iowa 477; Wetz v. Beard, 12 Ohio St. 
431; Meilzler's Appeal, 73 Pa. St. 368; see Searcy v. Short, 1 Lea 749; Viek 
V. Koch, 27 ni. 129 ; or the destruction of the house by fire, Howard v. Logan, 
81 III. 383. See Sands v. Roberts, 8 Abb- Pr. 343. 

A husband's waiver of a right to homestead and exemption, binds his wife 
and minor children, Taliaferro v. Pry, 41 Ga. 622 ; Abernathy v. Whitehead, 
69 Mo. 28 ; Smith v. Shepheard, 63 Ga. 454; see King v. Moore, 10 Mich. 538 ; 
Parlee v. Stewart, 50 Miss. 717; Denny v. While, 2 Coldw. 283; Panton v. 
Mauley, 4 Bradw. 210 ; Beavan v. Speed, 74 N. C. 544. 

The following persons have been held entitled to exemption : 

A wife separated from her husband, who had no children, Brown v. Brown, 

68 Mo. 388 ; or where the wife had children who lived with her, Kenley v. 
Hudelson, 99 III. 493 ; Eproson v. Wheat, 53 Cal. 715 ; a husband whose wife 
had deserted him in another state, before his removal here, Whitehead v. Tapp, 

69 Mo. 415; see Laeey v. Clements, 36 Tex. 661 ; a wife, whose husband is 
skulking to avoid the process of the court, Norman v. Bellman, 16 Ind. 156 ; 
Malvin v. Crktoph, 54 Iowa 562 ; or who has absconded, Frazier v. Syas, 10 
Neb. 116 ; People v. Stilt, 7 Bradw. 294; Yelverton v. Burton, 26 Pa. St. 351 ; 
Woodward v. Murray, 18 Johns. 400 ; Bonnel v. Dunn, 5 Dutch. 435 ; Slate v. 

10 Stew.] MAY TERM, 1883. 41 

Muir V. Howell. 

most of the household goods and chattels, kitchen furniture and 
utensils therein ; that for the last five years at least her husband 
has, by reason of age and poverty, been able to do little, if any- 
thing, towards the support of the family, and almost the whole 
expense and burden of such support and maintenance have fallen 
upon herj^that for ten years past she has almost entirely pro- 
vided for and supported the family, consisting of herself and her 
husband and two children, by her own exertions, in keeping the 
before-mentioned millinery store, with such aid as her children 
and husband could from time to time furnish her; and that about 
seven months ago she was obliged to abandon the keeping of the 
store, and since then it has been kept by her daughter, a young 
lady of about twenty-two years of age. The goods levied on and 
which the sheriff is about to sell, are household and kitchen 
furniture — her property. The defendants, who are the sheriff 
and the judgment creditor, have demurred to the bill for want 
of equity. 

If the complainant is entitled to the exemption which she 

Did, 60 Mo. 433 ; Nash v. Norment, 5 Mo. App. 545 ; a wife divorced from her 
linsband for his desertion, and who continued to occupy the homestead with 
her children, Blandy v. Asher, 72 Mo. 27 ; Sellon v. Reed, 5 Biss. 125 ; Bon- 
nell V. Smith, 53 III. 375 ; Hotchkiss v. Brooks, 93 III. 386 ; a wife driven from 
her home by the misconduct of her husband, Sherrid v. Southmck, 43 Mich. 

The following persons have been held not entitled to exemptions : 
A married woman, residing in this state, who has no children and whose 
husband is a non-resident, Keiffer v. Barney, 31 Ala. 192 ; Farlin v. Sook, 26 
Kan. 397 ; see Fish v. Street, 27 Kan. 270 ; Com. Bank v. Chicago B. B. Co., 
45 Wis. 172 ; a wife divorced from her husband, who continued to live on the 
homestead with some of their minor children. Bed/em v. Bedfern, 38 III. 509 ; 
Dunham v. Dunham, 128 Mass. 34 ; Woods v. Davis, 34 Iowa 264; see Cooper 
V. Cooper, 24 Ohio St. 4^8 ; Vanzant v. Vanzant, 23 111. 536; a wife, during 
the lifetime of her husband who alone has aliened the homestead, Davis v. 
Andrews, 30 Vt. 678 ; Atkinson v. Atkinson, 37 N. H. 434; Sargent v. Wilson, 
S Cal. 504; Thorns v. Thorns, 45 Miss. 263; see Alley v. Bay, 9 Iowa 509 ; 
Richards v. Chace, 2 Gray 383 ; Williams v. Starr, 5 Wis. 534; Barton v. 
Drake, 21 3Iinn. 299 ; Phillips v. Stanch, 20 Mich. 369 ; Abell v. Lothrop, 47 
Vt. 375 ; a wife who has no children, although living with a »2Cond husband 
who has children by a former wife, Lathrop v. Soldiers Assn., 45 Ga. 4^3 ; a 
husband or wife who has removed or absconded from the state, Tranick v, 
Harris, 8 Tex. 312 ; Beg. v. Davidson, 21 U. C. Q. B. 41 ; see Grau v. Man- 


Muir V. Howell. 

claitQS, her remedy, under the circumstances, is in this court. 
From the statements of the bill as above set forth, it is obvious 
that if she is entitled to the exemption, the law can afford her no 
adequate relief. She cannot protect her rigiit to the property. 
If she is entitled to the exemption, she is entitled to hold the 
property itself, and manifestly an action for damages would be 
an inadequate remedy. The benevolent design of the legislature 
would be wholly frustrated if there were no remedy in equity to 
protect the indigent debtor. The object of the legislature was to 
secure to him and his family, for their use in their necessities, the 
property exempted, and if they are to lose the benefit of the pro- 
vision, in case they are unable to furnish security, the statute 
will obviously be of little avail or advantage. The design in re- 
straining proceedings at law by injunction out of equity is to 
prevent an unfair use being made of the process of a court of law, 
in order to deprive another of his just rights. 1 Story's Eq. Jur. 
§ 875; Smiihumt v. Edmunds, 1 3IcCart. 4-08. In Watson v. 
Sutherland, 5 Wall. 7^, it was held that it is within the jurisdic- 

ning, 54- Iowa 719 ; Orr v. Box, 22 Minn. 485; Finley v. Sly, U Ind. 26G ; 
Earle v. Earle, 9 Tex. 630 ; Anthony v. Wade, 1 Bush 110 ; a wife who hiis 
children by a former husband, living with a second husband, Van Doran v. 
Marden, 48 Iowa 1S6 ; a husband living on the separate property of his wife 
as a liomestead, Davis v. Dodds,20 Ohio St. 473 ; Devinell v. Edwardx, 23 Ohio 
St. 603 ; see Steioarl v. Brand, 23 Iowa 477 ; Jenney v. Gi-ay, 5 Ohio St. 45 ; 
Whiting v, Barrett, 7 Lans. 106 ; a wife whose husband lived separate from 
her for seven years, and contributed nothing to her support, there being no 
children, Linton v. Crosby, 56 Iowa 386. 

Under exemptions from execution, either of lands or goods, the husband is 
the "head of the family," where the husband and wife are living together, 
and he must claim the exception, Girod v. Girod, 14 Cal. 506; Getzler v. 
Saroni, IS III. 511; Strachn v. Foss, 42 N. H. 48; Taylor v. McElvin, 31 La. 
An. 283 ; Neal v. Sawyer, 62 Go. 352 ; Zellersv. Beckman, 64 Ga. 747; Shatter 
V. Mellon, 65 Ga. 465 ; Clinton v. Kidwell, 82 III. 427 ; Van Doran v. Marden, 
48 Iowa 186. But where the husband was a deaf mute and imbecile, living 
with his wife, who had charge of and carried on the plantation, which was 
cultivated by her sons, the wife was allowed to claim the exemption, Hardin 
V. Wolf, 29 La. An. 333 (two judges dissenting). So, where the husband and 
wife were living together, the wife being the real debtor, and helping to main- 
tain the family by sewing, slie was allowed to claim of her own goods, which 
had also been levied on under the execution, to the extent necessary to make, 
with her husband's property, the amount exempted by statute. Crane v. Wag- 

10 Stew.] MAY TERM, 1883. 45 

Muir V. Howell. 

tion of equity to prevent, by injunction, in view of the inade- 
quacy of the legal remedy, the sale, under execution at law, of 
personal property not subject to execution. Leiois v. Levy, 16 
Md. 85 ; ChappeU v. Cox, 18 Md. 513, and Fuselier v. Buckner, 
28 La. An. 594^ are cases in which the jurisdiction of equity in 
such cases is recognized. 

The complainant's claim to relief rests upon the alleged exist- 
ence of a right which is, in its nature, purely legal — a right 
which depends upon the construction of a statute granting an ex- 
emption in derogation of the common law. The statute secures 
the benefit of the exemption to any "debtor having a family re- 
siding in this state," and the question is, whether the complain- 
ant is within that description. That her husband is, is obvious, 
and he is undoubtedly entitled to the benefit of the statute. The 
object of the statute is to protect the family. Bonnel v. Dunn, 5 
Dvich. Jf35. The complainant and her children are the family 
of her husband. The legitimate and necessary result of the con- 
struction insisted upon by the complainant, would be to secure, 

goner, 33 Ind. 83. Also where the husband refused to act, and made no objec- 
tion to the claim interposed by the wife, ConnuUy v. Hardwick, 61 Ga. 5Q1 ; 
Kirtland v. Davis, 43 Ga. 318. To a bill filed by a married woman, to have 
a homestead right set off to her, it is no defence that her husband was then 
providing her with a comfortable home, Comstock v. Comstock, 27 Mich.. 97, 
So, where the wife was contributing to the support of her family by the em- 
ployment of a team which had been seized, McHagh v. Curtis, 48 Mich. 262. 

In Clinton v. Kidwell, 82 III. 427, it was held that there is no presumption 
that a married woman, residing with her husband, on her land, is the head of 
the family ; nor is it enough that she states that the property on the premises 
is her sole and separate property, and that she has children by her former 
husband living with her. 

A bill in equity and injunction are the proper remedies where exempted 
lands have been seized under execution, Webb v. Cowley, 5 Lea 722 ; Guy v. 
Downs, 12 Neb. 532 ; Williston v. Schmidt, 28 La. An. 4^6 ; Jones v. Crumley, 
61 Ga. 105 ; Panlon v. Manley, 4 Bradw. 210 ; see Slanker v. Beardsley, 9 Ohio 
St. 589 ; but not chattels, in Florida. Bryan v. Long, 14 Fla. 366 ; Hayne^ v. 
McGeehee, 17 Fla. 159 ; Phillips v. Crichton, Id. 600. Contra, in Texas, 
Nichols V. Clnibome, 39 Tex. 363 ; denied, Freeman Ex. I 439 ; see Pudney v. 
Barkhart, 62 Ind. 179. In Michigan, jurisdiction is conferred by statute, 
Shepard v. CVoss, 33 Mich. 96 ; Ingersoll v. Gage, 4l Mich. 121 ; see, further, 
1 Am. Law Reg. (N. S.) 641, 705; 20 Id. 753; 13 Cent. L. J. 205 ; 5 N. J. L. 
J. 555.— Rep. 


Muir V. Howell. 

in this and every like case, the right to a double exemption — one 
to the husband and one to the wife. 

It is very clear from the language of the statute, especially in 
connection with the other statute also providing for exemption 
in favor of the family of a deceased debtor, that the legislature 
intended to grant the exemption in respect of the father or hus- 
band, regarding him as the person who " has the family." In 
the act under which the claim under consideration is made, the 
language is : 

" Goods and chattels of every kind not exceeding in value, exclusive of 
wearing apparel, the sum of $200 ; and all wearing apparel, the property of 
any debtor having a family residing in this state, shall be reserved as well 
after as before the death of the debtor for the use of his family." Rev. p. 391. 

The act also provides that in case of the debtor's absence, the 
selection of the goods may be made by " his wife or family." In 
the other act the language is such as to confine the benefits of 
the provision to the family, in the settlement of the estate of the 
father or husband, for it speaks of the widow, and provides that 
every person residing in this state at the time of his death, 
dying testate or intestate and leaving a widow or a child or 
children who shall reside in his family at his death, him sur- 
viving, shall be deemed and taken to have left a family entitled 
to the benefits of that act. Eev. p. 763. These acts are in "pari 
materia, and their language is such as to make it clear that the 
legislature regarded tin father or husband as the law does — as 
the head of the family — and provided for the exemption as 
against his creditors. As before stated, the statute under con- 
sideration is in derogation of the common law, and it should 
therefore be construed strictly. 

In Rue v. Alter, 5 Denio 119, it was held that statutes ex- 
empting a debtor's property from the payment of his debts are 
not remedial, in the ordinary sense, so as to require that they be 
construed with any peculiar liberality; that they are in deroga- 
tion of the common law and confer immunities and privileges 
contrary to its general maxims, and that the interpretation is to 
be according to what is written, or what is plainly and manifestly 

10 Stew.] MAY TERM, 1883. 45 

Muir V. Howell. 

to be implied from what is written. It was added that the 
court is not to speculate on what are the evils to be provided 
against, and thus come to a conclusion in conformity to what a 
liberal and munificent spirit, or perhaps a more enlightened 
judgment than that displayed in the legislative provision, would 
approve. See, also, Hammer v. Freese, 19 Pa. St. 255 ; Fuselier 
V. Buckner, 28 La. An. 594, ; Todd v. Gordy, Id. 666 ; Briant 
V. Lyons, 29 La. An. 64-. 

In Fuselier v. Buckner, it was held that the Louisiana home- 
stead act, which gives exemption to a " debtor having a family 
or mother or father dependent on him for support," does not 
confer the privilege on the wife of the debtor; that during the 
marriage the husband is the head of the family, upon whom de- 
volves the support of the family, and that whether, in excep- 
tional cases, the wife may have to contribute to the support of 
the family or not, cannot affect the interpretation of the statute ; 
that the letter of the law is unambiguous, and the court is not 
permitted to disregard it under the pretext of divining the inten- 
tion of the legislature. On the other hand, there are cases in 
which it has been held that such statutes are remedial and are to 
be construed liberally. The cases on the subject of the con- 
struction of such laws will be found in a note to Bunnell v. Hay, 
73 Ind. 4^2, in 20 Am. L. Reg. 751. It is not necessary to 
consider the question whether a widow or a single woman, being 
a debtor and having a family residing in this state, is entitled to 
the benefit of the statute. The question in the case in hand is, 
whether a married woman, living with her husband, is entitled 
to it. Nor do I feel called upon to decide even that question. 
It is enough for the decision of this case that the complainant's 
right is not clear. Her claim is based on a general law. She is 
not within the express terms of it, and it is not manifestly to be 
implied that they extend to her. When the principles of law 
on which the complainant's claim of right rests are disputed, and 
will admit of doubt, a court of equity, although satisfied as to 
what is the correct conclusion of law upon the facts, may not, 
upon the opinion of the equity judge, without a decision of the 


Hugg V. Fath. 

courts of law establishing such principles, grant an injunction. 
Hackensack Imp. Co. v. N. J. Mid. R. R. Co., 7 C E. Gr. 91,.. 
In Stevens v. Newark and Paterson R. R. Co., 5 C. E. Gr. 126, 
it was held that an injunction will not issue where the right of 
the complainant, which it is designed to protect, depends upon a 
disputed question of law about which there may be a doubt 
which has not been settled by the courts of law of this state. 
And that enunciation of the law on the subject is quoted with 
approbation in CUizens Coach Co. v. Camden Horse R. R, Co., S 
Stew. Eq. S99, prefaced by the remark that no rule of equity is 
better settled than the doctrine that a complainant is not in a 
position to ask for a preliminary injunction when the right on 
which he founds his claim is, as a matter of law, unsettled. The 
principle applies to the bill in this case. If the complainant's 
right is not clear, there should be no injunction, and therefore 
no relief, for, as before remarked, the bill is merely an injunction 
bill, and no other relief than that of injunction can be awarded. 
It is at least doubtful whether the complainant has the right 
which she seeks to protect. In the present condition of the law, 
1 could not decree that she has the right which she claims, and 
therefore could grant her no relief. The demurrer will be al- 
lowed and the bill dismissed. 

Alfred Hugg et al. 


Feank Fath. 

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

10 Stew.] MAY TERM, 1883. 47 

Hiigg V. Fatli. 

Bill for injunction. On motion to dissolve on bill and answer. 
Mr. D. J. Pancoast, for the motion. 
3Ir. 8. H. Ghry, contra. 

The Chancellor. 

The bill is filed to prevent the defendant from further ob- 
structing the complainants' several fishery, in the Delaware river, 
at Gloucester City, and to compel him to remove obstructions 
already placed there by him. The act complained of is the driv- 
ing of piles in the river at the shore line of the fishery, for the 
building of a landing-place. The bill alleges that the obstruc- 
tions will, if permitted to continue, wholly destroy the fishery. 
It prays not only a prohibitory injunction to restrain from 
further obstruction, but a mandatory one also, requiring the re- 
moval of the piles already driven. A preliminary prohibitory 
injunction was granted, but a mandatory one was denied. 
The complainants are not the owners of the shore at the place 
where the piles have been driven. That, according to the an- 
swer, is owned by the defendant's wife. It appears by the an- 
swer that when the bill was filed, all the piles which the defend- 
ant proposed to set had been driven, and that the defendant then 
intended, and still intends, to do no more in that way, but 
only to build a platform on them for the landing, with a roof 
over it. The answer denies that the piles and landing-place do 
or will injure the fishery if the right exists. The defendant asks 
that the injunction may be dissolved, so as to permit him to build 
the platform and roof. Under the circumstances, no right, as 
against the complainants, will be gained by finishing the landing- 
place, nor will the complainants' claim to any relief to which 
they may appear on the final hearing to be entitled, be preju- 
diced, if the desired permission be accorded. The injunction 
will be modified (but without costs) so as to permit the defend- 
ant to complete the construction of the landing-place as proposed. 


Jacobus V. Munn. 

Anthony A. Jacobus et al 


John L. Munn et al. 

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

' Bill for relief. On exceptions to master's report. 

il/r. R. Wayne Parker and Mr. C. Parker, for complainants. 
Mr. H. C. Pitney, for defendant John L. Munn. 

The Chancellor. 

The bill in this cause was filed in 1878, by the grandchildren 
of Anthony A. Jacobus, deceased, to obtain possession of the 
property (the residue) which was devised and bequeathed to them 
by his will, subject to the support of their father and mother, and 
also for an account by the executor, Dr. John L. Munn, of his 
transactions and dealings with the estate. The will was made in 
March, 1848. The testator died in 1849. He appointed three 
executors, Abraham Ryerson, Philip Kingsley and Dr. Munn. 
The first never proved the will. The second proved it alone 
and served as executor. He died in or about 1852, and in the 
spring of that year Dr. Munn proved the will, and from that 
time discharged the duties of the office of executor. The will 

10 Stew.] MAY TERM, 1883. 49 

Jacobus V. Munn. 

provided for the support of Henry V. B. Jacobus and his wife, 
the parents of the complainants, for their respective lives, out of 
the proceeds, rents and profits of the residue ; and it charged the 
residue with the support, maintenance and education of the 
grandchildren during their minority, and it directed that the 
residue should not come into their possession until the youngest 
of them should have attained to his majority. It provided, also, 
for an annuity of $500 to the testator's widow, for her life, pay- 
able by the executors quarterly, out of the rents and profits of 
the testator's real and personal estate, and it gave to each of 
three of the sisters of the testator the interest of $1,000 for life, 
also payable out of the rents and profits of his real and personal 
estate ; the $1,000 in each case to go, at the death of the legatee, 
to her children. The estate consisted of some personal property 
^according to the inventory it amounted to $7,542.25), and some 
real estate here, and fourteen houses and lots in the city of New 
York. Dr. Munn, after he proved the will, took care of the 
estate, letting the property in New York and receiving the rents 
therefrom. The bill charges him with waste and mismanage- 
ment in letting the property below its value; making extrava- 
gant and unnecessary repairs; with failing to invest the balances 
in his hands from time to time, and with receiving presents from 
one of the tenants; and it alleges that the complainants have 
grave reason to suspect that he has received presents, or some 
valuable consideration or commissions, from the workmen era- 
ployed by him to do the repairs. Dr. Munn filed his accounts 
from time to time from 1854 up to 1879, almost every year, in 
the surrogate's office of Essex county, and, up to the account of 
1875, they were passed. To that account exceptions were filed, 
and, under them, it was referred to an auditor, who reporttd 
thereon in 1877, but before the court decided the matter the bill 
in this cause was filed. It was filed July 12th, 1878. In this 
suit, by a decree made on the 11th of July, 1879, it was decreed 
that the residue vested in the grandchildren when the youngest 
of them came of age, subject to the charge for the support of 
their father and mother, and the decree directed that the complain- 
ants secure, by mortgage of the real estate to Dr. Munn as trustee 



Jacobus V. Munn. 

undej^-lhe will, certain specified annual sums for the support of 
their father and mother, and that on the approval and delivery 
of the mortgage, the trustees deliver over the trust property to 
tliem, subject to and pending the accounting by the trustee; and 
it was thereby declared that this court was of opinion that the 
charges of intentional fraud and mismanagement, made in the 
bill against Dr. Munn, were not sustained by the proofs; also, 
that the accounts in the Essex orphans' court were not conclusive 
on the complainants, and that they were entitled to impeach, sur- 
charge and falsify them, and it was thereupon referred to Wil- 
liam Paterson, esq., one of the masters of this court, to take and 
state the accounts of Dr. Munn from the beginning, and fix the 
allowance to be paid to him for his services as executor and trus- 
tee; the master to take into account, in fixing his allowance, the 
nature of his services in caring for and renting the real estate, 
and collecting the rents thereof. By a subsequent explanatory 
order of July 8th, 1881, it was declared that all matters con- 
tained in Dr. Munn's account, including the question whether he 
is entitled to commissions at all, were referred to the master, and 
that it was not intended by the original decree to commend or 
ratify, or to disapprove the management of the estate by Mr. Munn, 
but to leave to the master the settlement of the accounts. The 
master, by his report, approved the conduct of Dr. Munn in his 
management of the trust, except as to the receipt of money for his 
own benefit, by way of gift, from one of the tenants of the New 
York houses, and from persons employed to make repairs to those 
houses, with which, however, he did not charge him, being un- 
able to ascertain the amount thereof, but recommended that in- 
stead of charging him therewith he be required to pay the costs 
of this suit, and suitable counsel fees to the complainants' coun- 
sel. And he fixed the executor's fees at five per cent, on the 
moneys he had collected, which moneys amounted to ^232,414.96. 
Avery careful examination and oonsideration of the testimony 
have led me to the conclusion that Dr. Munn's management of 
the estate has been fair, careful and judicious. The will created 
an active trust in the executor as to the rents of the real estate in 
question, and that trust devolved on him the duty of keeping the 

10 Stew.] MAY TERM, 1883. 51 

Jacobus V. Munn. 

property in proper tenaiitable condition. He appears to have 
•done so, and though he made some additions which may be re- 
garded as improvements, they were not only all for the benefit 
of the property absolutely, but also as regards its rental value, 
-and they seem to have been made with a view, and merely with 
a view, to increasing the value of the property in the latter re- 
spect. Nor does there appear to have been any extravagance or 
carelessness in making them or any of the repairs. One of the 
complainants' witnesses, Mr. Burnham, who has had special 
charge of the houses since October, 1879, says he thinks the ex- 
pense of keeping them in repair, while Dr. Munn had charge of 
them, ought not to have exceeded ^1,500 a year. The average ex- 
penditure for repairs, including the improvements before referred 
to, during the time, was, in foct, about $1,530 a year. Here were 
fourteen houses, all occupied by tenants, and all, except two, old. 
All except those two have been built over forty years, and they 
have been built about twenty years. An average expenditure of 
^110 a year on each of those houses is, according to the evidence, 
in nowise excessive. 

Nor is there any evidence of dereliction of duty on the part 
of Dr. Munn in not investing balances in his hands, nor any evi- 
dence that he used the money of the estate for his own purposes, 
but the proof is to the contrary. He appears to have made de- 
posits of the money of the estate, in his name, as executor, in 
the savings bank, and to have put his own money in with it. 
On the other hand, he kept the money of the estate in two banks 
of discount and deposit — one in New York and the other in Mor- 
ristown. In one of them, he Bays, he had $14,000 of his own 
money, besides money of the estate, and drew the money as he 
wanted it for his own purposes, or for the estate. He was 
engaged in no business, however, and had no occasion to borrow 
money or use his credit. It does not appear that he ever used 
any of the money of the estate for his own purposes. 

That he received money from one of the tenants, and from 
some of the persons employed to do work on the houses, he freely 
admits. In one instance he received $50 a year for five years 
from a tenant. And this appears to have been the only tenant 


Jacobils V. Miinn. 

from wliom he received money for liis own use in connection witli 
and on account of the business of the estate, and the $250 all he 
received from him. In some other instances he received small 
sums by way of gifts on payment of bills for work done. These 
appear to have been voluntary offerings to him, and to have been 
paid in consideration of his promptness in making payment, or 
his trouble in coming to New York to make the payments ; and 
it does not appear that they were given to him in anywise at the 
expense of the estate, or to its detriment. He made no conceal- 
ment of the fact that he received them, and appears not to have 
been aware that in accepting them he was doing anything incom- 
patible with his strict duty as a trustee. Such transactions on 
the j:)art of a trustee, however, are obviously not allowable in his 
dealings with the trust estate, and he is accountable to the estate 
for all such moneys received by him. 

.The master was unable to ascertain what amount Dr. Munn 
so received, and the latter, while he appears to have frankly tes- 
tified in regard to the matter, was unable to jfix the amount with 
any certainty. The master, as before slated, has not charged 
him with the moneys in the account, but recommends (substan- 
tially) that in consideration thereof he be required to pay in 
satisfaction to the estate, and as punishment for his illegal con- 
duct in receiving them, the costs of this suit, and such reasonable 
counsel fee to the complainants' counsel as the chancellor may fix. 
I am not satisfied to dispose of the matter in that way. The 
proper way to deal with it, under the circumstances, is, inasmuch 
as the amount cannot be exactly ascertained, to deduct from the 
commissions a sum probably sufficient to cover it and interest, 
but not so large as to do him injustice. He appears to have been 
faithful to his trust except where he has erred from want of knowl- 
edge of his duty. The estate has lost nothing from that want of 
knowledge or circumspection on his part. He has served it for 
many years in taking care of the property, and renting the houses 
and collecting the rents. For this service he is entitled to juht 
compensation. The master reports that Dr. Munn has had the 
entire charge of the estate, and the sole management thereof, for 
nearly thirty years ; that during that time he has received more 

10 Stew.] MAY TERM, 1883. 63 

Jacobus V. Miinn. 

than $230,000, and has accounted for all of it ; that but little, 
if anything, has been lost or not collected, and that no imputa- 
tion has been made against him in that respect, nor any charge 
of personal malfeasance or appropriation of moneys to his indi- 
vidual use or benefit ; that he has accounted at proper times, and 
since 1862, annually, to and under the direction of the proper 
accounting officers of the county, and his settlements have been 
matters of record ; that he has applied to and received, and fol- 
lowed the instructions of this court in the payment of moneys 
and the execution of trusts under the will ; that, considering the 
facts and circumstances connected with the trust since it came to 
his hands, the amount of money received and disbursed by him, 
the nature of the estate, the character and class of the property, 
the difficulties and trouble that must have attended the su[)er- 
Tision of it, the care required in procuring and retaining proper 
tenants, and collecting the rents, keeping the houses in such 
repair and condition as to secure desirable tenants, meet the de- 
mand for more modern improvements, and comply with sanitary 
and other regulations of the municipal authorities, the nature 
-and variety of the trusts of the will, 'the demands upon the time 
and services of the trustee, the responsibility devolving on him> 
-and the fact that the property has been transferred to the com- 
plainants in fair condition, with the benefit of the improvements, 
and with no charges or liens thereon, created or left by him, and 
no arrears, the trustee should be allowed the sum of $11,620.74, 
as a compensation in gross for his commissions and services; 
being five per cent, on tlie receipts. This award of compensa- 
tion appears to me to be no more than just in view of those con- 
siderations, all of which are well founded. This court has, by 
its decree, expressly acquitted the trustee of the charge of in- 
tentional fraud and mismanagement. He should not, therefore, 
be punished for his error in accepting the presents. Where a 
trustee has been guilty of a breach of his trust or of vexatious 
or improper conduct, the court can withhold all compensation, or 
allow him such compensation as will pay for the value of his 
services so far as they have been beneficial to the estate. Perry 
on Trusts § 919; Moore v. Zabriskie, 3 C. E. Gr. 51. The 


Kirkpatrick v. Coming. 

moneyb received hy the trustee from the tenant, and persons who 
did work on the property in New York, probably amount to not 
more than SoOO. If he be charged with this sura, and §300 for 
interest, i'ull justice will probably be done to the estate and no- 
injustice to him, under the circumstances; $800 should be de- 
ducted from the amount awarded for compensation, and the 
trustee, having been acquitted of all intentional fraud and mis- 
management, should have his costs of suit out of the estate. 

The second exception on the part of the complainants will bfr 
allowed, and the rest overruled ; and the exception on the part 
of the defendant will be allowed. Under the circumstances, the 
costs of the exceptions on both sides should be paid out of the 

Andrew Kirkpatrick, receiver &c., 


Erastus Corning et al. 

The firm of James Homer & Co., composed of James Horner and Jaoies 
Ludlum, was dissolved by the death of Horner in 1874. His executrix filed a 
bill in chancery in 1874, against Ludlum, for an account and settlement of the 
partnersllip estate, which consisted of lands, fiictories, and a large amount of 
personalty. The bill also prayed for the appointment of a receiver, and 
Ludlum was appointed, with the usual powers, and also with leave to bid 
at Ills sales, and with power also to redeem with the funds any of its estates 
from mortgages thereon. The title to the partnership lands was, after 
Horner's death, in his devisees and in Ludlum, and those lands were cov- 
ered by two mortgages held by Corning. On their foreclosure, Ludlum was 
made a defendant as owner, but not as receiver, and a decree pro confesso was 
rendered against him, while the other defendants therein ariswered. Corning 
bought all of the lands at foreclosure sale, in 1877, and through Ludlum, Jis 
his agent, bought personal property belonging to the firm at the master's sale 
thereof in 1876. They organized a corporation after the sale of the personal 
property, and transferred all that (the personal) property to the corporation. 
Ludlum was removed as receiver in 1679, and Kirkpatrick appointed in his 
place. — Held, that Kirkpatrick could not, as receiver, redeem the premises from 
the foreclosure sale, on an allegation that the mortgages were usurious and 

10 Stew.] MAY TERM, 1883. 55 

Kirkpatrick r. Corning. 

void by the law of New York, where thev were made, on the ground that Lud- 
kim ought to have been a party defendant in the foreclosure suit as receiver 
as well as individually ; nor on the ground of fraud and collusion between 
Ludliini and Corning, at the foreclosure sale, as to certain water rights which 
had been held by the firm, and a lenewal of which was obtained in the name 
of Ludlum's wife before that sale, or of fraud and colhision as to the sale of the 
personal property; held, further, that the bill was multifarious as to the corpo- 
ration, in that it prayed general relief against the corporation as to the firm's 
lands, as well as personalty, when the corporation, in fact, had no interest in 
those lauds. 

Bill for relief. Ou general demurrer. 

Mr. T. X. McCarter and Mr. Amasa J. Parker, of New York, 
for demurraute. 

Mr. F. W. Stevens and Mr. C. Parker, for complainant. 

The Chancellor. 

This bill is filed by the present receiver of the late firm of 
James Horner & Co. against Erastus Corning, James Ludliuu 
and Susan H., his wife, Alice Buckingham, as executrix and de- 
visee under the will of James Horner, deceased, and John M. 
Buckingham, her husband, Susan Horner and the Pompton 
Steel and Iron Company. It states that the firm of James 
Horner & Co. was composed of James Horner and James Lud- 
lum, and carried ou the business of manufacturing steel and 
files at Pompton, in the county of Passaic, in this state; that it 
was dissolved in 1874 by the death of Horner; that at his 
death it owned very valuable real and personal property at 
Pompton ; that the real property was worth from 8150,000 to 
$200,000, and consisted of a large and valuable tract of laud, 
on which were the Avorks, water power by which they were 
operated, a mansion in the course of construction, and certain 
dwelling-houses for employees; tliat the personal property was 
also of very large value, from which Ludlum, as receiver (he 
was the first receiver of the partnership property), realized $233,- 
380.09, more than half of which was at once available for the 
payment of debts, and there was a debt due from Ludlum of 
§73,975.47; that the liabilities of the firm, including $115,000 


Kirkpafrick v. Corning. 

then cJairaed by Corning to be clue to liim on the mortgages he 
held on the property, amounted to $180,490.68 ; that the excess 
of actually realized assets over tlie liabilities was $133,399.41, 
of which $37,018.72, represented by files of that nominal value, 
were equally divided between Horner's executrix and Ludlum, 
and the balance was used in working up the stock, paying inter- 
est, (axes and the expenses of Lndlum's receivership; that 
Horner, by his will, gave to Lndlum's wife all his interest in the 
land on which the before-mentioned mansion-house was being 
built, and after providing for payment of his . debts, gave the 
residue to Mrs. Buckingham for her own use, except as to a 
fourth part, which she was to hold in trust for his other daugh- 
ter, Susan, for the life of the latter, and made the former his 
executrix; that Mrs, Buckingham proved the will, and in 1874 
filed a bill in this court, as executrix, against Ludlum for 
(amongst other things) an account and settlement of the partner- 
ship estate, and for a receiver; that under those proceedings 
Ludlum was appointed receiver ; that the order of appointment 
appointed him receiver of all the property and assets of the firm, 
with power to collect and receive all moneys and other property, 
and to pay the debts and to take and retain possession of the 
property with a view to the ultimate settlement of the affairs and 
business of the concern in this court; required him to make an 
inventory of the property and debts; gave him power to com- 
j)Ound for any of the outstanding debts ; to extend the time of 
payment; to prosecute and defend in his name, as receiver, all 
such suits as he should deem expedient, and to sell the personal 
estate; gave him power to redeem from mortgage any of the 
estates belonging to the firm, and to use for that purpose any 
funds in his hands belonging to the firm; required him to hold 
all the estates, property, debts and effects, except such as should 
have been disposed of by the decree, and all the works &c., sub- 
ject to the order and direction of this court, and gave him 
authority, notwithstanding his office of receiver, to bid for him- 
self in person, or by agent, at any sale, and buy in property in 
his own name, but provided that such purchases should not be 
carried into effect without the sanction and order of this court. 

10 Stew.] MAY TERM, 1883. 57 

Kirkpatrick v. Corning. 

The bill further states that from Horner's death up to the time 
when the property of the firm was sold, Ludlum had possession 
of the property, real and personal, of the firm, and the complain- 
ant insists that from the time he was appointed receiver, Lud- 
I urn's possession was as receiver. He was removed from office 
July 31st, 1879, and the complainant appointed in his stead. 
The bill further alleges that on the 22d of June, 1875, Coming 
began suits for foreclosure of the two mortgages he held on the 
real estate — one given by Horner and Ludlum to Gabriel W. 
Ludlum, March 12th, 1863, for $50,000, and assigned by the 
mortgagee to Erastus Corning, senior, Coming's father; the 
other given by Horner and Ludlum to Erastus Corning, senior, 
August 23d, 1866, for $68,915; both of which mortgages were, 
on the death of Coming's father, assigned, by his executors, to 
one Marvin, by whom they were assigned to Corning. It ap- 
pears by the bill that the defendants to the bill in those suits 
were Ludlum and his wife, Buckingham and his wife, and Eliza 
Horner and Susan Horner; that Buckingham and his wife an- 
swered only, setting up that there was ample personal property 
of the firm to pay the mortgages, and that it ought to be applied 
to such payment. Ludlum did not answer, and there was a de- 
cree pro covfesso against him. There was a decree for foreclosure 
and sale in the suits (they were consolidated) for ^96,209.23. 
The decree, in the usual language, barred the defendants. The 
bills made no mention of the receivership, nor of the fact that the 
mortgaged premises were partnership property. Subsequently to 
the decree, there was credited on the execution the sum of $24,- 
349.18, for the price of personal property of the firm, bought by 
Corning at a sale under the order of this court, by one of its 
masters, leaving due, on the day of sale under the execution in 
the foreclosure suits, $80,510.10, for which sum Corning bought 
the mortgaged premises at the foreclosure sale. The bill alleges 
that the contract for the loan secured by the mortgages was usuri- 
ous, and by the law of New York, where it was made, therefore 
void, and that the decree was for about $20,000 more than was 
equitably due on the mortgages, if only the amount advanced and 
interest thereon be allowed. It also claims that there ought to 


Kirkpatiick v. Corning. 

have been a further deduction of $30,000 for the value of the 
personal property bought by Corning at the master's sale, through 
Ludlum, as his agent, over the price at which he bought it there; 
the complainant insisting that Ludlum, because he was receiver^ 
iiad no right to buy for Corning at that sale. The bill also states 
that before the foreclosure sale, the license or lease which the 
firm had to flow certain land for the water power, by which the 
factory maciiinery was run, with a right to buy the land at a 
stated price during the term, expired, and that Coming's solicitor 
got a renewal of it to Ludlum's wife for Corning and Ludlum, 
and that LndUim, at the sale, stated that the firm's right to flow 
the land had expired, and that the right would be held by his 
wife adversely to the purchaser. It is further stated by the bill 
that after the sale of the personal property by the master, a com- 
pany (the Pompton Steel and Iron Company) was organized by 
Corning and Ludlum, under a charter granted by the legislature 
in 1866, but which had not been used previously to the sale, and 
on its organization, the personal property purchased by Corning, 
through Ludlum, at the master's sale, was transferred to the 
company, which {)aid for it to Corning in its capit'.d stock ; that 
the company was organized in the interest and for the benefit of 
Corning and Ludlum, who are stockholders and directors therein, 
and have absolute control of it ; that Ludlum has been president 
and treasurer of it, and managed its concerns from its organiza- 
tion, and that he and Corning have organized it merely for busi- 
ness convenience, and that an understanding exists, and has ex- 
isted ever since the sale, that when the mortgages to Corning 
shall have been fully satisfied, Ludlum is to resume the owner- 
ship and control of tlie property. The bill does not charge 
Corning with actual fraud, but insists that while he may not be 
so chargeable, yet he has so dealt with Ludlum, who, as receiver, 
stood in the position of trustee, and has so far accepted Ludlum's 
wrongful acts, as to be chargeable with constructive fraud in his 
acquisition and subsequent use of the partnership property, and 
so as to be accountable in equity, and on equitable terms, to the 

The suit is brought to redeem the property sold under the 

10 Stew.] MAY TERM, 1883. 59 

Kirkpatrick v. Corning. 

foreclosure, on the payment of the amount, if anything, now due 
on the mortgages, after allowing only the amounts advanced, with 
lawful interest, and deducting the fair value of the use and occu- 
pation of the real property since the foreclosure sale, and credit- 
ing, also, the full value of the personal property bought by Corn- 
ing at the master's sale. The bill also prays that if redemption 
be denied, the foreclosure sale may be set aside and a new sale 
ordered, to raise what, if anything, may be due, computing the 
amount and making the allowances in the way just stated. 

The claim of a right to redeem rests wholly upon the assump- 
tion that the receiver of the partnership,\vas a necessary party to 
the foreclosure suits. He was a party in his individual capacity 
but not as receiver. The complainant insists that, by the order 
appointing Ludlum receiver, he was vested with such an interest 
in the property as made him a necessary party to those suits. 
But he had no legal title as receiver. The legal title was in him 
individually, and Horner's heirs-at-law. By the order, he had 
power to take and hold possession of the property with a view 
to the ultimate settlement of the firm's aiTairs in this court, and 
he had power to redeem any of it from mortgage debts, and to 
use lor that purpose any funds in his hands belonging to the 
firm. But that was a mere authority to apply partnership funds 
to a designated use. He was authorized to sell the personal 
property^ but not the real. The order vested no title whatever 
to the real estate in him as receiver. . He was not, as receiver, a 
necessary party to the suit. This very question, as to the neces- 
sity of making receivers with similar powers, parties to a fore- 
closure suit, was fully considered and decided in Willink v. 
Morris C. & B. Co., 3 Gr. Ch. 377. The court said : " The 
property of the company does not vest in the receivers, nor does 
the appointment of receivers necessarily put an end to the cor- 
poration. The receivers have the sole power over the corpora- 
tion ; they are substituted in the place of the directors and 
managers, but for the purpose of settling up and closing the 
affairs of the company. The title to the property is not changed, 
but a power only is delegated to the receivers to take charge of 
and sell it. These receivers, too, may bring suit in their own 


Kirkpatrick v. Corning. 

name-, and for aught I see, in the name of the corporation, should 
they prefer it; and if so, they may defend a suit in the name of 
the corporation." It is true, in that case, the appointment of 
the receivers was subsequent to the filing of the bill, and there 
was a decree pro confesso in the cause before they were ap- 
pointed, but the court might have ordered that they be made 
parties, nevertheless, had it seen fit to do so, and its language is 
important as showing the relation which a receiver, with such 
powers as Ludlum had under the order of this court, bears to 
the real estate. It is urged by the complainant's counsel that a 
contrary opinion was expressed by Vice-Chancellor Van Fleet 
in Freeholders v. Slate Bank, 2 Stew. Eq. 268, and that his 
judgment was affirmed by the court of errors and appeals in S. 
C, 3 Stew. Eq. 311. But the view the vice chancellor ex- 
pressed on the subject was not necessary to the decision of the 
case, and there was no opinion in the court of last resort. More- 
over, the same judge, in the subsequent case of State Bank v. 
Plainjield Bank, 7 Stew. Eq. 4^6, expressed the opposite view — 
one in accordance witli that of Chancellor Pennington in Wil- 
link V. Morris C. & B. Co. See, also, Wilson v. Wilson, 1 Barb. 
Oi. 592. 

The receiver, in his individual capacity as one of the owners 
of the equity of redemption of the mortgaged premises, was 
made a party to the suits. And the Buckinghams and Eliza 
Horner and Susan Horner., legatees under the will of Mr. Hor- 
ner, were parties also. Mrs. Buckingham and her sister, Susan 
Horner, were the heirs-at-law of James Horner. Though Mr. 
and Mrs. Buckingham answered, they did not allege the necessity 
of making the receiver a party to the suit. Susan Horner hav- 
ing failed to answer in due time, applied for leave to answer, but 
failing to show that she had any equitable and meritorious de- 
fence, the permission was denied. Horner v. Corning, 1 Stew. 
Eq. 264- The court of errors and appeals, in that case, speak- 
ing in reference to her defence, that the mortgaged premises 
ought not to be sold until certain equities between the defend- 
ants against each other had been settled, and that Ludlum, as re- 
ceiver of the personal estate and the rents and profits of the real, 

10 Stew.] MAY TERM, 1883. 61 

Kirkpatrick v. Corning. 

ought to be required to pay Coming's mortgages out of the 
money and assets in his hands as receiver, before the rnortgaged 
premises were resorted to, said it was not shown nor alleged that 
Corning was in anywise affected by those equities, and that there 
was no question of the validity of the complainant's mortgages, 
nor as to the amount due on them. It appears also, by the 
opinion, that it was alleged that there was collusion between the 
receiver and Corning. If there was, indeed, usury in the loans 
for which the mortgages were given, and for want of informa- 
tion, any of the parties in interest did not set up that defence 
in the foreclosure proceedings, they must be held to be concluded 
by the decree. And, finally, if the receiver was not a necessary 
party, there is no right to redeem. It may be remarked that it 
appears by the bill, that before the institution of the foreclosure 
proceedings, the debts of the firm were all paid, except the 
mortgage debts of Corning and another of $10,000 due to the 
Mutual Benefit Life Insurance Company, and a claim of Joseph 
W. McElroy, for services as superintendent of part of the busi- 
ness of the firm, which claim is in litigation; and that there was 
personal property to the amount of $120,000, besides the money 
due from Ludlum, all applicable to the payment of the debts. 
It appears that personal property of the firm, of the value of 
over $37,000, was divided between Mrs. Buckingham and Lud- 
lum, and it is not alleged that all the debts are not paid. The 
only persons, then, who are represented by the complainant in 
this suit, are Ludlum and those who are interested under the will 
of Mr. Horner. All of them were parties to the foreclosure 
proceedings, and it is manifest that this suit is, in fact, prosecuted 
in behalf of Mr. and Mrs. Buckingham, and Eliza and Susan 

As to the other phase of the case : It is claimed that the con- 
duct of Corning in reference to the purchase of the personal 
property, and his dealings with regard to the lease of land to be 
flowed, indicate fraudulent combination between him and Lud- 
lum. That Ludlum hacl a perfect right to purchase at the 
master's sale for Corning is clear. By the order of his appoint- 
ment as receiver, leave was given to him to buy the personal 


Kirkpatrick v. Corning. 

property, subject to the sanction of this court. By the order 
directing the master to sell, the like leave, but this time without 
qualification, was given to him. If he might bid for himself, 
why not for others? If his conduct was illegal, the matter 
should have been brougbt before this court as ground for setting 
aside the sale. The facts were fully known at the time of the 
sale, as appears by the bill. And, as to the water right: When 
the sale under the foreclosure proceedings took place, the lease 
of the firm had expired. After it expired, Coming's solicitor, 
with a view to controlling this (according to the bill) most ma- 
terial privilege, obtained a lease for it, taking it in the name of 
Mrs. Ludlum. The bill says the solicitor was acting in the 
matter for Corning and Ludlum, and that Mrs. Ludlum has, 
ever since it was obtai«ued, held the lease for their benefit, but 
how, in what particular way, it is to benefit Ludlum, the bill 
does not state, nor does it appear, except as it is stated in the 
bill, it is understood between Ludlum and Corning, that after 
the latter's claim shall have been paid, Ludlum is to have the 
property. At the foreclosure sale Ludlum proclaimed that his 
wife held the right, and would hold it adversely to any pur- 
chaser. Corning bid the whole amount of his claim (over $80,- 
000) for the property. It is not alleged that the conduct com- 
plained of, now under consideration, caused the property to bring 
less than it otherwise would have brought; and if such had been 
the fact, the proper relief was by motion to- set aside the sale. 
There appears to have been no concealment whatever. The sale 
of the personal property took place November 21st, 1876, and the 
sale of the real, July 5tli, 1877. The complainant was appointed 
receiver in July, 1879, and this suit was not brought until No- 
vember, 1882. Immediately after the sale of the personal 
property a corporation was, as before stated, organized, to which 
the personal property bought by Corning wds transferred, so 
that then a new party became owner of it, a corporation which 
is brought into this suit merely because it is such owner. The 
l)ill states that the company was organized in the interest of 
Corning and Ludlum, and that they control it ; but those facts, 
obviously, will not deprive it of the right to be regarded as a 

10 Stew.] MAY TERM, 1883. 63 

Stouteiiburgh v. Moore. 

bona Jide purchaser for value, without notice. Under tliis bill 
the complainant is entitled to no relief. 

Moreover, the bill is multifarious. It seeks to redeem and it 
also seeks relief as against Corning and Ludlura and the Porap- 
ton Steel and Iron Company, in reference to the personal prop- 
erty. That company has no interest in the real estate and ought 
not to be called on to answer in regard to it. The demurrer 
will be allowed. 

Carrie Belle Stoutenburgh 


George D. G. Moore, admr., et al. 

A testator providetl " all the rest aud residue of my estate, real, personal 
and mixed, I give, devise and bequeath the income to my two sons, Kobert 
and Edward, to be equally divided between them during their lives, and at 
their death, to be equally divided between my grandchildren, lo them, their heirs 
and assigns." The estate consisted of both real and personal property. He 
had but the two sons living at the time of making the will. They were both 
married, and both survived him. Edward is now dead, leaving a widow and 
one child. Robert survives and has four children. — mHeld, 

(1) That upon the death of Edward his child was entitled to a moiety of the 
estate, absolutely ; that Eobert was entitled, during his lifetime, to the income 
of the other moiety, which, at his death, should be divided equally among his 

(2) That the trust created by the will, to invest the residue, to pay over the 
interest, to sell and convey any or all of the real estate at discretion, and to 
keep it in repair, is an active one and does not devolve on an administrator 
with the will annexed. 

Bill for construction of will. On final hearing. 
Mr. John Whitehead, for complainant. 
Mr. John W. Taylor, for defendants. 


Stoutenburgh v. Moore. 

The Chancellor. 

Robert C. Stoutenburgh, deceased, late of the city of Newark, 
by his will, provided as follows : 

"All the rest and residue of my estate, real, personal and mixed, I give, de- 
vise and bequeath the income to my two sons, Robert and Edward R., to be 
equally divided between them during their lives, and at their death, to be 
equally divided between my grandchildren, to them, their heirs and assigns ; 
this provision being intended to take the place of any division or provision 
for them heretofore made or proposed by me." 

The testator's estate consisted of both real and personal prop- 
erty. He had but the two children living at the time of making 
the will. They were both married. Both survived him, Ed- 
ward is dead. He left a widow and one child, the complainant. 
Robert survives and has four children. The questions pre- 
sented are, What is the interest of Robert in the residue, and 
what the interest of the grandchildren of the testator therein? 

Note. — A gift of personal property to two or more, constitutes a joint ten- 
ancy, and is not within the statute requiring express words to create a joint 
tenancy {Rev. p. 167 § 78), Putnam v. Putnam, 4 Bradf. 308; De Camp v. 
Hull, 42 Vt. 4S3; Gilbert v. Richards, 7 Vt. 203 ; Freeman on Partition (^ 23, 
41 ; Ciossfield v. Such, 22 E. L. & Eq. 555 ; see Stevens v. Bowers, 1 Uarr. 16 ; 
LippincoU v. Stokes, 2 Hal. Ch. 122. 

As to several mortgagees, see Freeman on Partition I 4- ; 1 Jones on Mori. ^§ 
35, 704; also, Kinsley v. Abbott, 19 Me. 430 ; Lannay v. Wilson, 30 Md. 536. 

In Slater v. Carew, 2 Mod. 19, the condition of a bond was to pay to Thomas 
and Dorothy, his wife, during tlieir two lives. On the death of the husbandi 
the payment was held not to continue to the wife. 

- In Farrington^s Case, 1 Dyer 67 a, a lease for years was made to two, pro- 
vided that " if the said lessees die within the term it shall cease." The ten- 
ants partitioned, and one of tliem aliened his p »rt and died. — Held, his grantee 
should hold during the life of the survivor. 

In Douglas v. Parsons, 22 Ohio St. 526, on an agreement to pay E. A. G. 
and A. G., his wife, $66 annually, during their natural lives, the wife survi- 
ving v"as held entitled to the annuity as long as she lived. 

In Merrill v. Bickford, 65 Me. US, an annuity payable to T. during the 
natural lives of T. and his present wife, was held to continue on the death of 
T., leaving his " present" wife surviving, but not to be payable to her. 

In Townley -v. Bolton, 1 Myl. & K. I48, a testatrix gave £50 to her sister and 
her said sister's husband, for their joint lives, and after their decease to her 
nephew. The husband survived the sister, and was held entitled to the £50 
for his life. 

10 Stew.] MAY TERM, 1883. 65 

Stoutenburgh v. Moore. 

Kobert claims that he is entitled, by virtue of an implied cross- 
remainder, to the whole of the income for his life, and that the 
residue is not divisible until his death ; and his children claim 
that whenever it is divided, it is to be divided, pe7' capita, among 
all the grandchildren — his children and the child of his brother 
Edward. On behalf of the complainant, the child of Edward, 
it is claimed that the gift to Robert was only of half of the in- 
come of the residue, in any event, and that on the death of Ed- 
ward the residue was divisible into two shares, one of which went 
at once to her, and that on the death of Eobert the other share 
will go to his children. 

The testator, by the will, gave the income of the residue to his 
two sons, to be equally divided between them during their lives. 
This made them tenants in common of the income, and they had 
no right of survivorship. Woolston v. Beck, 7 Stew. Eq. 7^; 
Wills V. WUls, L. R. {20 Eq) 3J^. Our statute provides that no 
estate, after the passing of the act (February 4th, 1812) shall be 

In McDermott v. Wallace, 5 Beav. H2, under a gift to A and B of the an- 
nual sum of £12, to be equally divided during their lives, after wliich to go to 
C—Held, that B surviving A for ten years was entitled to the £12 during tliat 

in Smith v. Oakes, 14 Sim. 122, an annuity was given to a husband and wife, 
during their joint and natural lives; the husband surviving was held entitled 
for his life. 

In Jackson v. Luquere, 5 Cow. 221, under a devise to two daughters, "to be 
equally divided between them, share and share alike, and to be to them for 
and during their natural life, and after their death then to be to their and 
each of their children, and to be divided between them, share and share alike " 
— Held, on the death of one daughter, that her share vested in her children 
immediately, per stirpes. 

In BrudneU's Case, 5 Co. 9, it was resolved that if a lease be made to A 
daring the lives of B and C, and B die, A shall hold during C's lifetime. Al-o,. 
Day V. Day, Kay 703. 

In Maleomb v. Martin, 3 Bro. 0. C. 51, the gift was to the children of J. G. 
and Mrs. L. for life, and then the principal to be divided among the grand- 
children of J. G. and Mrs. L. J. G. died before the testator, leaving only 
grandchildren— BeW, that the children of Mrs. L. took the entire interest 
during their lives. 

In Pearce v. Edmeades, S Y. & C. Exch. 246, the gift was to E. and G. during 
their respective lives in equal shares, and after the decease of the said E. and 
G. unto and between the children of E. and G., and it was held that G., who 


Stoutenbiirgh f. Moore. 

considered and adjudged to be an estate in joint tenancy, except 
it be expressly set forth in the grant or devise creating such 
estate that it is the intention of the parties to create an estate in 
joint tenancy, and not an e&tate of tenancy in common, any law, 
usage or decision theretofore made to the contrary notwithstanding. 
Rev. p. 167. Neither of the sons had a right, under the will, to 
more than one-half of the income in any event, and when one of 
them died the principal was to be divided, for I am of opinion 
that by the term " at their death " the testator meant at the death 
of them respectively, not at the death of the survivor. 

It is urged on behalf of Robert's children that the testator 
having designated the persons who are to take the residue as his 
grandchildren — by their relationship to him — all those persons 
who are within the description are, by the rules of construction, 
entitled to take it equally. But the rules of construction must 
give way to the evidence of a contrary intention. If the testator 
intended (as I think he did) that at the death of one of his sons 

survived E., was entitled to the whole interest during her lifetime. See Doe 
V. Royle, 13 Q. B. 100. 

In Taniere v. Pearkes, 2 S. & S. SS3, under a legacy of £600 to F., and at 
her death to her two daughters in equal shares, and at their death to their 
children; one of the daughters having died without children — Hdd, that the 
cliildren of the other daughter took only their mother's share. 

In Willes V. Douglas, 10 Beav. ^7, under a gift in trust, to be equally divided 
between A, B and C, separate from their husbands and for their sole use, and 
at "their" decease to be divided amongst "their" daughters — Held, that on 
the several deaths of A, B and C, their respective shares went to their 

In Abrey v. Newman, 16 Beav. 431, a bequest was to be equally divided be- 
tween A and wife and B and wife, for the period of their natural lives, after 
which, to be equally divided between their children, "that is to say, the 
children of A and B above mentioned." A and his wife were both dead, 
leaving children, and B's wife was also dead, leaving B and children surviving. 
— Held, that on the death of A and his wife, their share was divisible among 
the children of A and B. 

In Drukeley's Estate, 19 Beav. 395, a testator gave an annuity to A for life, 
and the income of the residue to B and C " during their lives as tenants in 
common," with gifts over to B and C's respective children after the deaths of 
A, B and C. After the death of B, C was held entitled to only one-half of tlie 
income of the residue for life. 

In Swan v. Holmes, 19 Beav. Jfll, a bequest of the interest of one property 
was given to two sisters, and of another property to a fenaale cousin, and " in 

10 Stew.] MAY TERM, 1883. 67 

Stoutenburgh v. Moore. 

the residue should be divided, aiid the share of which the de- 
cedent had the use go over at once to the persons for whom the 
testator intended it, he must have intended that the residue be 
<1ivided among his grandchildren per stirpes, for all of his grand- 
children might not then have been born, and it could not be 
known how many there would be until the death of his surviving 

The design of the testator and the scheme of the will, were to 
provide, in the first place, for his sons for life, and then, as they 
should die, for their respective families of children. He does 
not say that on the death of one of kis sons the share of the de- 
cedent shall go to all of his, the testator's, grandchildren', but 
"at their" (his sons') "death," the residue is to be divided be- 
tween his grandchildren. He certainly intended that at the 
respective deaths of his sons the shares of the residue, of which 
he gave them respectively the income, should go over; for he 
•directs that " at their death," by whicR lie meant their respective 

case of the death of the above three females," over. — Held, that the gift over 
took effect on the death of each female. 

In Sarel v. Sarel, S3 Beav. S7, under a bequest of a raoiety of a residue to A 
for life, and of the other moiety to B for life, " and from, and immediately 
after the decease of A and B," to stand possessed " o' all my personal estate," 
in trust for eight grandchildren, on the death o' A, leaving B still living — 
-Held, that A's moiety became divisible among the grandchildren. Also, 
Turner v. Whittaker, Id. 196 ; Archer v. Legg, 31 -Beav. 187 ; Bryan v. Twigg, 
L.B. {3 Ch.App.) 183. 

In Ewington v. Fenn, 16 Jur. 398, under a bequest of pessonalty to trustees, 
to pay the income to A and B, for their Mves, and after the decease and failure 
of issue of A and B, to continue theipayments to any husbands A and B might 
respectively have, during the life of such husband, and after the respective 
husbands' deaths, then the whole to C, A died without, leaving a, husband or 
issue. — Held, that C took A's share immediately. 

In LarencMs Estate, 18 Jur. 304, J. L. gave to his niece, C. B., and his 
nephew, J. T., all his houses &c., " each to enjoy one-half during their lives, 
and at their decease, the said premises to go to their children." J. L. died in 
1786 and J. T. died in 1804, without children and intestate, leaving C. B., his 
own and also J. L.'s heir-at-law. C. B. had thirteen children, of whom six 
survived her. She devised all her interest in the premises to her daughter, 
J. B. — Held, that C. B.'s children took her moiety, and her devisee, J. B., took 
J. T.'s moiety which came to C. B. as J. T.'s heir-at-law. 

In Wills V. Wills, L. R. {20 Eq.) 34£, under a bequest of residue, the intierest 
thereof to be paid to C. and J., equally, for their lives, and at tlieir death, 

68 CASES rx CHANCERY. [37 Eq. 

Stoutcnburgh v. Moore. 

deaths, -the residue shall be divided between his grandchildren. 
If it be suggested that he may have intended that from the death 
of one of his sons, one-half of the residue shall be kept invested 
until the death of the survivor, and the income paid until that 
event to the grandchildren in equal shares — a provision which 
would give to the surviving son one-half of the income of the 
residue for his life, and (as matters now stand) until his death to 
his children in their own right, four-fifths of the other half, and 
the remaining fifth to the child of the decedent — it is enough to 
say that there is no evidence of an intention to make any such 
provision. If the residue is to be divided on the death of the 
first decedent, and one-half is to be held to await the death of 
the survivor before any distribution is made, then the decedent's 
child will be left without any provision whatever until the death 
of her uncle, whom, of course, she may not survive. The testa- 
tor did not contemplate aijy such result. He, of course, did not 
suppose that both of his sons would die at the same moment of 
time, and he therefore contemplated a survivorship. He intended 
to divide the residue of his estate between his .sons, giving to 
each the use of half for life; the share of each to go, at his death, 
to his children, to whom he refers, not by their relationship to 

the principal to be divided between the children of C. and J. — Held, that the 
vrords "at their death," meant al their respective deaths, and that the princi- 
pal of G.'s moiety, at C.'s death, went to his children. 

In Woolslon v. Seel-, 7 Stew. Eq. 74, a testator gave the use of his farm ta 
his two daughters for life, S. to have two-thirds of the income, and K. one- 
third, " and after the decease of my two daughtei-s," to their children in fee. S. 
died, leaving children. — Held, that K. was entitled to only one-third of the in- 
come, and S.'s children to the possession of two-thirds of tlie remainder. 

In Putnam v. Gleason, 99 Mass. 454, a testator devised " to my daughters 
P. and G., for the term of their natural lives, all my real estate, to be held by 
them to their own use and behoof during life, as tenants in common, and at 
their death to their heirs and assigns." — Held, that the remainder in G's inter- 
est vested at her death in her heirs-at-law. See Briggs v. Wade, 124 Mass. 3S0. 

In Vreeland v. Van Byper, 2 C. E. Gr. 123, under a devise: "I do give 
the residue of my real estate to my children, share and share alike; but the 
shares which may fall to my sons George and Michael I do give to them only 
during their natural lives, and after their death, to go to their children, share 
and share alike" &c. George died leaving no issue. — Held, that testator died 
intestate as to his share. See, further, Freem. on Partition §2 23-28. — Rep. 

10 Stew.] MAY TERM, 1883. 69 

Stoutenburgh v. Moore. 

'his sons, but by their relationship to himself. Had he intended 
that on the death of one of his sons the survivor should have the 
income of the whole of the residue, and the child or children of 
he decedent nothing until the death of the surviving son, he 
most probably would have said so. It is equally reasonable to 
presume that if he had intended that on the death of one of his 
sons there should he a division of one-half of the residue among 
all his grandchildren theu living, he would have said so. He 
-surely never intended that the children of the first decedent should 
not only be deprived of the benefit of their father's share" of the 
income by his death, but of all benefit of his estate until the 
-death of their uncle. Nor is the use of the word " between," in 
this will, without significance. The language is, "and at their 
<leath to be equally divided between " (not among) " my grand- 
children." The word *' between " is commonly used in reference 
to two only, and there is some evidence in the use of the word 
here of the intention to divide between two families of children. 
It is as if the testator had said, I give the income of the residue, 
to my two sons for life, to be equally divided between them, and 
when they die the principal is to be equally divided between 
their families of children. This case difilers in no material re- 
spect from the case of Wills v. Wills, above cited. There there 
was a bequest of the residue, the interest thereof to be paid to the 
testator's sons, Charles and John, equally, for their natural lives, 
and at their death the. principal to be divided equally between 
the children of Charles and John. The testator died, leaving 
the two sons surviving him. One of them died, leaving five 
children. The other survived, and the question was between 
the children of the two as to their respective interests in the 
moiety to the income whereof the deceased son was entitled 
during his life. The master of the rolls, Sir George Jessel, held 
that the words "at their death," meant at their respective deaths, 
and that on the death of one son the moiety to the interest of 
which he had been entitled, became divisible among his children. 
The only difference between the case in hand and that case is, 
that here the testator provides for the division of the principal, 
not between the children of his sous, as in that case, but between 


Stoutenbargh v. Moore. 

his grajulcliildren. In this case, however, the testator had no 
grandchildren, except the children of these two sons, nor any 
other living children, except those two sons. This difference 
between the two cases is not enough to constitute a distinction. 
In Laring v. CooUdge, 99 Mass. 191, cited by the defendant's 
counsel, where a testatrix gave the income of the residue equally 
to her brother and sister during their natural lives, and at their 
death to her nephews and nieces them surviving; and the brother 
died after the death of the testatrix, leaving the sister surviving^ 
it was held that the whole income of the residue was payable 
after the death of the brother to the sister until her death; and 
that the gift over in remainder to the nephews and nieces, was- 
not to take effect until her death, and that the nephews and 
nieces then took "per capita. In that case the primary provision 
of the gift of the income was not to the testatrix's children, but 
to her brother and sister, and none of the nephews -and nieces, to> 
whom the principal was given, were the children of the brother 
or sister. The court says that the -agreed fact that -none of the 
nephews or nieces were children of either of the beneficiaries for 
life, tended to confirm the interpretation that the principal was 
to be divided 2:)er capita among the nephews and nieces, as in 
accordance with the prouable intent of the testatrix. If the fact 
had been that the nephews and nieces, among whom the division 
was to be made, were the children of the beneficiaries for life, it 
would certainly have been a circumstance worthy of being taken 
into consideration in ascertaining the probable intention of the 
testatrix in the provision for the distribution of the principal,, 
and I think that the fact that the grandchildren, to whom the 
corpus of the residue is given in this case, are none other than the 
children of the two sons, is of importance in determining the 
intention of the testator as to the division of the residue " be- 
tween " his grandchildren. I am clearly of opinion that the 
testator did not intend to give to the surviving son the income 
of the whole of the residue for his life, but intended that after 
the death of his brother he should still have only the income of 
one-half, and that, upon the death of the first decedent, the prin- 
cipal should be divided, and the decedent's child or children take 

10 STfiw.] MAY TERM, 1883. 71 

Chadwick v. Chadwick. 

one-half of it ; and that on the death of the survivor, his children 
should take the other. The testator has expressed his wishes 
with great brevity and conciseness, so much so as, perhaps, to 
render his intention somewhat obscure. If it is doubtful whether 
he intended the distribution among his grandchildren to be pej' 
stirpes or per capita, the court should adopt a construction in 
favor of the former method, not only as being most probably in 
accordance with his intention, but also as being in accordance 
with the policy of the law. The residue should be divided as of 
the death of Edward, and one-half of it, with the interest thereon 
since his death, goes to the complainant. 

Another question is propounded, viz., whether the trust 
created by the will can be executed by the administrator with the 
will annexed. The trust is an active one to invest the residue and 
pay over the interest, to sell and convey, at the discretion of the 
executors or the survivor of them, as they or he should think 
for the best interests of the estate, so much and such parts of the 
real estate as they or he should think best, and to keep the 
premises remaining unsold in good and sufficient repair. It does 
not devolve on the administrator. Brush v. Young, 4- Dutch. 
S87 ; Lanning v. Sisters of St. Francis, 8 Steio. Eq, 392, 

James Chadwick et al., executors^ 


James Chadwick et al. 

1. A testator gave to the trustees of a designated church $1,000 for a partic- 
ular purpose, "whenever said church sliall remove and build a new church in 
Paterson, or rebuild one" &c. He also gave $500 to the trustees of another 
church (in Whippany) "towards building a parsonage for said church, pro- 
vided a sum sufficient be subscribed and raised to pay the balance of said par- 
sonage" Ac, * * *• "and when either of the said M. E. churches shall 
have complied with the conditions of said bequests, then the moneys above 
grilled may be paid over as bequeathed, respectively." The testator died in 
1868. The I'aterson church, in 1872, began building a new edifice, but when 


CJiadwick v. Chadwick. 

it was {jartly finished it was sold under foreclosure, and afterwards there were 
some additions and alterations made to and in the old church building. It 
does not appear that the church intends to remove and build a new church or 
rebuild one, and the testator has been dead fourteen years. The Whippany 
chiircli has tlie refusal of buying, for !f>700, a house suitable for a parsonage, 
and offers to raise and pay therefor the $200 over and above their legacy. — 

(1) That the legacy to the Paterson church has lapsed for failure to per- 
form the condition annexed thereto. 

(2) Tliat the Whippany church may buy instead of building a parsonage, 
and that, imder the circumstances, a reasonable time should be given to that 
church to comply with the condition annexed to its legacy. 

2. The testator also gave the residue of his estate, after his wife's death, to 
be equally divided into five shares, of which his brother James should take 
one, his n<'pliew, James, one, tlic issue of his brother Kobert one, the issue 
of Jiis bother Thomas one, and the issue of his sister Susannah one. By a codi- 
cil he gave to each of the children of his brotliers Koberl and Thomas, an 
amount equal to the sum to be paid under the will to each of tlie children 
of his sister, Susannah. At the widow's death, Susannah had four children 
living, and, consequently, each of them was entitled to one-fourth of one-fifth, 
i. e., one-twentieth of the residue. — Hdd, that each one of the children of tes- 
tator's brothers, Robert and Thomas, was likewise entitled to one-twentieth 
of the residue, and that testator died intestate as to the remainder of the 
shares originally given to the issue of Robert and Thomas, respectively. 

Bill for construction of will &c. On final hearing on plead- 
ings and proofs. 

Mr. T. W. Randall, Jr., lor complainants. 
Mr. Henry S. Drury, for church in Paterson. 
Mr. W. W. Cutler, for Whippany church. 

Tpie Chancellor. 

This suit is brought for the construction of the will of John 
Chadwick, deceased, late of Paterson, in this state, who died in 
1868. The will, to which there was one codicil, was admitted 
to probate in July of that year. It was paade August 15th, 
1866, and the codicil July Isr, 1868. By the will, after certain 
legacies, the testator gave to his wife the use of the residue of 

10 Stew.] MAY TERIM, 1883. 73 

Chadwick v. Chadwick. 

his property, real and personal, for life. He died July 12th, 
1868, and his widow July 20th, 1881. The portions of the will 
which are brought into question are the following : 

" I also give and bequeath for the benefit of the Cross Street M. E. Church, 
of Paterson, to the trustees, the sura of $1,000, to be expended, as far as is 
necessary, for building a pulpit, and the balance, if any, to go as far as it will 
in cushioning the seats whenever said church shall remove and build a new 
church in Paterson, or rebuild one in Paterson, and allow and permit any and 
every regularly ordained minister of said church to occupy the said pulpit at 
all proper times, the majority of the board, including the pastor, being the 
judges of said times. 

" I also give and bequeath for the benefit of the Whippany M. E. Church, 
to the trustees, $500, towards building a parsonage for said M. E. church, 
provided a sum sufficient be subscribed and raised to pay the balance of said 
parsonage, builded in Whippany, Morris county, N. J.; and I order my 
executors to pay over to said trustees, as soon as is convenient, after the said 
balance has been subscribed and raised. * * * And I here make provis- 
ion that if the Whippany M. E. Church has already got a parsonage, then the 
$500 I order and will that it be expende<l in enlarging or improving or re- 
building said church. * * * And when either of the said M. E. churches 
shall have complied with the conditions of said bequests, then the moneys 
above willed may be paid over as bequeathed, respectively. 

" I do order and will, at the death of my beloved wife, Martha, that all 
property undisposed of shall be sold or divided in the following manner, that 
is, my brother James to have one share, and my nephew, James S. Chadwick, 
one share, my brother's, Robert Chadwick's, heirs another share, and my 
brother Thomas's heirs a 'forth' share, my sister, Susannah Cave's 'heiress,' 
a fifth share. Now, I will that my property, at my beloved wife's death, or as 
soon after as convenient, be divided in five equal parts or shares, as stated 
above, my brothfers' and sister's children, if living, and if dead, then to their 
heirs. This includes all, whether legitimate or illegitimate, of all the heirs 
enumerated, so far as they have been recognized by our family ; each of the 
families' heirs to have their fifth share equally divided ; butshould all of any 
of these five-shares heirs, Robert's Thomas's, Susannah's, James's or James S. 
Chadwick's, be dead or extinct, then I will and order that the portion of such 
dead or extinct shall be divided equally among the living of said share heirs.'' 

The codicil contains the following provisions : 

" I do hereby desire and direct my executors to pay to Mary Jane Smith, 
granddaughter of Thomas Chadwick, deceased (my brother), such sum or sums 
of money as will be equal to the amount of money received by any one heir of 
my sister, Susannah Cave, deceased, out of ray estate. 

"I do hereby desire, authorize and dii-ect my executors, in said will named, 


Chad wick v. Chad wick. 

to pay^o James Chad wick and Molly Hopwood, son and daughter of my de- 
ceased brother, Robert Chadwick, each such sum or sums of money out of my 
estate as will be equal to the amount of money received under said will by any 
one heir of my said sister, Susannah Cave, deceased. 

"Tlie payments of the sums of money hereby directed by my executors to 
be paid to Mary Jane Smith, James Chadwick and Molly Hopwood, shall be 
made at the same time that the said heirs of my deceased sister, Susannah 
Cave, are paid their legacies, under this will aforesaid. 

" It is my order, and I hereby direct my said executors to invest in some 
safe and secure security, the moneys arising from my estate and due to Mary 
Jane Smith, and to pay to her the interest arising from such investment dur- 
ing her natural life, and on her death to be paid to her legal representatives, 
both the principal and balance of interest due from such investment." 

It appears, by the depositions, that the church referred to in 
the will as the Cross Street M. E. Church (its corporate name is 
the First Methodist Episcopal Church of Paterson) has not re- 
moved nor has it rebuilt its or any church edifice. In 1872 it 
set about building a new church edifice ou Smith street, in Pat- 
erson, and to that end purchased land and began the building, 
but subsequently stopped the work and abandoned the under- 
taking, and the land was sold under foreclosure. It afterwards 
altered the old church edifice by building an addition in the rear 
directly behind the pulpit, which it rebuilt, and made some alter- 
ations at the entrance of the building. Those repairs and alter- 
ations cost about S-400. By the answer of the trustees of the 
Wiiippany Methodist Episcopal Church, it appears that they had 
no knowledge, until the filing of the bill, of the exact wording 
of the bequest to them, but had a general knowledge that a 
bequest of ^500 had been made to the church for a parsonage ; 
that they were ignorant as to when the bequest was payable, and 
therefore made no definite arrangement about the parsonage, but 
that they have made a conditional arrangement to purchase a 
small house and lot near the church, suitable for a parsonage, for 
^700, and for raising the additional $200 ; that the arrangements 
to buy the house have not been completed, and the trustees are 
not bound to purchase, but simply have the refusal of the prop- 
erty at a stipulated price, and that, in their opinion, it would be 
for the best interest of the church to buy the house and lot, pro- 
vided the bequest of $500 could be used for that purpose ; and 

10 Stew.] MAY TERM, 1883. 75 

Chadwick v. Chadwick. 

they further say that they, the trustees, are ready and willing to 
raise, by subscription or otherwise, a sum sufficient, together with 
the $500, to build a parsonage for the church, if, in the opinion 
of this court, the bequest cannot be applied towards the buying 
of the parsonage. 

The legacy to the trustees of the Cross Street Methodist Epis- 
copal Church is, by the terms of the bequest, payable only when 
the church shall remove from the location it occupied when the 
will was made and build a new church in Paterson, or rebuild 
the one it then occupied or some other there. It appears by the 
proof, as before stated, that the church has neither removed and 
built a new church nor rebuilt any, and it does not appear that 
it is about or proposes to do either of those things. The testator 
has been dead over fourteen years. The condition on which that 
legacy was given has not been performed, and the legacy has, 
therefore, lapsed. The Whippany church appears to be willing 
to perform the condition on which the legacy to it was given. It 
is not necessary that it should build a house for a parsonage in 
order to do so, but it may buy a house already built. It will be 
in accordance with the testator's intentions and a just construc- 
tion of the provisions of the will on the subject, to give to that 
church, under the circumstances, a reasonable time within which 
to comply with the condition, and, on failure to do so, it will be 
decreed to have forfeited the legacy, and the legacy will be de- 
creed to have lapsed. 

At the death of the testator, according- to the bill, his next of 
kin then known to be living, were Martha Chadwick, his widow j 
James Chadwick, his brother; James S. Chadwick, a nephew 
(the son of Betsey Chadwick, a deceased sister of the testator); 
Molly Hopwood, a niece (daughter of Robert Chadwick, a de- 
ceased brother of tlie testator) ; Mary Jane Smith, now Mary 
Jane Van Wie, a grandniece of the testator and granddaughter 
of Thomas Chadwick, a deceased brother of the testator ; James 
Cave, William Cave, Joseph Henry Cave, Betty Hilton and 
John Cave, a niece and nephews of the testator, children of Su- 
sannah Cave, a deceased sister of testator. 

The testator intended, by the provision of the will in regard 


Chadwick v. Chadwick. 

to tbe division of his estate into shares, that after the decease of 
his wife the residue should be divided into five shares, of which 
his brother James should take one, his nephew, James S. Cliad- 
wick, another, the issue of his brother Robert another, the issue 
of his brother Thomas another, and the issue of his sister, Su- 
sannah Cave, the other. The persons who, at the decease of the 
testator's widow, were the issue of the testator's deceased brothers 
and sister, Robert, Thomas and Susannah, are those who, under 
the will, were then entitled to the shares given to the heirs of 
those three. But the provision for the issue of Robert and 
Thomas is changed by the codicil. The testator's intention, by 
the will, was that the issue of his brother Thomas should have a 
fifth. By the language, he gives to them a fourth share, but uses 
the expression not to indicate quantity or proportion, but numer- 
ical order merely. By the following language, the testator in- 
tended to repeat the direction to divide the residue into fifths, 
and to provide for substitution of issue for parent in case of 
death, and to limit over to the persons entitled to the other 
shares any share the devisee or devisees whereof were dead with- 
out issue : 

" Now I will that my property at my beloved wife's death, or as soon after as 
convenient, be divided in five equal parts or shares, as stated above, my brothers' 
and sister's children if living, and if dead, then to tiieir heirs ; this includes 
all, whether legitimate or illegitimate, of all the heirs enumerated so far as 
they have been recognized by our family ; each of the families' heirs to have 
their fifth sliare equally divided ; but should all of any of these five shares 
heirs, Robert's, James's, Susannah's, Thomas's, or James S. Chadwick'sbedead 
or excinct, then I will and order that the portion of such dead or extinct shall 
be divided equally among the living of said share heirs." 

By the word "heirs" the testator meant "issue," and by the 
word " heiress" he meant " heirs." 

At the death of the widow, or as soon thereafter as conveni- 
ent, the division was to be made. To ascertain who are entitled 
to the shares, reference is to be made to the death of the widow 
as the period of distribution. James Chadwick, the testator's 
brother, is entitled to one share. The testator's nephew, Jaraes 
S. Chadwick, to another. The children of the testator's deceased 

10 Stew.] MAY TERM, 1883. 77 

Chadwick v. Chadwick. 

sister, Susannah Cave, are entitled to another, and but for the 
provisions of the codicil the children of testator's deceased 
brother Robert, Molly Hopwood and James Chadwick, would 
be entitled to another, and but for those provisions Mary Jane 
Van Wie (formerly Smith), the granddaughter of the testator's 
deceased brother Thomas (she appears to be the only issue of 
Thomas), would be entitled to another. 

The intention of the testator was to reduce by the codicil the 
shares given to the "heirs" of Thomas and Robert from one- 
fifth of the residue to lesser interests, merely equivalent to those 
of each of the children of his deceased sister, Susannah Cave. 
These gifts in the codicil are not cumulative but substitutionary. 
The codicil is designed, as appears from its language, to alter the 
will, and it is wholly devoted to the provisions for the persons 
named therein for whom, as the " heirs" of his brothers Robert 
and Thomas, he had already made provision in the will. 

A division into fifths is still necessary, but as to the balance 
of the fifths by the will given to the heirs of Robert and 
Thomas, if there be no other persons to take these shares than 
the persons named in the codicil (as it appears from the bill 
there are not), the testator must be decreed to have died intestate 
of that balance. At the death of the widow there were four of 
the children of Susannah Cave living (one had died after the 
death of the testator, unmarried and intestate) to take the share 
given to her " heirs," hence the persons named in the codicil will 
each be entitled to one-fourth of a fifth, or one-twentieth of the 
residue, and as to five-twentieths or one-fourth of the residue 
the testator will be decreed to have died intestate. 

The money given to Mary Jane Smith is to be invested ; the 
interest to be paid to her for her life, and on her death the prin- 
cipal and unpaid balance of interest to go to her legal represent- 
atives. James Chadwick mentioned in the codicil (son of the 
testator's deceased brother Robert) is supposed to be dead. If he 
died in the lifetime of the testator, the gift to him lapses; if he 
died after the testator, it goes to his legal representatives. 


Baldwin v. Taylor, 

JosiAH L. Baldwin et al., executors, 


Jerome Taylor et al., executors. 

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

Bill for relief. On final hearing on pleadings and proofs. 
Mr. S. Morrow and Mr. W. 8. Gummere, for complainants. 
Mr. C. S. Titsworih, for defendants. 

The Chancellor. 
\ This is a suit brought by the surviving executors of the will 
of Samuel Baldwin, deceased, late of Essex county, against the 
executors of the will of his deceased son, Harris M. Baldwin, 
late of Newark. The object of the suit is to recover from the 
estate of the latter the money received by him from the estate 
of his father, as one of the legatees, under his will. The 
money in question was lawfully received by Harris M. Baldwin 
from his father's estate, but the complainants insist that his right 
thereto was defeated by his death without issue. The will of 
Samuel Baldwin was made in August, 1855, and he died in Sep- 
tember, 1856. By it, after providing for the payment of his 
debts and funeral expenses, he gave to his wife so much of his 

10 Stew.] MAY TERM, 1883. 79 

Baldwin v. Taylor. 

household furniture as she might need for her own use, a horse, 
a carriage and a cow, and $100, to be paid her by his executors 
as soon as conveniently could be done after his death ; also the 
interest of $4,000 so long as she should remain his widow, and 
directed that if she should remarry she should have the interest 
of only $2,000. He also gave her the use of his homestead 
dwelling-house and the barn, and about five acres of the land 
(a farm), and directed that at her death the property be sold, and 
that any one of his heirs should have the privilege of purchasing 
it at a fair valuation. lie then gave to his son Samuel his 
stock in an insurance company; to his niece, Betsey Munsoii, 
certain building lots in Newark; to his four children, his wood- 
land in equal parts ; to his brother Abraham, and to a daughter 
of that brother, certain legacies, and made provision for the care, 
if necessary, of his brothers and sisters. He then proceeded as 
follows : 

"Ninth. All the residue of my estate, real and personal, I do direct my ex- 
ecutors, hereinafter named, to sell in such a way as they shall think best, and, 
out of the proceeds of said sale, to pay all the just claims against my estate, 
and the legacies herein devised ; also invest safely the sum of $4,000, and pay 
over the interest thereof, semi-annually, to my wife, Mary, or the half part 
thereof, according to section second of this my will [in case of her remar- 
riage]. The balance I do direct to be divided equally among my children or 
their heirs. 

" Tenth. In relation to the several gifts and devises to my children, in this, 
ray last will and testament, it is my will, and I do direct, that if any of them 
shall die leaving heirs, their portion shall go to such heirs, if not, it shall be 
divided equally among my surviving children." 

The widow died in 1868. After her death, and in 1871, the 
farm was sold. The bill alleges that Harris M. Baldwin (he 
was one of the executors of his father's will) received for his 
share of the estate, $24,065.87. He died without issue in 1882. 
The complainants, who, as before stated, are the surviving execu- 
tors of Samuel Baldwin, insist that, under the will, Harris M. 
Baldwin's interest in his father's estate was defeasible by his 
death without issue, and therefore, on his death, went over to 


Baldwin v. Taylor. 

his surviving brothers, the complainants, and they pray a decree 

Tiie question presented is merely as to the true construction of 
the ninth and tenth sections of the will, which are above quoted. 

The testator directed an absolute conversion of his real estate. 
His whole residuary estate is therefore, for the j)urposes of suc- 
cession, to be regarded as personal. As to so much of the residu- 
ary estate as by the ninth section is directed to be divided — the 
" balance " mentioned in that section — the direction ts to divide 
it equally among the testator's children, " or their heirs." The 
words " or their heirs " are evidently substitutionary, and by the 
word "heirs." the testator undoubtedly meant " issue." His inten- 
tion, judged by that section alone, was to provide that his chil- 
dren should have that balance absolutely, if they should be alive 
at the time of the distribution to take it, but if any of them 
should then be dead, their issue should take in their stead. He 
then goes on, in the next section, to say that in. relation to the 
several gifts and devises to his children, he directs that if any of 
his children should die le'aving heirs (meaning issue), the por- 
tion (or share) of such decedent should go to such issue, but if 
the decedent should leave no issue, that then the portion or share 
should be divided among the testator's surviving children. 

The reference here is manifestly to the time of distribution, 
and the object of the testator was to provide that if any of his 
children should be dead at the time when he or she would .have 
been entitled to receive any part of his estate, his or her issue 
should take the share, or legacy, or devise of the decedent; and 
if there should be no such issue, then the share, or legacy, or 
devise should go to the testator's other children then living. The 
testator had four children. When the will was made, they were 
all in middle age. Three of them were married, and one, a son, 
Josiah, was single. There is no evidence whatever in the will, 
unless it is found in the language of the tenth section, that the 
testator intended to reduce the gifts to his children to life inter- 
ests only in any event. And in the connection in which that 
section is placed, following immediately the provision of the 
ninth, in regard to substitution in the division to be made of 

10 Stew.] may TERM, 1883. 81 

Baldwin v. Taylor. 

residue under the latter section, it is quite clear to my mind, 
that the only purpose of the tenth section was to provide that 
the property given to the testator's children should not go out of 
the family i'U case of their death before they should be entitled 
to receive it. The language signifies this. He directs that, in 
the contingency of the death of any of his children leaving issue, 
the " portion " shall " go " to the issue, but if no issue, then that 
it (the " portion ") be divided among the testator's surviving 

The tenth section is merely an extension of the substitutionary 
provision of the ninth. It is as if the testator had said the bal- 
ance of residuary estate mentioned in the ninth section — 

"Is to go to my children if, at the time of distribution, they be alive, but, if 
dead, then to their issue in their stead, and, indeed, I extend the provision to 
all I have given my children in this will." 

Mr. Hawkins, in his treatise on the construction of wills, says 
that where a gift of the absolute interest in property to one per- 
son is followed by a gift of it to another in a particular event, 
the disposition of the courts is to put such a construction on t-he 
gift over as will interfere as little as possible with the prior gift, 
and that when death is spoken of as a contingent event, a gift 
over in the event of death may well be considered to mean not 
death at any time, but death before a particular period, e. g., 
the period of distribution ; and thus the gift over may be read as 
a gift by way of substitution an<l not of remainder, and that it is 
consequently a rule of construction, that where there is a bequest 
to one person, and " in case of his death," to another, the gift 
over is construed to take eifect only in the event of the death of 
the prior legatee before the period of payment or distribution » 
unless an intention appear to the contrary. HawL Wills S64- 
See Beatty v. Montgomery, 6 C. E. Or. 324-, and Williamson v. 
Chamberlain, °2 Stock. 373. I am aware that the general rule is 
established in England that where the context is silent, the words 
referring to the prior death of the legatee, in connection with 
some collateral event, apply to the happening of the contingency 
at any time. (yMahoney v. Burdett, L. R. (7 H. of L.) 



Baldwin v. Taylor. 

But I am clearly of opinion that the words under consideration 
were not used by the testator to express an intention to limit 
the gifts over, but only as a provision as to who should receive 
them in the first instance; in other words that the language is 
merely substitutionary. It is a rule that the courts, to effectu- 
ate the manifest intent of the testator, will, if necessary, insert 
omitted words, alter the collocation of sentences, or even read the 
will directly contrary to the primary signification of its language. 
In Pennington v. Van Houten, 4- Hal. Ch. 272 ; 8. C. on ap- 
peal, Id. 74^, the testator gave to his son (then a child of three 
years of age) all the residue of his property, and ordered his 
executors to put the rents of the real estate, with his personal 
estate, at interest, until the son attained to his majority, and 
ordered them to educate him and support him until he came of 
age, and then limited the property over in case he should die 
having no children. It was held that the limitation over took 
effect only -in the event of the son's dying childless before attain- 
ing to his majority. "There is nothing," said Chief-Justice 
Green, in delivering the opinion of the court of errors and ap- 
peals, " in the provisions of the will, aside from the particular 
clause in question, indicating an intent on the part of the testator 
to limit, or in any wise to qualify the estate given to his son after 
he should attain to the age of twenty-one years." He held that 
the devise over stood not in opposition to the original devise, but 
to the event of the legatee's coming into possession. And I con- 
sider it a very important circumstance in this case, that there is 
nothing in this will, aside from the provision in the tenth clause, 
to indicate any intention on the part of the testator to qualify the 
estate given to his children. To his son Samuel he gives certain 
shares of insurance stock, and to his four children he devises his 
woodland in such manner as, apart from the provision of the 
tenth section, to indicate an intention to make absolute gifts. In 
the ninth clause he gives the " balance " there mentioned to his 
children by language indicating a like intention. The juxtajx)- 
sition of the language which, it is insisted, provides for the limi- 
tation over to the substitutionary provision in the ninth clause, 
leads strongly to the conviction that it was used in the same con- 

10 Stew. J MAY TERM, 1883. 83 

Baldwin v. Taylor. 

nection and with the same view alone, and not to qualify the 
absolute estates or interests previously given to his children by 
reducing them in a certain contingency to mere life estates. In 
Williamson v. Chamberlain, 2 Stock 873, a testator made specific 
Revises and bequests to several of his children, and then gave a 
life estate to his wife in his real and personal property not spe- 
cifically disposed of. He then declared that his real and per- 
sonal estate, after the death of his wife, should, unless she chose 
to give them up before her death, be sold and divided among 
certain of his children, and then declared that if any of his 
children should die without lawful issue of the body begotten, 
then his, her or their share or legacy should be equally divided 
among the survivors, share and share alike. It was held that he 
used the term " survivors" with reference to the period wlien the 
estate should be divided, after the happening of the event men- 
tioned in the will — the death of his wife. In that case, which, 
it will be seen, was very similar in its circumstances to this, one 
of the sons, having received his share, died without issue, and the 
suit was brought to recover the share which he had received. 
The chancellor (Williamson) held that it was the intention of the 
testator that when the son received his share, he should take it 
absolutely, and not in such a way as to create a limitation over 
after his death, in the event of his dying without issue. In 
WurU V. Page, 4- C. E. Or. 365, the testator gave his estate to 
trustees for'the use of his eight children and the two children of 
his deceased daughter, and directed that the proceeds of it be in- 
vested for their benefit. He directed that the shares of his 
daughters should be held in trust for their sole use, not subject 
to the debts or control of their husbands, and that the annual 
income be paid on their own receipts ; that a specified part of the 
principal should be paid to each on her marriage ; that a specified 
part of the share of each son should be paid to him at twenty- 
one, and the residue at twenty-two, and that in case of the death 
of any child without issue, the share of such child should merge 
in the general fund. It was held with regard to the shares of 
the daughters that the gift was absolute, subject to be defeated by 
their dying without issue, at their death, and that as to the shares 


Williams v. Gilbert. 

of the "Sons the limitation over was to be construed to mean dying^ 
without issue before the share was payable. The chaucello? 
(Zabriskie) followed the rule of construction laid down in Pemi- 
ington v. Van Houten, but added that, irrespective of that rule,, 
he should not have hesitated to hold that it was the intention of 
the testator that any share, which, by the terms of the will, was 
payable, should be the absolute property of the legatee, and not 
subject to the limitation over. 

The view I have taken of the provision of the tenth clause^ 
makes it unnecessary to consider the question raised by the de- 
fendant's counsel, whether the testator did not, in fact, die intes- 
tate, at least of the property the use of which was given to his 
wife for life — part of the homestead and the $4000. The bill 
will be dismissed, but without costs. 

Eliza A. Williams et al. 


Sarah E. Gilbert et al. 

A mortgage to secure future advances not exceeding $2,000, was recorded 
February 25th, 1874, and another for advances not exceeding |1,000, on Feb- 
ruary 3d, 1875. Under executions issued on seven judgments against the 
mortgagor, the earliest in December, 1874, and the latest in September, 1876 
the mortgaged premises were sold in September, 1870, at sherifl^'s sale. On 
foreclosure of the mortgages for advances of $2,000 claimed to have been 
made, under the first mortgage, on February 2d, 1875, without actual notice of 
the judgment of December, 1874, and also for advances of $786, in June, 
1876, under the second mortgage — Held, that complainants could recover the 
amount of their advances under the first mortgage, but not under the second, 
as its lien was destroyed by the sheriff's sale ; and that the priority of the 
first mortgage could not be afiected by a sheriff's sale in 1882, under a judg- 
ment recovered against the mortgagor in 1872, because the lien of the judg- 
ment of 1872 had been lost by the sheriff's sale under the junior judgments 
in 1876. 

Bill to foreclose. On final hearing on pleadings and proofs. 

10 Stew.] MAY TERM, 1883. 85 

Williams v. Gilbert. 
Messrs. Williams & Cowles, for complainants. 

Mr. W. A. Lewis, for Colgate. 

The Chancellor. 

This suit is brought to foreclose two mortgages on the same 
land in Jersey City, given by William S. Gilbert and wife to 
the complainants, Eliza A. Williams and Thomas H. Williams, 
■one dated February 21st, 1874, and recorded on the 25th 
of the same month, the other dated February 2d, 1875, and 
recorded the next day. Both mortgages were made to secure 
advances of money to be made by the mortgagees to the mort- 
gagor on his promissory notes. The first-mentioned mortgage 
was to be security for such notes, not exceeding in the whole 
$2,000, as might be taken in one year from its date, and the 
other for further loans (for which the mortgagor was to give his 
notes to the mortgagees), not exceeding in the whole ^1,000. 
Under the first-mentioned mortgage the complainants claim 
$2,000 and interest from February 2d, 1875, or thereabouts, on 
a note given by Gilbert to the complainants on the last-men- 
tioned date, for $2,000, payable three months after date. On the 
-other they claim the principal and interest due on a note for 
$786.69, given by Gilbert to them June 26th, 1876. The mort- 
gaged premises were sold under executions at law September 
21st, 1876, to James B. Colgate, one of the defendants, by the 
sheriff of Hudson county. Those executions were issued on seven 
judgments recovered against Gilbert, the earliest December 4th, 
1874, and the latest September 13th, 1876, and levies were 
made under them on the mortgaged premises. There was another 
judgment recovered in Hudson Circuit Court, by Altanah S. 
Westcott against Gilbert, August 16th, 1872, for $1,025.09 
damages and costs, under which no levy was made on the mort- 
gaged premises until March 28th, 1882, which was after the sale 
under the junior judgments. The property was sold under 
execution on that judgment by the sheriff of Hudson county to 
Colgate, July 6th, 1882. Colgate, who has answered, insists 
that the complainants' mortgages are wholly invalid, because the 


Williams v. Gilbert. 

notes \yc;re given and advances made after the Westcott judg- 
ment was recovered, and the last advance (that made in 1876) 
was made after all of the junior judgments, except one, were 
recovered, and the jSrst advance (made February 2(1, 1875) after 
the first of the junior judgments was recovered. 

The lien of the second mortgage was destroyed by the sale 
under the junior judgments; for one of those judgments was 
prior to that mortgage. But it was not prior to the first mort- 
gage. Although the advance made under the first mortgage was 
made after the recovery of that judgment, the complainants are 
nevertheless entitled to priority therefor under that mortgage 
over that judgment, for when the advance was madetiiey had no 
actual notice of tiie recovery of that judgment. 

Colgate insists that inasmuch as by virtue of his purchase 
of the property under the levies on the junior judgments he 
obtained a title clear of the Wescott judgment, under which no 
levy was made until after the sale under the junior judgments, 
he is entitled to a credit of the amount of that judgment on the 
complainants' first mortgage. I do not see any ground whatever 
for this claim. Neither of the cases, Clement v. Kaighn, 2 Mc- 
Cart. Al, and Hoag v. Sayre, 6 Stew. Eq. 552, which were cited 
on the argument, supports it. Colgate, by the sale under the 
junior judgments, obtained by force of the statute a title to the 
property clear of the lien of the Westcott judgment. Hev. p. 
lOJi-4- But the complainants' first mortgage was prior in lien to 
those judgments. | Having obtained the property by his pur- 
chase under those judgments clear of the Westcott judgment, 
Colgate now asks that the amount of that judgment be credited 
on the mortgage. The proposition cannot be maintained. The 
very point under consideration was considered and decided in 
Clement v. Kaighn, and the recent case of Hoag v. Sayre in no- 
wise overrules or conflicts with that decision. 

The sale under the Westcott judgment was a nullity. The 
land had been sold under the junior judgments clear of that 
judgment before the levy was made under the latter, and when 
that levy was made Gilbert had no title to the land. 

The complainants are entitled to a decree for the amount due 
on their first mortgage. 

10 Stew.] MAY TERM, 1883. 87 

Gogherty v. Bennett. 

Patrick Goguerty 


Bridget Bennett et al. 

1. Where, without her husband's knowledge and against his will, the wife 
took in her own name the title to lands, for which he paid the purchase-money 
and all the taxes, and assessments, and costs of improvements, and he con- 
tinuously occupied the property up to her death — Held, that a trust resulted 
in his favor, and that he was entitled to relief as against her heirs-at-law. 

2. General certainty is sufficient in pleadings in equity. 

Bill for relief. On general demurrers to bill. 

Mr. J. M. Trimble and Mr. F. M. Tichenor, for demurrants. 

3fr. S. Morrow, for complainant. 

The Chancellor. 

By the bill it appears that in 1863 the complainant contracted 
for the sale to him of a lot of land in Newark ; that he paid the 
purchase- money, and has paid all the taxes and assessments and 
the cost of the improvements (buildings) which were put thereon, 
and is in the occtipation of the property ; that the deed was 
made in 1866 ; that without his knowlege it was made to his 
wife instead of himself; that he discovered in his wife's lifetime 
(she died in 1882) that it had been so made to her ; that she 
made some of the payments of the purchase-money for him but 
always with his money and merely as his agent ; that the deed 
was made to her not only without his knowledge or direction 
but against his will ; that after he discovered that it had been 
made to her he was informed that it would not affect his right to 
the property, but that after her death it would vest in him, and 
lie would have full authority over it, and he therefore (he is an 
illiterate person) believing what was told him, took no steps to 
have the deed corrected ; that his wife died intestate and without 


Gogherty v. Bennett. 

issue, and that her brother and sister, her heirs-at-law, nowdaina 
the property, and have brought an action of ejectment against 
him to recover possession of it. The bill prays that they may 
be decreed to hold the premises as trustee for him, or that his 
expenditures therefor and thereon may be charged as a lien 
thereon, and paid to him accordingly. 

The defendants are the heirs-at-law of the wife. They demur 
on the ground of want of equity, and also on the ground of the 
uncertainty and insufficiency of the averments of the bill. They 
urge that the bill does not state what estate was conveyed by 
the deed to the complainant's wife ; that it does not show the 
relationship of the defendants to the subject-matter, and that the 
case stated in the bill does not entitle the complainant to any 
relief. Though the bill does not state that the conveyance was 
of an estate in fee simple, it is fairly inferable that it was so. An 
agreement to sell a house implies that the interest sold is a fee 
simple. It appears, it may be added, that the estate was not a 
life-estate, but that it was one which descended to the wife's 
heirs-at-law. Though the bill characterizes the defendants as the 
wife's next of kin, they are, according to the statements of the 
bill, her heirs-at-law, and it is a plain and obvious deduction 
from the statements of the bill that the claim made by the de- 
fendants is as heirs-at-law. The bill states substantially that the 
estate which the wife had in the property descended to them, 
and that they claim under her. General certainty is sufficient in 
pleadings in equity. The case as stated is one from the facts of 
which a resulting trust clearly arises in favor of the complain- 
ant. The demurrers will be overruled. 

10 Stew.] MAY TERM, 1883 89 

Hedden v. Cowell. 

Austin E. Hedden et al. 


Chaeles a, Cowell et al. 

A mortgagee of lands, after a release thereof from a prior mortgage, is not 
bound by alleged fraudulent representations of the mortgagor, wkereby the 
release is said to have been obtained, where such mortgagee has no notice, 
actual or constructive, of the representations. 

Bill to rectify release of mortgaged premises and to foreclose 
mortgage. On final hearing on pleadings and proofs. 

Mr. J. G. Trusdell, for complainants. 

Mr. C. T. Glen, for C. A. and C. E. Cowell. 

The Chancellor. 

The controversy in this case is in reference to the lien of the 
^complainants' mortgage upon a strip of land five feet wide by one 
hundred and twenty-five feet in length, part of premises described 
in the mortgage, but subsequently, with another part of the prop- 
erty, released by the mortgagee from the encumbrance of the 
mortgage. The complainants insist that the release was obtained 
by means of fraudulent representations on the part of the agent 
of the then owner of the property, and pray that the release be 
reformed so as to exclude the strip. The premises, as originally 
mortgaged, were conveyed by the complainants to Mary A. Gil- 
more, September 5th, 1870, and the mortgage was taken to 
secure the payment of part of the purchase-money of the con- 
veyance. The premises, as described in the mortgage, were a 
parcel of land of eighty feet front and rear by one hundred and 
twenty-five feet in depth, in the township of East Orange, in 
the county of Essex, lying on Main street, the northeasterly 
boundary, and bounded on the whole of the southeasterly side, 
a distance of about one hundred and twenty-five feet, by what is 


Hedden v. Cowell. 

descrii)ed in the mortgage as " Burnet street, a road now sur- 
veyed and about to be opened from Main street south to Oak 
street." Burnet street was not then opened, and it does not ap- 
pear that it ever was opened as thus surveyed. On the 26th of 
September, 1870, James R. Gilmore, who was the agent of 
Mary A. Gilmore, his mother, applied to the complainants and 
requested them to release, for the consideration of $1,000, a strip 
of twenty-six feet on the southeasterly side of the property, say- 
ing that the object in obtaining the release was to change the 
location of Burnet street, and representing that, as changed, the 
street would form the southeasterly boundary of the premises 
which would remain subject to the mortgage after the release. 
The consideration of the release was secured to the satisfaction 
of the mortgagees, and the release was executed by them. The 
description of the land therein makes no reference whatever to 
Burnet street, nor does it contain any stipulation or representation 
with regard to the proposed street. The release was duly re- 
corded, on the 3d of October, 1870. By a deed dated Septem- 
ber, 26th, 1870, and recorded October 3d following, Mary A. 
Gilmore conveyed to George W. Blackwell, for the consideration 
of $1,875, an undivided half of a parcel of land thirty feet 
wide, for the new street. The parcel included all of the released 
premises except a strip of fiv^e feet in width, on the northwest- 
erly side thereof. By deed dated September 20th, 1870, and 
recorded on the 14th of October following, Mary A. Gilmore 
conveyed the mortgaged premises and other land to Amelia B. 
Burnet. By an agreement between the latter and George W. 
Blackwell, dated September 29th, 1870, and recorded October 
3d following, the new street was laid out for the use of the 
parties, their heirs and assigns; the agreement providing that 
the instrument should not operate as a dedication to public use 
nor as divesting either party of his or her title to the land. Sub- 
sequently, Amelia B. Burnet married James R. Gilmore, and he 
and she, December 22(1, 1873, mortgaged to the defendants, 
Charles A. and Chauncey E. Cowell, two parcels of land, the 
first of which was composed of the premises remaining subject 
to the lien of the complainants' mortgage after the release, and 

10 Stew.] MAY TERM, 1883. 91 

Hedden v. Cowell. 

the strip of five feet, the part of the released premises not takea 
for the new street, and lying between the unreleased part and the 
new street. The mortgage was given to secure the payment of 
$3,268.14, in six months from date, with interest. By deed 
dated February 10th, 1874, Gilmore and his wife conveyed to 
Henry Havell, for the consideration of $6,000, the last-men- 
tioned parcel, being the one a? above stated, first described in the 
Cowell mortgage. The Cow-ells subsequently foreclosed their 
mortgage in this court, making Havell a party to the suit in re- 
spect to that deed. They obtained a final decree, directing that 
the mortgaged premises be sold, and they were sold accordingly. 
The complainants were not parties to the suit. The Cowell& 
bought the property at the sheriff's sale, and the sheriff' conveyed 
it to them by deed dated September 28th, 1875. December 30thy 
1876, Havell granted to the Cowells the premises conveyed to 
him by Gilmore and his wife. The Cowells were then, how- 
ever, the owners of the property under the sheriff's deed. 

The fraud imputed, and which is relied upon by the complain- 
ants as ground for reforming the release, is Mary A. Gilmore's 
disregard of her promise and assurance made by her son and 
agent, James E.. Gilmore, that the new street would be so laid 
out as to constitute the boundary, on the southeasterly side, of 
the unreleased part of the mortgaged premises. As before 
stated, the release is silent on the subject. There was, therefore, 
nothing upon the record of the release to give any notice of the 
existence of the equity which is now claimed. The Cowells took 
their mortgage and Havell his deed without any notice of it, 
actual or constructive. It is urged, in behalf of the complain- 
ants, that the latter had notice by the statement in his deed that 
the premises thereby conveyed were subject to the complainants' 
mortgage. But, manifestly, that statement was not notice that 
the complainants claimed that the release had been obtained by 
fraud. The statement, obviously, was strictly correct, though 
the complainants' mortgage was upon only part of the premises 
conveyed. It is not, however, necessary for, or important to, 
the decision of the question in hand, to have any recourse to 
that deed or to make any reference to it, except as a conveyance 


Angel V. Penn. E. K. Co. 

of the title of Mrs. Gilmore to the land ; and it is a matter of 
indifference whether Havell had or had not notice. He does not 
appfear to have had any, however, in fact. It is enough to say 
that the Cowells had no notice whatever of the equity. The 
bill docs not allege that they bad any. They are not bound or 
affected by the equity, and it cannot be enforced against them. 
The })rayer of the bill for reformation of the release must be 

Adam Ajn'Gel et ux. 


The Pennsylvania Railroad Company. 

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

Bill for relief. On motion to strike out part's of the answer. 
3Ir. J. J. OrandaUf for the motion. 
Mr. P. L. Voorhees, contra. 

The Chancellor. 

The bill was originally filed by Adam Angel alone. In it he 
claimed to be the owner and occupant of a certain dwelling-house 
in Camden, and alleged that the defendant was guilty of creating 
a nuisance by drilling its cars in the street on which tiie property 
is, leaving cattle cars, loaded with cattle, standing tiiere for long 
periods of time &c. &c., and he prayed an injunction in the 
premises. The defendant answered, and in the answer, amongs» 
other matters of defence, denied Angel's title to the prop 

10 Stew.] MAY TERM, 1883. 93 

Angel V. Penn. K. E. Co. 

erty. After the filing of the answer, Angel obtained leave 
to amend by making his wife, who is, and was when the bill was 
filed, the owner of the property, a complainant with him, and the 
bill was amended accordingly. The complainants' solicitor of- 
fered to amend the defendant's solicitor's copy of the bill, but no 
order to answer the amended bill was ever taken (nor was answer 
waived), and the answer has not been amended. The complain- 
ants now move to strike out parts of the answer as impertinent ; 
and the defendant insists that the motion cannot be entertained, 
because the defendant has not been called upon to answer the 
amended bilL The objection is well taken, as is at once manifest 
from the consideration that one of the portions of the answer ob- 
jected to is the denial of Angel's title, as stated in the bill, as it 
stood originally. After the aniendment of the bill, the defend- 
ant, in amending its answer, would of course have omitted that 
denial. But as a matter of practice necessary to be observed for 
the orderly and convenient discharge of business, objections to 
an answer to a bill as it stood before amendment cannot be made 
after the amendment, unless the defendant, after being duly 
called upon to file his answer to the bill as amended, or volun- 
tarily waiving such call, chooses to let it stand as the answer to 
the amended bill. Trust Co. v. Jenkins, 8 Paige 589. In the 
case in hand, Mrs. Angel, with her husband, objects to the 
answer. But so far as she is concerned, it does not yet appear 
that it is the defendant's answer. It was its answer to the bill 
of her husband alone, but it cannot be assumed that it is the 
answer to the bill of her and her husband together. The bill, as 
amended, is as to her a new bill. The motion to strike out, 
therefore, cannot be entertained. 


Stanford v. Lyon. 

William H. Stanford 


Ann Lyon and "William Lyon. 

1. As a general rule, an injunction will not be granted until the complain- 
ant's legal right has been established at law, yet in a case where his right 
appears to be clear, though it has not been established at law, and the defend- 
ant denies it, and the complainant has, for a long time, been in the enjoyment 
of the right, and the acts of the defendant, in violation of it, are recent, a court 
of equity may properly take jurisdiction of the question of legal right, and 
decide that as well as the other questions involved in the litigation. 

2. A party asking to have a nuisance abated by injunction, will be entitled 
to relief by that process whenever he can clearly demonstrate two facts : first, 
that the injury of which he complains is such, in its nature and extent, as to 
call for the interposition of a court of equity ; and, second, that the right on 
which he grounds his title to relief is clear, whether that fact has been made 
plain by the action of the appropriate tribunals for the adjudication of questions 
of legal right, or is so by the settled la\^of the state, when applied to the facta 
of his particular case. 

3. A mandatory injunction is awarded as of course, whenever it is the 
necessary and appropriate process for carrying the decree of the court into 

4. A court of equity will not take jurisdiction of a question of damages, pure 
and simple. 

5. A party who, by the obscurity or ambiguity of his inquiry, leads another 
to make an erroneous statement respecting his rights, or by his artful silence 
entraps another into an admission he would not have made if a fair opportu- 
nity had been given to him to declare the truth, is in no position to claim the 
benefit of an equitable estoppel. 

On final hearing on original bill and answer, and supplemental 
bill and answer, and proofs taken in open court. 

Mr. Ludlow McCarter and Mr Barker Gummere, for complain- 

Mr. Thomas N. McCarter, for defendants. 

10 Stew.] MAY TERM, 1883. 95 

Stanford v. Lyon. 

Van Fleet, .Y. C. 

The principal object of this suit is to remove and abate a 
nuisance. The premises in controversy are situate on the south- 
east corner of Mulberry and Elm streets, in the city of Newark. 
They were originally owned by Dr. Luther G. Thomas. He 
died on the 1st day of May, 1864, leaving a will, bearing date 
March 13th, 1863. By his will the locus in quo was devised as 
follows : 

"First. I give, devise and bequeath all my real estate, wheresoever situated, 
of which I may die seized or possessed, to my brother, Lemuel Thomas, and 
his heirs and assigns forever ; upon conditions, nevertlieless, that he shall per- 
mit William H. Stanford to carry on the business of a druggist in that part 
of the premises situated on the southeasterly corner of Elm and Mulberry 
streets, now occupied by him, as long as he shall desire to use it for that pur- 
pose, at an annual rent not to exceed |100 ; I make this condition solely in 
favor of said Stanford, and do not intend it to extend to his representatives or 

At the time of the death of Dr. Thomas, the premises so de- 
vised consisted of a lot and building; that part of the building 
fronting on Mulberry street was used as a drug store, and the 

Note. — In Martyr v. Lawrence, 3 De O. J. & S. 261, the plaintiff was tenant 
of a one-storied shop, having over it a flat, leaden roof The defendant was 
tenant of a cottage abutting on the shop, and having a window opening on the 
roof of the shop. Both buildings had long been held under the same landlord. 
In 1849, the shop was demised to one Corke, the landlord to have the exclu- 
4^ive use and enjoyment of the leaden roof, and to cover the same with earth for 
a lawn or flower garden, or for any other use or purpose not injurious to Corke. 
In 1861, the shop was demised to the plaintiff, " as the same was late in the occu- 
pation of Henry Corke, together with the appurtenances thereto belonging." In 
1863, the defendant rented the cottage, with the right to use the leaden roof to 
erect a light building thereon to be used by defendant as a photographer, and 
defendant did so erect and use it. — Held, that the above italicised words in the 
plaintifl"'s lease were only intended to identify the premises and not to restrict 
their use, and that consequently plaintifl' was entitled to have the building re- 
moved from the leaden roof. 

In Berkeley v. Smith, 27 Grail. 892, a decedent was the owner of two lots, 
one on the corner of the street, which was wholly occupied by a store extend- 
ing back the full depth of the lot, seventy feet, and the other occupied by a 
store extending back only fifty-five feet, leaving in the rear of the latter store 
a lot twelve by twenty feet, which was unoccupied except by a privy. The 


Stanford v. Lyon. 

rear as a dwelling. In the rear of the drug store there was an open 
yard, containing a hydrant, a privy, a cesspool and considerable 
room for storage. Access to the yard, from the drug store, was 
had through a door in the rear of the store ; the yard could also 
be entered through a gate on Elm street, and there were doors in 
the dwelling leading into the yard. When the will was made, 
and also when Dr. Thomas died, the complainant and the doctor 
were engaged, as copartners, in carrying on the business of drug- 
gists in the store. The agreement of copartnership between 
them took effect September 1st, 1862, but was not reduced to 
writing and signed until April 13th, 1864. It contains the fol- 
lowing stipulation : 

" It is also further understood and agreed that* the building where the busi- 
ness has heretofore been carried on, and where it is still to be carried on by 
the new firm now formed, shall still remain the individual property of the said 
Luther G. Thomas, and that for the use and rent of the store, cellar and oflSce, 
used in the said business, the new firm shall pay to him the sum of $100 per 

The complainant alleges that at the time the agreement of co- 
partnership was made, the premises used and occupied by Dr. 
Thomas, for the purposes (Jf his business as a druggist, and wfiich 

first lot was devised to decedent's son J., together with the east sideior half of the 
privy, and the second lot to another son, W. Afterwards W. sold his lot to B., 
subject to the rights of the owner of the first lot to the east half of the privy. After 
S.'s death, and during the minority of his heirs-at-law, B., while occupying S.'s 
store as a tenant, removed the privy, blocked up the door in S.'s store opening 
into the space in the rear of B.'s lot, through which S.'s heirs had access to the 
privy and also light and air, and also extended the first story of his own store- 
house to the rear line of his lot so as to cover the entire space, and covered the 
extension wiih a flat roof, upon which he erected another privy accessible from 
the second stories of both store-houses over the flat roof, and for that purpose 
cut a door in the second story of the west wall of S.'s sjore-house. Two actions 
at law were brought by S.'s heirs against B., and damages of one cent and 
costs recovered by them in each action. A mandatory injunction to remove 
the extension was then obtained. The court of appeals, however, citing Isen- 
herg v. East India House Estate Co., 10 Jur. {N. S.) 221, held that, although 
the rights and privileges of S.'s heirs had been seriously invaded, yet the ex- 
tent of the injury was capable of ascertainment and pecuniary compensation, 
and the inconvenience to S.'s heirs, in the premises, insignificant compared 
with B.'s should he be required to remove the extension, and therefore the 

10 Stew.] MAY TERM, 1883. 97 

Stanford v. Lyon. 

it was agreed and understood the copartnership should have the 
right to use, for the purposes of the business to be carried on by 
them, embraced the right to use the hydrant, the privy and the 
cesspool, together with a passage, from the rear of the store, 
through the yard, to them, the right to take merchandise to and 
from the rear of the store through the gate on Elm street, and 
the right to use the yard for unpacking merchandise, washing 
bottles and other vessels, and for the storage of empty boxes, 
barrels and other articles of like character; and that all these 
rights, from the time the agreement of copartnership was made, 
up to the time of Dr. Thomas's death, were exercised and en- 
joyed by the firm, freely, without disturbance or question. 

TJie defendant Ann Lyon succeeded, by conveyance, to the 
title devised to Lemuel Thomas. The deed to her bears date 
May 1st, 1866, and expressly declares that the premises are con- 
veyed subject to the right and interest of the complainant therein. 
That part of the building used as a dwelling was never occupied 
by Dr. Thomas himself, but was let by him to tenants. Up to 
the letting for the year commencing April 1st, 1862, the proof 
renders it entirely clear that Dr. Thomas uniformily reserved, for 

decree of the cliancellor ordering a mandatory injunction was reversed, and 
an inquiry as to the damages sustained by S.'s heirs was directed. 

That an injury sought to be restrained has been completed before the filing 
of the bill, does not prevent the court from granting a mandatory injunction 
to remove it, Duvell v. Pritchard, 11 Jur. (N. S.) 576, L. R. {2 Ch.) 2U / -Ra«- 
hin v. Huskisson, 4 Sim. 13 ; City of London Co. v. Tennant, L. R. {9 Ch. App } 
212, 210; Rogers Loco. Works v. Erie R. R. Co., 5 C. E. Gr. 3S9 ; see Martin 
v. Headon, L. R. {2 Eq.) 4^5; Curriers Co. v. Corbeil, 11 Jur. {N. S.) 719; 
Atty.-Oen. v. iV. J. R. R. Co., 3 Or. Ch. 136; Bell v. Blount, 4 Hau/cg 3S4 ; 
Atty.-Oen. v. Heishon, S C. E. Gr. 410 ; Washington University v. Green, 1 Md. 
Ch. 97; Stanley v. Shrewsbury, L. R. (19 Eq.) 616. 

Where the inconvenience of removing the obstacle is great, the court will 
allow a reasonable time for the defendant to remove it, Aity.-Gen v. Colney 
Hatch Asylum, 19 L. T. (N. S:) 708, L. R. [4 Ch.) I46. See McKelway v. 
Armour, 2 Stock. 115, 118. 

That the public may be put to inconvenience, is no ground for refusing 
siich writ, Raphael v. Thames Valley R. R. Co., L. R. (2 Ch.) 147 ; Alty.-Gen. 
V. Chicago R. R. Co., 35 Wis. 425; see Atlanta v. Ga. R. R. Co., 40 Ga. 471 ; 
Hicks V. Dorn, 42 N. Y. 47; Eason v. Perkins, 2 Lev. Eq. 38; Bradsher v. 
Lea, 3 Led. Eq. 301; Dilworth's Appeal, 91 Pa. St. 247. 



Stanford v. Lyon. 

the occupants of the drug store, to be exercised in eonimon with 
the occui)ants of the dwelling, the right to use the privy, the 
hydrant, the cessj)ool and the gate on Elm street. He also re- 
served the right to store empty boxes and other bulky articles of 
like character in the yard. David Collins became tenant of the 
dwelling on the 1st of April, 1862, and remained in possession, 
under Dr. Thoma-s and those who succeeded to his title, until 
April 1st, 1867, when the defendants entered. The defendants 
claim that by the terms of this last demise, Mr. Collins acquired 
an exclusive right to the whole yard, except a space of ten feet 
square, adjacent to and immediately in the rear of the drug store, 
and that whatever rights the complainant subsequently exercised 
therein, or whatever uses he thereafter made of it, were permis- 
sive only, and not of right. But the proofs show very clearly, 
notwithstanding this claim, that from the commencement of Mr. 
Collins's term up to November, 1870, the occupants of the drug 
store used the privy, the iiydrant, the cesspool and the Elm street 
gate, freely, whenever they, desired to do so, and without inter- 
ruption or question. They also, during the same period, used the 

Only so much of the erection as causes the obstruction should be removed, 
Wood on Nuisaiices ^^ SI4, S34--8^. 

Where the use of the building constitutes the nuisance, the building itself 
cannot be demolished, Brightman v. Bristol, 65 Me. 4^6 ; Barclay v. Com, 25 
Fa. St. 503 ; Welch v. Siowell, 2 Doug. {3Iich.) 332; Moody v. Supervisors, 46 
Barb. 659; Gray v. Ayres, 7 Dana 375; Ely v. Supervisors, 36 N. Y. 297 ; 
Brown v. Perkins, 12 Gray S9 ; State v. Paul, 5 B. I 185; Miller v. Burch, 22 
Tex. 20s ; Chenango Bridge v. Paige, 82 N. Y.178; Metropolitan District v. 
Hill, L. R.{6 App. Cas.) 193; see Hamilton v. Whitridge, 11 Md. 128 ; Haag 
V. Vanderburgh Co., 60 Ind. 511. 

An apprehended noxious use of a building is not sufficient to justify its re- 
moval, Ally. -Gen. v. Paterson, 1 Stock. 624; Dumesnil v. Dupoat, 18 B. Mon. 
800; Rhodes v. Dunbar, 57 Pa. St. 274; Ellison v. Comrs., 5 Jones Eq. 57; 
Baines v. Baker, Ambler 159, 3 Atk. 750 ; see Hepburn v. Lordan, 2 H. & M. 
345 ; Cleveland v. Citizens Gas Light Co., 5 C. E. Gr. 201. 

Mandatory injunctions have been allowed — to compel a railroad company 
to pull down walls which tliey had built in order to prevent another railroad 
company's track from crossing their line, North of England B. B. Co. v. 
Clarence B. B. Co., 1 Coll. 507 ; Deere v. Guest, 1 M. & C. 516; to enforce a 
building covenant as to projections into the street, Child v. Douglass, Kay 560, 

:0 Stew.] MAY TERM, 1883. 99 

Stanford v. Lyon. 

yard, to greater or less extent, for many other purposes, iucliul- 
ing the storage of empty boxes. 

In October, 1870, the defendants began to make preparation 
to erect a building across the whole of the lot not already covered 
by the dwelling. On the complainant's attention being called to 
what the defendants were about to do, he protested against the 
erection, insisting that it would deprive him of his rights in the 
yard. The defendant William Lyon says that he told the com- 
plainant he did not think he hud any rights in the yard, but he 
admits that at the same time he said to him, that if the building 
did injure him, he would do whatwas possible to remedy the in- 
jury. He says that "we" (meaning the complainant and him- 
self) "entered into a plan as to what would be a remedy," and 
he states what the plan was, and then says, " I agreed, as I stated 
before, that any damage that the new building should cause, I 
wouH do what could be done to remedy the difficulty." The 
complainant subsequently procured a written agreement to be 
drawn, conforming substantially with the plan agreed upon, but 
because it gave the occupants of the drug store the exclusive use 
of the privy, which was to be provided in the place of the old 

5 De G. M. & G. 739; Linzee v. 3Iixer, 101 Mass. 512 ; Kirkpatrick v. Peshine, 
S C. E. Gr. 206 ; Gawlry v. Leland, 4 Siew. Eq. 385 ; Manners v. Johnson, L. 
E. {1 Ch. Div.) 673; see Riddle v. Ash, 2 Ashm. 211 ; to pull down a wall or 
building that obstructed ancient lights, East India Co. v. Vincent, S Atk. S3 ; 
Jessel V. Chaplin, 2 Jur. {N. S.) 931, 37 E. L. & Eq. 472 ; Gale y. Abbott, 8 
Jur. {N. S.) 987 ; Dent v. Auction Mart Co., L. B. {2 Eq.) 255 ; Smithy. 
Smith, L. B. {20 Eq.) 500 ; Athey v. McHenry, 6 B. Man. 50 ; to compel the 
removal of tiles that obstructed the passage of smoke from a chimney, Hervey v. 
Smith, 1 K. & J. 389, 22 Beav. 299; to remove a building erected over a passage- 
way, Krehel v. Burrell, L. B. (7 Ch. Div.) 551, (11 Ch. Div.) 146 ; Schwoerer v. 
Boylston Market, 99 Mass. 285 ; Tucker v. Howard, 128 Mass. 361 ; see Mitchell 
V. Seipel, 53 Md. 251 ; Lexington Bank v. Guynn, 6 Bush 4^6 ; Kean v. Asch, 
12 C. E. Or. 57 ; to remove a mill-dam, Bemisv. Upham, 13 Pick. 169 ; Ham- 
mond V. Fuller, 1 Paige 197 ; Baleigh v. Hunter, 1 Dev, Eq. 12 ; Hahn v. 
Thornherry, 7 Bash 403 ; see Wheeler v. Steele, 50 Ga. 34; Yolo Co. v. Sacra- 
mento, 36 Cat. 193 ; to remove a building erected in violation of a covenant 
in a deed, Clark v. Martin, 39 Pa. St. 289; Tate v. Devlin, 3 Irish Jur. [N. S.) 
341 ; to compel a defendant to alter stairs already built, so as to conform to his 
contract, Gregory v. Ingwersen, 5 Stew. Eq. 199 ; Pettis v. Johnson, 56 Ind. 139 ; 
to remove fences illegally obstructing a passage-way. Shivers v. Shivers, 5 Stew. 


Stanford v. Lj'on. 

one, the defendants refused to sign it, and afterwards, althougl> 
the complainant offered to have the agreement changed so that it 
should conform to the wishes of the defendants, in the respect 
indicated, the defendant William Lyon notified the complainant 
that the defendants would make no agreement with him. The 
defendants then proceeded with the erection of their building, 
and the complainant at once applied to this court for an injunc- 
tion. An injunction was granted November 8th, 1870, prohibit- 
ing the erection. Subsequently, on the coming in of the defend- 
ant's answer, denying that the complainant had any legal right 
to the easements he claimed in the yard, the injunction was dis- 
solved, the chancellor being of opinion that the case was con- 
trolled by the decision in Fetters v. Humphreys, 4- C. E. Gr. J^71 ; 
but he also said that if Fetters v. Humphreys was not a controll- 
ing decision, still, as the rights claimed by the complainant had 
not been settled at law, or settled in his favor by any determina- 
tion of a court of law in this state upon a like devise, he was not 
entitled to hold the injunction. Stanford v. Lyon, 7 C. E. Gr. 

The injunction being removed, the defendants completed the 

Eq. 47S, 8 Id. 562 ; McDonogh v. Calloway, 6 Rob. (La.) U^ ; Langsdale v. 
Bonton, 12 Ind. 4^7 ; see Houck v. Wachter, 34 Md. 265 ; or a toll-gate in a 
higlnva)', Columbus v. Rodgers, 10 Ala. 37 ; State v. Flannagan, 67 Ind. I40 ; 
to remove water-pipes laid in a highway without the consent of the owner of 
the fee, Goodson v. Richardson, L. R. {9 Ch. App.) 221. See Johnston v. Hyde 
5 Stew. Eq. 446, 6 Id. 632. 

Mandatory injunctions have been refused, where the excess in building was 
trifling and the injury not irreparable. The Warden &e. v. Southeastern R. R. 
Co., 9 Hare 489; Manho V. Chambersburg, 10 C. E. Gr. 168. Where, notwith- 
standing defendant's rebuilding, tlie plaintiff is in as favorable a position as 
before, Low v. Inness, 10 Jur. {N. S.) 1037; Wilson \. Cohen, Rice's Eq. 80. 
See Shiras v. dinger, 50 Iowa 571. Where a party-wall projected, uninten- 
tionally, a few inches beyond the line, Mayer's Appeal, 73 Pa. St. 164; Gutten- 
berger v. Woods, 51 Cal. 523. AVhere an adjoining lund-owner inserted the 
joists of his building into plaintiff's building illegally, Rankin v. Charless, 19 
Mo. 490; Roberts v. White, 2 Robt. (iV. Y.) 4^5. Where a wharf, on tide- 
water, (lid not cause a public nuisance. People v. Dacidson, 30 Cal. 379 ; Lar- 
son V. Furlong, 50 Win. 681. See Gawtry v. Leland, 4 Stew. Eq. 385. To re- 
move an ice-house erected in front of a riparian owner, Alden v. Pinney, 12 

10 Stew.] MAY TERM, 1883. 101 

Stanford v. Lyon. 

construction of their building. The complainant then brought 
an action at law against William Lyon alone, to test the question 
whether the erection of the building was an invasion of his 
rights. On the first trial of this action the complainant was non- 
suited, because the evidence by which he sought to maintain hi-s 
rights, was held to be inadmissible. The judgment pronounced 
under that view of the law, was afterwards reversed by the court 
of errors and appeals {Stanford v. Lyon, 8 Vr. 4^6), and the 
action was then tried again, and on such second trial the com- 
plainant had a verdict, on which judgment final was entered, 
after the complainant's right to it had been contested, before the 
supreme court, on rule to show cause why it should not be set 
aside. The complainant has since then filed a supplemental bill, 
in which he prays that the building, which entirely excludes liim 
from certain parts of the yard, may be removed and abated ; that 
the damages which he has sustained, in consequence of the erec- 
tion of the builidng, may be ascertained, in such manner as this 
court may direct, and the amount be decreed to be paid to him, 
and that the defendants may be perpetually enjoined from inter- 
rupting or disturbing him in the use and enjoyment of his rights 
in the yard. The issues to be decided are those presented by the 
original and supplemental pleadings. 

The law of the case is definitely and authoritatively settled. 
The devise to the complainant has been construed by the court 
of errors and appeals. In the case already mentioned {Stan- 
ford V. Lyon, 8 Vr. 4^8), the court said : " The will, in effect, 
gives the fee to Lemuel Thomas, subject to a life estate in Stan- 
ford, to carry on the business of a druggist in that part of the 
premises occupied by him. The intention of the testator mani- 

Fla. 348. See Clark v. St. Clair Ice Co., 34 Mich. 508. To remove a wooden 
building erected within the " fire limits " of a city, Dunning v. Aurora, 40 III' 
481; St. Johns V. McFarlan, 33 Mich. 71". To remove a business sign erected 
by defendant, and containing the same words as complainant's sign on the ad- 
Joining store, Cray v. Koch, 2 Brown {Mich.) 119. 

If a building be illegally removed or destroyed, the parties injured may 
enforce its restoration, Morrison v. Marquardt, ^4 Iowa S5, See Bradford V. 
■Cressey, 4-5 Me. 9 ; Meyers v. Smith, 15 Qrangs Ch. 616.— Rep. 


Stanford v. Lyon. 

festly was to continue Stanford in the possession of the part de- 
vised to him, with all the rights he held under the lease during- 
the partnership. ***** That part of the premises 
devised to Stanford is co-extensive with that which he of right 
had held and occupied under and by virtue of any valid agree- 
ment with the testator," The court further held that tlie only 
means by which it could be ascertained what parts of the prem- 
ises were used and occupied by Stanford, by right, was by resort 
to extrinsic evidence, and that it was competent for him to show, 
either by conversations with Dr. Thomas, or by Dr. Thomas's 
declarations, what was comprehended in the descriptive words of 
the partnership agreement. 

Tiiis decision clears away all doubts respecting the complain- 
ant's legal rights, and marks out, with precision, just what he is 
entitled to under the devise. If this decision had preceded the 
motion to dissolve the injunction granted by Chancellor Zabris- 
kie, it is manifest Ihat the injunction would not have been dis- 
solved. The complainant's legal right has been settled at law, 
not, it is true, in an action against tiie person holding the legal 
title to the premises in controversy, but that is not indispensable, 
as I understand the principle on which courts of equity proceed 
in such cases, to his right to an injunction, if his case, in other 
respects, is such as to entitle him to relief in that form. Now 
while it is true, as a general rule, that an injunction will not be 
granted in this class of cases, unless the complainant's legal right 
has been first established at law, or is so clear as to be free from 
reasonable doubt, yet it is also true that in cases where it appears 
the complainant's legal right is clear, though the defendant 
denies it, and it has never been established at law, but the com- 
plainant has, for a long time, been in the enjoyment of the right 
on which his bill is founded, and the acts of the defendant, in 
violation of such right, are recent, a court of equity may prop- 
erly assume jurisdiction of the question of legal right and decide 
that as well as the other questions involved in the litigation. 
Chancellor Green, in Holsman v. Boiling Spring Bleaching Co., 
1 McCart. 3Z5, 343, said : " To entitle the party to the remedy by 

10 Stew.] MAY TERM, 1883. 103 

Stanford v. Lyon. 

injunction in cases of private nuisance, the right must be clear, 
and the injury must be such as from its nature is not susceptible 
of being adequately compensated for by damages, or such as 
from its long continuance may occasion a constantly recurring 
grievance, which cannot be prevented otiierwise than by injunc- 

The principle on wliich courts of equity proceed in such cases 
was defined by Chancellor Pennington in Shields v. Arndt, 3 Gr. 
Ch. 234-, and his formula has since been adopted by the court of 
errors and appeals, in Carlisle v. Cooper, 6 G. E. Gr. 576, 580. 
Chancellor Pennington said : " It was not so much against the 
general jurisdiction of the court that the objection is raised, as to 
its exercise when the defendant, as in this case, denies the com- 
plainant's right. It is the province of this court, as the defend- 
ant's counsel insists, not to try this right, that belonging alone to 
a court of law, but to grant the possession whenever that right 
has been ascertained and settled. If it be intended to say that a 
defendant setting up this right by his answer, thereby, at once, 
ousts this court of jurisdiction, I cannot assent to it, for it would 
put an end very much to the exercise of an important branch of 
the power of this court. * * * * * If it be intended to 
go no further than that it is a question which should be sent to 
law in cases of doubt, and often sliould, before injunction, be 
first there established by trial and judgment, then I agree to the 
proposition. A long enjoyment by a party of a right, will entitle 
him to restrain a private nuisance, even though the defendant 
may deny the right, and the court will exercise its discretion 
whether to order a trial at law or not, always inclining to put 
the case to a jury if there be reasonable doubt.'' These citations 
show that the rule in force in this state does not require the 
party seeking relief by injunction, in such cases as this, in the 
first instance, in every case, to resort to a court of law for the 
establishment of his right, but that he will be entitled to relief 
by injunction whenever he can clearly demonstrate two facts: 
First, tliat the injury of which he complains is such, in its 
nature and extent, as to call for the interposition of a court of 
equity. Second, that the right on which he grounds his title to 


Stanford v. Lj'on. 

relief is clear, whether that fact is made plain by the action of 
the appropriate tribunals for the adjudication of questions of 
U>gal right, or by the settled law of the state when a])plied to 
tl)e facts of his particular case. The defendant Ann Lyon is 
not concluded by the recovery against her husband, but the law 
as declared by the court of errors and appeals in that case, in 
determining and defining what passed by the devise under con- 
sideration, must be taken as the standard by which the rights of 
the complainant in this case must be measured against her. 

This brings us to the principal question of fact in the case : 
AVhat rights did the complainant acquire by his contract with 
Dr. Thomas in that part of the premises of which the firm did 
not have exclusive possession ? Prior to the letting to David 
Collins, there can be no doubt, under the evidence, that Dr, 
Thomas, in his contracts witli all his lessees, reserved the rights 
now claimed by the complainant. The evidence renders it 
almost equally clear, that during Mr. Collins's tenancy, and af- 
terwards, up to October, 1870, the complainant exercised, as fre- 
quently and as extensively as his business and convenience re- 
quired, and in such manner as to indicate that he did it under a 
claim of right, the rights he now claims. The complainant testi- 
fies that in his contract with Dr. Thomas it was expressly stipu- 
lated that the occupants of the drug store should have the use of 
the yard, in common with the tenai-its of the other part of the 
property, and tlie gentleman who drew the agreement cf copart- 
nership swears that when Dr. Thomas gave him instructions for 
the agreement, he stated that he wished to rent to the firm the 
same part of the premises which he had always occupied himself 
in carrying on the business, and the same privileges which he had 
always used when conducting the business as an individual. The 
complainant had been in the service of Dr. Thomas, in his drug 
store, from his boyhood, and he says it had long been understood 
that when he attained his majority the doctor would give him an 
interest in the business. When the previous relations of the 
parties to the partnership agreement, and the object they had in 
view in associating themselves together, are considered, the cir- 
cumstances of the case of themselves, in the absence of all direct 

10 St^ew.] may term, 1883. 105 

Stanford v. Lyon. 

proof, would afford strong presumptive evidence that it was 
mutually understood that the firrn should have and enjoy all the 
facilities and conveniences for carrying on their business which 
the doctor had exercised and enjoyed when carrying the business 
on alone. The facts of themselves, independent of any direct 
proof, render it almost absolutely certain that such was the under- 
standing of the parties. The evidence in support of the agree- 
ment claimed by the complainant is not only uncontradicted, but 
the agreement is one which, under the circumstances of the case, 
we must believe existed, in the absence of proof to the contrary. 
But the defendants say, even if it be admitted that Dr. Thomas 
made a contract with the complainant, of the nature and extent 
■claimed by him, it cannot avail him in this controversy, because 
Dr. Thomas had, by a prior contract, demised to Mr. Collins the 
t^xclusive use of the yard, except ten feet square, immediately in 
the rear of the store. Mr. Collins swears that such a contract 
was made. He says : 

"It was especially agreed upon that I was to have the exclusive use of the 
yard ; I was to have the exclusive use of the privy — that was mentioned." 

On the trial before the Essex circuit court, in April, 1876, 
nearly three years before the testimony just quoted was given, 
Mr. Collins testified that he did not think there was any conver- 
sation between the doctor and himself, when he rented, on the 
subject of the privy. Now he says it was distinctly agreed that 
his right to the use of the privy should be exclusive, and he gives 
a reason why he insisted on this stipulation. His two statements 
stand in strong conflict ; the difference between them is almost as 
decisive as the difference between yes and no, and while he may 
be an honest witness, it is quite obvious that it would be ex- 
tremely dangerous to trust to the accu'racy of his memory in any 
instance where his conduct, at an antecedent period, furnishes 
very strong evidence that he did not understand his rights then 
as he now thinks he recollects them. 

Mr. Collins also swears that he rented the office — this is de- 
raised in express terms to the firm — but he admits that he never 
had possession of it. His original contract was for a single year, 


Stanford v. Lyon. 

no subsequent express contract was made, but he continued to 
occupy under the terms of the original contract. He also admits 
that the occupants of the drug store were using the yard and 
privy when lie took possession, and continued to do so during the 
whole period of his occupancy. He also states, as the reason why 
he insisted on l>iving the exclusive use of the privy, that he 
expected his sister-in-law to occupy the house with him; that 
she was a dress-maker, and usually had several young women in 
her employ, and that it was therefore extremely desirable, both 
for privacy and convenience, that his family should have the ex- 
clusive use of that part of the premises. Now, although he claims 
to have rented the office and to have contracted for the exclusive 
use of tlie yard and privy, he admits that he never had either, 
and that he never asked for a reduction in his rent because he 
had not had all that he was entitled to for the rent he had agreed 
to pay, but what, I think, is still more remarkable, he admits 
that when he was about to enter upon a new yearly term, after 
the expiration of the first year, he did not call his landlord's 
attention to the fact that he had not kept his contract in the past^ 
nor warn him that he would be required to keep it in the future, 
nor did he, at any time, notify the persons who were daily in- 
vading his privacy, and exercising an offensive privilege in his 
premises, that they were doing so without right and must desist 
in the future. He says he suffered himself to be deprived of the 
office and the exclusive use of the yard, because "he did not 
want to kick up a fuss." But how did he know that a simple 
demand of his rights would create a "fuss?" He had never 
attempted to secure their recognition by demanding them, nor by 
remonstrating against their violation, but day after day suffered 
himself to be deprived of them without complaint or resistance. 
His conduct furnishes strong evidence that he knew he had no 
right to them. He acted just as he would if that had been the 
case. His excuse for not insisting upon his rights cannot be 
accepted as either true or plausible. The average man does not^ 
ordinarily, submit uncomplainingly to an invasion of his privacy, 
in a matter where he has taken special j^ains to secure, by clear 
and definite contract, his right to an exclusive enjoyment, simply 

10 Stew.] MAY TERM, 1883. 107 

Stanford v. Lyon. 

because a vague fear enters Iiis mind that if he insists upon his 
rights disputes may arise. He had no reason to fear a " fuss ;" 
there was, as he says, a clear understanding that his enjoyment 
should be exclusive; nothing had occurred which would justify 
even a suspicion that Dr. Thomas did not intend to observe his 
contract ; when, therefore, he found third persons were disregard- 
ing his rights, his natural course was to command them to desist, 
but until his rights were asserted and his claims resisted, lie was 
absolutely without cause for believing that simply demanding 
what he was entitled to would "kick up a fuss." It is impossi- 
ble to reconcile his conduct with his claim ; one or the other is 
untrue, and, in my judgment, it wUl be much the safest, after the 
lapse of so many years, during which it is certain many things^ 
must have been forgotten, or have become so faded as to rest in 
the memory as vague and indistinct impressions rather than 
certain, definite recollections, to accept his conduct as affording 
surer evidence of the truth than his memory. 

The rightfulness of the complainant's claim, and also the 
truthfulness of his evidence, are strongly supported by Mr. Col- 
lins's conduct. The proofs show, beyond all doubt, aji actiial 
user by the complainant, apparently of right, certainly without 
permission, during the whole period of Mr. CoUins's tenancy, 
of all the rights he now claims in the yard. His use was open 
and continuous; Mr. Collins knew of it , he does not pretend 
that he ever notified the complainant that his use of it was 
wrongful, or in violation of his rights. He says he thinks on 
one occasion, early in his tenancy, he remonstrated with the com- 
plainant about the privy being too freely used, but he cannot re- 
member what the complainant said in reply, nor whether the 
complainant then claimed a right to use the privy and also to 
use the yard, but he does not pretend that at that time, or at any 
other, he set up an exclusive right to the privy or to the yard. 
He does not say, or swear, that he ever made such claim to either 
the complainant or to Dr. Thomas; on the contrary, by his con- 
duct, in allowing the occupants of the drug store to use the privy 
daily, and the yard whenever they desired, he was saying to the 
complainant, as strongly as he could speak by failing to assert 


Stanford v. Lyon. 

his rights wlien tliey were invaded, that he had uo exclusive 
right in the yard, and that the complainant's use of it was right- 
ful. His conduct was perfectly consistent with the riglit asserted 
and exercised by the complainant, but utterly inconsistent with 
the exclusive right which he now asserts he then held. 

If the decision of the case made it necessary, it might be im- 
portant to inquire whetlier, even if it were conceded, that by 
the contract between Dr. Thomas and Mr. Collins, the latter ac- 
quired, as against Dr. Thomas, an exclusive right to the yard 
and privy, that fact would help the defendants in this litigation. 
They are not here in the right of Mr. Collins, but of Lemuel 
Thomas. They do not claim under Mr. Collins, but under 
Lemuel Thomas. Both parties claim as devisees under Dr. 
Thomas, and the important question is, Wiiat riglits did each 
take by force of his will ? The devise to the complainant is the 
primary one. He was to be permitted to carry on the business 
of a druggist in that part of the premises occupied by him, and 
the extent of the premises so devised has been defined to be, a 
possession and user co-extensive with the possession and user 
whioh he of right iiad held and occupied under and by virtue of 
any valid agreement with Dr. Thomas. Mr. Justice Van Syckel, 
in defining the complainant's rights under the devise, says: 
*' The intention of the testator manifestly was to continue Stan- 
ford in the possession of the part devised to him, with all the 
rights he held under the lease during the partnership." The 
estate given to Lemuel Thomas is subject to the rights or estate 
first carved out and given to the complainant. As already re- 
marked, there can be no doubt, under the evidence, that by the 
contract between Dr. Thomas and the complainant, the complain- 
ant was entitled, as against Dr. Thomas, to the rights he now 
claims ; and it is equally clear, under the evidence, that up to 
the time his rights, as devisee, attached, his actual user of the 
premises was in strict accordance with the terms of his contract, 
and as broad and as full as its terms permitted. The question 
being one that must be decided by the intention of the testator, 
and the testator having declared that the complainant should 
take, under his will, just what he was entitled to under his con- 

10 Stew.] MAY TERM, 1883. 109 

Stanford v. Lyon. 

tract, the contract must, it would seem, be taken as tlie standard 
]>y which the complainant's rights, as against another devisee, 
who only takes after the complainant gets what he is entitled to^ 
are to be measured, regardless of the fact whether the complain- 
ant's contract is valid or invalid against some third person. 

My conclusion is, that it is established as a fact that by the 
contract between Dr. Thomas and the complainant, the com- 
plainant acquired a right to the use of the hydrant, the privy 
and the cesspool, together with a right of passage, from the rear 
of the store, through the yard, to them; the right to take mer- 
chandise to and from the rear of the store through the gate on 
Elm street, and the right to use the yard for unpacking mer- 
chandise, washing bottles and other vessels, and for the storage 
of empty boxes and other articles of like character. It follows 
from this conclusion that the complainant, by force of the devise 
made to him by Dr. Thomas, is now entitled to those rights, 
and to be protected in their use and enjoyment, unless he has by 
his own conduct placed himself in a position where it is a fraud 
for him now to assert them against the defendants. 

The defendants insist that they are entitled to a judgment that 
the complainant is estopped. The facts on which this defence 
rests are vouched for by the oath of but a single witness. The 
defendant William Lyon testifies that shortly before making 
the contract of purchase, he informed the complainant that he 
intended to purchase and asl^ed him what part of the premises he 
claimed the right to use, and that the complainant replied he 
claimed the store, the cellar under the store and the office in the 
rear ; that he then inquired if that was all, and that the com- 
plainant answered "Yes." The defendant says when he made 
these inquiries, the question whether the complainant had any 
rights in the yard was before his mind, but he does not know 
whether it was before the mind of the complainant or not, and 
that the reason he did not ask him directly whether he claimed 
any rights in the yard or not, was because his statement as to 
what he claimed corresponded, except as to the office, with what 
Lemuel Thomas had told him the complainant was entitled to, 
and also because Lemuel Thomas had previously informed him 


Stanford v. Lyon. 

the complainant had no rights in the yard. The reasons he 
gives for not making inquiries respecting the yard seem to me to 
be both unnatural and insufficient, and to indicate that his ques- 
tions were framed ratlier with a view of getting as much infor- 
mation as might be useful than with a desire to learn the whole 
truth. He had heard Lemuel Thomas's statement as to what 
the complainant's rights were ; he was not satisfied with it, and 
thought it prudent to get from the complainant himself a si)eci- 
fication of his claim. Lemuel Thomas had told him the com- 
plainant had no right to the office and no rights in the yard. 
His object in applying to the complainant was, to ascertain if 
this was true, and now he has found it was not true as to the 
office. What would this discovery naturally have prompted him 
to do if he was engaged in an honest search after information on 
which he expected to act? To be satisfied with an answer that 
referred exclusively to the building, and did not embrace the 
yard, or would an honest searcher after information have pressed 
his inquiries further and desired to know whether what Lemuel 
Thomas said about the yard was true or not? Besides, when 
Mr. Lyon addressed his inquiry to the complainant, they were 
in the store, and Mr. Lyon says his question was, " What part 
of these premises do you claim the right t£) use ? " No fur- 
ther description of what his question referred to was given. 
Did the complainant understand that hie question embraced 
the building and the yard, or the building only? His answer 
indicated that he understood it as embracing the building alone. 
But, in addition, Mr. Lyon knew that there was a door leading 
from the rear of the store into the yard; what did he suppose 
that was there for ? He admits the yard was before his mind, 
he was thinking of it ; he did not know how the complainant 
understood the words " these premises," but his answer indicated 
that he understood them as comprehending the building only, 
and yet Mr. Lyon does not call the complainant's attention to 
what was before his mind, nor give the complainant a fair op- 
portunity, by putting a plain question to him, to tell what rights 
he claimed in the yard. A party, who, by the obscurity or am- 
biguity of his inquiries, leads another to make an erroneous 

10 Stew.] MAY TERM, 1883. Ill 

Stanford v. Lyon. 

statement respectiog his rights, or by his artful silence entraps 
a-nother into an admission he would not have made if a fair op- 
portunity had been afforded him to declare the truth, is in no 
position to set up an equitable estoppel. If he has been misled, 
it is the result of his own carelessness or fraud, and in either 
case he is the party most in fault, and justice therefore demands 
that he should bear its consequences. 

But if the facts sworn to by Mr. Lyon were of a different 
character, and sufficient, if believed, to establish this defence, 
still, I think the court would be bound to declare it had failed 
in this case for the want of the requisite degree of proof to sus- 
tain it. On this issue the burden is with the defendants; to suc- 
ceed, the proofs must preponderate in their favor. The com- 
plainant swears that no such conversation as that sworn to by 
Mr. Lyon ever took place, that Mr. Lyon did not have a talk 
with him while he was negotiating the purchase, and that the 
purchase was completed and the contract signed before he 
ever heard of Mr. Lyon in connection with the property. His 
evidence on this point is very strongly corroborated by the 
fact that Mr. Lyon, during the discussions which were had 
between them respecting the complainant's rights in the yard, 
never referred to the conversation he now says took place, nor 
intimated that he had purchased on the faith of a representa- 
tion by the complainant that his rights in the premises were 
limited to the store, cellar and office. If the complainant had 
made a disclaimer of any rights in the yard, or used language 
which Mr. Lyon understood as a disclaimer, it seems almost 
incredible that when the complainant subsequently asserted 
rights utterly inconsistent with his previous statement, that 
Mr. Lyon did not at once accuse him of bad faith. If he had 
been at all influenced in his purchase by such representation, an 
angry accusation of bad faith would have broken from his lips 
almost against his will, but he never intimated or pretended that 
he had been misled or deceived. This defence fails. 

The complainant is entitled to relief. The only remaining 
question is, in what form and by what procsss it shall be given. 
The complainant insists that he is entitled to a mandatory in- 
junction, commanding the defendants to remove and abate their 


Stanford v. Lyon. 

building, and also to have the damages which he has sustained 
in consequence of being deprived of his rights in the yard, as- 
certained by this court or under its direction, and a decree for 
their payment. The latter claim, it is very clear, cannot be en- 
tertained. It is a claim for damages arising out of a tort — for 
damages pure and simple. Claims of this character, it has been 
decided by the court of errors and appeals, cannot be admeasured 
under the authority of the chancellor. Polys v. Jeioett, 5 Stew. 
Eq. 303. 

The principal object of the action in Iszard v. Mays Land- 
ing Water Power Co., 4- Stew. Eq. 511, was to compel the de- 
fendants to remove and abate a solid stone wall, which they 
had erected to cut the complainant off from water which he 
claimed they had agreed to furnish his mill. It was an action 
for specific performance, and the complainant asked by his bill, 
as incidental to the main relief he sought, to have the damages, 
which he hud sustained in consequence of being deprived of the 
water, ascertained by the chancellor or under his direction. The 
chancell-or decreed that the defendants should specifically per- 
form their contract, and by a mandatory injunction commanded 
them to remove and abate the stone wall, but declined to take 
jurisdiction of the question of damages, remarking that al- 
though "this court has, in a suit for specific performance, juris- 
diction to award compensation for any deficiency in the title, 
quantity, quality, description or other matters touching the estate, 
it has not jurisdiction to award damages for the breach of a con- 
tract, except as ancillary to specific performance, or some other 
relief." This adjudication is directly in point and must be ac- 
cepted as decisive. 

The power of this court to award a mandatory injunction is no 
longer open to question. Such writs have, in several instances, 
been awarded to carry into effect the decrees of the court of errors 
and appeals. Raritan and Delaware Bay R. R. Co. v. Delaware 
and Raritan Canal Co. &g., 3 C. E. Gh'. 54-6, 57 4; Carlvde v. 
Cooper, 6 C. E. Gr. 576; Johnston v. Hyde, 6 Stew. Eq. 632, 6Ifi. 
In the casei first referred to, a mandatory injunction was ordered 
as a precautionary measure against an injury that might possibly 
arise in the future. The complainants were given the writ by 

10 Stew.] MAY TERM, 1883. 113 

Stanford v. Lyon. 

the decree, as an established right, to be used or* not in the future, 
as the future exigencies of the situation might render necessary. 

The courts, in deciding wliether a mandatory injunction shall 
issue c^* not, always proceed with caution, and will, as a general 
rule, only allow the writ to go in cases where it appears to be the 
only appropriate and effectual remedy for the grievance. But in 
a case like that under consideration, where the com})laiuant's 
legal right is entirely clear, and where the injury of which he 
complains is not only a constantly recurring grievance, but is an 
actual, permanent appropriation by the defendant of the com- 
plainant's property, so that the court, under its own established 
rules, is left no choice but is bound to take jurisdiction, there, on 
pronouncing decree, a mandatory injunction goes, as of course, as 
the necessary and appropriate process for the enforcement of the 
decree. Johnston v. Hyde, 6 Stew. Eq. 632, 64.O. No other pro- 
cess will meet the justice of this case or give the complainant an 
effectual remedy. To dismiss him from this court and send him 
to the law courts, would be, in effect, condemning him to endless 
litigation — for the only redress they can give for a continuing 
injury is by successive suits — or compelling him to submit to the 
confiscation of his rights. There is nothing in the conduct of 
the defendants which should induce the court to stint the com- 
plainant in his relief, or to deny to him the full benefit of the 
usual remedy for his wrong. They had full notice of his rights 
before they began the construction of their building. He at- 
tempted to prevent its construction by suit; they persisted in 
completing the building with the threat of that suit hanging over 
them, and accepted the hazard of doing so while their right was 
in contest and undetermined. If the remedy which must be 
applied to right their wrong seems harsh, it should be remem- 
bered that the remedy is such as their rash obstinacy has made 

The complainant is entitled to a mandatory injunction, com- 
manding the defendants to remove and abate so much and such 
parts of their building as prevents and precludes him from exer- 
cising his rights in the yard. He will also be entitled to his 
costs of this suit. 



EJsall V. Merrill. 

William H. Edsall 


Heney "W. Merbill and John CBeien. 

A tenant in common who prevents his cotenants from obtaining from the 
premises held in common their just shares of the income the premises are 
capable of yielding, or who takes possession of the whole, and uses them as his 
own, and thereby makes a profit, is bound to account to his cotenants, either 
for the rental value of the premises, or the profit he has made. 

On final hearing on bill and answer and proofs taken before a 

Mr. John Linn, for complainant. 

Mr. John C. Merrill, of Easton, Pa., and Mr. Charles F. Fitch, 
for defendants. 

Van Fleet, V. C. 

This is an action for an account. It is brought by one tenant 
in common against two others. The complainant holds an un- 
divided fourth, and the defendants three-eighths each, or three- 
fourths together. The lands held in common consist of a small 
tract, containing about five acres, situate in the township of 
Franklin, in the county of Warren. At the time the parties 
acquired their respective titles, the lands were supposed to con- 
tain a large deposit of mica, and that a mine could be opened 
and worked successfully. In April, 1872, within a month after 
their purchase, the defendants took possession of the lands, opened 
a mine, and between that time and the November following, took 
out about six thousand pounds of mica and then abandoned 
work, because they found they could not realize money enough 
from the product of the mine to pay for working it. Neither 
party since then has worked the mine. The complainant asks 
that the defendants shall be required to account, and he seeks to 

10 Stew.] MAY TERM, 18S3. 115 

Edsall V. Merrill. 

Lave them charged with the whole quantity of mica mined, 
whether a market has been found for it or not, or whether it can 
be sohl or not, and he also insists that no compensation should be 
allowed to the defendants for their personal labor and service, 
but, like copartners, they should be required to look alone to the 
profits for their compensation. 

The relation between the parties was that of tenants in com- 
mon and nothing more. The complainant embarked nothing in 
the venture; he confei'ibuted neither money, skill nor labor. He 
says he offered to pay his share of the expenses of working the 
mine, but both defendants swear that no such offer was made to 
them. There were no contract relations between the parties. 
The complainant is entitled to what the law gives him as a ten- 
ant in common, but that is the limit of his right. 

The right of a tenant in common, out of possession, to require 
'ihe tenant in possession to account, is a purely statutory regula- 
tion. The common law recognizes no such right. Wheeler v. 
Home, Willes 208 ; Sturton v. Richardson, 13 3Iees. & W. 17 ; 
Henderson v. Eason, 17 Ad. & E. {N. 8.) 701, Our statute, 
which is a transcript of 4- Anne c. Ir6 % 27, declares that one 
tenant in common may maintain an action of account against an- 
other, as bailiff, for receiving more than comes to his or her just 
share or proportion. Rev. p. 4-% 3. The courts of queen's bench 
and exchequer chamber differ as to the meaning of this statute. 
The queen's bench hold that the statute was intended to prescribe 
a rule for the division of rents, issues and profits among tenants 
in common, and should be applied as well where the proceeds of 
the land are received in kind as to a case where a money rent is 
received. It was also held that, prima /acie, the whole profits 
must be taken to be more than the just share of the tenant in 
possession, and that his receipt of them constituted him bailiff 
for his cotenants. Eason v. Henderson, 12 Ad. & E. {N. S.) 986. 
On the presentation of the same question to the exchequer cham- 
ber, by writ of error in the case just cited, it was held there that 
the statute was meant to apply only to cases where the premises 
held in common are rented, and one of the tenants receives the 
whole rent. Baron Parke, in delivering the judgment of the 


Edsall I'. Merrill. 

court, said : " There are many oases where profits are made, and 
are actually taken by one cotenant, and yet it is impossible to say 
that he has received mor-e than comes to his just share. For in- 
stance, one tenant in common employs his capital and industry in 
cultivating the whole of a piece of land, the subject of the ten- 
ancy, in a mode in which the money and labor expended greatly 
exceed the value of the rent or compensation for the mere occu- 
pation of the land ; in raising hops, for example, which is a very 
hazardous adventure. He takes the whole of the crops; and is 
he to be accountable for any of the profits in such a case, when 
it is clear that, if the speculation had been a losing one altogether, 
he could not have called for a moiety of the losses, as he would 
have been enabled to do had it been so cultivated by the mutual 
agreement of the cotenants ? The risk of the cultivation, and the 
profits and loss are his own ; and what is just with respect to the 
very uncertain and expensive crop of hops, is just also with re- 
spect to all the produce of the land, f nidus indn^triales, which 
are raised by the capital and industry of the occupier, and would 
not exist without it. In taking all that produce he cannot be 
said to receive more than his just siiare and pro{)ortion." Hen- 
derson V. Eason, 17 Ad. & E. {N. S.) 701, 71S. The interpe- 
tation given to the statute by the exchequer chamber is the con- 
struction, as I understand, now prevailing in England. 

Tin's court has adopted a construction rather more liberal to 
the tenants ou-t of possession. We bold, as the English courts 
do, that where one of several tenants occupies simply as tenant in 
common, and not to the exclusion of the otliers, he is not liable 
to account. But we al^o hold that an exclusion may occur where 
there is no express refusal, by the tenant in possession, to allow 
the otliers to occupy, as where one of several tenants takes pos- 
session o<f premises which are not capaWe of joint occupancy; in 
that case his occu[)ation is an exclusion of the others. Davidson 
V. Thompson, 7 C. E. Gr. 83. So, too, this court holds that if 
the tenant in possession refuses to join his cotenants in an ad- 
vantageous lease, and thus deprives them of all income from the 
premises, he is chargeable with a reasonable rent. Izard v. Bo- 
dine, 3 Stock. Ifi3. And on like principle it lias been held that 

10 Stew.] MAY TERM, 1883. 117 

Edsall V. Merrill. 

where one of several tenants in common oul'tivates the whole of 
the lauds held in common, and takes the entire product to him- 
self and makes a profit, he must account to his cotenants for their 
share of the profit. Bari-ell v. Barrell, 10 C. E. Gr. 173; 
Buckelew v. Snedeker, 12 C. E. Gr. 82. The principle adopted 
may be stated as follows : Where the teuant in possession has 
prevented his cotenant-s from obtaining from the premises such 
profits as they were capable of yielding, or has taken possession 
of the whole, and used them as his own, and thereby made a 
profit, he must account either for their farr rental value, or the 

In this case, the complainant alleges that the defendants, by 
opening a mine on the subject of the tenancy, and working it, 
have made large profits, and he claims that he is entitled to one- 
fourth of them. He does not ask that the defendants be re- 
quired to account for the rental value of the premises, nor at- 
tempt to show that their use of them was such as to exclude him 
from a like use, but what he wants is a share of the profits which 
he alleges the defendants, by their use of the premises, have made. 
Now, in a case like this, where two of the tenants in common 
have provided all the capital of the venture, done all the work 
and furnished all the skill, it would be neitiier accurate nor just, 
in ascertaining what sum represented the profits, in order that a 
just division of them might be made among all the tenants, to 
leave out of the computation the value of the labor and services 
of those who incurred all the risk. According to the English 
rule, those who incur the risk are entitled to all the profits, as 
they must bear the whole loss if the venture is unsuccessful. 
That rule seems to me to be both sensible and just. The tenant who 
keeps aloof and free from risk until the hazards have all been 
run and the dangers are all passed, and then comes forward seek- 
ing to share in the profits of a venture he had not the courage to 
join, and to the success of which he has contributed nothing, 
■certainly is not in a position to demand that the court, in ascer- 
taining what the profits are, shall be cautious almost to niggard- 
liness towards those whose capacity and enterprise have made 
ihe venture a success. The defendants were under no duty, legal 


Wyckoff V. Perrine's Executors. 

or moral, to give the complainant their time and services; he 
had no right to either. The venture was theirs ; if unsuccessful,, 
he could not be made to bear any part of the loss ; if successful, 
the utmost, I think, he could be permitted to claim would be his 
just share of the net gains, and they represent simply what re- 
mains, after deducting everything that went into the cost of pro- 
duction, preparing the mica for market and selling it. Stating 
the account between these parties, according to this rule, there 
were no profits, on the contrary, a loss ; consequently the com- 
plainant is not entitled to a decree. His bill must be dismissed, 
with costs. 

Elizabeth Wyckofp 

The executors of Matthias M. Perrine, deceased 

1. To make a legacy specific, it must appear, either by express words or 
otherwise by inference, resting upon a strong, solid and rational interpretation 
of the will, that the testator intended the legatee to take the particular thing 
given and nothing else. 

2. If a debt is the subject of a specific legacy, payment of the debt will de- 
stroy the legacy, whether it be made voluntarily or by compulsion. 

On demurrer to bill. 

Mr. Barker' Gummere, for demurrants. 

Mr. Alan H. Strong, for complainant. 

Van Fleet, V. C. 

This is a suit for a legacy. The defendants have demurred 
to the complainant's bill, denying that on the case made by ife 
she is entitled to relief. The complainant is a daughter of 
Matthias M. Perrine, who died testate in the month of October,. 

10 Stew.] MAY TERM, 1883. 119 

Wyckoff t'. Perrine's Executors. 

1878. She grounds her right of action on the following clause 
of her father's will : 

" Whereas, mv son-in-law, David B. Wyckoff. borrowed of me the sum of 
twenty-three hundred dollars, which sum I loaned him on interest; now, it is 
my will, in order to do equal justice to and between my children, that the 
same shall be considered and taken as so much of the share of his wife, Eliza- 
beth, of my estate ; and I give and bequeath to my said daughter Elizabeth 
the further sum of five hundred dollars, which is to be in full of her share of 
my estate ; and I make no further provisions for the said Elizabeth Wyckoff in 
this my last will and testament." 

The $500 have been paid. The debt of David B. Wyckoff 
to the testator was evidenced by a promissory note, dated April 
1st, 1874, and payable one year after date. A petition in bank- 
ruptcy was filed against Wyckoff on the 3d day of May, 1876, 
on which he was subsequently, in the language of the bill, in due 
course of law adjudged a bankrupt. He was discharged on the 
2d of April, 1878. The testator proved his debt and received 
two dividends out of the bankrupt assets — the first, June 15th, 
1877, of $384.50, and the second, March 14th, 1878, of $123.- 
62, making a total of $508.12. The will bears date May 28th, 
1877. It was executed, it Will be observed, more than a year 
after the commencement of the proceedings in bankruptcy, and 
less than three weeks before the testator received the first divi- 

The complainant contends that tl>e legacy given by the clause 
under consideration is not specific but demonstrative, in other 
words, properly construed the clause means this, that she is, 
under any circumstances, to have a legacy of $2,300, the refer- 
ence to the debt of her husband being intended simply to indicate 
the fund which should be applied primarily to its payment. 
Such a construction would, I think, not only do violence to the 
language used by the testator, but would attribute to him a pur- 
pose certainly not expressed, and probably never entertained. No 
gift is made by express words, but an intention to give is very 
clearly expressed by words of direction or command. There can 
be no doubt that the thing which was before the testator's niind, 
when he made his will, as the subject of the gift to the complain- 


Wyckoff I'. Perrine's Executors. 

ant, vcas a debt. He tells who the debtor was — his son-in-laV, 
David Wyckoif; how he incurred the debt — for borrowed 
money ; the amount of the debt — $2,300 • the terms on which 
it Was held — loaned on interest ; and then he says : 

" Now, it is my will, in order to do equal jiisticfe to and between my child- 
ren, that the same — tliat is, the debt due to me from my son-in-law— 'shall be 
considered and taken as so much of the share of his wife, Elizabeth, of my 

In construing a will the court must always have regard to the 
circumstances, situation and surroundings of the testator. At the 
time this will was made the son-in-law had been adjudged a 
bankrupt; the testator knew it, he knew also that the greater part 
of his debt was hopelessly lost, and for that reason, unquestion- 
ably, he thought it was his duty, in order that justice might be 
done to all his children, to treat the debt of his son-in-law as an 
advancement to his daughter, and to effect that purpose he gave 
her the debt. He intended to say by the provision under con- 
sideration, as I think he has quite clearly said : 

" I want each of my children to have an equal share of my estate ; the hus- 
band of my daughter Elizabeth borrowed of me, some time ago, $2,300, 
which he cannot repay; in order to be just to my other children, I give Eliza- 
beth the debt I hold against her husband, as part of her share, and the further 
sum of |500, but she is to have nothing more." 

In deciding whether a legacy is specific or general, the in- 
tention of the testator must control, as it must the decision of 
every other question involving the construction of wills. There 
is no technical arbitrary rule requiring the use of particular 
words or expressions to make a bequest specific. Such intention 
may be manifested either by clear words or by the general scope 
and texture of the instrument, but in the latter case, in the lan- 
guage of Lord Eldon, the inference should rest upon a strong, 
solid and rational interpretation of the will. The rule of con- 
struction to be observed in such cases is thus stated by Roper : 
" A court of equity leans to the consideration that all bequests 
are general; it therefore requires expressions actually bequeath- 

10 Stew.] MAY TERM, 1883. 121 

Wyckoff V. Perrin.e's Executors. 

iDg the identical debt, or such reference to it, appearing upon a 
strong, solid and rational interpretation of the will, as to raise a 
plain inference that the debt was the exclusive subject intended 
to be given by the testator to the legatee." 1 Roper on Leg. 
334.. In Norns v. Thomson, 1 C. E. Gr. S18, Chancellor 
Green held* that in order to make a legacy specific there must be 
something on the face of the will to individuate the thing given, 
or some form of expression must be used which clearly indicates 
a purpose on the part of the testator to give a specific thing and 
nothing else. Here, just such a condition of affairs exists. The 
testator has marked out, with great clearness and precision, just 
wh.iit the complainant is to take — she is to have tht debt of her 
husband and $500; and then he declares she is to Irav^ nothing 
more. That such was his intention, seems to me to be so obvious 
as to leave the complainant without any substantial ground upon 
which to- rest the opposite contention. The words of exclusion 
must, I think, be regarded as furnishing an almost infallible test 
of the meaning of the testator. 

The case involves another question. Has the legacy been 
adeemed ? It is certain the debt which was the subject of the 
legacy, did not exist at the time of the testator's death. So much 
of it as had not been paid to the testator, out of the bankrupt's 
assets, was extinguished by his discharge in bankruptcy, so that 
tlie subject of the gift did not exist at the testator's death. Some 
of the earlier decisions made a distinction between the effect of 
a v\)luntary j)ayment and a compulsory payment of a debt, which 
was the subject of a specific legacy, in adeeming the legacy. 
They held that, where the debtor came forward of his own vo- 
lition and without solicitation, and paid the debt, in the testator's 
lifetime, the testator's acceptance of the money, under such cir- 
cumstances, did not indicate an intention to take back the legacy ; 
but if he, of his own will, and in the absence of any other ap- 
parent reason than that he wanted the debt paid, constrained the 
debtor to jjay, then his act was regarded as evincing an intention 
to adeem the legacy. This distinction was recognized by the su- 
preme court in Stout v. Hart, 2 Hal. 4-^4-) 4^4- It was there said : 
*' A voluntary payment is not an ademption, because accepting 


Wyckoff V. Perrine's Executors. 

the money when tendered does not imply any alteration in the 
intentions of the testator ; but when the testator compels payment^ 
this fact may or may not amount to an ademption, according 
to circumstances." The cases adopting this distinction as the 
rule of judgment, will be found collected in S Lead. Gas. in Eq. {^th 
Am. ed.) 6iB4.. The distinction, however, no longer prevails. 
The modern decisions, both of this country and England, with 
almost perfect unanimity, repudiate it as unsound and fallacious. 
The rule now generally recognized as an accurate statement of 
the law on this subject, is that laid down by Lord Thurlow in 
Humphreys v. Humphreys, 2 Cox Ch. 185. He said : " The only 
rule to be adhered to is to see whether the subject of the specific 
bequest remained in specie at the time of the testator's death, for 
if it did not, then there must be an end of the bequest ; and the 
idea of discussing what were the particular motives and inten- 
tion of the testator in destroying the subject of the bequest, 
would be productive of endless uncertainty and confusion.'^ 
Chief-Justice Black states the same rule, as follows: "If a 
thing bequeathed -in a will, by such description as to distinguish 
it from all other things, be disposed of, so that it does not re- 
main at the testator's death, or if it be so changed that it cannot 
be called the same thing, the bequest is gone. If such a legacy 
be of a debt, payment necessarily makes an end of it. The 
legatee is entitled to the very thing bequeathed if it be possible 
for the executor to give it to him, but if not, he cannot have 
money in the place of it. This results from an inflexible rule 
of law applied to the mere fact that the thing bequeathed does 
not exist, and it is not founded on any presumed intention of 
the testator." Hoke v. Herman, 21 Fa. St. 301, 805. The 
cases repudiating the distinction alluded to are too numerous to 
be cited. They will be found referred to in 2 Wms. on Exi's. {6th 
Am. ed.) 1323 ; '2 Lead. Cas. in Eq. { Am. ed.) 623, 668; 
Theo. on Wills 121 ; Redf. on Wills. 4£3. The question now is 
one of identity and not of intention, as gathered from matters 
extrinsic the will. In such cases, the test is, did the subject of 
the gift exist in specie at the testator's death ; if it did, the lega- 

10 Stew.] MAY TERM, 1883. 12,3 

Shannon v. Mayor of Hoboken. 

tee is entitled to it against all persons except creditors ; if it did 
not, he is not. 

Trying the complainant's right to relief by this principle, it is 
clear that judgment must be awarded against her. The demurrer 
must be sustained, with costs. 

John M. Shannon 


The Mayor and Common Council op the Citt op 
Hoboken et al. 

1. Any order, writing, or act which makes an appropriation of a fund is a 
good assignment in equity. 

2. A provision in a contract, that if the contractor fails to pay for labor 
done or materials furnished -in the performance of the contract, the other con- 
tracting pintles may withhold the moneys earned under the contract, and 
apply them to the payment of such debts, does not deprive the contractor of 
his right of alienation, and his assignees, notwithstanding such a provision, 
will be entitled to the moneys earned under the contract in the order in which 
they acquired title to them. 

On final hearing on bill and answers, and proofs taken in 
open court. 

Mr. James B. Vredenburgh, for complainant. 

Mr. John C. Besson, for defendant Oakley. 

Mr. Qilbert Collins, for defendant Du Puget. 

Mr. Malcolm W. Niven, for municipal defendants. 

Van Fleet, V. C. 

The litigants between whom the main strife in this case exists, 
are the complainant and the defendants George F. Oakley and 


Sliannon v. Mayor of Hoboken. 

Michael Shannon, on the one side, and the mayor and common 
council of the city of Hoboken on the other. In March, 1881, 
one John Berkery made a contract with the city of Hoboken to 
repave a part of Washington street, the price of the work to be 
paid in improvement certificates. The city admit that Berkery 
earned under the contract, in addition to the certificates which 
have already been delivered, the sum of $4,403.90. The ques- 
tion in dispute is, Who is entitled to this sum? Prior to the 
4th day of June, 1881, Berkery drew orders in favor of the 
complainant and the two defendants named, upon which there 
still remains due a sum in excess of that which is the subject of 
the present contention. These orders were addressed to the city 
clerk, and directed delivery to be made to the payees of the im- 
provement certificates which Berkery should be entitled to under 
the contract. They were left with the city clerk at their respective 
dates or shortly afterwards. The contract contains this provision : 

" And the said party of the second part [Berkery] covenants and agrees to 
promptly pay for all labor done and material furnished on said work, and in 
case he fails so to do, this contract may be forfeited, after five days' notice, and 
bis bondsmen may be called upon to pay for said labor and material, and any 
money due, or to grow due to said party of the second part may be used to 
pay for such labor and material, and the mayor and common council may 
order warrants drawn to the order of parties doing work or furnishing mate- 
rial, or may issue certificates to them for the amounts due them, and the re- 
ceipts of the said parties siiall be full discharge for the mayor and common 
council of the city of Hoboken in settlement with the party of the second part 
or his sureties." 

The orders lo the complainant and the defendant Michael 
Shannon were given for material furnished by them, and used by 
Berkery in fulfilling his contract, and those to the defendant 
Oakley were given for money advanced to enable Berkery to 
start and continue the work required by his contract. At tlie 
time they were given the contract had not been forfeited, nor is 
it alleged that any default had been made which authorized its 
forfeiture. Since the orders were deposited with the city clerk, 
several claims, for labor done and material furnished in peform- 
ing the contract, have been presented to the muni'iiml defend- 

10 Stew.] MAY TERM, 1883. 125 

Shannon v. Mayor of Hoboken. 

ants. They deny the right of the complainant and the twa 
defendants named to the fund still in their hands, on two 
grounds : First, they say, the orders did not transfer the fund ; 
and second, the covenant deprived Berkery of the power to 
transfer it. 

The first ground presents no defence. The orders constituted 
valid assignments in equity. The principle on which courts of 
equity proceed in such cases is very clearly defined. " Any order, 
writing or act which makes an appropriation of the fund, 
amounts to an assignment in equity. ***** ^jj ^g, 
signment of a debt may be made by parol as well as by deed." 
S Story's Eq. Jur. § 1047. Simple delivery of a bond and mort- 
gage will constitute an effectual assignment in equity if such be the 
intention of the parties. Galway v. FuUerton, 2 C. E. Gr. 389. 
The great object of courts of equity, in cases of this kind, is to 
give effect to the intention of the parties. No attention is paid 
to mere matters of form ; if the court can clearly discern the pur- 
pose of the parties, it will give effect to it, regardless of the method 
by which such intention is expressed. The fact that the orders 
are addressed to the city clerk, and not to the municipality, does 
not, according to my view, raise the slightest doubt, or create 
the least obscurity as to the meaning of the parties. The prop- 
erty Berkery intended to pass is pointed out by the orders so 
clearly that there can be no doubt about what he intended to 
transfer. His intention to make an assignment of it is equally 
clear. Those are only essentials of an equitable assignment where 
there is no doubt about the person who is to take as assignee. 

The second ground of defence is, in my opinion, equally 
without substance. The covenant on which it rests merely 
authorizes the municipality, after forfeiture, to withhold and 
appropriate the moneys earned under the contract. No beneficial 
interest is transferred, nor is the municipality made subject to 
any duty or liability. Such a covenant, it has been held, does 
not render the municipality liable, either at law or in equity, to 
the creditors of the contractor, nor does it operate as an equitable 
assignment of the fund to the creditors of the contractor. Grass- 
man V. Bonn, 3 Stew. Eq. JfiO. The principle recognized in Or&to- 


Shannon v. Mayor of Hoboken. 

■ ell \.- Carrier, 12 C. E. Gr. 152 ; S. C. on appeal, Id. 650, that 
where the parties to a contract make a stipulation in favor of a 
third person, not a party to the contract and a stranger to its con- 
sideration, and he subsequently, with their knowledge, relying on 
the contrast, places himself in a position from which he cannot 
retreat without loss, in case the stipulation is not observed, they 
will not be permitted to disregard the stipulation, or release its 
performance, to his injury, has no application to this case, for 
there is nothing before the court to show that a single one of 
the creditors, in whose behalf the city is seeking to intervene, 
either knew of the covenant under consideration, or gave Berk- 
ery a penny's credit on the faith of it. The city, in this contest, 
stand simply as volunteers, without beneficial right or interest, 
and without duty or liability, and are not, therefore, according to 
the general rule, entitled to the aid of a court of equity. 

But, suppose it should be conceded that the city are the repre- 
sentatives of the creditors of the contractors, or, to make the case 
still stronger, that they stand in the strength of the creditors' 
rights, would that fact entitle them to prevail in this defence? 
The covenant does not take away or restrict Berkery's right of 
alienation or assignment. The orders were given to procure 
means to perform the contract ; they appropriate the fund to the 
purposes contemplated by the covenant, and stand first in order 
of time. The third section of the mechanics lien law {Rev. p. 
668) authorizes the person on whose land a building is erected 
under a contract duly filed, on receiving notice from a creditor of 
the master workman or contractor, whose debt was contracted ia 
the erection of the building, that the master workman or con- 
tractor, has, on demand, refused to pay, to retain the sum due 
and so claimed out of any money due to the master workman or 
contractor and on being satisfied of the correctness of the claim, 
to pay it; and such payment, the statute further directs, shall be 
allowed to the owner against the master workman or contractor. 
The design of the statute is obvious ; it was intended to give the 
creditor a remedy against the money earned under the contract, 
and, by his own act, in case the contractor refused to pay, to 
effect a transfer of it. A notice given in pursuance of the stat- 

10 Stew.] MAY TERM, 1883. 127 

Gifford V. Landrine. 

ute, oj)erates as an assignment of so much of the money due to 
the contractor, under the contract, as will be sufficient to pay the 
debt of the creditor giviug the notice. Wightman v. Brenner, 

11 C. E. Gr. Jf.89. But until notice is given, the contractor is 
left at full liberty to dispose of the moneys secured by the con- 
tract as he sees fit. The right of the workman or materialman 
<3oes not attach until notice is given. If, when the notice comes, 
there is nothing due to the contractor, the predicament contem- 
plated by the statute does not exist. If the owner is not then 
the debtor of the contractor, but of some other person, to whom 
the debt has been assigned, he cannot retain the contractor's 
money, because what he owes is not due to the contractor, but to 
another person. The statute does not give the workman or 
materialman a lien on the moneys earned under the contract. 
Craig v. Smith, 8 Vr. 54-9. This adjudication furnishes the prin- 
ciple which must rule this case. If the covenant gives the 
municipality any authority whatever to withhold and appropri- 
ate moneys earned under the contract, it is certain such author- 
ity only extends to money belonging to the contractor, and not 
to that wliich lias, by just means, become the property of some 
other person. 

Neither ground of defence is entitled to prevail. The com- 
plainant and the two defendants named are entitled to the fund 
in controversy. Their respective positions, in order of priority, 
must be adjusted in accordance with the rule laid down in Super- 
intendent of Public Schools v. Heath, 2 McCart. 22. 

George Gifford 


Lawrence D. Landrine et al. 

1. Declarations made by an agent in the course of a transaction in which 
he is authorized to represent his principal, are the declarations of his princi- 
pal, but to entitle them to this effect the relation of principal and agent mast 
first be established by competent evidence. 


Gifford V. Landrine. 

2. Declarations of the person alleged to be the agent, are not competent to 
establish the fact of agency. 

On final hearing on bill and answer and proofs taken before 
a master. 

Mr. William Brinkerhoff, for complainant. 
Mr. Gilbert Collins, for defendant. 

Van Fleet, V. C. 

This is a foreclosure suit. The defence is usury. The com- 
plainant's mortgage was given to secure a loan made by the 
complainant to the defendant. The loan was made through a 
broker. He is dead. The defendant says the broker was the 
agent of the complainant, and he attempts to establish the fact 
of usury by proof of declarations of the broker. The following 
are the facts, as given by the defendant : He applied to tiie 
broker for a loan ; the broker told him that he had money to 
lend belonging to the complainant, but that the complainant 
wanted a bonus of ten per cent. ; he told the broker that was too 
much — he could not stand it; the broker then told him he would 
see the complainant and see if he would take less ; a few days 
afterward the broker told him the complainant would take eight 
percent.; he accepted this offer and the broker withheld eight 
per cent. The whole of the sum loaned, except about $1,500, 
was disbursed by the broker in satisfying liens existing on the 
mortgaged premises at the time the loan was made. The broker 
rendered an account to the defendant of the moneys received and 
disbursed for him, charging him commissions at the rate of eight 
per cent. The defendant admits that he accepted this account 
witiiout objection or question. No communication of any kind 
passed between the complainant and the defendant during the 
negotiation for the loan, nor until long afterwards. These are 
the facts, found in the defendants proofs, on which he relies to 
establish his defence. 

Note. — As to proving tlie existence of the agency before allowing the agent 
to testify, see Banting ads. Allen, 3 Harr. ^99 ; Ayres v. Van Lieu, 2 South 
765.— Rep. 

10 Stew.] MAY TERM, 1883. 129 

Gifford V. Landrine. 

The rule is perfectly well settled, that the declarations of an 
agent, made pending a transaction in which he is authorized to 
represent his principal, and constituting part of the transaction, 
are, in law, to be regarded as the declarations of the principal ; 
but to entitle them to this effect, it is plain, it is necessary, both 
as a matter of reason and justice, that the fact of his agency 
should first be established by competent evidence. The agent's 
unsworn declarations are utterly incompetent for such a purpose. 
They are, at their very best, mere hearsay. A proposition so 
rudimental needs no proof. 

The defence is unproved. But if the facts relied on as a de- 
fence had been established by competent evidence, still, I think, 
the defendant would not have been entitled to prevail. It is 
certain, if the complainant is believed, no usury can be found. 
The facts show that the broker was the* defendant's agent, and 
not the agent of the complainant. The complainant swears that 
he advanced the whole of the sum agreed to be loaned to the 
defendant ; the account of the agent rendered to the defendant, 
and put in evidence by the defendant himself, show-s that to 
have been the fact. The complainant further swears that not a 
penny of the eight per cent, retained by the broker ever came to 
him, nor was it retained with his knowledge, by his procure- 
ment or for his benefit. His evidence on this point is uncontra- 
dicted and unimpeached. The broker and the complainant^s son 
divided the commissions retained by the broker, the son taking 
five per cent, and the broker retaining three, but both the com- 
plainant and his son swear that the complainant was ignorant 
of this arrangement, did not participate in it, and derived no 
benefit from it. The case is without the slightest proof, which 
would justify a judgment, that a single penny of the sum re- 
tained by the broker as commissions, ever reached the complain- 
ant, either directly or indirectly, so that it can be truthfully said 
that he received it or was profited by it. It is impossible to find 
the fact of usury in this case, unless the evidence of two wit- 
nesses is thrust aside as false, in the absence of anything which 
would justify the rejection of their evidence. 



Daggers v. Van DycK. 

My* judgment is, the defence fails, and the complainant is, 
consequently, entitled to a decree for the full amount secured by 
his mortgage. 

John E. Daggees 


Francis C. Van Dyck. 

1. Evidence, to be believed, must not only proceed from the mouth of a 
credible witness, but it must be credible in itself, such as the common experi- 
ence and observation of mankind can approve as probable, under the circum- 

2. Laches only constitute a complete defence when the complaining party 
has slept so long over his wrongs, that if relief be given to him, great and 
serious harm will be done to his adversary. 

On final hearing on bill and answer and proofs taken in open 

Mr. Socrates Tutt/e, for complainant. 

Mr. Thomas N. McCarter, for defendant. 

Van Fleet, V. C. 

The decision of this case requires simply the determination of a 
question of fact. In July, 1871, the complainant purchased of 
the defendant a house and lot situate on the south side of Ward 
street, in the city of Paterson. At the time of the purchase, 
the lot was enclosed by a substantial fence. Its width, within 
the fences, was thirty-one feet and ten inches, in front, and 
twenty-nine feet and eleven inches in the rear. A brick walk 
ran along its easterly side, extending from a gate in the fence 
enclosing the front, to a privy standing on the rear. The defend- 
ant, at the time of the purchase, owned the lot adjacent, on the 

10 Stew.] MAY TERM, 1883. 131 

Daggers v. Van Dyck. 

«ast, and occupied the house erected thereon. He had erected 
both houses — that which he occupied and also the one sold to the 
-complainant. He had also erected the fences enclosing the com- 
plainant's lot, and the privy on the rear, and put down the brick 
walk. His deed to the complainant does not convey the lot as 
enclosed, but excludes a strip, triangular in form, extending 
along nearly the whole of its easterly side. This strip, at its 
base, is about three feet wide, and gradually contracts as it ap- 
proaches the front, until it ceases entirely. This strip is the 
subject of the suit. The complainant alleges that he purchased 
the lot as it st'ood enclosed, and that the exclusion of this strip 
from the land conveyed is such a violation of his rights, under 
the contract, as can only be adequately redressed by a decree of 
specific performance. The defendant, in opposition to the com- 
plainant's claim, says that the complainant did not purchase the 
lot as enclosed, but that he was distinctly informed, during the 
negotiation, that the fence on the easterly side of the lot did not 
stand or the line by which the lot would be conveyed, but that 
the loC would be conveyed by a line running parallel with Prince 
street, \^'hich would cut oflP a part of the privy, and require the 
fence to be changed. 

The question to be decided is, What did the defendant agree 
to convey? The parties themselves are the only witnesses who 
have -given any evidence respecting the terms of the contract, and 
their evidence stands in irreconcilable contradiction at almost 
every point. They are agreed thus far: that the complainant, 
at the outset of the negotiation, asked the defendant if the lot 
would be conveyed by the lines indicated by the fences, but at 
this point they separate on the terms of the contract, never to 
meet again. The complainant swears that the defendant, in 
answering his question, said that the fences correctly represented 
the boundaries of the lot, and further said, in the same connection, 
that after he had made up his mind what style of houses he 
would build, he found that two ordinary city lots were not suffi- 
cient, and he then purchased an additional half lot and divided 
it, so that the curtilage of each house contained one and a quarter 

132 CASES IN CHANCERY. [37 E(^. 

Daggers v. Van Dyck. 

ordinary city lots; while the dofendant swears that he gave the 
following answer to the complainant's question : 

" I can remember distinctly telling him that the lines were the fences, 
except the one directly between my house and that one; that, I told him, was 
a temporary fence entirely — it was not a correct line ; that the correct line 
■would make the passage-way narrow at the extreme points of his house, leav- 
ing suflBcient passage for a person to pass through, and it would also take a 
portion off the privy, aJjout one-third of it; T took especial pains to tell him 
all these tilings, and he listened to them without making any remark, and I 
supposed he heeded them at the time." 

The defendant further says that he told the complainant that 
the east line of the lot would run parallel with Prince street, and 
that one of the main points he brought out in the conversatioa 
was that he intended to retain two city lots as the curtilage of 
his house, fifty feet front and rear. These are the two stories. 
They stand in such positive contradiction at every point that it 
is impossible to reconcile them. It is clear that they cannot both 
be true, and it is equally certain that one or the other must be 
rejected. The burden is on the complainant. He must satisfy 
the court, by a preponderance of proof, that his version of the 
contract is the true one, or he must fail. 

The court may very properly, in a case of this kind, where the 
evidence on the main point in dispute stands in such decided 
conflict, resort to the circumstances which are inherent in the 
transaction brought in judgment, as well as to those which are 
collateral to it, in order to see whose evidence they corroborate 
and whose they impugn. They may so far strengthen one and 
impugn the force of the other as to leave no doubt which story 
is true. The court is not bound to accept everything as true a 
witness may say. 

Evidence, to be believed, must not only proceed from the mouth 
of a credible witness, but it must be credible in itself — such as the 
common experience and observation of mankind can approve as 
probable under the circumstances. We have no test of the truth 
of human testimony, except its conformity to our knowledge, 
observation and experience. Whatever is repugnant to these be- 
longs to the miraculous, and is outside of judicial cognizance. 

10 Stew.] MAY TEKM, 1883. 1.33 

Daggers v. Van Dyck. 

Evidence is generally considered improbable when it imputes to 
the parties to a transaction, occurring in the ordinary course of 
business, conduct inconsistent with the principles by which men, 
similarly situated, are usually governed. 

Applying these tests to the two contradictory stories, I think 
there will be little difficulty in deciding which should be be- 
lieved. In some of its aspects, the defendant's story seems to me 
to be incredible. In the first place, he says it was always his 
purpose, from the time he purchased the two lots, to have the 
line between them to run just where it does now, and that he 
built the house, on the lot he sold to the complainant, to sell or 
rent, as opportunity might offer ; yet, with such a purpose fully 
matured in his mind, when he came to build the privy for the 
use of the complainant's house, he built it partly on land he in- 
tended to- retain. Not only did he do this, but he built a strong 
and substantial fence, having the appearance of being intended 
to mark permanently the line of separation between the two lots, 
80 as to throw part of the tot he intended to retain with the 
lot he intended to offer for sale, and in addition, he built a brick 
walk, as a passage to the rear of the house he intended to sell, 
partly on the land which, he says, he always intended to keep. 
It will be observed, if he had succeeded in finding a purchaser 
immediately after the completion of the house, and had then in- 
sisted on locating the line where he has now located it, and a sale 
had been effected, the money he expended in constructing the 
privy and putting down the brick walk would have been utterly 
wasted. If his testimony is true, this anomalous state of affairs 
is presented ; He meant one thing, and had full power to do it, 
yet did something entirely different — something he did not mean 
to do, and which it was plain, at the time he did it, would result in 
loss to him. The almost certain effect of constructing the neces- 
sary conveniences to the house he intended to sell, in Such man- 
ner that though they appeared to belong to the house, yet that 
neither he nor his purchaser could derive any benefit from them, 
was to render his house unmarketable. I find it impossible to 
believe that, at the time these erections were made, a fixed pur- 


Daggers •>•. Van Dyck. 

pose existed in the mind of the defendant to locate the line where 
he now says he always intended to locate it. 

But again : The circumstancps attending the making of the 
bargain, as well as the bargain itself, as given by the de- 
fendant, are extremely improbable. The witnesses agree that 
the complainant opened the negotiation cautiously; he in- 
quired whether the fences indicated the boundaries of the 
lot. The defendant says he replied to that question by stat- 
ing that the fence on the easterly side of the lot was not 
on the liii-e; that the true line would make the passage, at the 
extreme {)oints of the house, narrow, and would take off about 
one-third of the privy. He also says that he took especial pains 
in making this announcement, and though the complainant heard 
everything, he said nothing. Can that be believed ? The com- 
plainant was purchasing the house for a home for himself and 
his family, and if he had not been curious to know why the de- 
fendant, in building a house to sell, had not built the fence on 
the line where he intended to establish it, and had not put the 
privy, erected for that house, on the lot he intended to sell, his 
interests would not have permitted him to be indifferent to the 
question whether the house possessed the ordinary conveniences 
of a home or not. If his curiosity did not provoke him to speak, 
his interests would have opened his mouth. But can it be be- 
lieved that a man cautious enough to inquire whether the fences 
represented the lines or not, would have stopped in his inquiries 
when informed that they did not? That such announce<nent 
should have stopped the negotiations, it is not difficult to believe, 
but that it should have stifled all further inquiry or remark 
seems almost incredible. The conduct attributed to the com- 
plainant, by the defendant's evidence, is exceptionally singular. 
He is cautious up to the point where danger appears, where 
greater necessity for caution arises, and then he suddenly becomes 
careless and heedless and dumb. This is unnatural and improb- 
able, and contrary to common experience. 

If the defendant's evidence is true, he sold, and the complain- 
ant purchased, without either of them knowing exactly M'here 
the east line of the lot would run, and without either making the 
least effort, before the deed was made, to ascertain or to locate 

10 Stew.] MAY TERM, 1883. 135 

Daggers v. Van Dyck. 

the line, in accordance with a mutual understanding. If they 
dealt mutually, understanding that the fence was on the line, 
their conduct was reasonable and natural. There was nothing 
further, then, to be done, for the line was already established ; 
but if a new line was to be located, the matter was of so much 
importance to both, that, under ordinary circumstances, neither 
would have allowed the other to locate it except in his presence. 
The defendant admits that he located it without measurement, 
in the absence of the complainant and without consultation with 
him. It was located without the least regard to the effect it 
would have on the complainant's house. The defendant admits 
that he did not attempt to ascertain how his location of it would 
affect the cornice of the complainant's house. The proofs show 
that if his location stands, part of the cornice overhangs the 
defendant's land. I do not 'believe that the complainant pur- 
chased with the understanding that the line should be so located 
that the defendant should have the right, at any time thereafter, 
to compel him to remove part of the cornice of his house, or 
that the defendant ever openly proposed a contract which would 
involve such consequences to the purchaser. 

But further : The defendant makes an admission which, I 
think, shows clearly that he knew he was conveying less land to 
the complainant than the complainant believed he was entitled 
to under the contract. The description of the land conveyed 
was furnished to the scrivener who drew the deed, by the 
defendant. He says he also furnished a diagram. When the 
deed was delivered and the purchase-money paid, the defendant 
took possession of the diagram. His object in doing so, he 
admits, was that he might have undoubted evidence, in case any 
dispute arose, that he had sold only part of the lot, and he says 
he carefully preserved the diagram to meet that question, if it 
fcver came up. If his evidence is true, there was no reason to 
fear future controversy ; he had sold only part of the lot, and 
that part of the contract he had made special effort to make plain 
and clear. Why, then, at the very moment when the contract 
had been carried out according to his understanding, should he 
commence to collect evidence to meet a future dispute? If his 


Daggers v. Van Dyck. 

story is true, no future dispute was possible. If he had doubts 
whether the complainant understood the contract as he did, that 
was the time to clear them up. If he then supposed there was 
any misunderstanding as to the quantity of land to be conveyed, 
good faith and fair dealing made it his duty to state plainly and 
distinctly that the deed he was about to make did not convey the 
lot as enclosed. That course would not only have removed all 
fear of future controversy, but would have furnished him with 
evidence as to the quantity of land to be conveyed, which he 
might very properly have described as undoubted. That, I 
think, is the course he would have pursued, instead of collecting 
evidence, if he had been free from any design to take an unjust 
advantage of the complainant. But if, on the contrary, he had 
agreed to sell the lot as enclosed, and afterwards conceived the 
purpose of attempting to inveigle the complainant into the ac- 
ceptance of a conveyance of less land than he was entitled to, 
then fears of future dispute would naturally start in his mind, 
and he would feel the necessity of collecting and preserving evi- 
dence. His preparation for difficulty leads to the conviction 
that he was conscious of having done something that would give 
rise to a dispute. 

Again : The defendant says, when he told the complainant 
he would not sell the lot as enclosed, he also told him that he 
would consider himself bound, as long as he held title to the 
adjoining lot, tp allow the fence, on the east, to stand where it 
then did. He furnished the scrivener with the description of 
the land to be conveyed, and all the other facts necessary for him 
to have in preparing the deed. Why did he not have this 
promise inserted in the deed? It was one of the rights the 
complainant was entitled to have assured to him. Besides, if 
the defendant wanted evidence, that was the way to get it. A 
clause, inserted in the deed, plainly declaring that the fence did 
not stand on the line, bu^ that the complainant would be per- 
mitted to occupy up to the fence so long as the defendant owned 
the adjoining lot, would have precluded all possibility of future 
dispute. The deed would then have shown distinctly on its face 
tnat thf fence did not stand on the line, and it would, in addi- 

10 Stew.] MAY TERM, 1883. 137 

Buckingham v. Ludlum. 

tion, have furnished almost conclusive proof that the complain- 
ant understood he was purchasing only part of the lot. The 
defendant's conduct must be viewed in the light of the fact that 
he thought he was in a position where it was necessary to guard 
himself against the consequences of a dispute, in the future, as 
to what he had agreed to convey to the complainant. 

The weight of the evidence, when all the sources of proof 
are considered, is, in my judgment, decidedly with the com- 
plainant, and I think it should be decreed that he is entitled to 
relief. The delay of the complainant in seeking redress con- 
stitutes no defence. It is only when the complainant has slept 
over his wrongs so long that if relief be given to him great 
and serious wrong will be done to the defendant, that laches 
constitute a complete defence. Here the parties are in almost ex- 
actly the same position now that they were at the time the wrong, 
for which redress is sought, was done, and relief may be given 
to the complainant without doing any harm whatever to the 

The defendant will be decreed to convey to the complainant 
so much of the lot enclosed as the conveyance already made 
omits. The complainant is entitled to costs. 

Alice Buckingham 


James Ludlum. 

1. A person rendering services under a contract invalid by the statute of 
frauds, may recover tlieir value in an action on the quantum meruit. 

2. A prior judgment, pronounced by a competent court, between the same 
parties, 'on the same cause of action, and which decides the merits of the cause 
of action, is conclusive upon the parties. 

3. A prior judgment concludes only parties and privies, not strangers. A 
judgment against the surviving member of a firm does not conclude the repre- 
sentatives of the deceased partner 


Buckingham v. Ludlum. 

4. Trusts which fall within the proper, peculiar and exclusive jurisdiction 
of courts of equity are not subject to the statute of limitations. 

5 Courts of equity are not within the terms of the statute o.f limitations, and 
while they follow it by analogy, they will not apply their rules, founded on 
analogy, when it is against conscience to do so. 

6. A creditor of a firm may have relief in equity, for the payment of his debt 
against the separate assets left by a deceased partner, if the surviving partner 
be insolvent and the firm assets exhausted. 

7. The representatives of a deceased partner cannot set up the statute of 
limitations against a creditor of the firm, so long as the surviving partner con- 
tinues liable for the debt and has a right to seek contribution, from the estate 
of the deceased partner, for the payment of the debts of the firm. 

8. One partner cannot set up the statute of limitations against the other, in 
a case where there have been dealings, in respect to the partnership affairs, 
within six years, whether they consist in the conversion of assets into monejt 
or the application of assets in discharge of liabilities. 

On hearing on petition of Joseph W. McElroy and answer of 
receiver and proofs taken in open court. 

Mr. John R. Emery, for petitioner. 

Mr. Fredeiich W. Stevens, for receiver. 

Van Fleet, V. C. 

The questions now before the court for decision arise on a pe- 
tition presented, in this suit, by Joseph W. McElroy, praying 
that an order may be made, directing the receiver appointed rn 
this cause to pay to him the sum remaining due on a judgment 
recovered by him against James Ludkim, as surviving member 
of the firm of James Horner & Co. For many years prior to the 
9th of June, 1874, James Horner and James Ludlum were en- 
gaged, as copartners, in the manufacture of steel, at Pompton, in 
the county of Passaic, under the name of James Horner & Co. 
On the date last named the partnership was dissolved by the 
death of Mr. Horner. Mr. Horner left a will by which, after a 
few unimportant gifts to others, he gave the whole residue of his 
estate to his daughter, Alice Buckingham. Very soon after the 
death of Mr. Horner, serious disputes arose between Mrs. Buck- 

10 Stew.] MAY TERM, 1883. 139 

Buckingham v. Ludlum. 

ingham and Mr. Ludlum, and in August, 1874, Mrs. Buckingharo 
filed a bill in this court asking for the appointment of a receiver 
of the partnership assets; also for an account and settlement of 
the partnership affairs, and, after the debts of the firm were paid, 
that the surplus assets might be divided. On this bill an order 
to show cause was granted, and after Ludlum had put in his 
answer, and both parties had been fully heard, the court made 
an order, bearing date November 17th, 1874, appointing Lud- 
lum receiver, with power to collect and receive all moneys and 
other property belonging to the firm, and out of the proceeds of 
the property of the firm to pay the debts of the firm, and to take 
and retain possession of the property, with a view to the ultimate 
settlement of the affairs and business of the firm, under the direc- 
tion of the- court. 

The petitioner, Joseph W. McElroy, acted as superintendent 
of the steel works of the firm from July 1st, 1869 to the date of 
its dissolution. The service thus rendered, he claims, was ren- 
dered under a contract, by which the firm agreed that he should 
be entitled to receive, as compensation for his services, one-eighth 
of the yearly profits made in the manufacture of steel, they guar- 
anteeing that his share of the profits should not, in any year, be 
less than $.'],000. It is admitted that the contract was not in 
writing, and that it was made some time before he commenced 
service under it, so that it was not performable within a year of 
its date. The petitioner, in 1877, brought an action in this court 
against Ludlum and the other persons in interest, on the alleged 
contract, asking an account of the profits. Ludlum answered, 
admitting the contract; Mrs. Buckingham, by her answer, de- 
nied it, and on the issues thus raised, this court, and the court of 
errors and appeals, both decided that the petitioner was not en- 
titled to an account. The decision of both courts was put upon 
two grounds ; first, that a definite and complete contract, such as 
would entitle him to an account, was not proved ; and second, if 
it ha'd been it could not be enforced, it being invalid by the 
statute of frauds. McElroy v. Ludlum, 5 Steio. Eq. 828. 

The jietitioner, subsequently, on the 10th of September, 1880^ 
brought an action at law against Ludlum, as surviving partner. 


Buckingham v. LucUum. 

and d&elared on a quantum meruit. Mrs. Buckingham was notified 
of this suit by Ludluin, and requested lo defend it at her own 
expense, and she consented to do so, but on Ludlum's refusing to 
put in the pleas which her counsel advised were necessary to a 
proper defence, she declined to interfere. Ludlum interposed a 
plea of the general issue, and on the trial of the action, a judg- 
ment of over $21,000 was recovered. The petitioner has at- 
tempted to enforce his judgment. He has succeeded in collecting 
$1,600, but the proofs render it quite clear that this is all he can, 
at present, get by means of legal process. He has exhausted 
his legal remedy. His debt, he claims, is a liability of the firm, 
and should, on the plainest principles of justice, be paid out of 
the firm assets. All the firm assets are now in this court, and he 
asks the court to apply so much of them as may be necessary for 
that purpose, to the payment of his debt. 

The fact that the petitioner's services were rendered under an 
invalid contract, does not in the slightest degree, impair his right to 
recover their reasonable value, for it is a well-established legal prin- 
ciple that wliere one person renders valuable services to another, 
under a contract invalid by the statute of Irauds, and the per- 
son to whom the services are rendered, after getting them, refuses 
to perform his part of the contract, the person rendering the ser- 
vices may, in such event, treat the contract as a nullity and recover 
the value of his services in an action on tiie quantum meruit. 
Smith V. Smith's Admr., 4- Dutch. SOS ; Rutan v. Hinchman, 1 
Vr. 255, \2 Vr. 496 ;] McElroy v. Ludlum, 5 Stew. Eq. 828. This 
principle, it will be observed, is both just and logical. It is just 
because it prevents the person to whom the services were ren- 
dered from getting them without making compensation; and it 
is logical because his promise being invalid, is no promise in 
law, and the matter stands, therefore, just as it would if the ser- 
vices had been rendered in the absence of an express promise. 

Nor do I think tiie petitioner's right to recover in this pro- 
ceeding is at all affected by the judgment of dismissal pronounced 
against him in his action for an account of profits. There can 
be no doubt that a prior judgment, pronounced by a competent 
court, between the same parties, on the same cause of action, and 

10 Stew.] MAY TERM, 1883. 141 

Buckingham v. Ludlum. 

"which decides the merits of the cause of action, is conchisive 
upon the parties, and a conaplete bar to a subsequent suit. But 
here, it will be seen at a glance, that the two actious of the pe- 
titioner stand upon grounds fundamentally different. In the 
first he was seeking to enforce an express contract, which entitled 
him to a specific share of the profits, regardless of the value of 
the services he had contributed in earning them ; while that 
which he is now prosecuting, is based exclusively on the fact that 
he had rendered valuable services to this firm, at their request, 
without stipulation as to price, but under a promise implied by 
law, that he should be paid what his services were reasonably 
worth. A judgment in the first case, adjudging either that the 
contract on which that suit was founded, was not proved, or that 
the contract was invalid, it is obvious, could not touch, even col- 
laterally, the question whether the petitioner had rendered ser- 
vices for which, in justice, he ought to be paid. The petitioner's 
present claim is unaffected in any way, in my judgment, by the 
judgment pronounced against him in the previous suit. 

Nor do I think it can be held that the judgment recovered by 
the petitioner, at law, against the surviving member of the firm, 
binds or concludes the receiver or Mrs. Buckingham. It is, 
however, a-dmissible in evidence for the purpose of showing what 
steps have been taken by the petitioner, by means of legal reme- 
dies, for the enforcement of his debt, and also to show that he 
has unsuccessfully exhausted the means provided by the law for 
its collection. As a general rule, a judgment concludes parties 
and privies, but not strangers. And by parties is meant all 
those who had a right to make defence, or to control the pro- 
ceeding and to appeal from the judgment. Persons not having 
these rights are regarded as strangers. And by privies is meant 
such persons as are privies in estate — as donor and donee, lessor 
and lessee, and joint tenants ; or privies in blood — as heir and 
ancestor ; or privies in representation — as executor and testator, 
or administrator and intestate; or privies in law — where the 
law, without privity in blood or estate, casts land upon another by 
escheat. Taking this as the rule of decision, it is clear that 
the receiver and Mrs. Buckingham stand as strangers to the pe- 


Buckingham v. Ludlum. 

titioner's judgment, and in this pi-oueeding may lawfully contest 
both his right and the amount of his debt. Chancellor Wal- 
worth twice decided that a judgment against the surviving part- 
ners did not bind the representatives of the other partner. Smith 
V. Ballaniyne, 10 Paige 101 ; Leake and Watts Orphan House 
V. Lawrence, 11 Paige 83, \2 Dm. 57T]. 

The case stands, then, in this position : the petitioner has ren- 
dered valuable services to this firm, for which, he alleges, he has 
not been paid ; he has established his debt against the surviving 
partner by a judgment at law, and has unsuccessfully exhausted all 
the means the law provides for its enforcement ; this court, at the 
instance of the representative of the deceased partner, has taken 
possession of all the firm property, and it is now subject to its 
order ; the petitioner's debt, if honest and legal, is a valid charge 
both at law and in equity against the firm assets, and ought to 
be paid out of them ; they can only be reached through the in- 
tervention of this court. In this condition of affairs, it seems to 
be plain that, in order to prevent a failure of justice, this court 
is bound to hear the petitioner's application, and if his debt is 
found to be just and. legal, to direct its payment. 

No objection is made to the method in which the petitioner seeka 
relief. It is not insisted that relief of the nature asked can only 
be given in a suit regularly brought, to which all persons in in- 
terest are made parties and afforded an cyjportunity to make de- 
fence. In addition to those already discussed, the petitioner's 
application is mainly resisted on two grounds — first, that he has 
already received full compensation ; and, second, if he has not, 
his remedy is barred by the statute of limitations. 

Compensation to the extent of ^3,000 a year has already 
been made. This, it is insisted, is all the petitioner's services 
were reasonably worth. I cannot concur in that view. Careful 
and patient consideration of the evidence has produced a strong 
conviction in my mind that his services were worth mure, and 
would readily have commanded more in a rival establishment. 

At the time of the commencement of his service, in 1869, hf 
liad been a worker in iron fur over twenty-five years ; he had 
invented and patented a process for making steel from pig iron; 

10 Stew.] MAY TERM, 1883. 143 

Buckingham v. Liidlnm. 

the firm had become the owners of the patent, but found that 
others could not use it as skillfully and advantageously as he 
could; just before the commencement of his service, the peti- 
tioner had determined to leave the firm and go to Connellsville, 
Pa., and take service in steel works there, in which he had a 
pecuniary interest ; he abandoned this project, at the instance of 
the firm, and on the faith of their offer. The service he ren- 
dered the firm was skillful, constant, faithful and highly bene- 
ficial ; under his supei'intendence the capacity of their works was 
enlarged and their product increased ; he supervised the process 
of manufacture from its inception to completion ; so great was 
the confidence of his employers in his skill and judgment that 
neither gave an}' attention to that department of their business 
which was conducted under his management. No fault is found 
either with the quality or extent of his work. It is admitted that 
he was skillful and faithful, and that his services were very valu- 
able. This being so, the question is. What does he reasonably 
deserve to have? If the services rendered were such as are in 
general demand, their value may be shown by proof of what is 
usually paid for like services to others, possessing similar skill, 
experience and judgment. The customary rates are then the 
criterion of market value. In such cases, the court may prop- 
erly receive evidence of the compensation paid to others, possess- 
ing like qualifications, for similar services. Such evidence has 
been offered in this case. This evidence, considered in connec- 
tion with that which shows the character and extent of the peti- 
tioner's services, has strongly persuaded me that he fairly de- 
serves to have a compensation of $4,000 a year. His experience 
and skill would, I am convinced, have commanded an annual 
salary of that amount in almost any rival establishment. My 
mind has hesitated between the sum just named and a larger 
one. His services were unquestionably of great value ; if they 
were not the main cause of the firm's prosperity, ihey contributed 
largely to it; they were rendered, as I believe, under a confident 
expectation that he was entitled to participate in the success of 
the business, and the greater its success, the larger his compensa- 
tion would be. His hopes naturally stimulated his zeal and in- 


Buckiugham v. Ludliim. 

duced-him to do his utmost, I am not sure that the sum allowed 
affords adequate compensation, but, after much reflection, I am 
satisfied it more nearly approaches what is just and fair, under 
the circumstances, than either a larger or smaller sum. 

The remaining question is. Is the petitioner's remedy, against 
the partnership assets, in the hands of the court, barred or not 
by lapse of time? His debt was in full force, and his cause of 
action perfect when this court took possession of the partnership 
assets. His term of service commenced July 1st, 1869, and 
closed June 9th, 1874, and the receiver was appointed Novem- 
ber 17th, 1874. As already stated, the order appointing the 
receiver empowered him to pay the debts of the firm. In this 
respect, it followed the prayer of the bill. 

It will be remembered that Mrs. Buckingham, by her bill, 
among other things, asked that Ludlum should be required to 
account, that the partnership affairs might be settled, and, after 
the debts of the firm were paid, that the surplus assets might be 
divided. Now, if the order appointing the receiver created a 
trust in favor of the creditors, it is entirely clear, I think, that 
their debts were relieved from the operation of the statute of 
limitations. The trust was one which this court alone could ad- 
minister and enforce. Not a penny of the money realized from 
the trust properly could be applied except in accordance with the 
orders of the chancellor. The rule is settled. Trusts which are 
not cognizable at law, but fall within the proper, peculiar and 
exclusive jurisdiction of courts of equity, are not subject to the 
statute of limitations. Wanmaker v. Van Buskirh, Sax. 685 ; 
Marsh V. Olive)', 1 McCart. 259; McClane's Administratrix v. 
Shepherd's Executrix, 6 C. E. Gr. 76. Chancellor Kent de- 
fined the rule as follows : " The trusts which are not within the 
statute [of limitations] are those which are the creatures of 
courts of equity, and not within the cognizance of a law court, 
and that, as to those other trusts which are the ground of an 
action at law, the statute is, and in reason ought to be, as much 
a bar in one court as in the other." Kane v. Bloodgood, 7 
Johns. Ch. 90, 113. And Judge Story, in speaking on the same 
subject, said : " As to cases of merely constructive trusts, ere- 

10 Stew.] MAY TERM, 1883. 145 

Buckingham v. Ludlum. 

ated by courts of equity, or cases whicli are treated, for some 
purposes, as implied trusts, to which, however, legal remedies 
are applicable, the doctrine cannot be admitted that the statute 
of limitations does not embrace them." Robinson v. Hook, If. 
Mason 139, 152. Now, it is undoubtedly true, as a general rule, 
that the mere appointment of a receiver does not suspend the 
operation of the statute, or vary the position of the parties to the 
litigation under it. Harrisson v. Duignan, 2 Dru. & War. 295. 
But it is also true that when it is necessary for the court to pro- 
tect its jurisdiction, and accomplish the purposes for which it 
took charge of the subject in dispute, it will ijold that its inter- 
ference suspended the operation of the statute, and it will 
adjudge the rights of the parties as they stood at the time its 
jurisdiction attached. Wrixonv. Vize,3 Dru. & War. 10^. In 
this case, it will be observed, the court did something more than 
it ordinarily does in such cases — simply take charge of the {)rop- 
erty in dispute, pending the litigation, to provide for its safety 
and see that it is preserved. At the instance of Mrs. Bucking- 
ham, and with the consent of Ludlum — for the order appointing 
him receiver was made with his oonsent — the court took charge 
of the partnership effects, for the purpose of liquidating the 
pari;nership affairs — to collect the assets, to pay the debts, as- 
certain the surplus remaining for distribution, and the rights of 
the parties therein, and making final distribution. Suppose this 
had been effected by a voluntary arrangement between the par- 
ties, expressed in writing and properly executed, can it be doubted 
tJiat a trust would have been created in favor of the creditors^ 
which would have relieved their debts from the operation of the 
statute? The supreme court of Pennsylvania expressly decided, 
in Heckei't's Appeal, 2^ Pa. St. 4-^2, that where a debtor 
makes an assignment of all his estate, for the benefit of his 
creditors, an express trust is created in behalf of his creditors^ 
which relieves their debts from the operation of the statute ; and 
that the assignor cannot set up the bar of the statute against a 
debt which was alive when the assignment was made, but was 
not paid until after it had been due more than six years. Judge 
Woodward, in delivering the opinion of the court, said : " We 



Buckingham v. Ludlum. 

are of- opinion the statute of limitations has no application here. 
This was a direct and continuing trust, and was exclusively 
cognizable in a court of equity. * * * Such a trust is not 
touched or affected by the statute of limitations." 

The judicial action taken in the case under consideration, ef- 
fected, substantially, the same result that a debtor who makes an 
assignment for the benefit of his creditors, accomplishes by his own 
voluntary act. He makes over his property in trust, first, for 
the payment of his debts, and, second, if anything shall be left, 
that it may be returned to him. The court here, at the instance 
of the litigants, sequestered the partnership property, first, for 
the payment of the debts of the firm, and, second, to enable it to* 
adjust the rights of the parties in the surplus assets, and then 
make a division of them in accordance with such adjustment. 
Can it be successfully contended that such a sequestration, be- 
cause it is effected by judicial action, taken in the due course of 
the administration of justice, and with the consent of the liti- 
gants, is less effectual for the protection of the creditors, whose 
right it was, at the time of the sequestration, to look first, and to 
the exclusion of all others, to the property sequestered, for the 
payment of their debts, than a voluntary assignment, made for 
the same purpose, would be ? I do not think it can. 

But whether the action of the court created a trust or not, it is 
clear, I think, that in taking possession of the partnership prop- 
erty, the court changed the remedy of the creditors against the 
assets from a legal to an equitable remedy. After the assets were 
in court they could not be reached or touched except by permis- 
sion of the chancellor. No action at law would lie against the 
receiver for the debts of the firm, nor could such an action be 
maintained against the representative of the deceased partner, 
and a judgment against the surviving partner would be utterly 
ineffectual against the property under the control of this court. 
No levy could be made upon it without the permission of the 
chancellor. It may safely be said, then, that after the partner- 
ship assets were in court, the remedy of the creditors of the firm 
against them was exclusively equitable. To such remedies the 
statute of limitations does not apply. Courts of equity are not 

10 Stew.] MAY TERM, 1883. 147 

Buckingham v. Ludliim. 

within the terms of the statute, and while they follow it by 
analogy, and have adopted as a rule, the limit of six years, in 
analogy to the statute, as the time within which a suitor, in cer- 
tain cases, .must bring his action, yet they do not adhere to it so 
inflexibly as to feel obliged to deny relief to every suitor who 
asks their aid after the expiration of the limited time. The rule 
on this subject is expressed as follows by one of the vice-chan- 
cellors of England : " Where the circumstances of the cas-e are 
such as to make it against conscience to apply the rule founded 
upon this analogy, the court will not enforce it. It has been 
said that if a creditor files a bill on behalf of himself and others, 
and permits it to be dismissed before decree, the statute would 
apply. I dissent from this proposition, for I think that the court 
would protect a creditor against an accident of that kind. I have 
no doubt that if a creditor intended to file a bill, and it appeared 
that the rule adopted by analogy to the statute would affect his 
demand, but tha't a bill had been filed before, by another creditor, 
and that he had, in confidence that the former suit would be 
prosecuted, abstained from filing his bill, the court would not 
apply its rule." Sierndale v. Hankinson, 1 Sim. 393. 

Lapse of time does not bar the debt, but simply the remedy, 
and in deciding whether the creditor has lost his remedy or not, 
courts of equity generally govern their action by the principle laid 
down by Lord Camden in Smith v. Clay, 3 Bro. C. C. 639, note ; 
" A court of equity, which is never active in relief against con- 
science or public convenience, has always refused its aid to stale 
demands, where the party has slept upon his rights, and ac- 
quiesced for a great length of time. Nothing can call forth this 
court into activity but conscience, good faith and reasonable dili- 
gence. Where these are wanting, the court is passive and does 

The proofs show, I think, very clearly, that since the dissolu- 
tion of the firm the petitioner has neither slept upon his rights, 
nor been slothful in their pursuit. Indeed, the judicial records 
of the state bear testimony that since 1877 he has been engaged 
in an almost constant struggle in the courts to secure their vin- 
dication. Prior to that time he had been lured into inaction. 


Buckingham v. Liidlum. 

Mr. Ludlum swears that, after his appointment as receiver, the 
petitioner delayed presenting his claim, in legal form, at his 
request, and upon his reprevsentation that the court would give it 
attention at the proper time. This i-epresentation may have been 
unauthorized and Mr. Ludlum's promise without legal force 
against the persons standing in the rights of his deceased partner, 
but, upon the question whether the petitioner has been guilty of 
such laches as should, in conscience, bar his remedy, they are of 
the utmost importance. The evidence' shows that the petitioner 
has not lacked diligence — he has been vigilant, but mistaken. At 
the outset he misconceived his remedy ; but for that the questions 
now before the court would have been settled long ago. To de- 
clare, in such a case, that the suitor is barred of his remedy by 
his laches would, according to my judgment, be an abuse of 
the rules of justice. 

But another rule of equity jurisprudence pertinent to the 
question under consideration, remains to be mentioned. It has 
long been settled that a creditor of a firm may have relief in 
equity, for the payment of his debt, against the separate assets 
left by a deceased partner, if the surviving partner be insolvent 
and the firm assets exhausted. Lord King so held as early as 
1692. Lane v. Williams, 2 Vern. 277, 292. Lord Eldon re- 
cognized this doctrine in Gray v. Chlswell, 9 Ves. 118, and in 
Ex parte Kendall, 17 Ves. 513, and Sir William Grant affirmed 
it in Devaynes v. Noble, 1 Mer. 528, 564.. And Chancellor Kent 
applied it, in all its length and breadth, in Hamersley v. Lam- 
bert, 2 Johns. Ch. 508. There the firm was dissolved in 1803, by 
the death of one of the partners. The surviving partner made 
a payment on account of the complainant's debt in 1806, and on 
January 1st, 1807, admitted the sum remaining due at that date, 
and in October, 1807, was discliarged under the insolvent laws 
of the state of New York. In 1809, the guardian of two of 
the infant heirs of the deceased partner paid certain moneys into 
court belonging to his wards, which were afterwards invested in 
public stocks. In May, 1814, eleven years after the dissolution, 
the complainant filed his bill, asking a decree that his debt be paid 
out of the public stocks, which from the time of their purchase re- 

10 Stew.] MAY TERM, 1883. 149 

Buckinglaam v. Ludlum. 

mained in court. The chancellor, after recognizing the doctrine 
established by the prior adjudications, said, "that neither delay, 
nor lapse of time, nor dealing with the survivor, nor calling for 
and receiving part of the debt from the survivor, amounts to 
a waiver or bar of the claim upon the assets of the deceased," 
and he made a decree directing the payment of the complain- 
ant's debt out of the fund in court. And Lord Cottenham, 
in a more recent case, seems to have been of opinion that the 
representatives of a deceased j^artner could not successfully set 
up the statute against a creditor of the firm, so long as the sur- 
viving partner had a right to call upon the estate of his deceased 
partner to contribute to the discharge of the liabilities of the 
firm. In Winter v. Innes, 4 ^yl- & Or. 110, he said : " When 
the simple case shall occur of the representatives of a deceased 
partner setting up the statute of limitations against a claim by a 
creditor of the firm, it will be to be considered whether such a 
defence can prevail whilst the surviving partner continues liable, 
and the estate of the deceased partner continues liable to con- 
tribute at the suit of the surviving partner. If the equity of 
the creditor to go against the estate of the deceased partner is 
founded upon the equity of the surviving partner against that 
estate, it would seem that the equity of the creditor ought not to 
be burred, so long as the equity of the surviving partner con- 
tinues, as that would be to create tliat circuity which it is the 
object of the rule to prevent," It is a familiar principle of 
equity that a creditor may, in collecting his debt, avail himself 
of all the securities and remedies of his debtor. This is the 
doctrine which I think the court would be bound to apply if the 
petitioner was here seeking relief, not against the partnership 
assets, but against the separate estate of James Horner, deceased. 
His present position, I think, gives him higher and stronger 
equities. He is here seeking relief against the fund which, by 
law and by right, stands primarily liable for the payment of his 
debt, and which would ultimately have to pay it, even if it were 
possible for him to collect in the first instance from some other 
source. This being so, I think it would be a denial of justice to 
refuse him relief. 


Borcherliug v. Katz. 

There can be no doubt under the rule laid dowu in Todd v. 
Rafferty's Admr., 3 Stew. Eq. 254-, and in the same case on ap- 
peal, 7 Stew. Eq. 562, that for any payment Ludlura has madoj 
or may hereafter make, in discharge of tlie petitioner's debt, he 
will be entitled to allowance in the final settlement, for it was 
there held that one partner cannot set up the bar of the statute 
against the other in a case where there have been dealings in re- 
spect to the partnership affairs within six years, whether they 
consist in the conversion of assets into money, or the application 
of assets in discharge of liabilities; and that the statute does not 
begin to run against each item from the time it becomes part of 
the account, but if part of the account be within six years, that 
part of it draws after it the items before six years, so as to pro- 
tect them from the operation of the statute. 

The petitioner is entitled to relief. In- my judgment, he 
reasonably deserved to have $4,000 a year for his services, 
amounting in the whole to $19,766.68. Of this sum he has 
already received $15,000, leaving $4,766.68 still due. For this- 
sum, with interest, he is entitled to an order, together with costs. 

Charles Borchebling 


Bernard Katz and Philip Katz. 

1. A principal is bound by the acts of his agent within tlie authority ex- 
pressly given, and also for such acts as it is necessary for the agent to do to 
acconaplish the object of his appointment. 

2. Where a contract is made by an agent, without disclosing his principal^ 
and the other contracting party afterwards discovers the principal, he may 
waive his right to look to the agent and resort to the principal. 

3. And in such a case, parol evidence is admissible to show who the princi- 
pal was, even when the contract is in writing. 

4. But the rule that an unnamed and unknown principal shall stand liable 
for the contract of his agent, does not apply to a demise under seal. The re- 

10 Stew.] MAY TERM, 1883. 151 

Borcherling v. Katz. 

lation between the owner of land and those who occupy it is of a purely legal 
character; and the fact that a lessee takes a lease for an unnamed principal, 
but in his own name, willnot render the unnamed principal liable for the rent. 

On final hearing on bill and answer and proofs taken in open 

Mi\ Thomas N, McCarter, for complainant. 

Mr. Charles F. Hill and Mr. Socrates Tuttle, for defendants. 

Van Fleet, Y. C. 

This is a novel case. The complainant seeks to hold the de- 
fendants for the rent reserved by a lease made by him to other 
persons than the defendants. The special ground on which he 
seeks to do this is, tliat the defendants were the real lessees, that, 
though the demise was made to other persons, they acted simply 
as the agents of the defendants, who were the principals in the 
atfair and entitled to the benefit of the demise. The legal prin- 
ciple on which he rests his right to relief, is that which entitles a 
vendor who, having made a sale to a person whom he believed 
at the time to be the principal in the transaction, is afterwards 

Note— In Kiersted v. Orange and Alex. R. B. Co., 1 Hun 151, 69 N. T. 343, 
a lease under seal, executed by an agent as lessee, in his individual name, and 
which did not purport to be executed on behalf of the principal, was held, in 
an action on the lease and for use and occupation, not binding on the latter, 
••ilthouf,'li the fact of the agency was recited therein, and although it appeared 
bv extrinsic evidence that the lessee acted as agent. The principal occupying 
the premises duiing the term, no assignment of the lease being shown, was, in 
the absence of evidence, presumed to have entered as subtenant. See Diirand 
V. Curtis, 56 N. Y. 7 ; Brewer v. Dyer, 7 Cush. 337 ; Sanders v. Partridge, 108 
Mass. 556; Haywood v. Brunsvnck Build. Soc, L. R. {8 Q. S. D.) 403. 

In Van Schaick v. Third Ave. B. B. Co., 8 Abb. Pr. 380, 30 Barb. 189, 49 
Barb. 409, 38 JS/. Y. 346, it was held tliat a lease taken by A, in trust for a 
corporation thereafter to be formed, creates, on the formation of such corpora- 
tion and upon its receiving an assignment of such lease, with knowledge of the 
terms upon which it was executed and received from the lessor by A, a lia- 
bility in equity, on the part of such corporation, to pay the rent to the lessor. 
See, also, Wright v. Pitt, L. B. {12 Eq.) 408 ; Lorillard v. Lorillard,4 Abb. Pr. 
210 ; Borrell v. jYeite//, 3 Daly 233 ; Morgan v. Yard {Pa.), U Bep. 759; 1 
Addis, on Cont. *213 ; Nicoll v. Burke, 78 N. Y. 580.— R^v. 


Borcherling v. Katz. 

discovered to have been the agent of a third })crson, to recover 
the price of the goods of the principal, though he has in the 
meantime debited the agent. 

The following summary presents all the important facts : On 
the 22d of October, 1877, the complainant made a lease, under 
seal, to Kudolph Heller and William Katz, partners, doing 
business under the name of Keller & Katz, demising certain 
premises, situate on Mulberry street, in the city of Newark, for 
a term of two years and five months from the 1st day of No- 
vember, 1877, at an annual rent of $840, payable monthly in 
advance. The lease was executed by both parties. It gave the 
lessor the right to re-enter for the breach of any covenant on the 
part of the lessees. The lessees covenanted not to underlet, nor 
to assign the lease, or any part of their term, without the written 
consent of the lessor. On the 31st day of October, 1877, the 
defendants, Bernard Katz and Philip Katz, constituted and ap- 
pointed Heller & Katz their attorneys, empowering them to 
carry on and conduct the business then owned by the defendants 
in the city of Newark, and to do and perform all and every act 
and thing whatsoever requisite and necessary to be done in 
carrying on the -business. Heller & Katz took possession of 
the demised premises soon after the commencement of the term, 
and continued to occupy them, jointly, until December, 1878, 
when Heller left. Afterwards Katz continued to occupy them 
alone until April 1st, 1879, when he left. At the time the 
premises were abandoned there was $220 rent in arrear, which 
the complainant attempted to collect by distress, but the defend- 
ants claimed the property seized, and the complainant surren- 
dered it. This claim by the defendants was, in part at least, 
false. They now admit that most of the chattels seized belonged 
to Heller & Katz. The complainant subsequently brought an 
action at law against the lessees for the rent in arrear, but, on 
discovering the power of attorney, proceeded no further. He 
did not know of the existence of the power of attorney until 
May, 1879, some time after he had commenced his action at law. 
For the purpose of putting the case in the most favorable form 
Tor the complainant, I shall assume that the business carried on 

10 Stew.] MAY TERM, 1883. 153 

Borcherling v. Katz. 

on the demised premises was the business of the defendants, and 
that Heller & Katz were the agents of the defendants when 
the lease was executed, although the weight of the evidence shows 
both facts to have been otherwise. 

Some of the complainant's legal propositions are so firmly es- 
tablished as to be beyond dispute. There can be no doubt that 
a prin(3ipal is bound by the acts of his agent within the authority 
expressly given to the agent, and also for such acts as are neces- 
sary and requisite to be done in order that the agent may accom- 
plish the object of his appointment. It is also true, as a general 
rule, that where a contract is made by an agent, without disclos- 
ing his principal, and the other contracting party afterwards 
discovers that the person with whom he dealt was not the principal, 
but that a third person stood behind him as the real party in 
interest, he may abandon his right to look to the agent personally, 
and resort to the principal. And this he may do even when the 
contract is in writing, and is such as is required by the statute of 
frauds to bejn writing, for, in such case, parol evidence, showing 
that an additional party is liable, in no way contradicts the 
written instrument. "It does not deny that it is binding on 
those whom, on its face, it purports to bind, but shows that it also 
binds another, by reason that the act of the agent, in signing the 
agreement, in pursuance of his authority, is, in law, the act of 
his principal." Higgins v. Senior, 8 M. & W. 834-, 844- Parol 
evidence is admissible in such cases to charge the principal, but 
not to discharge the agent. 2 Smith's Lead. Cas. 2^6. But 
where an agent makes a lease in his own name, and executes it 
in his own name, though the rent is reserved to his principal, and 
all the covenants purport to be made with his principal, the 
principal cannot maintain an action on it, for the reason that on 
a deed inter 'partes no person can maintain an action except a 
party to it. Berlieley v. Hardy, 6 B. & C. 355 ; Sheldon v. Dun- 
lap, 1 Harr. 24J5. 

The complainant puts his right to relief against the defend- 
ants, on these legal rules. He justifies his resort to this court 
in this wise: He insists that by force of the legal rules just 
stated, his right to hold the defendants for the rent is clear, but 


Borcherling v. Katz. 

that he*cannot maintain an action at law against them because 
they are not parties to the lease. He says he cannot maintain an 
action for use and occupation, for the statute declares that such 
action can only be maintained where the agreement for the occu- 
])ation of the land is not by deed (Rev. p. 570 § 5) ; he claims^ 
therefore, that his case falls within that principle of equity juris- 
prudence which declares that where there is a right there ought 
to be a remedy, and, if the law gives none, it ought to be ad- 
ministered in equity. This conclusion, I think, may be admitted 
to be sound, provided it is found that the defendants are subject 
to the legal principle on which the complainant mainly rests his 
right to relief. This, in my judgment, is the test question of the 

Neither the researches of counsel, nor my own, have resulted 
in the discovery of a precedent for this action. I think it may 
safely be said that no instauce exists in which some other persot* 
than the lessee named in a lease, under seal, has been held liable 
in equity for the rent reserved by the lease, on the ground that 
he was the undisclosed principal in the transaction, and liable, as 
such, by force of the rule which renders an unnamed and un- 
known vendee liable for the price of goods purchased by him 
through his agent. The only case to which my attention has 
been, directed, which can be regarded as authority for the com- 
plainant's position, is Clavering v. Westley, 3 P. Wms. Jfi^. 
There the plaintiff made a lease of a coal mine to A for twenty- 
one years. A then declared a trust of the lease for five persons. 
These five persons entered into possession, worked the mine, and 
took its products, but some time after, the lessee becoming in- 
solvent, and the mine unprofitable, they abandoned it. The 
lessor then brought his bill against the lessee and cestuis que trust 
to compel them to pay the rent in arrear, and also the accruing 
rent, insisting that though the lease was made to A, yet it being 
declared by him to be in trust for the five persons, as tenants in 
common, it was the same thing as if it had been made to them 
originally. The master of the rolls (Sir Joseph Jekyll) held 
that the cestuis que trust were not liable, and dismissed the bill. 
His reason was this : That iwasmuch as the plaintiff had chosen 

10 Stew.] MAY TERM, 1883. 155 

Borcherling v. Katz. 

to let the mine to A alone, and to accept his covenant for the 
rent, he should be restricted to the security he had voluntarily 
accepted. Having accepted the covenant of the lessee, his reme- 
dies were limited to that. Lord Talbot, on appeal, reversed this 
decree, and decreed that the lessee was primarily liable, but in 
case the rent could not be collected of him, then that each of the 
five cestuis que trust should pay one-fifth of the rent in arrear, 
and also that which should afterwards accrue. The report of 
this case, on appeal, is extremely meagre and unsatisfactory. The 
conclusion of the lord chancellor is simply given, without more. 
No reasons are given, and we have not a even a hint of the legal 
rule which it was supposed the judgment of the master of the 
rolls had overlooked or disregarded. 

But this case has since been overruled. It is no longer an 
authority in the court which decided it ; on the contrary, its doc- 
trine has been repudiated. Lord Cran worth, in Walters v. 
Northern Coal Mining Co., 5 De G. M. & G. 629, after express- 
ing regret that the grounds of Lord Talbot's decision are not 
given, says : '' If he is to be taken as laying down a general 
proposition that whenever a legal lessee is trustee for another, the 
rent becomes an equitable debt from the cestid que trust, to be re- 
covered by bill in this court, I must, with all respect, say that i& 
a proposition to which I cannot assent. I rest my judgment on 
the ground that no such general principle exists." Lord Cran- 
worth's discussion of the question on which the decision here 
must turn, is so exhaustive and unanswerable that this case may 
be decided by a single quotation from his opinion. He says : 
"The rights of a landlord against those who occupy his land are 
legal rights, well defined and understood. Where a tenant is 
holding under a demise at a stipulated re«t, the landlord has his 
remedy by distress or action of debt. If the lessee assigns to 
another, the landlord has against the assignee, so long as he re- 
mains in possession, the same rights which he had against the 
original tenant. If instead of assigning his interest, the lessee 
creates a tenancy under himself, then the original landlord may 
either distrain on the under-tenant, or may bring his action of 
debt or covenant, as the case may be, against the original lessees. 


Borcherling v. Katz. 

* * ♦* The object of the present bill is to give to the land- 
lord an additional remedy in case the legal lessee is a mere trus- 
tee for others, who have in fact occupied the lands, to enable tlie 
landlord, in such a case, to treat tiie cestuis que trust as equitable 
debtors for the amount of the rent. But I can discover no 
principle to warrant such a proposition. The relation between 
the owner of the land and those who occupy it is of a purely 
legal character. The circumstance that there is a relation of an 
equitable character subsisting between the lessee and the actual 
occupier cannot give any equitable rights to one who claims by a 
title ])aramount both to the trustee and the cestui que tnist. 
Whatever be the relation between the lessee and the occupier, the 
landlord's rights are unaffected. He has his legal remedy by 
distress, or he may bring his action against the lessee." The 
same doctrine, substantially, was enforced by Lord Justices 
Knight Bruce and Turner in Cdx v. Bishop, 8 De G. M. & G. 
Slo. An attempt was made there to hold the equitable assignee 
of a lease for the rent which accrued during the time he was in 
the actual possession and enjoyment of the demised premises. 
Lord Justice Knight Bruce said : " They [possession and enjoy- 
ment] do not, in ray judgment, create a contract between the 
lessor and the equitable assignee which can give the former a title 
to the relief prayed against the latter. The possession by itself 
would not, nor would the equitable assignment by itself, have 
given the lessor the equitable right Avhich he is here asserting 
against the lessee; neither, I think, can the union of the two." 
It is quite impossible to distinguish these cases from the one 
under consideration. They are, in all material and essential 
points, identical, and must all be governed by the same general 
rules of justice. The fact that the complainant has chosen to 
describe the relation existing between the defendants and the les- 
sees in this case, as principal and agent, and that in the cases just 
referred to the relation which existed between the lessees and the 
persons sought to be ciiarged with the rent was spoken of as trus- 
tee and cestuis que trust, is without the least significance in legal 
estimation. The difference is in terms or names, and not in the 
legal character of the relation. The relation, in principle and 

i.O Stew.] MAY TERM, 1883. 157 

Ely V. Crane. 

substance, is the same, whether it is described by one set of terms 
or the other, and its rights and obligations are the same, whether 
called by one name or the other. In every instance in which an 
agent takes title in his own name 'to property purchased for his 
principal, he makes himself, in equity, the trustee of his princi- 
pal. And if, in the transaction under consideration. Heller & 
Katz were the agents of the defendants, then in taking the lease 
in their own names they made themselves the trustees of the de- 
fendants, and the more accurate description of the relation of the 
parties, in that case, would be trustee and cestui que trust, rather 
than principal and agent. 

The precedents are against the complainant. I think reason 
is also against him. No reason of justice or policy can be sug- 
gested why landlords should have the additional remedy sought 
in this case. A creditor of that kind is already highly favored 
by the law. He may distrain either against the tenant or the 
under-tenant; if the person in possession fails or refuses to pay 
the rent in arrear, the landlord may dispossess him, and thus re- 
cover the possession of the premises, and in addition, he may use 
the only means within the reach of ordinary creditors — bring his 
action at law. If with these ample remedies at his command he 
fails to secure the payment of his rent, it may be safely con- 
cluded it is not for the want of adequate remedies. 

The complainant's bill must be dismissed, with costs. 

Enoch A. Ely 


Egbert C. Crane and John M. Crane. 

1. When concurrent jurisdiction exists in matters of account, equity will 
not withdraw the litigation from a common law court, unless it clearly appears 
that such a course is necessary, in order that complete justice may be done. 

2. But it is not necessary that the case should involve an equitable element 
to warrant equity in assuming exclusive jurisdiction. If the accounts are so 


Ely V. Crane. 

intricate^or complicated, that they cannot be examined and tried at Nisi Prius 
with the care and deliberation necessary to insure an accurate result, equity 
may take jurisdiction, though an action at law was pending when the suit in 
equity was brought. 

3. In deciding whether an injunction shall be dissolved or not, the court 
must cunsider the whole case, and, though it may doubt whether the case made 
by tlie bill, in an action for an account, is sufficient to justify the retention of 
the injunction and changing the furum of litigation, yet if the answer shows 
that the case embraces an equity which a court of equity can alone adminis- 
ter, the chancellor should retain the injunction and assume exclusive juris- 

4. A defendant in a suit at law, who asks a court of equity to assume juris- 
diction of the litigation, on the ground that the remedy at law is inadequate, 
is not obliged to give security merely because be asks for the change. 

On motion to dissolve, heard on bill and affidavit and answer 
and affidavit. 

Mr. H. C. Pitney, for motion. 

Mr, S. M. Dickinson, contra. 

Van Fleet, V. C. 

This is a motion to dissolve an injunction. The question it 
raises is, whether this court shall take jurisdiction of the ques- 
tions at issue between the parties, or let them be determined at 
law. The complainant, after tlie defendants had sued him aj; 
law, filed his bill in this court, asking to have the defendants 
restrained, and the account between himself and the defendants 
settled here, on the single ground that the accounts were so com- 
plex that they could not be examined and tried at Nisi Prius with 
any certainty that an accurate result would be reached. An in- 
junction was granted. The defendants have answered, and now 
move a dissolution of the injunction. 

The case made by the bill discloses no equitable element which 
would give this court exclusive jurisdiction. The case is one 
where concurrent jurisdiction exists, and either tribunal may 
properly take jurisdiction of it. When that is the case, and a 
common law court has already jurisdiction, when the aid of this 
court is sought, it is not the practice of this court to withdraw 

10 Stew.] MAY TERM, 1883. 159 

Ely V. Crane. 

the litigation from the common law tribunal, unless it is clearly 
necessary to do so in order that justice may be done. But it 
must not be understood that, in cases of this class, the jurisdic- 
tion of this court is limited to accountings involving an equitable 
element. Though the accounts consist of matters purely legal 
in their character, so that each item, on both sides, would be the 
proper subject-matter of an action at law, or of legal set-off, 
yet if the accounts are so complicated that they cannot be ex- 
amined and tried at Nisi Prius with the care and deliberation 
necessary to reach an accurate result, this court may rightfully 
assume jurisdiction, even after an action at law has been com- 
menced. The rule on this subject is thus stated by Mr. Kerr: 
*' If a court of law is competent to deal with the case, equity 
will not interfere. If, on the other hand, the case is such that 
a court of law has no adequate means of dealing with the mat- 
ter, equity will entertain jurisdiction." Kerr on Inj. 58. 
Equity sometitiies takes cognizance of matters of account from 
the very necessity of the case, as where the accounts are so com- 
plicated that a court of law cannot examine them at Nisi Prius, 
with the care necessary to reach an accurate result. Seymour v. 
Long Dock Co., 5 C. E. Gr. 396. 

Judged by this rule, I think there is great reason to doubt 
whether the case made by this bill is suflScient to justify the in- 
terference of this court. The complainant says the accounts are 
so complicated that they cannot be stated and settled at law; but 
this is not enough. The court cannot accept his opinion ; it 
must have facts. It is a fundamental rule of equity pleading, 
to be observed in all cases, that a bill must state facts sufficient 
to show a case within the jurisdiction of the court; if it fails to 
do so, no relief can be given. In a case in which a change of 
jurisdiction is sought on the ground of intricacy or complexity, 
the accounts must be laid before the court, or their nature, char- 
acter and extent so far disclosed that the court may see and 
judge for itself whether a proper case for the exercise of its 
jurisdiction exists or not. The bill in this case simply disputes 
certain items with which the defendants have charged the com- 
plainant in the bill of particulars annexed to their declaration, 


Ely V. Crane. 

and alleges that the complainant is entitled to certain credits, in 
addition to those given to him in the bill of particulars. li 
presents the familiar case where the debtor claims he has been 
charged with what he has not had, and has not received all the 
credits he is entitled to. The items disputed are few in num- 
ber, and the issues to be determined on their allowance or dis- 
allowance are such as the law courts try almost every day. The 
credits claimed are for moneys paid, either to the defendants or 
to some other person for them, and for goods sold. The ques- 
tion whether the complainant is entitled to them or not, pre- 
sents the simplest sort of an issue — just such an issue as the 
common law courts deal with more frequently than any other 
tribunal. If the case stood on the bill alone, I should have 
great difficulty in finding any satisfactory reason for the reten- 
tion of the injunction. 

But the answer presents a condition of facts which, I think, 
renders it entirely clear that the injunction should be retained, 
and that this court should take jurisdiction of the matters in 
dispute between the parties. Indeed, in view of the facts ex- 
hibited by the answer, it is obvious full and complete justice 
can be done nowhere else. In deciding whether an injunction 
shall be dissolved or not, the court must consider the whole case ; 
not simply the case shown by the bill, but the case as it is shown 
by the whole record. And even in a case where the answer so 
completely denies the equity of the bill, that if there was noth- 
ing else before the court but the bill and answer, the court would 
be required to order a dissolution, yet if the complainant has 
taken his evidence, though the defendant has not yet had time to 
take his, and it appears that the complainant's evidence so far 
supports the equity of the bill that, on a fair consideration of 
the whole case, the injunction ought not to be dissolved, the 
court will not dissolve it. Christie v. Griffing, 9 C. E. Gr. 76. 

The main dispute between the parties is whether a sum of 
about $4,000, paid by the defendants to the complainant, was 
passed over under such circumstances as entitle the defendants to 
charge the complainant with it in the accounting. They say the 
complainant obtained it by fraud ; that he induced them, by 

10 Stew.J may term, 1883. 161 

Ely V. Crane. 

fraud, to join him in the purchase of a mortgage, representing 
that it was a first lien, when, in fact, it was the second; that it 
was a first-class security, when, in truth, it was of trifling value; 
and that it belonged to a third person, when, in reality, it was 
his own ; and that, subsequently, when the mortgaged premises 
were sold, under a decree made in a suit founded on the first 
mortgage, they purchased them for the complainant, at his in- 
stance, and according to special direction given by him. A con- 
veyance was afterwards made to them, and they say they now 
hold the lands for the complainant. Now, taking this to be true, 
is it not manifest that the case embraces an equity which this 
court alone can recognize and administer? If the injunction is 
removed, and the defendants succeed in recovering a judgment 
for the amount they claim in this transaction, they will be at 
liberty to enforce their judgment to the last penny, notwithstand- 
ing the fact that they hold the lands which stood pledged for the 
payment of the security, which, they say, they were fraudulently 
induced to purchase. This certainly would not be just. The 
duties of the parties, in equity, are reciprocal ; they spring from 
the same transaction, and when the complainant returns the 
money he should have the land. The defendants would, per- 
haps, be required at law to show, in order to establish a right 
to recover, that they had offered to restore the consideration they 
had received, but what they received for their money was not a 
title to the mortgaged premises, but the mortgage itself. They 
acquired title to the mortgaged premises by virtue of a decree 
founded on the first mortgage, and by means entirely dehors the 
transaction which the defendants seek to invalidate. I take it to 
be indisputable that the court in which the action at law is pend- 
ing is without the least color of authority to exact, as a condition 
on which the defendants shall be entitled to recover, that they 
shall convey the mortgaged premises to the complainant. Not 
so, however, here. If, on final hearing, this court should be of 
opinion that defendants were entitled to have the sale of the 
mortgage set aside, and the complainant charged with tiie moneys 
paid therefor, and that the defendants took the title of the mort- 
gaged premises for the complainant, by his direction, the decree 



Ely V. Crane. 

to be niade would undoubtedly provide either that, on the pay- 
ment of the amount due, the defendants should convey to the 
complainant, or that the mortgaged premises should, in some ap- 
propriate method, be applied in discharge of the complainant's 
debt to the defendants. The case as presented by the defend- 
ants' answer, possesses equitable elements which it is plain a 
court of law can neither recognize nor administer, and which, it 
is equally clear, if not taken into consideration, in deciding and 
adjusting the rights of the litigants, full and complete justice will 
not be done. This court is therefore bound, according to a well- 
established principle, to take jurisdiction, because the remedy at 
law is inadequate. The motion to dissolve is denied. 

The defendants further insist that if the injunction is retained, 
the complainant should be required either to give security for 
what may be found to be due, or to allow judgment to be en- 
tered, execution to be issued and a levy taken, the judgment and 
levy to stand as security for what may be found to be due. 
Facts might exist which would entitle the defendants to the pro- 
tection they ask, but they have no right to it merely because the 
complainant has asked to have the jurisdiction of the suit changed. 
To entitle themselves to such protection they must show that they 
need it, or they must show such a case of danger as to render in- 
demnity a reasonable precaution. They do allege they are in 
danger, but they put in their allegation in this extremely indefi- 
nite form : 

** They say that the complainant ie himself heavily in debt, and that, as they 
are informed and believe, most of his lands are heavily mortgaged, and they 
really fear that if the recovery of judgment against him shall be deferred for 
any considerable time, they will be in danger of losing their debt." 

An allegation stated in this form presents no ground for ex- 
tending the protection asked. The answer is verified simply by 
an aflSdavit in the common form, the defendants merely affirming 
that the matters and things set forth in the answer, so far as they 
relate to their own acts, are true, and so far as they relate to the 
acts of others, they believe them to be true. A verification in 
this form affirms nothing except that the defendants are troubled 

10 Stew.] MAY TERM, 1883. 163 

Denise's Executors v. Denise. 

by fears. There is nothing before the court which shows that 
the defendants will be put in the least peril, or subjected to the 
slightest hazard in changing the jurisdiction of the suit. They 
are not entitled to security on the case as it now stands. 

Executors of John S. Denise, deceased. 


Mary C. Denise et al. 

1. A legatee indebted to his testator must pay his debt, or his legacy may be 
applied in discharge of his debt. 

2. Under the twentieth section of the statute of wills, the substituted legatee 
takes subject to the equities existing against the primary legatee, and if the 
primary legatee is indebted to the testator's estate, the substituted legatee will 
only take so much of the legacy as is left after the debt is paid. 

3. The statute was designed simply to relieve from hardship, and should 
not, by construction, be extended beyond the purpose of its enactment. 

4. A bequest to A, with a limitation over in case A should die without 
iearing issue, Tests the sum given absolutely in A if he is alive when distri- 
bution is made ; and the gift over in such a case will only take effect in the 
event of A's death before distribution. 

5. A devise or bequest may arise from implication. Any words in a will 
which manifest an intention to create or give a legacy, are sufficient for that 

6. The implication on which such a bequest must be founded must be a 
necessary one, not natural necessity, but so strong a probability of an intention 
to give must appear, that an intention contrary to that which is imputed to the 
testator, cannot be supposed to have existed in his mind. 

7. A construction in favor of a bequest by implication should never ba 
adopted except in cases where, after a careful and full consideration of the 
whole will, the mind of the judge is convinced that the testator intended to 
make the bequest. 

On final hearing on bill, answer and proofs taken before a 


Demise's Executors v. Denise. 
Mr. John J. Ely, for complainants. 
Mr. Frank P. McDermott, for defendants. 

Yan Fleet, Y. C. 

The object of the bill in this case is to procure a construction 
of the will of John S. Denise, deceased. The principal question 
which the parties ask to have decided is, whether the legatee 
substituted by the twentieth section of our statute concerning 
wills, in Case the legatee named in the will dies during the life 
of the testator, takes subject to the equities which would have 
existe'd against the primary legatee had he survived the testator, 
or free and clear of them. 

The facts are these : The testator made his will on the 2d of 
April, 1873, and died on the 31st of December, ]880. He 
added a codicil on the 28th of April, 1879, by which he made a 
specific bequest to one of his grandchildren, and appointed two 

Note. — Where a grandchild claims his father's share in the distribution of 
his intestate grandfather's estate, debts due from his father to his grandfather 
must be deducted therefrom, Earnest v. Earnest, 5 Rawle 213 ; Girard Ins. Co. 
V. Wilson, 57 Pa. St. 182; see Calhoun v. Crossgrove, 33 La. Ann. 1001. 

The rule applies to advancements, Proud v. Turner, 2 P. Wms. 560 ; MpBae 
T. McRae, 3 Bradf. 199 ; see Skinner v. Wynne, 2 Jones Eq. 4^ ; Person's Ap- 
peal, 74 Pa. St. 121 ; Brown v. Taylor, 62 Ind. 295. 

If a legacy be given to A for life, with remainder to his children, the esecu- 
tors cannot set off against the principal of the legacy a debt due from A to the 
testator, VoorheeR v. Voorhees,, 3 O. E. Or. 223. Unless there he an express 
direction to deduct such debt, Youmans v. Youmans, 11 C. E. Gr. 143 ; see 
Scott v. Nelson, 3 Porter 452. 

The grandchildren take under the will of their grandfather, and conse- 
quently their father cannot, by alienation or bequest, afl'ect their interest. New- 
hold V. Pritcheit, 2 Whart. 4^ ; but see Johnson v. Johnson, 3 Hare 157 ; Jones 
V. Hensler, L. R. {19 Ch. Div.) 612 ; the widow of the father takes no interest,^ 
Hamlin v. Osgood, 1 Red/. 409 ; Jones v. Jones, 37 Ala. 646 ; Schneiderw. Koester, 
54 Mo. 500; but see Eager v. Furnivall, L. R. {17 Ch. Div.) 115; Fletcher v. 
Wormington, 24 Kan. 259 ; nor the grandmother, Journell v. Leighton, 49 Iowa. 
601; nor the father's creditors, Cook v. Munn {N. Y. S. C), 23 N. Y. Reg. 
1133; Battle v. House, 4 Lea 202. 

A direct residuary bequest to grandchildren is not subject to a set-off of a 
debt due from their father to their grandparent, Thatcher v. Cannon, 6 Bush 
S4I; see University Appeal, 97 Pa. St. 187. Nor is a legacy to the children 
of a deceased son a satisfaction of a debt due from the father to such son, Lad- 
eon V. Ward, 1 Desauss. 314. — Rep. 

10 Stew.] MAY TERM, 1883. 165 

Denise's Executors v. Denise. 

of his sous as executory, in addition to the two he had appointed 
by his will, but made no other change. He gave his son Sidney 
C. a legacy of $3,000, and to his son Rusha he gave a legacy 
of $2,000. He made other bequests which need not be particu- 
larly mentioned, and then authorized his executors to sell all his 
property, both personal and real, at private or public sale, as they 
might deem most advisable, and after his debts, funeral expenses 
and legacies were paid, directed that the residue should be dis- 
posed of as follows : 

" I do order and direct that the residue of ray estate be equally divided be- 
tween my following-named children, share and share alike ; that is lo say, to 
my sons, Tunis, William T., John H., Sidney C, Kusha and David D. Denise, 
and my daughter, Sarah Jane Jackson; and in case any of my said seven 
children last named should die without leaving lawful issue, then, in that case, 
I order that the share of such as may die without issue, to be divided amongst 
the survivors of the above-named seven of my children, share and share alike." 

The testator's son Sidney died on the 3d of September, 1875, 
more than five years before his father. He left two children, who 
still survive. At the time of his death he was indebted to his 
father, on promissory notes, in a sum exceeding $3,200. He 
died insolvent. The testator's son Rusha also died in his 
fiither's lifetime. His death occurred on the 14th of December, 
1880, less than three weeks before his father's death. He left 
a child who is also still living. He was also indebted to his 
father, at the time of his death, on promissory notes. His debt 
exceeded $1,200, and he, too, died insolvent. The question the 
executors ask to have decided on these facts, is this : whether 
the person whom our statute, in such an event as that which has 
happened in this case, puts in the place of the legatee named in 
the will, takes subject to the debts of the primary legatee to the 
testator's estate. 

It is a principle founded in sound reason and justice, that a 
legatee indebted to the testator under whose will he is entitled 
to a legacy, shall accept his debt in payment of his legacy, or his 
legacy may be applied in discharge of his debt. Vice-Chancel- 
lor Shadwell says the proper answer to be made to a legatee 
-who asks for the payment of his legacy without first paying his 

166 CASES IN CHANCERY. [37 Eq.. 

Demise's Executors v. Denise. 

debt, even in a case where the remedy at law for the collection 
of his debt is barred by the statute of limitations, is, "you ask 
for a portion of the assets of the testator, but you are yourself a 
debtor to the testator's estate, and his assets are diminished pro 
tanto by your default ; it is against conscience that you should 
take anything out of the estate until you have made good what 
you owe to it." Courtenay v. Williams, 3 Hare 539, 653. 

There can be no doubt, if the legatees named in this will were 
here in person, asking for the payment of their legacies, the court 
would be bound, by well-settled principles, to decree ihat their 
legacies were paid to the extent that they were indebted to tlie 
testator. The cases on this subject are numerous. I shall on-ly 
cite those decided by this court. Snyder v. Warhasse, 3 Stock. 
463; Voorhees y.Voorhees's Exrs., 3 0. E. Gr. 223; Brohaw v. 
Hudson's Exrs., 12 C. E. Gr. 135. 

But for our statute, it is clear the legacy of $3,000 given to 
Sidney, and that of $2,000 given to Rusha, would have lapsed, 
and fallen into the testator's residuary estate and passed as part 
of it. But our statute provides that when a legatee, being a 
child or other descendant of the testator, shall die during the 
life of the testator, leaving a child or children, who shall survive 
the testator, the legacy shall not lapse, but the estate bequeathed 
shall vest in such child or children, in the same manner as if such 
legatee had survived the testator and had died intestate. Rev. p. 
124.6 § 20. Statutes similar in character have been passed in 
many of our sister states, and while many questions have arisen 
under them, I find but a single instance in which the question 
now before the court has been decided. That case arose under a 
statute of Kentucky, which provides that if a devisee or legatee 
dies before the testator, leaving issue who survive the testator, 
such issue shall take the estate devised or bequeathed, as thfr 
devisee or legatee would have done if he had survived the tes- 
tator. The question was there, as it is here, whether the legatee 
substituted by statute took subject to the equities which would 
have existed against the primary legatee, had he survived the 
testator, or free from them, and the court held that he took free 
from them. That result was reached by drawing a very subtle^ 

10 Stew.] MAY TERM, 1883. 167 

Denise's Executors v. Denise. 

and, as I thiok, unwarranted distinction between the position of 
the primary legatee, as a beneficiary under the will, and his 
position as a debtor to the testator's estate. The subject in dis- 
pute in that case was a legacy of the one-tenth of the testator's 
residuary estate. The court say the primary legatee, if he had 
survived the testator, would have been entitled to his one-tenth, 
without encumbrance or charge, because it was not encumbered 
or charged by the will, but they admit that when he came to 
ask for payment, the executors would have had a right to retain 
so much of his legacy as would have been required to pay his 
debt, " but this right," the court argue, " would have been 
founded upon equities wholly extrinsic, and having no connec- 
tion with the will, or with any right derivable from it; so that 
it could not, with any propriety of speech, be said that the lega- 
tee, if he had survived, would have taken the estate bequeathed, 
subject to fclie payment of his debt to the testator." Carstin v. Car- 
son, 1 Mete. 300. I cannot concur in this reasoning. It appears 
to me to be unsound in "its main premises. The law of the land 
constitutes a part of every will, and the rights of every legatee 
must be defined, measured and enforced by its rules. The law 
says a legatee indebted to his testator must pay his debt, or his 
legacy may be applied in discharge of his debt. That being the 
standard by which the rights of a legatee thus situated must be 
measured, I cannot regard it as true, either in fact or in logic, 
that he takes his legacy free from his debt ; on the contrary, I 
think the fact is, that his legacy is so absolutely subject to the 
payment of his debt, that if his debt happens to exceed his 
legacy, he cannot collect a penny of his legacy. 

Besides, the construction adopted in the case just referred to 
entirely overlooks, as it seems to me, the imperfection in our 
legal system which this statute was intended to remove. As the 
law stood before the enactment of the statute, if a father made 
a will, distributing his estate as he thought proper among his 
children, and one of them happened to die in his lifetime, leav- 
ing a family of children, unless he was wise enough to provide 
in his will for such an event, the children of his dead child 
would get nothing, and his children who survived him would 


Denise's Executors v. Deiiise. 

get his whole estate. This condition of the law sometimes re- 
sulted iu cases of great hardship, and transmitted a part of a 
testator's estate in a direction he never intended it should go, and 
where, in justice, it ought not to have gone. The statute was 
passed to remedy this imperfection, and to relieve grandchildren 
from the danger of sucii a misfortune. It meant simply to put 
them in the place of tlieir parent, in such a contingency, and to 
give them a right to take what their parent would have taken if 
he had survived the testator. But it is quite manifest, I think, 
that it was not intended to raise grandchildren to a plane higher 
than that which their parent could ever have occupied, or to 
give them rights as against the other beneficiaries under the will, 
which the person in whose place they are substituted never 
would have been permitted to assert. The statute-made legatee 
is a mere substitute; he is thrust, by force of the statute, in 
the place made vacant by the death of the legatee named in the 
will, and is given what, but for his death, wosld have gone to 
the primary legatee. He takes the primary legatee's place, as a 
beneficiary under the will, and should, according to the ordinary 
rule prevailing in like cases, bear his burdens, and be subject to 
the ec[uities which would have existed against him. The statute 
was designed simply to relieve from a hardship, and should not, 
by construction, be extended beyond the purpose of its enact- 
ment. It is in derogation of the right of testamentary disposi- 
tion ; it makes persons legatees not designated as such by the 
testator ; it is true this is done on the theory which is probably 
correct in the great majority of instances — that if the testator 
had foreseen the condition of affairs actually existing at the time 
his will takes effect, he would have made the same persons lega- 
tees that the statute makes, but it is very obvious that such a 
statute should not be enlarged or extended by construction. Stat- 
utes must always be construed so as to give effect to the intent 
and object of the legislature, and this one, I think, must be so 
read as to cure the mischief it was intended to remedy ; that is, 
it should be held to put the substituted legatee in the place of 
his parent, and to give him just what his parent would have been 
entitled to, subject to the same equities that his parent would 

10 Stew.] MAY TERM, 1883. 169 

Denise's Executors v. Denise. 

have been subject to, and bound by the same rules of justice that 
his parent would have been bound by. He must take in the 
same manner that his parent would have taken. This, I am 
ijonviuced, is the meaning of the statute, and it must, therefore, 
be held that the complaina-nts have a right, as against the sub- 
stituted legatees, to retain the whole of the legacies of $3,000 
and ^2,000 in part payment of the debts due by the primary 
legatees to the testator's estate. 

The right of the issue of Sidney and Rusha to two-sevenths 
of the residuary estate, stands, I think, on an entirely different 
footing. The testator gives to each of his seven children an 
equal share of his residuary estate, and then says : 

" In case any of my said seven children last named should die without 
leaving lawful issue, then, in that case, I order that the share of such as may 
die without issue, to be divided amongst the survivors of the above-named 
seven of my children, share and share alike." 

There can be no doubt, according to the rule held in this 
state, that, under a bequest expressed in this form, the legatees 
take absolutely, if they survive to the time of distribution, and 
that the gift over will take effect only in the event of the death 
of the first legatee before distribution. The chancellor, in a 
recent case, has construed a will in all respects, so far as this 
question is concerned, identical with the one now under con- 
sideration, and I need, therefore, on this point, do no more than 
cite his opinion. Baldwin v. Taylor, 10 Stew. Eq. 78. No 
bequest, it will be observed, is made to the survivors unless the 
first legatee dies without leaving lawful issue. It is clear, 
then, the survivors do not take. The contingency on which 
they were to take has not happened. Where, then, did the 
testator intend the shares of such of his children as should die 
before distribution, leaving issue, should go? It is plain that 
he did not intend to die intestate as to any part of his estate. 
He made careful provision for the disposition of the whole of 
it, and even attempted to provide for contingencies which seemed 
possible to his mind. A devise or bequest may arise from im- 
plication. Any words in a will which manifest an intention to 


Denise's Executors v. Denise. 

create er give a legacy, are sufficient for that purpose. In de- 
ciding whether a legacy is given by implication or not, conjecture 
must not be taken for implication. To create a bequest in that 
way, the implication on which it is founded must be a necessary 
one; not natural necessity, but so strong a probability of an in- 
tention to give must appear, that an intention contrary to that 
which is imputed to the testator, cannot be supposed to have 
existed in his mind. A construction in favor of a bequest by 
implication, should never be adopted except in cases where, after 
a careful and full consideration of the whole will, the mind of 
the judge is convinced that the testator intended to make the 
bequest. 3IcCoury's Executors v. Leek, 1 McCart. 70.; HoUon 
ads. White, S Zab. S30. 

Applying this test to the case in hand, I think it is quite ap- 
parent the testator intended that the ia-'ue of any of his children 
who should die before distribution, should take that share of his 
residuary estate which his will gave to their parent. Indeed, 
the implication in that regard is not only highly probable, but 
comes very near absolute certainty. Harman v. Dickenson, 1 
Bro. C. C. 91, is directly in point. A testator made a bequest 
to bis two daughters, and directed that if either should die with- 
out issue the bequest should go to the survivor. One of the 
daughters married and had issue, ai>d afterwards died, leaving 
her issue surviving. And afterwards the other died. Lord 
Thurlow decided that the bequest went to the issue of the mar- 
ried daughter, though her sister survived her. This result, it is 
obvious, could only be reached on the theory that there was an 
implied bequest to the issue. 

In my judgment, ther£ is an implied bequest in this will to 
the issue of such of the residuary legatees as should die before 
distributioM ; and, consequently, I hold that the issue of Sidney 
and Rusha each take the one-seventh of the residuary estate in 
their own right, by force of a bequest directly to them, and free 
from any equities existing against their parents. 

10 Stew.] MAY TERM, 1883. 171 

Albright v, Teas. 

Andrew Albright and Edwin R. Cahooxe 


Andrew Teas. 

1. A non-patentable invention or improvement is not the subject of an ex- 
clusive right or property, but is common property, open to all the world. 

2. A covenant by which the covenantor restrains himself, generally and 
absolutely, without limitation as to time or place, from exercising his skill 
and knowledge, is repugnant to public policy and void. 

a. An injunction should never be granted in a doubtful case. 

On hearing on bill and affidavits, and order to show causp 
and the affidavit of the defendant in answer. 

Jlr. A. Q. Keashey and Mr. Clayton, for complainants. 

Mr. Philemon Woodruff, for defendant. 

Van Fleet, V. C. 

The complainants seek to have the defendant restrained from 
carrying on any business relative to saddletrees or coach-pads, 
founded, in any way, upon any improvements devised by him, 
or upon any ideas with respect to the manufacture of such arti- 
cles, originating with him or derived from his knowledge and 
experience. They put their right to an injunction on the ground 
that the defendant has bound himself, not only to assign to them 
all his patents and patentable improvements, but to devote all 
his skill and knowledge to the business in which he and they 
are jointly interested ; he in the royalties and percentages to be 
paid to him on articles manufactured by them under his patents, 
and they in the profits to be made in the use of his patents. The 
covenant on which this claim is founded, after providing that 
the defendant shall assign to the complainants all patents then 
held by him, and such as should thereafter be issued to him, 
reads as follows : 


Albright v. Teas. 

"And that whenever he shall invent any other improvements relating 
thereto, and for improvements in the construction of gig-saddles and coach- 
pads for harness, he will, witiiout cost or the payment of any moneys to him, 
exftcute, or cause to be executed, all proper instrumeots in writing with which 
to procure letters patent therefor, and will fully execute and deliver assign- 
ments therefor, for such inventions, to the said Edwin R. Cahoone and Andrew 
Albright, to be held and enjoyed by them, their heirs and legal representa- 
tives and assigns." 

By force of this covenant the complainants are entitled to all 
the defendant's patents and to all patentable improvements he may 
invent. So far, I think, its meaning is clear. As to non-pat- 
entable improvements, I think the legal effect of the covenant is 
equally certain. They are not the subject of an exclusive right 
or property, but are common property, open to all the world, and 
the complainants have the same right now to use them that they 
would have, had they been formally assigned to them. An as- 
signment would add nothing to their right nor exclude others 
from the exercise of the same right. 

But the complainants contend that the court, in trying to as- 
certain the meaning of this covenant, should have regard to the 
relations of the parties and the object they had in view in making 
the contract, and they insist that if it is read in this way, it will be 
seen that there was a mutual understanding that the defendant 
should, for all the future, devote all his skill and knowledge 
exclusively to the business in which he and they were jointly 
interested, and not engage in any business which might bring 
him in competition or rivalry with them. It is certain that no 
such understanding or purpose is plainly expressed ; on the con- 
trary, I think it is quite clear that the thing which was in the 
minds of the parties, and which the one expected to get and the 
other intended to give, was patentable inventions or improve- 
ments, for it will be observed that the covenant plainly declares 
that the first thing the defendant shall do, after inventing an 
improvement, is to execute " all proper instruments in writing 
with which to procure letters patent," and he then, by the sen- 
tence immediately following, binds himself to execute and de- 
liver assignments to the complainants /or such inventions. Mani- 
festly, the improvements which were in the minds of the parties 

10 Stew.] MAY TERM, 1883. 173 

Albright v. Teas. 

were such, and such only, as could be called inventions and were 
patentable. It is difficult for me to see how, in the face of this 
language, the covenant can be construed to embrace anything but 
patentable improvements. The bill does not aver, nor is there 
anything in the case to show, that the improvement which the 
defendant claims to have made, and which the complainants seek 
to have him prohibited from making and selling, is patentable. 
The defendant swears that it is not, and I suppose his oath in 
that regard must forever preclude him from making a successful 
application for a patent. 

Moreover, if the covenant would bear the construction which 
the complainants put upon it, I think it is quite obvious, unless 
the parties stand to each other in the relation of copartners, that 
its violation cannot be made the basis of judicial restraint. If 
they are right, the defendant has restrained himself, generally 
and absolutely, without limitation as to time or place, from exer- 
cising his talents and skill in making gig-saddles and coach-pads. 
According to the uniform course of decision, such a contract is 
void, on account of its repugnancy to public policy. It prevents 
competition, and thus enhances prices, and exposes the public to 
all the evils of monopoly. Alger v. Thacher, 19 Pieh. 51 ; 
Kerr on Ivj. 507. 

There is nothing in the contract which will warrant the court 
in declaring that the parties are copartners, nor can it be justly 
said that their relations so nearly approach those of persons stand- 
ing in that relation, that they should be held, as between them^ 
selves, subject to the duties and obligations of copartners. 

As a general rule a suitor who asks for an injunction must 
show a clear right. An injunction should never be granted in a 
doubtful case. Looking at this case from the complainants* 
standpoint, and remembering that they ask to have the defendant 
enjoined from exercising his skill and knowledge in the prose- 
cution of a lawful business, I think it is manifest, that their 
right is so extremely doubtful that an injunction should not go. 

The complainants' application must be denied, with costs. 


Rusling V. Bray. 

William H. Rusling, administrator of Gershom Rusling, 



Stacy B. Bray et al. 

1. The court cannot approve of suspending the examination of witnesses 
before the master, in order to have s'ettled whether or not portions of testimony 
offered are relevant. 

2. A witness cannot decide for himself wkether or not he will answer the 
questions propounded, except where the answer will haVe a tendency to expose 
him to a penal liability, or any kind of punishment, or to a criminal charge, 
or to the forfeiture of his estate, or to degrade his character. 

On bill. Motion to suppress testimony and to compel a wit- 
ness to answer. 

Mr. James F. Rusling, for motion. 

Mr. C. A. Skillman, contra. 

Bird, V. C. 

As to the relevancy of the testimony respecting an alleged 
agreement between Mr. Gershom Rusling, in his lifetime, and 
Mr. Bray, concerning the premises or the mortgage thereon, out 
of which the surplus-money now to be disposed of arose, or re- 
specting the support of the infant who claims that money by her 
guardian, I shall express no opinion. It might prove very un- 
wise and misleading so to do at this stage of the cause. If such 
questions can properly be mooted at all before final hearing, I 
think they ought not to be opened to the court until the exami- 
nation of witnesses has been formally closed. To establish or 
tolerate the practice of allowing parties to suspend the examina- 
tion, in order to obtain the opinion of the court as to the compe- 
tency of witnesses or the relevancy of evidence, would greatly 
impede and embarrass suitors, and often prove disastrous to poor 

10 Stew.] MAY TERM, 1883. 175 

Candy v. Globe Rubber Co. 

litigants. It is urged that the record should not be encumbered 
with useless material. The answer is that the party insisting on 
the production of illegal evidence does so at his peril as to all 
the costs that shall follow. See Williams v. Vreeland's Execu- 
tors, 3 Stew. Eq. 676. 

The other inquiry is of a different nature. The witness re- 
fuses to answer. She undertakes to prescribe the limits of the 
inquiry. This is therefore properly before the court at this 
stage. It must be disposed of, but without in any respect set- 
tling the question of relevancy, or the right to put the question 
on cross-examination. The question submitted, but not answered, 
was : " On a fair estimate of your property, both real and per- 
sonal, what do you swear you are worth ? " It was the duty of 
the witness to answer. A witness, on examination before the 
master, has no discretion as to what questions may or may not 
be answered, unless the answer will subject him to a penal lia- 
bility, or any kind of punishment, or to a criminal charge, or to 
the forfeiture of his estate, or to degrade his character. See 1 
Greenl. on Ev. §§ 4^1-4^54-' 

The motion to suppress will be overruled ; the motion for an 
order directing the witness to answer will be granted, but with- 
out costs to either party. 

John B, Candy 


The Globe Rubber Company. 

1. A sale of chattels to a corporation may be rescinded where credit there* 
for was given to the corporation on the strength of cotemporaneous represen- 
tations of the officers as to its solvency and prosperity, which representations 
are shown to have been false and fraudulent when made. 

2. Where the treasurer of a corporation pays for some of its capital stock, 
bought and claimed by him individually, out of the funds of the corporation, 


Candy v. Globe Rubber Co. 

and also.endorses the notes of a customer, for his accommodation, in the name 
of the corporation, bonci fide sales made thereafter to the corporation may be 
rescinded, and the goods reclaimed. 

On petitions filed by G. K. Sheridan, Brinkerhoff, Turner & 
Co., William R. Grace & Co., and H. B. Claflin & Co., to rescind 
certain contracts of sale made by the several petitioners to the 
said rubber company. 

Mr. A. O. Rickey^ for G. K. Sheridan. 

Mr. S. M. Dickinson, for BrinkerhoflP & Co. 

Mr. R. S. Woodruff and Mr. J. Buchanan for William R. 
Grace & Co. 

Mr. Franklin M. Olds, for H. B. Claflin & Co. 

Bird, Y. C. 

The Globe Rubber Company was organized by filing the cer- 
tificate required by the statute, April 15th, 1881, with a capi- 
tal stock of three hundred shares, each of the value of $100. 
In July the books were opened, and before the expiration of six 
months thereafter the stock was all taken by John B. Candy, 
James F. Brook, Charles S. Knowles and Josiah Hollis. Candy 
was elected treasurer, Brook, president, Hollis, secretary. Soon 
after the books were opened and the officers elected, the company 
commenced the purchase of goods and the manufacture and sale 
of rubber. 

On the 8th day of November, 1882, John B. Candy filed his 
bill in this court declaring that he was the owner of two hun- 
dred and ninety-eight shares of said stock, and that Brook and 
Hollis were each the owner of one share ; that the corporation 
owned real estate of the value of $80,000 ; that it was in active 
operation until November 6th, 1882, when, being insolvent, 
it suspended ; that said company sold goods largely to one Wra. 
A. Leavitt, of Philadelphia, in payment of which it accepted a 

10 Stew.] JUNE TERM, 1883. 177 

Candy v. Globe Kubber Co. 

large amount of his paper, and that it loaned to him its paper for 
his accommodation, and endorsed his paper for his benefit, in the 
belief that he was responsible ; and that it is largely indebted to 
parties for material purchased, to be used in the manufacture of 
rubber, and to mechanics and others ; and that said Leavitt be- 
came unable to pay the notes it had loaned to him. 

An injunction was allowed and a receiver appointed, who took 
upon himself the administration of the assets of the company. 
Soon after the said petitioners filed their respective petitions, 
stating that they had made sales to the said company just prior 
to its failure, on the belief created by representations of the said 
company that it was solvent, and asking that said contracts be 
rescinded and that the goods still on hand be returned. That 
vendors have the right of rescission when imposed upon through 
fraud, has long been established. Are the petitioners within the 
rule? I will first inquire whether or not there was any misrep- 
resentation or concealment, amounting to fraud, in the contract 
of purchase, whether made at the time of sale or within such 
reasonable time as to influence the mind or action of a prudent 

In behalf of Brinkerhoflf, Turner & Co., their agent called on 
John B. Candy, at the office of the company, about the middle of 
October last, for the purpose of selling him goods, and in the 
course of conversation inquired of him how they were doing, and 
was told that they were getting along nicely and finely, and were 
sold ahead of orders. The witness says that Mr. Candy's man- 
ner was such that he inferred there was no question about any- 
thing connected with the Globe Rubber Company, and that he 
felt sure it was in good condition. He also says that during the 
purchase of a lot of these goods Mr. Brook came in, and that he '. 
asked him, " How are things with you — how are you getting 
along?" when Mr. Brook replied, "We are selling ahead of 
orders." This was after the interview with Candy, and severat 
months after Brook had sold all his stock to Candy, although 
he still was acting as president of the company and soliciting 
orders for its wares. 

John O. Rourke, the book-keeper of Mr. Sheridan, says that he 



Candy v. Globe Rubber Co. 

had an nnterview with Mr. Caudy at the office of the company 
about the latter part of March or 1st of April, 1882, as to' 
the responsibility of the company. He learned that the com- 
pany had a paid-up capital of $30,000; that it had given a 
mortgage of $10,000; that the accounts due and bills receivable 
were sufficient to pay said mortgage ; that they were perfectly 
solvent, and in as good or better shape than any other company 
in Trenton ; and that they were backed by C. S. Knowles, who 
let them have money when they needed it. The witness says he 
told this to Mr. Sheridan, and that goods were sold on the 
strength of these assertions. 

William P. Earle, who made the sale for William R. Grace 
& Co., says that he had a conversation with Mr. Brook just 
prior to a shipment of a lot of goods now claimed by William R. 
Grace & Co., and that as Brook came in he (Earle) said : " How 
are you getting along?" to which Brook replied: " All right." 
He also says he made fi-equent inquiries of Brook during the 
year as to their standing. He says Brook told him they were 
making money ; that their notes sold from eight to ten per cent, 
which, he said, gave them confidence. But it is quite significant 
that Earle Brothers learned something of the insecurity of this 
company's paper as early as June, and refused to trust it until it 
procured a.n endorser. After this they extended no favors with- 
out an endorser. 

H*B. Claflin & Co. make n© effort to establish fraud at any 
of the sales made by them. 

I think Brinkerhoff, Turner & Co. had a right to rely on the 
response of Mr. Brook to the inquiry, "How are things with 
you — how are you getting along? " when he said, " We are sell- 
ing ahead of orders." The assurances of Candy to the agent of 
Sheridan were such as to create confidence, but were made so 
long before the failure as to render it quite doubtful whether the 
court would be justified, on that ground alone, in sustaining the 
effort to rescind the contract of sale made in October. I do not 
think such representations ought to be relied upon for an in- 
definite period of time. As to the contract of purchase of Wil- 
liam R. Grace & Co., I think the testimony of Earle shows that 

10 Stew.] MAY TERM, 1883. 179 

Candy v. Globe Eubber Co. 

. lie did not rely for payment on anything said by Brook, but 
trusted the endorser wholly. The rescission depending on the 
question of fraud in the contract of sale as to the solvency of the 
vendee, the fraud should be very clearly established when part 
of the contract is that the vendee shall pay by note endorsed bv 
a third person, of whose ability the vendor became satisfied by 
inquiries, as was done in this case, besides the particular inquiry 
spoken of by William P. Earle, " How are you getting along ? " 
to which Brook replied, "All right." If Brook understood it 
as referring to business, rather than to his health, it can scarcely 
be regarded as anything more than simple commendation. 

But the inquiry in this case is not limited by the narrow bound- 
aries of the contract of sale. From the time in June, when 
Candy became the real owner of all the stock (Brook and Hollis 
each holding in his own name one share, that the law might be 
complied with, and each of them have an office), every act was a 
fraud and every contract rescindable at the option of the deceived 
vendor. Whatever may have been intended by these corporators, 
such gross abuse of the generous aid intended by the legislative 
sanction deserves the prompt condemnation of every tribunal be- 
fore which the question is raised. After this exhibition of the 
mischievous uses to which a most beneficial act can be applied, if 
the courts were to pass it by in silence, it would certainly be- 
hoove the first legislature to repeal the law. A single sentence 
will show how an honest trading community may be deceived by 
the devices of the skillful. Brook sqjd his hundred shares of 
stock to Candy for $10,000, retaining as collateral the possession 
of all that had not been hypothecated in his own private affairs, 
which stock Candy paid for at different periods of time between 
June and November out of the money and other assets of the 
company. And as if this were not enough. Candy further 
abused the position he obtained under the forms of law by en- 
dorsing the accommodation paper of Leavitt to the extent of from 
$40,000 to $60,000 per month, with the name of the Globe Rub- 
ber Company. 

These alone are sufficient grounds for every one of the peti- 


Swayze v. Swayze. 

tiouers to stand upon. I shall advise an order rescinding these 
contracts of sale to the extent that the articles can be identified, 
but without costs to the receiver. 

Alpheus Swayze 


Joanna Swayze, executrix of Jacob L. Swayze, deceased. 

1. After an injunction bill had been filed to restrain proceedings at law on- 
a note given by complainant to defendant's testator, an account, compromise 
and release of all matters between the parties was effected. Subsequently, a sup- 
plemental bill was filed, which alleged that the settlement and release had 
been obtained from complainant during his mental incajiacity to transact 
business, and to this an answer and plea were filed, setting up the account 
stated and release. — Held, that the burden of proving his incapacity lay on the 

2. "Where the matters of account were equally within the knowledge of both 
parties, and there was no surprise, but considerable deliberation, and com- 
plainant allowed the settlement to stand for five years unquestioned, the court 
will not disturb it, although one party thereto was the agent of the other. 

On bill and supplemental bill to set aside a release, and for an 

Messrs. J. G. Shipman & Son, for complainant. 

Mr. A. G. Rickey (with whom was Mr. Francis J. Swayze), 
for defendant. 

BiKD, V. C. 

For many years prior to the year 1871, the complainant had 
resided in Trenton, and was largely engaged as a dealer in real 

1\)Stew.] may term, 1883. 181 

Swayze v. Swayze. 

estate and in personal securities. In the year 1871, he was the 
owner of a large amount of real estate. In the summer of that 
year his health became impaired, and at length his mind was 
seriously affected. He was quite incapable of transacting busi- 
ness. His wife then requested a brother of the complainant, 
who was living and doing business at Newton, to take charge of the 
business of complainant. The complainant executed to his brother 
a power of attorney, " creating him," as he says in this bill, " at- 
torney in fact, to dispose of and manage all your [his] orator's 
business in such way as he might think proper." This paper bears 
date December 16th, 1871. In about two months thereafter the 
complainant was taken to an insane asylum in Philadelphia, 
■where he remained for about three months. On December 15th, 
1871, he and his wife executed a deed of conveyance, including 
all his real estate, to Jacob L. Swayze, and delivered it to him. 
Thus, by virtue of the power of attorney and the said deed, 
Jacob L. had the absolute possession and control of all the real 
and personal estate of his brother. Able and experienced coun- 
sel were advised with. This course was taken in the interest of 
complainant The immediate cause of this transfer was perhaps 
not so much the mental prostration of complainant as his great 
financial embarrassment. Creditors would not be delayed. The 
large means of complainant should be utilized. To do this, 
while complainant was in such distress, a third person was called 
in. Jacob L., the brother, undertook this task. He became 
not only an attorney in fact, but trustee for complainant and his 
creditors. The creditors had a right to demand of him a faith- 
ful administration of his trust until they were paid, and com- 
plainant had a right to all the balance, less costs and reasonable 

On February 15th, 1872, complainant was taken to the asylum, 
and remained there until June 10th of the same year, when he re- 
turned to his home and family in Trenton. In his bill he says, 
" in a short space of time he was restored to perfect health and 
strength, both of mind and body." This allegation deserves at- 
tention in the consideration of this cause. It was made more 

182 CASES IN CHANCERY. [37 Eq-. 

Swayze v. Swayze. 

than two years before the bill was filed, which, being an injunc- 
tion bill was sworn to by complainant. His then restored con- 
dition becomes quite significant in view of the next allegation, 
which is, that soon after he returned home, " he spoke to his 
brother, Jacob L. Swayze, about his business, but his said brother 
did not give him any satisfaction, but continued to manage your 
orator's estate the same as he had done while your orator was of 
infirm mind and body, and to treat it as if it was his own estate." 
At the very outset, then, Jacob, the trustee, assumed a hostile- 
attitude. The complainant also says that he frequently urged 
his brother to a settlement but that he was always refused. This 
makes it plain that as soon as the complainant was restored to 
his right mind, notwithstanding Jacob was trustee and must ac- 
count as such, the confidence which the law presumes to exist was 
severed, and they stood towards each other as strangers. It can- 
not be that, after these occurrences, Alpheus any longer leaned 
upon or confided in his brother. And the evidence fully cor 
roborates this. These observations ought not to be overlooked 
in considering the case made by the supplemental bill. 

The estate of complainant which had not been used in the 
payment of his debts, remained in the hands of Jacob. The 
disposition of this balance aggravated the differences between 
these brothers and precipitated this litigation. 

In the year 1874, the complainant opened a store in Newark, 
and attempted business on his own account. During that year 
these brothers had a serious dispute respecting the property of 
Alpheus and the management of it by Jacob, and they separated 
in great anger. Jacob immediately brought suit against Alpheus 
on a note for $2,000, given by Alpheus to Jacob in November, 
1871. Alpheus filed a plea to the declaration in that action, and 
then presented his bill in this court and obtained an injunction 
restraining the further prosecution of that action at law. That 
an opportunity might be had for a settlement, counsel for com- 
plainant extended the time for filing answer. Jacob ])romised 
the counsel of Alpheus that he would furnish to him a state- 
ment showing how the accounts stood. After weeks of delay, I 

10 Stew.] MAY TERM", 1883. 183 

Swayze v. Swayze. 

think such statement was furnished, but it has not been pro- 
duced, nor is it known what it contained. 

After the commencement of these legal proceedings I infer, 
from complainant's testimony, that he and Jacob had a meeting 
in Newark, and at Dover, and at Hope, with a view of settling 
their differences. The one at Hope was at the house of an 
uncle, who says the effort continued through portions of two 
days. This was in June, 1877, more than a year after complain- 
ant had opened a store at that place, and had been carrying on 
business on a large scale. On the 19th of August of that 
year (1877) he went to Newton to visit his brother Jacob. He 
met there his wife and children, his sister, Mrs. Apgar, and his* 
father. He remained over until the 22d. While at Jacob's, at 
this time, a settlement was effected. The complainant says he 
does not think that he and Jacob were engaged in the effort to 
settle<over two hours. The result of their interview was reduced 
to \»riting. All of that instrument, except the statement of the 
account, is a follows, viz. : 

" Agreement this 21st day of August, 1877, between Alpheus Swayze, of 
Hope, in the county of Warren, and state of New Jersey, and Jacob L. 
Swayze, of Newton, in the county of Sussex, and state of New Jersey, wit- 
nesseth, tliat the said parties have this day made a settlement of all matters 
and thinjis arising out of the undertaking and trust wherein the said Jacob 
Swayze took charge of the business of the said Alpheus Swayze, and sold his 
property and paid his debts, by virtue of a certain agreement between the par- 
ties hereto, and a certain power of attorney, executed by the said Alpheua 
Swayze to the said Jacob L. Swayze, both bearing date December 16th, 1871, 
and that they find due to the said Jacob L. Swayze from the said Alpheus 
Swa.vze, the sum of $3,207.22, in the foregoing and attached statement of 
accounts; and the said Alpheus Swayze, for and in consideration of the prem- 
ises mentioned aforesaid and connected with the trust, doth hereby covenant, 
promise and agree to pay to the said Jacob L. Swayze the said sum of $3,207.22, 
with interest from the 1st day of September, 1877, and to secure the payment 
of the said sum of money, doth hereby ratify and confirm the assignment of 
two certain policies of life insurance in the Mutual Life Insurance Company 
of New York, the one on the life of himself and the other on the life of his 
father, Israel Swayze." 

It was executed in duplicate. One copy was taken by com- 
plainant. The father of Jacob and Alpheus, their wives and 


Swayze v. Swayze. 

sister, Mrs. Apgar, the subscribing witness, were all present at 
the execution. The next morning, Alpheus went to the bank in 
Newton, of which his brother was president, expressed satisfac- 
tion witli the settlement to the cashier, procured a loan of money 
on a note endorsed by Jacob and returned to his home and place 
of business at Hope. Alpheus says he placed this paper in his 
safe and did not see it until after Jacob's death. He also says 
that he told his counsel of the settlement and how he had settled, 
the latter part of the year 1877, and that his counsel then dis- 
approved of what he had done. After this he obtained other 
accommodations at the same bank above named. In the spring 
.of the year 1881 Jacob was taken very sick; Alpheus heard of 
it, and there was some correspondence between Alpheus and 
Frank J., a son of Jacob. Alpheus mentioned a note for 
$3,200 which he had endorsed, and asked the sou to inquire of 
his father respecting the nature of las liability thereon, so that in 
case of Jacob's death there would be no misunderstanding about 
it. The son inquired and the result was satisfactory. It does 
not appear that the subject of this litigation was ever referred to 
by either Jacob or Alpheus in the presence of the other after the 
execution of the above-named instrument, although they visited 
or otherwise met frequently. Nor was it brought to the attention 
of Mrs. Swayze, executrix of Jacob, until the period of time 
allowed by law under the rule to bar creditors, had about ex- 
laired. Then Alpheus filed a claim with the executrix for $137,- 
876.79, after giving the estate credit with the sum of $248,442.30. 
Notice was given that this claim was disputed. Before the ex- 
piration of three months a supplemental bill was filed by 
Alpheus, in which the allegations in the original bill filed in 1874 
were substantially repeated ; after which it is stated that the 
friends of both parties desired a settlement and compromise; 
that the suits were suspended and negotiations for settlement 
begun ; that Jacob was arbitrary and insisted on dictating the 
settlement, and that complainant should dismiss his counsel; 
that the complainant has never been of perfectly sound body or 
mind, and not so capable of tran.<?acting business as before the loss 
of his mind ; that in the ypar 1876 he had a severe attack of sick 

10 Stew.] MAY TERM, 1883. 185 

Swayze v. Swayze. 

ness, and upon his partial recovery Jacob came and urged him 
to come to his house for a settlement; that Jacob came on 
another occasion for a settlement ; that the wife of complain- 
ant, because of the effect of the situation on his mind and 
body, urged him to try and settle with his brother upon some 
terms; that he went to Newton, and that there Jacob told 
him how he would settle, and that he would not settle in any 
other way, and that complainant could do that or nothing ; that 
Jacob produced an agreement which he wished complainant to 
sign, and sets forth the agreement above copied. The supple- 
mental bill further states that said paper was executed at the 
private office of Jacob, and that complainant was so nervous and 
excited when he heard the paper read that he was completely 
unmanned, and was so much in fear of Jacob, and his mind and 
body both in such an unsettled and helpless state, that he was in- 
capable of offering any resistance to said Jacob, and tacitly 
assented to all his desires, and simply in a mechanical way signed 
the said instrument ; that very soon after he signed, he left the 
house of Jacob; that after he ^ot home and had time and op- 
portunity to recover from his great excitement of mind and body 
he remembered his act in signing the paper, and felt he had done 
a most unwise and foolish act, and had signed a paper acknowl- 
edging an indebtedness against himself, while he knew, when 
rational, that that paper did not express the true settlement, and 
that said Jacob owed complainant as he had set forth in his 
original bill ; that he spoke to his wife about it and she urged 
him to let it alone ; and that he spoke to counsel about it, who 
told him that he had done wrong to undertake to settle without 
his counsel and that he had been greatly wronged. 

The supplemental bill declares the said writing to be void, and 
prays that it may be so decreed. 

It will be pereeived, therefore, that the complainant sets up 
this agreement and settlement for the purpose of attacking and 
overthrowing them. Until removed they are insurmountable 

The defendant, by her plea, presents this agreement and the 
account, item after item, of debt and credit, covering over twenty 


Swayze v. Swayze. 

pages o£ her plea, which is supported by an answer. The plea 
avers that after an examination of said account item by item by 
the said complainant, he signed said writing, and urges that said 
settlement and agreement are a bar to this suit. 

The complainant now insists that the nature of the pleadings — 
the defendant setting up the release which is admitted in the bill 
— imposes the burden on the defendant, and that consequently 
the defendant must not only establish the release, the execution 
of which is formally admitted in the bill, but every item of it. 
In support of the view that the burden is on the defendant, 
counsel cite 1 Dan. Ch, Pr. & PL 604-, 631. It is insisted that 
by filing the plea, the cause of action is admitted, but that the 
subject-matter of the plea operates as a bar, and that this obliges 
the defendant to maintain his plea, citing 1 Dan. Ch. Pr. & PL 
662, 718 ; Flagg v. Bonnel, 2 Stock. 82 ; 1 Barb. Ch. Prac. 
119-12 Jf.; Stout v. Seabrook, 3 Steio. Eq. 187; Eev. p. 109 
§ 29 ; McEiven v. Broadhead, 3 Stock. 129; Doios v. Mc- 
Michael, 6 Paige 139 ; Fish v. Miller, 5 Paige 26; State of 
Rhode Island v. Massachusetts, IJf, Peters 210 ; Daniels v. Tag- 
gart, 1 Gill & J. 311 ; Hughes v. Blake, 6 Wheat. 4S3 ; Davison's 
Exr. v. Johnson, 1 C. E. Gr. 112 ; McClane's Admrs. v. Shep- 
herd's Exrx., 6 C. E. Gr. 76 ; Bogardus v. Trinity Church, 4 
Paige 178. 

The principle that the burden is on defendant, thus contended 
for, is without exception, I believe, in case of pleas purely affirma- 
tive. It is not true, however, in case of pleas styled negative. 
The latter are in some respects founded on allegations in the bill. 
1 Dan. Ch. PL & Pr. {4-th ed.) 604-. They are sometimes called 
anomalous pleas, which consist mainly of denials of substantial 
matters set forth in the bill. Story's Eq. PL § 651. The plea 
in the case before us is of this negative or anomalous character. 
The supplemental bill sets forth the agreement respecting the 
settlement of the accounts, and then alleges that he, the com- 
plainant, was nervous and was overcome, and that his brother 
look advantage of his weakness and procured the execution of 
the agreement by his dictatorial manner, and that therefore it is 
void. The plea denies all the allegations in the complainant's 

10 Stew.] MAY TERM, 1883. 187 

Swayze v. Swayze. 

bill which in anywise tend to make his case. As before stated^ 
the plea copies the account which is mentioned in the agreement, 
and also the agreement. 

This being so, on which party does the law cast the burden ? 
I think upon the complainant. He casts or fashions the issue 
by his bill and supplemental bill. He presents a case which, if 
established, entitles him to relief — entitles him to a decree setting 
aside the agreement. He admits the execution of this instrument, 
but assails it nevertheless. Clearly, he has the afiBrmative. Until 
he sustains the allegations in his bill, this writing and this ac- 
count must stand, unless the court should permit the complainant 
to surcharge and falsify the account. I find no exception to this 
rule. If an account be pleaded in bar to a bill in equity, such 
plea will be sustained except so far as the complainant can show 
it to be erroneous. Chappedelaine v. Dechenaux, ^ Oixineh 306, 
In this case the court observes : "That the plea in bar must be sus- 
tained except so far as it may be in the power of the representa- 
tives of Chapperdelaine to show clearly that errors have been 
committed, is a proposition about which no member of the court 
has doubted for an instant. Xo practice could be more dan- 
gerous than that of opening accounts which the parties them- 
selves have adjusted, on suggestion supported by doubtful or by 
only probable testimony. But if palpable errors be shown, errors 
which cannot be misunderstood, the settlement must so far be 
considered bs made upon absolute mistake or imposition, and 
ought not to be obligatory on the injured party or his represen- 
tatives, because such items cannot be supposed to have received 
his assent. The whole labor of proof is upon the party object- 
ing to the account, and errors which he does not plainly estab- 
lish, cannot be supposed to exist." Although no plea was filed, 
the defendant relying on an answer, to the same effect is Nourse 
V. Prime, 7 Johns, Ch. 69. So in Perkins v. Hart, 11 Wheat. 
237, the court says a settled account is prima facie evidence of 
its correctness. 

In Lochwood v. Thome, 11 N. Y. 170, 175, it is stated : " That 
if either party attempts to impeach the settlement and to open 
the accounts for re-examination, either wholly or in part, and 


Swayze v. Swayze. 

which can only be done upon the ground of fraud, mistake or 
error, the burden of proof rests upon the party impeaching, and 
he must prove the fraud or point out the error or mistake on 
■which he relies." " The stated account is prima facie a bar 
until the particular errors in it are assigned." Weed v. SmuU, 
7 Paige 573 ; Pit v. Cholmondeley, 2 Ves. Sr. 565 ; Farnam v. 
Brooks, 9 Pick. 21^-218. In Freeland v. Heron, 7 Cranch U7, 
each party insisted that the burden was with the other ; but the 
language of the court was : " When one merchant sends an 
account-current to another residing in a different country, be- 
tween whom are mutual dealings^ and he keeps it two years 
without making any objections, it shall be deemed a stated ac- 
count, and his silence and acquiescence shall bind him, at least 
60 far as to cast the onus probandi on him." " If the defendant 
has fully accounted with the complainant and delivered over all 
the property and effects which belonged to him, he is not entitled 
to a n'ew account ■svithout showing some fraud or error in the 
former account." Fish v. Miller, 5 Paige ^6, S9. In this case a 
plea was put in setting up a release, which release was sought to 
be impeached by the bill, in which it bears complete analogy to 
the case being considered. The court said : " If the facts were 
properly put in issue, and it should turn out on the proofs that 
the release was absolutely delivered, the release itself would be 
prima facie evidence of such facts." 

These authorities are in harmony with the deductions of Lord 
Hedesdale, as expressed in 1 Dan. Ch. PL & Pr. 696, thus : " If, 
therefore, a plea is allowed upon argument, or the plaintiff, 
without argument, thinks it, though good in form and substance, 
not true in point of fact, he may take issue upon it and proceed 
to disprove the facts upon which it is endeavored to be sup- 
ported. This he does by filing a replication, in the same man- 
ner that he would do if the defendant had simply put in an 
answer to the bill in the usual way." On page 698 he adds : 
" If he has in his bill alleged any matter which, if true, may 
have the effect of avoiding the plea, such as notice or fraud, lie 
may, after replying to the plea, enter into evidence in support 
of his allegation. And where the plea introduces matter of a 

10 Stew.] MAY TERM, 1883. 189 

Swayze v. Swayze. 

negative nature, such as a denial of notice or fraud, it will be 
necessary for him, in case sufficient to show the existence of the 
notice or fraud is not admitted by the answer in support of the 
plea, to go into the evidence in support of the affirmative of the 

I have referred to the authorities on this point more fully 
than I should have done had not counsel for complainant, ap- 
parently, in presenting their views, relied so confidently upou 
the conviction that the burden was on the defendent, and pressed 
it with so much skill and energy. And besides, it is proper to 
observe that the complainant undertook to maintain the allega- 
tions in his supplemental bill. He assumed the affirmative and 
first examined all his principal witnesses. At no time did he 
call upon the defendant to maintain the issue until the examina- 
tion of witnesses had been rested on both sides. Indeed, this 
method of procedure seemed so sensible and logical, and at the 
same time so essential, that the complainant pressed into his ser- 
vice every shade and complexion of evidence. I thought then 
he was not only justified in that course, but required so to do 
under the pleadings ; and the very elaborate argument presented 
at the hearing has not changed my mind as to the side entitled 
to and obliged to maintain the affirmative. 

The question, however, remains. Are any of the material al- 
legations in the supplemental bill, or the amendment thereto, so 
far supported by evidence as to justify the court in declaring the 
agreement void, and in allowing the restatement of the account ? 
In other words, Was this agreement fairly obtained ? 

The parties were brothers, the complainant being the younger. 
The complainant had early engaged in business as a country 
merchant in Hope, and was very successful. In 1866 he com- 
menced business in Trenton. Jacob was admitted to the bar, 
and, after practicing a short time, moved to Newton and engaged 
in banking. There is nothing in the case which leads me to 
conclude that either was endowed with gifts superior to the 
other ; or that opportunities more highly favored one than the 
other ; or that the complainant's misfortunes are to be ascribed 
to a failure in either. The complainant's misfortunes, financial, 

3 90 CASES IN CHANCERY. [37 Eq. 

Swayze v. Swayze. 

physical" and mental, came so nearly simultaneously that it is 
difficult to tell which fell first or heaviest. No similar catas- 
trophe had visited Jacob, and he was relied upon to relieve 
Alpheus and his household from the impending financial ruin. 
This Jacob undertook to do ; at least he accepted the trust or 
agency (it matters not what name is applied), and the law holds 
him liable to the most faithful discharge of the trust or agency. 
The law must be our guide. There is a material difference in 
the principle on which the court deals with settled accounts with 
reference to tiiose two kinds of decrees, as there undoubtedly is 
in effect in working them out. A settled account, otherwise un- 
impeachable, in which an error is proved to exist, may be sub- 
jected to a decree to surcharge and falsify, upon the supposition 
that one error having been proved, others may be expected, upon 
investigation, to be discovered; but if the relative situation of 
the parties, or the manner in which the settlement took place, or 
the nature of the error proved, shows that the alleged settlement 
ought not to be considered as an act binding upon the party 
signing, and that it would be inequitable for the accounting 
party to take advantage of it, the court is not content with 
enabling the party to surcharge and falsify an account which 
never ought to have been so settled, but directs the taking of an 
open account. Amongst the grounds on which the court rests 
the application of this principle, none are stronger than the fact 
that the accounting party was the solicitor or agent of the party 
sought to be charged, or that the circumstances gave him a com- 
manding power or influence over him, or that the facts proved that 
lie possessed and abused the confidence which had been reposed 
in him. Coleman v. Mellersh, 2 Macn. & G. 309, SlJfi Alferey 
v. Alferey, 1 Macn. & G. 87, 98 1 Brownell v. Brownell, 2 Bro. G 
G. 62 ; Pickering v. Pickering, S Beav. 31 ; Barrow v. Rhine- 
lander, 1 Johns. Gh. 550, 556 ; Matthews v. Wallwyn, Jf. Ves. 118. 
These manifold expressions of eminent judges leave no un- 
certain impressions. It was Jacob's duty to account fully. He 
had no right to impose any unnecessary or illegal charges. The 
question is not whether the parties were upon an equal footing or 
not, but, supposing one to have had advantages, however great, 

10 Stew.] MAY TERM, 1883. 191 

Swayze v. Swayze. 

Is the settlement a just and fair one? Supposed advantages of 
position, influence or knowledge, will awaken greater caution in 
the mind of the court and induce a closer inspection ; or may 
require fuller details from the trustee or agent. But still, the 
question must be, If the complaining party was able to contract, 
is the account fair and just? The qualification here suggested 
(Was the complaining party able to contract?) has been thrown 
into this case by the supplemental bill, and several witnesses 
were examined with the view of supporting the allegations of in- 
capacity. The allegation is that when the complainant heard the 
agreement read he was so unmanned, and was so much in fear 
of Jacob, and his mind and body both in such an unsettled and 
helpless state, that he was incapable of offering any resistance, 
and tacitly assented to all his desires, and simply in a mechanical 
way signed said instrument. 

From this it does not appear by what means or in what man- 
ner this fear and submission were effected, except the dictatorial 
manner of Jacob. But accepting the statement as sufficient in 
itself, I am not satisfied with the proof offered in support of it. 
On the contrary, the statements of the father, who was also visit- 
ina: Jacob at that time, and saw the two sons several times while 
they were together, and before the agreement was signed, and the 
statements of Mrs. Apgar, a sister, who likewise came on a visit 
on Monday afternoon (as the agreement was signed the next day, 
in the evening), while the brothers were engaged at the settle- 
ment, most effectually repel the insistment of mental or bodily 
prostration, as well as the charge of domination and undue in- 
fluence on the part of Jacob. When Mrs. Apgar went into the 
hall of the house, her brothers left their room and met her with 
a hearty and cheerful welcome. The father, Mrs. Apgar and 
others were there until the paper was signed. From the testi- 
mony, I can have no doubt but that complainant had the faculties 
to understand, and that he did understand what he did, and the 
legal effect of it, when he signed the agreement. There is noth- 
ing to show that the defendant was deprived of his freedom to 
act. Giving the utmost latitude to the contention that the com- 
plainant was laboring under mental weakness, aberrations or 


Swayze v. Swayze. 

halluciivatioQS at othex' times, the great preponderance of testi- 
mony is that lie was not so afflicted on August 21st, 1877. 

And looking further at the charge that Jacob had such power 
or control over complainant as to deprive him of his free agency, 
it is to be remarked that there is not a single fact or circumstance 
brought forward, from all their intercourse, that shows the exer- 
cise of it on any other occasion. On the contrary, the history of 
several of their meetings, as given by the complainant, absolutely 
dispels the charge and appears to render such a result as is con- 
tended for, morally impossible. For example, about the 1st day 
of January, 1874, he says Jacob called at his house in Trenton 
and wanted to settle on the basis of the account here produced, 
when, in their disagreement, he (complainant) waxed so hot that 
he ordered Jacob from his house, and because he did not go, he 
(complainant) went to a closet and got a weapon and compelled 
him to leave. With this fact, out of the mouth of complainant, 
it cannot be urged, as the case now stands, that Jacob accom- 
plished anything by dictation or threats. In addition to this, 
complainant said that Jacob met him at the Park House, in New- 
ark, at Dover, and at the house of an uncle, in Hope, for the 
purpose of a settlement, but without effecting any terms. Had 
Jacob possessed the power of subduing complainant to his wish, 
it is more than reasonable to suppose that he would have under- 
taken it on one of these occasions. And it is to be observed tliat 
if Jacob's presence or manner had the effect of unmanning the 
complainant so that he acted without thought or will on the oc- 
casion when the settlement was reached, it is remarkable that 
there is no proof of their unhappy influence at any other period 
of their lives. 

The question of capacity being disposed of, I am again brought 
to inquire whether or not the agreement was fairly obtained. 
Whether so obtained or not depends upon the character of the 
accounts, whether long and intricate, or embracing a variety of 
subjects, or peculiarly within the knowledge of Jacob, while the 
complainant remained in ignorance of some material fact, which, 
if known to him, he probably would have acted upon. I think 
neither circumstance exists in this case. The subject-matters were 

10 Stew.] MAY TERM, 1883. 193 

Swayze v. Swayze. 

all quite as familiar to the complainant as to Jacob. Indeed the 
object of the agency was to save the complainant from his credit- 
ors by paying the debts, which he had contracted, with the 
assets, real and personal, which the complainant had on hand for 
that purpose. The complainant had full knowledge of the ex- 
istence of the claims, and he had purchased all the assets which 
he had assigned. The complainant had long been accustomed to 
bahincing accounts both as a merchant and real estate dealer. 

There was no surprise ; the question was not suddenly thrust 
upon him. He says that on the 6th of January, 1874, Jacob 
wanted him to settle on the basis of this same agreement at the 
house of complainant, in Trenton. After this they had at least 
three meetings for the same purpose, one of which was at Hope, 
and the consideration of the subject continued through two days. 
In August, 1874, the bill in this cause, which involves these ac- 
counts, was filed." The statements in this bill show that the com- 
plainant could not have been taken by surprise August 21st, 
] 877. And the correspondence offered, and other evidence, show 
that the subject of dispute was very frequently agitated after the 
filing of the bill, in other ways than by meetings between the 
parties for that purpose. 

These same considerations show with equal force and certainty 
that the complainant was not ignorant of the subject-matter, nor 
of the details, nor of the methods pursued by Jacob, nor of the 
principles upon which Jacob proposed to settle. 

Again : I think these views are more firmly impressed by a 
consideration of the complainant's conduct after the settlement. 
This was in the evening. The complainant and his family re- 
mained with Jacob until next morning. Before leaving for his 
home he told the cashier of the bank of the settlement, and ex- 
pressed his satisfaction therewith. He carried the agreement 
home and placed it in his safe ; and it does not appear, except 
from allegations in his supplemental bill, that he ever was dis- 
satisfied, in Jacob's lifetime, although, when he told his counsel, 
soon after the settlement, he says his counsel told him he had 
been greatly wronged. He also says that after the act, he felt 
that he had done an unwise and foolish thing. 



Swayze v. Swayze. 

It is .likewise to be remarked that if complainant, after reflec- 
tion, concluded that Jacob had obtained an unfair advantage in 
the settlement, or that he had acknowledged an indebtedness, in 
his weakness, when, upon a fair accounting, the liability was the 
other way, and his counsel had told him lie had been greatly 
wronged — if, with such reflections and such knowledge, he had 
not kept silent too long in not speaking until after Jacob's death, 
such delay (over four years) weighs heavily against him. In- 
deed, on the question whether this agreement was fairly obtained 
or not, it seems to me to be quite insurmountable. It is true, 
accounts are opened after ten, twenty and even forty years, and 
often after the death of the party sought to be charged ; but I 
apprehend that courts of equity require the aggrieved party to 
move promptly after he discovers the error, mistake or fraud. 
Stout V. SeabrooWs Exrs., 3 Stew. Eq. 187. 

But notwithstanding any of these considerations, it would be a 
reproach to the character of a court of equity to plant its judg- 
ments upon forms or technicalities, or mere lapse of time in such 
cases, if it became apparent that the defendant holds a portion 
of the money or estate of the complainant, unless the complain- 
ant should stand aloof in the spirit of speculation, taking ad- 
vantage of the death of important witnesses or the destruction 
of documents. To this stage we are carried by the pleadings 
and proofs before us. And with this in view, in the midst of 
the trial, the court allowed an amendment to the supplemental 
bill, so that if the release itself should stand, and palpable errors 
appear, the complainant might proceed upon the sure ground of 
surcharging and falsifying the account. But I cannot find any- 
thing in the case to justify me in allowing the complainant 
to move to that extent. I think his hand should be stayed. It 
was the intention of the parties to bury their disputes and to 
forever put to rest their differences under this settlement. It 
was a compromise. The supplemental bill makes this most 
plain. The complainant's mind was brought to that point by 
the earnest solicitations of his wife and father. In the language 
of Lord Langdale : " When parties whose rights are question- 
able have equal knowledge of facts, and equal means of ascer- 

IOSteav.] may term, 1883. 195 

States V. States. 

taining what their rights really are, and they fairly endeavor to 
settle their respective claims, amongst themselves, ever}' court 
must feel disposed to support the conclusions or agreements to 
which they may fairly come at tiie time." Pickering v. Picker- 
ing, 2 Beav. 31, 56. 

In my judgment, the complainant has not established the alle- 
gations in his supplemental bill nor in the amendments thereto, 
and I shall therefore advise a decree that they be dismissed, with 
costs. I shall advise that the original bill be dismissed, but with- 
out costs, since that was pending at the time of the settlement, 
and the costs must have been included therein. 

Robert I. States 


Clara States. 

A man who himself has been guilty of ante-nuptial incontinence with the 
Tvoman whom he afterwards marries, is not entitled to a divorce because slie 
happens to have been pregnant by another at the time of his own transgres- 
sion, concerning which she deceives him. 

On bill for divorce. 

Mr. A. B. Dayton, for complainant. 

Bird, V. C. 

A divorce is asked for in this case, on the ground of fraud. 
Two and a half months after the marriage the defendant gave 
birth to a fully-developed child. The complainant declares that 
he is not the father of it. Taking this to be true, then what ? 

The complainant says that he " was induced by the enticements 
and allurements " of the defendant " to have sexual intercourse 
with her, and that afterwards (about two months) she represented 


States V. States. 

to him that she was about two months advanced in pregnancy, 
and that her offspring would be his ; " and that a physician, 
whose name she gave, assured her that the period of gestation 
had been running about two months. He trusted in these rep- 

Now, is he entitled to the aid of a court of conscience ? Can 
a man who has been guilty of one of the grossest acts of immo- 
rality, expect any court to undo the toils which envelop him 
because of such immorality? Would any court, after listening 
to his confession, be justified in dissolving his fetters? I think 
not. He transgressed ; and this transgression blinded him ; 
otherwise, too, he would have been free from importunities to 
marry, and from all false statements as to his liability. 

Then why should he have been deceived by her entreaties or 
representations? He knew of her dishonor; he knew as well 
that slie would deceive. He had participated with her in crime; 
why, then, should he be surprised by her falsehoods ? She ad- 
vertised her infidelity as well as her unchastity. 

But the avenue for full information was before him. The 

Note. — A marriage obtained by fraud or duress, may, like any other con- 
tract, be annulled, Le Brun v. Le Brun, 55 Md. 4^6 ; Pyle v. Pyle, 10 Phila. 
68; Stevensonx. Stevenson,? Phila. 386; Robertson v. Cole, 12 Tex. 356 ; Fer- 
ial V. Gojon, Hopk. 478; Sloan v. Kane, 10 How. Pr. 66; Tilby v. Hayes, 27 
Hun 251; Finn v. Finn, 62 How. Pr. S3; Bassett v. Bassett, 9 Bush 696; 
Keyes v. Keyes, 22 N. H. 553 ; Lyndon v. Lyndon, 69 III. 43 ; Barnes v. Wyetket 
28 Vl. 41 ; see Ehey v. Elzey, 1 Houst. 308 ; Cronise v. Q-onise, 54 Pa. St. 
!S55; Clarke v. Clarke, 11 Abb. Pr. 228; Tomppert v. Tomppert, 13 Bush 326; 
Wier V. StUl, 31 Iowa 101.; Withee v. Brooks, 65 Me. 14; Reg. v.Swanson, 7 
Mod. 101 ; but a marriage performed while the husband is under arrest as the 
putative father of a bastard, is not void for duress, Sickles v. Carson, 11 C. E. 
Or. 440 ; Jackson v. Winnie, 7 Wend. 47; Williams v. State, 44 Ala. 24; Johns 
V. Johns, 44 Tex. 40; Benton v. Benton, 1 Day HI; but see Scott \. Schufeldt, 
5 Paige 43 ; Collins v. Collins, 2 Brews. 515. 

A marriage void on account of duress, may be ratified by the innocent and 
injured party, Hampstead v. Plaistow, 49 N. H. 84. 

A marriage invalid because one of the parties was an infant, may be ratified 
afterwards by the infant, Case LXXXIV. Jenk. *95 ; Lockhart's Trusts, H 
Irish Jur. {N. S.) 459 ; Blumenthal v. Tannenholz, 4 Stew. Eq. 195, note. 

As to consenting to a fraudulent marriage, Templeton v. Tyree, Z7 L. T. {N. 
S.) 4^9. 

A wife's ante-nuptial incontinence is not valid ground for a divorce, Perrin 

10 Stew.] may TERM, 1883. 197 

States V, States. 

defendant herself opened the door. She told him she had con- 
sulted a physician. Why did not he do the same ? An exami- 
nation by an expert would have revealed the true condition of 
the foetus. 

The master reports neither for nor against the petitioner, but 
encourages the favorable action of the court because of the 
youth and good standing of the complainant. He was of the 
age of twenty years ; certainly not too young to know that he 
both violated the law of his country and sinned against the 
honor and integrity of the family which he now holds up as a 
shield. Good standing is a tower of strength to the innocent ; 
but the confessedly guilty are on the same level as any other 

There is no countenance in law for the prayer of the com- 
plainant. It is expressly repudiated in Carris v. Cams, 9 C. 
E. Qr. 516. 

I shall advise that the bill be dismissed. 

V. Perrin, 1 Addams 1 ; Leavilt v. Leavitt, 13 Mich. 452 ; Varney v. Varney, 52 
Wis. 120. 

Nor the fact, which her husband knew, that she had had a bastard i^hild, 
Farr v. Farr, 2 McArth. S5 ; Smith v. Smith, 8 Oreg. 100. 

Nor the fact, which her husband knew, that the woman was the wife of an- 
other, Ttfft V. Tefft, 35 Ind. 44- 

If a wife fraudulently conceals her pregnancy at the time of the marriage, 
and represents herself to her husband as virtuous, a divorce may be decreed, 
Morris v. Morris, Wright 630; Baker v. Baker, 13 Cal. 87; 1 Cent. L. J. 383 ; 
Bitter v. Bitter, 5 Black/. 81 ; Guilford v. Oxford, 9 Conn. 321 ; Beynolds v. 
Beynolds, 3 Allen 605; see Frith v. Frith, 18 Ga. 273 ; Purritt v. Porritt, 16 
Mich. 140 ; Montgomery v. Montgomery, 3 Barb. Ch. 132. 

In Allen's Appeal, 99 Pa. St. 196, whether the concealment of her pregnancy 
by a woman at the time of her marriage, amounted to fraud entitling her hus- 
band to a divorce therefor, was held to be a question for the jury. 

That the husband, having had sexual intercourse with the woman wliom he 
afterwards married, and that she represented to him that she was pregnant of 
a child, of wiiich he was the father, and thereby induced him to marry her, 
whereas in fact he was not its father, is not such fraud as will avoid the mar- 
riage, Scroggins v. Scroggins, 3 Dev. 535 ; Foss v. Foss, 12 Alleii 26 ; Crehorc 
I. Orehore, 97 3Iass. 330; Long v. Long, 77 N. C. 304; Hoffman v. Hoffman, 
30 Pa. St. 417 ; see Barden v. Barden, 3 Dev. 548; Hedden v. Hedden, 6 C. E. 
<3r. 6i.-KEP. 


Cory V. Cory. 

Lewis Cory's executor 


Eliza B. Cory's administrator. 

1. After a legatee has made her election under the will and acted thereon 
for seventeen years, it is too late for her administrator to elect differently. 

2. Where all of decedent's estate was given to his wife (who was also an 
executrix) for life, with power of disposition during her lifetime, and with an 
absolute gift over of most of the estate after her death — Held, that the power 
of disposition did not enlarge her estate to a fee. 

3. Where a life tenant has destroyed or lost the evidence of the amount of 
the principal fund, she must, for the benefit of the remaindermen, be charged 
with the last statement of the principal ascertainable, and interest thereon 
from the time of her decease. 

Mr. T. N. McCarter, for complainant. 

Mr. Garret Berry and Mr. C. Parker, for defendant. 

Bird, V. C. 

Lewis Cory died in 1863, leaving no children, leaving a 
widow, Eliza B., also a large amount of real and personal estate,, 
all of v.'hich he disposed of by a last will and testament. A large 
proportion, if not all of the estate, was given to Mrs. Cory, for and 
during her life, at least, if not absolutely. She was made execu- 
trix, two others executors. To her was given the sole charge 
and custody of the estate during her lifetime. She proved the 
will, took charge of the estate, and in the year 1880 died pos- 
sessed of securities valued at over |80,000. These were all in 
her own individual name. When Mrs. Cory proved the will 
and qualified as executrix, Thomas Douglas, one of the execu- 
tors, joined with her in those duties. The other persons nam'^d 
as executors never took any steps towards administering the es- 
tate. Charles C. Pratt became the administrator of her estate. 
Thomas Douglas survived Mrs. Cory, and, as executor, he brings 

10 Stew.] MAY TERM, 1883. 199 

Cory V. Cory. 

his suit against Mr. Pratt, as administrator, to recover all the 
.securities found in her possessiou at the time of her death. Both 
parties claim them under the will of Lewis Cory, deceased. 

I think a few facts will suffice to present the rights of the 
parties. In the year 1849 Mr. Cory and his wife were living in 
Rah way, N. J. There he was engaged in the jewelry trade. 
That year he moved to California. Before going he had pre- 
pared the frame of a house, which he took with him. He carried 
along also many articles for trade or traffic. Soon after reaching 
California the frame was erected into a house. In it they lived. 
There he continued his trade as jeweler and watchmaker. Mrs. 
Cory presided in the household. Mr. Cory also engaged in real 
estate transactions, and became a money-lender. He prospered 
until his death. He was then the owner of considerable real 
estate and personal securities, the precise value of which it would 
be difficult to determine ; and whilst there has been an approxi- 
mation, it would be quite difficult to establish exactly how much 
Mrs. Cory realized from either. 

The parts of the will which must influence the judgment, are 
as follows : 

" Item. I give, devise and bequeath all my real and personal estate, whatso- 
ever and wheresoever, unto my beloved wife, Eliza Cory, for her sole use and 
benefit for and during the period of her natural life, to be under her control 
and used by her as she may see fit to use the same ; and in case she should find 
it necessary or see fit to dispose of any part or all of the same, I do hereby 
authorize, empower and direct my said wife, as my executrix hereinafter 
named, to sell, deed and dispose of the same, or any part thereof, from time to 
time as she may deem proper, and to make good and suflScient deed or deeds 
for any part or the whole of my estate so sold or conveyed. 

"Item. After the death of my said wife it is my will, and I do order my 
executors hereinafter named, to sell the whole of my estate, real and personal, 
remaining at the decease of my wife, or so much of it as is in California, and 
dispose of the proceeds as follows, to wit : 

" To my brother-in-law, William F. Brown, or his heirs, I give the sum of 
three thousand dollars * * * I also give to him my salt meadow lot, 
hereinafter more fully described, to him, his heirs and assigns forever. 

" To my brother, Henry A. Cory, I give the sum of three thousand dollars, 
to him or his heirs for their own benefit and use. 

" To my brother, Uzal Cory, I give the sum of three thousand dollars, to him 
or his heir" 


Cory V. Cory. 

"To my sister, Anu Cory, I give three thousand dollars. As my sister Ann 
has no heirs, should she not be living at my death and the death of my wife, I 
give her share &c. 

" To ray brother, Silas D. Cory, I give the sum of two thousand dollars, for 
the use and benefit of his heirs. 

"To the two daughters of my sister, Martha Beers, I give the sura of on^ 
thousand dollars to each of them &c. 

"To my friend, Julia A. Webb, wife of George F. Webb, I give the sum of 
five hundred dollars. 

"Tlie balance of my estate, after paying the above legacies, I give and be- 
queath unto my brothers, Henry A. Cor}', Uzal Cory, and ray brother-in-law, 
Williara F. Brown." 

Lastly he appoints his executrix and executors, and says : 

" My wife, Eliza Cory, to act and to have the sole custody and charge of say 
estate, witiiout giving bonds to any person or court, during her lifetime, and 
my executors to take the charge thereof after the death of my wife." 

Then the testator describes his salt meadow and other real 
estate in Rahway, N. J., and his bank stock — 

" And about sixty shares of New Jersey Kailroad and Transportation Com- 
pany, all of which I wish my executors to take charge of, and faithfully carry 
out my last will and testament." 

As directed, Mrs. Cory did take charge of the entire estate, 
and in a comparatively short time conveyed all the real estate in 
California and exchanged all securities for new ones, or collected 
the araounts due and re-invested all in her own individual name ; 
so that at the period of her death there was nothing connected 
with these securities themselves by which it could be determined 
from whence the money which they represent originally came ; 
whether it was all, originally, Mr. Lewis Cory's or not, or whether, 
at the time of his death, a part of it was Mrs. Cory's by descent 
or by acquisition or not ; and so that, if Mrs. Cory was entitled 
to any portion of her husband's estate under the laws of Cali- 
fornia, it would be equally difficult to establish, with satisfaction, 
what portion. 

But I think the embarrassment which this condition of the 
estate would otherwise entail, has been wholly overcome by the 

10 Stew.] MAY TERM, 1883. 201 

Cory V. Cory. 

action of Mrs. Cory herself. What she did with reference to 
the estate must have been done with all these considerations in 
view. She certainly had her own personal rights in full con- 
templation. Those who claim any portion of this estate through 
her under, the statute of distributions, are in all respects bound 
by her acts. They can claim nothing beyond what she claimed. 
We can only judge of her claims by what she said and did after 
her husband's death. I think Mrs. Cory very early employed 
counsel in California. It is in evidence that she took the writ- 
ten opinion of her counsel in New Jersey soon after her return 
to this state, respecting her rights and powers under the will. 

First, then, I think it is incontrovertibly established that Mrs. 
Cory claimed, and took possession of, all the property out of 
which came what she left at her death, under and by virtue of 
the will of her husband. This was the incipient step, and from 
it alone all the rights of the defendants are to be traced and 
judged. If Mrs. Cory had any individual, marital or legal 
rights with respect to any of this property, other than what was 
given by the will, she never in any manner asserted them. She 
proved the will of her husband. She proceeded to collect and 
take possession of all the estate under the will. If she had a 
separate estate, she allowed it to be swallowed up in the mass of 
her late husband's estate. If the laws of California secured to 
her one-half of all that he left, she never exhibited her claim 
under the law. From the first she treated the entire mass as 
one and indivisible. 

Therefore, I conclude that Mrs. Cory, having accepted the 
provisions of the will, and made her election, it is now (seven- 
teen years having elapsed and she being dead) too late for her 
administrator to elect differently; too late to say a portion of 
this estate was hers independently of her husband, or that she 
was entitled to one-half by statutory provision. Not only does 
the doctrine of election apply, but that of estoppel also. It would 
be quite difficult to meet with a clearer case under either of these 
heads. See 1 White & T. Lead. Cos. in Eq. 503 and notes ; Hyde 
V. Baldwin, 17 Pick. 303 ; Smith v. Smith, llf. Gray 53^2 ; Kearny 


Coiy V. Cory. 

V. Macoinb, 1 C. E. Gr. 189, 195. As to the estoppel : Kerr on 
Fraud & Mis. 127 ; Big. on Estop. 4^5, 4^7. 

It being established that Mrs. Cory took and held all this 
property under the will as executrix, the second inquiry is, what 
individual rights she had to that property under the will. Thi> 
complainant awards to her a life estate only; the defendant an 
absolute and unqualified one, and insists that this inevitably fol- 
lows the power of disposition conferred. The defendant thinks 
he is supported in this by the cases of Courier v. Howell, 6 Steiv. 
Eq. 80 ; Barford v. Street, 16 Ves. 135 ; Iinoin v. Farrer, 19 
Ves. 86; Downing v. Borden, 7 Vr 4.60; S. C.,6 Vr. 74; Ken- 
dall V. Kendall, 9 Stew. Eq. 91 ; Annin v. Van Doren, 1 McCart. 

These cases would be decisive did not three conditions arrest 
the attention — the fact that a life estate is distinctly created ; the 
fact that Mrs. Cory is oidy authorized to sell as executrix ; and 
the fact that a large amount of the estate is given absolutely, 
after her death, to his and her near relations. These considera- 
tions cannot be disregarded. Every intelligent individual, un- 
accustomed to legal distinctions, would at once declare that this 
testator contemplated a large estate remaining after the death of 
his widow. Hence it is well understood that every part of the 
will every word, indeed — must stand. Collet v. Lawrence, 1 Ves. 
Jr. 268. Lord Eldon said : ** Words are not to be rejected unless 
you cannot by any possibility give them a rational construction." 
Chambers v. Brailsford, 19 Ves. 652, 654; Gray v. Minnethorpe, 
3 Ves. 103 ; Constantine v. Constantine, 6 Ves. 100. This plain 
rule cannot be observed, and at the safue time give to Mrs. Cory 
an unlimited estate. I am constrained to conclude that she only 
took a life estate, ami that all the property which came to her 
hands and which she did not consume in using, passes, by force 
of the will, to his representative and not to hers. 

Considering all the parts of the will, this view is not at all 
inconsistent with any of the cases presented by counsel for de- 
fendant. I do not find in any of them the power of sale con- 
ferred on the life tenant as executrix, as it is here. This power 
of sale was for the benefit of the estate generally, or of the life 

10 Stew.] MAY TERM, 1883. 203 

Cory V. Cory. 

tenant specially, either according to the supposed necessity or her 
own fancy ; but whether it was necessity or whim, she was not 
autherized to exercise the power in her own name, but only as 
executrix. How can I strike out that phrase or say it has no 
significance? It seems to me that Mrs. Cory used this property 
as a tenant for life, and sold or had the power of sale, as a trus- 
tee. I believe, too, that this reasonable view of the case is sus- 
tained by many authorities, the most of which also recognize the 
doctrine of the cases cited by counsel of defendant. In Jack- 
son V. Rohins, 16 Johns. 537, 5-88, Chancellor Kent said : " We 
may lay it down as an incontrovertible rule that when an estate 
is given to a person generally, or indefinitely, with a power of 
disposition, it carries a fee ;• and the only exception to the rule is 
where the testator gives to the first taker an estate for life only, 
by certain and express words, and annexes to it a power of dis- 
posal. In that particular and special case the devisee for life 
will not take an estate in fee, notwithstanding the distinct and 
naked gift of a power of the disposition of the reversion. The 
distinction is carefully marked and settled in the cases." This 
language is quote ,i approvingly in Downey v. Borden, 7 Vr. 4-60. 

In Kendall v. Kendall, 9 Stew. Eq. 91, there was no gift over, 
and this is pointed to by the chancellor, which is regarded as of 
importance in oth-er cases. Mason's Exrs. v. Trustees of M. E. 
Church, W C. E. Gr. 4,7 ; Gulick's Exrs. v. Guliek, 10 C. E, 
Gr. 324, 328. 

I think the doctrine established in Jackson v. Robblns, and in 
Downey v. Borden, is fully supported in Stuart v. Walker, 72 
Maine 145 ; 8. C, 11 Rep. 533, and in Giles v. Little, 14 Otto 
291, and in many other cases. 

Then, is the entire fund now on hand to be treated as princi- 
pal and to go to ti)e complainant as surviving executor, or part 
of it as accumulations by way of interest, which was Mrs Cory's 
in her lifetime, and which passes to the defendant as her admin- 
istrator? I think the interest became Mrs. Cory's absolutely, 
and whatever can with reasonable certainty be said to be interest, 
the defendant should retain. What, then, is principal and what 
interest? This cannot be determined with certainty. But be- 


McNeal v. Assiscunk Creek Meadow Co. 

cause the life tenant destroyed the evidences of the original 
amounts, or surrendered them without keeping accounts, the 
rights of innocent third parties should not be lost or barred, so 
long as funds enough are found in her possession. A trustee 
cannot be heard to plead his own neglect in support of his own 
claim as between himself and cestui que trust. I think in such 
cases the duty of the court is to charge the trustee with the last 
item that may be supposed to be principal. Being governed by 
this principle I conclude that at the time of Mrs. Cory's death, 
she had ^52,000 in her hands belonging to the estate of Lewis 
Cory, deceased, and that of the securities now in the custody of 
defendant, I will advise that he deliver sufficient to make that 
sum, or their equivalent in cash current funds, with interest from 
the day of her death, unless such securities bear interest. 

AifDREW H. McNeal 


The Assiscunk Creek Meadow Company. 

Under a statute authorizing the work, the defendants, as a corporation, had 
almost finished the erection of a dam to drain and reclaim lands overflowed by 
tide-waters, for sanitary and agricultural purposes. — Hdd, that the court would 
not, the evidence as to the effect of the dam upon the public health being con- 
flicting, enjoin the erection of the dam on the ground that it was a nuisance. 

Bill for injunction. 

Mr. F. Voorhees, for complainant. 

Mr, A. H. Gangewer, for defendant. 

Bird, V. C. 

The Assiscunk creek is a small stream rising northeast of the 
city of Burlington, and flowing into the Delaware. The country 

10 Stew.] MAY TERM, 1883. 205 

McNeal v. Assiscunk Creek Meadow Co. 

is so low and level as to admit the tides at least four miles along 
its course, which ordinarily rises four to five feet, and overflows 
the banks of the creek, spreading from the right to the left from 
a few feet to several hundred, covering about two hundred acres. 
All the lands thus subject to tide-waters are rendered so wet, 
marshy and sour as to be worthless for agricultural, and nearly 
so for grazing purposes. To some land-owners the loss is quite 
inconsiderable, while to others it includes from five to seventeen 
acres. In addition to the loss thus entailed, it is urged that 
malaria is engendered by the irregularity of the tides ; that is, 
when higher than ordinary they cover still more lands, which, in 
their turn, are again exposed to the sun and air, thus surely pro- 
ducing the dreaded disease. 

Situated as New Jersey is, there are perhaps many similar 
localities within her borders. Whether wisely or not, the legis- 
lature has endeavored to place it within the power of the enter- 
prising and resolute to control the tides, reclaim such lands, and 
dispel this foe to humanity. On March 11th, 1880, an act enti- 
tled " An act for incorporation of companies for draining and 
improving meadows and lands overflowed by tide-water" was 
approved. P. L. of 1880 p. ^Jfi. This act provides that the 
owners of tracts of land of not more than two hundred acres of 

Note. — The word "nuisances," in a sanitary act, must be construed to 
mean only matters detrimental to health, Great Western R. R. Co. v. Bishop, 
L. R. [7 Q. R.) 550. See Bavbury Sanitary Authority v. Page, L. R. {8 Q. B. 
D.) 97. 

Effluvia that cause sick persons to become worse, though not injurious to 
persons in sound health, are a nuisance, Malton Board of Health v. Malion 
Manure Co., L. R. (4 Exch. Div.) 202. 

The owners of wet lands are not guilty of a public nuisance because they 
neglect to drain them, Woodruff v. Fisher, 17 Barb. 224 ; or fail to remove 
natural obstructions from streams, Mohr v. Oault, 10 Wis. 513. 

Equity will not enjoin the re-erection of a mill-d^m authorized by law, 
although the health of complainant's family had been much improved while 
the dam was down, Eason v. Perkins, 2 Dev. Eq. 3S ; Bradsher v. Lea, 3 Ired. 
Eq. SOI ; Wilder v. Strickland, S Jones Eq. 386 ; so, although complainant al- 
leges that it would be utterly destructive to the health of himself and his 
family, and highly injurious to that of several of his neighbors, Barnes v. 
Calhoun, 2 Ired. Eq. 199; Daughtry v. Wairen, 85 N. C. 136; Vail v. Mix, 74 
III. 127 ; but see Norwood v. Dickey, IS Ga. 528. 


McNeal v. Assiscunk Creek Meadow Co. 

meadow, -marsh, swamp or lowlands exposed to the overflow of 
the tide, may form an incorporated company for the improve- 
ment of those lands, and for the further purpose of erecting 
across any stream of water that may flow through said lands, 
any bank, dam, sluice, flood-gates or water-works necessary to 
secure the same from the overflow of the tide. 

Tiie fifth section authorizes the construction of such dam at 
the most convenient point above any established wharf or land- 
ing, and above where navigation for sailing and other vessels en- 
gaged in transportation of passengers and goods at ordinary high 
water ceases. 

The tenth section provides that as soon as such works are con- 
structed, it shall be the duty of every owner and occupier of the 
said meadow and lowlands to cause his, her, or their respective 
portions thereof to be thoroughly and effectually drained, as in 
the judgment of the managers or a majority of them shall be 
deemed necessary to secure the improvement of the said meadow 
and lowlands, and in case of default the managers may cause the 
same to be done. 

The last section excludes the operation of the act from streams 
flowing through lands comprising more than two hundred acres. 

Under what circumstances a dam becomes a nuisance because deleterious to 
health, Douglass v. Stale, 4- Wis. 3S7 ; Com. v. Webb, 6 Band. 726; State v. 
Close, 35 Iowa 570 ; Com. v. Clarke, 1 A. K. Marsh. S23 ; People v. Townsend, 

5 Hill {N. Y.) 479"; especially when built under a charter, Sioughton v. t!tate, 

6 Wis. 291 ; Fames v. New. England Worsted Co., 11 Mete. 570 ; Stale v. Gainer- 
3 Humph. 39 ; Nichols v. Pixly, 1 Root 129 ; McNally v. Smith, 12 Allen 455 ; 
Ensworlh v. Com., 52 Pa. St. 320 ; Lee v. Pembroke Iron Co., 57 Me. 4^1. 

Commissioners authorized by statute to drain lands, cannot be enjoined in 
their work, Hnrtwell v. Armstrong, 19 Barb. 166 ; see Dixon v. Metropolitan 
Board of Works, L. R. [7 Q. B. D.) 413; Belknap v. Belknap, 2 Johns. Ch. 463, 

In some cases of injury to health from dams, injunctions have been allowed. 
Bell V. Blount, 4 Hawks 384; White v. Forbes, Walk. Ch. 112; although an 
indictment for the same cause was pending, Raleigh v. Hunter, 1 Dev. Eq. 12 ; 
or one of the neighbors had recovered damages therefor at law. Miller v. True- 
hart, 4 Leigh 569 ; Hill v. Sayles, 12 Cush. 454 ; Wason v. Sanborn, 45 N. H 
169 ; see, further, Booker v. Perkins, 14 Wis. 79 ; Gherkey v. Haines, 4 BlackJ 
159 ; Woolen v. Campbell, 7 Dana 204; Trabue v. Macklin, 4 B. Mon. 407 ; 
Mayo V. Turner, 1 Munf. 405 ; Smith v. Waddell, 11 Leigh 532; Shepard v. 
People, 40 Mich. ^7.— Rep. 

10 Stew.] MAY TERM, 1883. 207 

McNeal v. Assiscunk Creek Meadow Co. 

Those who compose the defendant company have undertaken 
to avail themselves of the benefits of this act. The chief com- 
plaint in the bill is, that if this work is allowed to be completed, 
the complainant and those in his employ will suffer in health and 
happiness, and that he will be greatly injured in his estate. 

The bill alleges that the complainant resides and has large and 
valuable interests in property and business at the confluence of 
this creek and the Delaware; that he owns considerable lands 
and an extensive foundry, in which he employs about forty men, 
all of whom, with their families, reside in the immediate vicinity ; 
and that the construction of a dam and sluiceway across said 
creek, so as to keep out the tides, will also at times present such 
an obstruction to the waters of the creek as to cause the said 
lowlands to be overflowed and so saturated that when the waters 
are discharged therefrom again, malaria will be surely produced 
in a more aggravated and fatal form, to the injury of the com- 
plainant, because the surface in such so exposed will be greater 
in proportion as the proposed dam, .at ordinary tides, irees the 
said lowlands from overflow. 

It is said in the bill that the defendants have nearly completed 
the work, and pretend that they have formed a corporation under 
the act, but charges that they have neither filed a certificate nor 
a map of the lands, as the act requires. This cannot certainly 
avail the defendant, unless the question of special damage be 
found in his favor. 

The prayer of the bill is that the defendants may be re- 
strained from completing said dam. 

On filing said bill and affidavits annexed, an order was allowed 
requiring the defendant to show cause why an injunction should 
not issue. 

Testimony has been taken. Several eminent physicians, who 
have lived in the vicinity for many years and have had large ex- 
perience in the treatment of diseases generally, and chills and 
fever, or malaria, specially, were examined as experts, with the 
view of establishing the effect upon the health of any who live 
reasonably near, of building said dam. These have all spoken, 
also, of the effect upon the health of those so situated in the 


McNeal v. Assiscunk Creek Meadow Co. 

past, while the waters have been permitted to have their natural 
rise and fall along the entire course of the creek, twice a day 
covering the land, and as often receding and leaving the land 
exposed. Those who were not experts, but who have lived for 
years along this creek, were also permitted to speak of the preva- 
lence and effect of this disease called malaria upon the health of 
tliemselves, their families and neighbors, as it came under their 
immediate observation. 

This testimony weighs most heavily against salubrity and s^i- 
tary condition of the locality of the ancient and historic city of 
Burlington. Had not the great English novelist unmistakably 
designated another place in his effort to caricature America, we 
should pronounce this the spot where he found men of stalwart 
frames chattering with the chills, or dwindling to skeletons from 
malaria. For more than a hundred years the enterprising and 
philanthropic have been fighting the tides, so as to prevent the 
lazy waters and the muddy deposits from accumulating and 
breeding death, but thus far with ill success. The doctors' 
labors are not lightened. 

Amongst other efforts, one was made on this Assiscunk creek. 
A dam was constructed near the site of the one now projected. 
It was carried away several years since, leaving the tides to 
again assert their dominion over the lowlands above. It was 
hoped that this circumstance — this experiment long tried and 
well remembered by many — would enable the court to obtain 
facts of such force and character as would remove all doubt as to 
the effects upon the health of the immediate residents, of the con- 
struction of the new dam. But the situation is still as perplex- 
ing to the court as to the physicians or their suffering patients. 
The chills abounded during the existence of the old dam and 
they have abounded since its destruction, whether more now or 
then would be useless to decide, since the shadows deepen sadly 
on either hand as the investigation proceeds. Families die, or 
depart in mortal dread, and others come to wrestle with the in- 
sidious foe; but at all times the invisible and consequently in- 
describable " cryptogamia " has shaken the life out of the Sam- 
sons as well as the children. 

10 Stew.] MAY TERM, 1883. 209 

McNeal v. Assiscunk Creek Meadow Co. 

In a locality where nature is so prodigal of mischief, it is not 
surprising that the complainant should call for aid upon any 
reasonable suspicion of increase of the danger. Nor is it sur- 
prising that those who compose the defendant company should 
seek legislative aid where skill and quinine have been so long 
tried in vain. 

But the complainant insists that whatever the defendant may 
do under the law, the contagion will inevitably be increased. 
Yet he admits that perfect dams, sluice-gates and drainage would 
not only reduce it, but absolutely overcome it. This, he says, he 
has established, though at great cost, by his own personal efforts 
in and about his own home and plantation. This certainly can- 
not be overestimated. The fact that the action of the tide-waters 
and exposure of these lands breed malaria, and the fact that the 
complainant himself has by his skill and liberality shown that 
the proud waves can be stayed, the wet lands reclaimed and made 
arable and productive, and the destroyer of happiness and 
health banished, are abundant reasons for hesitating when called 
upon to interfere with the undertaking of those who wish to do 

The work of the defendant has the legislative sanction. It is 
not to be supposed that the legislature intended to authorize the 
defendant to injure anyone. And where the power conferred is 
for a salutary as well as a profitable purpose, this court would 
not, if it had the power, interfere until the application of the 
right conferred should be fairly tested. The object of the law 
is to enable owners to improve their lands and to secure them 
from the overflow of the tides ; and makes it the duty of every 
owner and occupier to effectually drain his land. Whatever the 
powers of this court in protecting the health of individuals, by 
restraining others from committing nuisances, it certainly will 
not, when the citizen is about to undertake the removal of a 
nuisance, say to him. You shall not try. 

I think it is very plainly my duty to advise that this order be 


210 CA-SES IN CHANCERY. [37 Eq. 

Sever v. Seyer. 

Celestin Sever 


Louisa Seyer. 

A marriage by one under lawful arrest for seducing a minor, under promise 
of marriage, is not void, as obtained by fraud or duress, nor becaufie the woman 
was a prostitute and over twenty-one years of age, nor because the justice de- 
manded excessive bail, ilor because, after the woman had assented to a post- 
ponement of the marriage ceremony, the minister, who was present, and the 
constable who had arrested complainant, and the justice who issued the war- 
rant, advocated its immediate performance, nor because the parties did not 
cohabit after the ceremony. 

S. H. McGiU, for complainant. 

Bird, V. C. 

It is alleged, for cause of divorce, that the complainant was 
arrested upon a warrant issued by a justice of the peace on com- 
plaint of the defendant, under oath, that she, being under the age 
of twenty-one years, was seduced by the complainant under the 
promise of marriage, which arrest and subsequent proceedings 
very much frightened and terrified him, so that he was quite be- 
side himself; and that so being arrested and in custody, ajnd 
overcome with fear and dread, others, a minister, by the name 
of Maas, the constable and the justice, took advantage of him, 
and through threats, menaces and false statements, induced him 
to say that he would marry the defendant, who was a notoriously 
bad woman, when he did not intend at all to marry her. On 
the ground of fraud, therefore, he asks to have the contract of 
marriage annulled. 

Can a court of equity so declare under the circumstances? In 
other words, is there such fraud established as makes it manifest 
that there was no lawful contract between these parties ? Did 
the complainant marry for convenience, that is, to avoid im- 
prisonment and a trial, or because of threats and menace unlaw- 
ful in their nature ? 

10 Stew.] MAY TERM, 1883. 211 

Sever v. Seyer. 

It is not pretended but that the warrant was regularly obtained 
and the arrest properly made. The defendant was, therefore, 
lawfully in custody. 

It is shown that the defendant was a prostitute of the lowest 
order. The complainant, however, knew this. He says so. He 
emphasizes what he says about her character in very strong 
terms. Therefore, this cannot avail him. 

Then it is claimed that the defendant was over the age of 
twenty-one years. This the complainant undertakes to prove by 
the mouth of two witnesses who heard her say she was over 
twenty-one, prior to the arrest, and by others who heard her say 
she was, just prior to the marriage ceremony, in their presence 
and in the presence of the complainant, when the subject of 
marrying was being talked about. This, if it were a fact, 
cannot avail the complainant, for he knew it. If a fact, it 
would have prevented conviction, and if the justice believed it, 
even a holding to bail. 

These failing, the charge of conspiracy must be considered. It 
is to be inferred that the persons engaged were the justice, the 
constable, the defendant and the minister. As to the justice, it 
appears that he issued the warrant, and when the complainant 
was brought before him as a prisoner, read a portion of the law 
to him, and told him if he didn't marry the defendant he would 
be obliged to confine him, unless he could give bail in the sum 
of $2,000. It is also claimed that the justice did not allow 
sufficient liberty of speech to the friends of the defendant who 
were present. 

Construing this most favorably for the complainant, it is very 
far from proof of combination on the part of the justice. I do 
not pronounce upon the wisdom of what he said, or the manner. 
But he was as much in the due course of the discharge of his 
duty as a public officer, as he was when, as a witness, he appeared 
and gave evidence in this cause. The justice was not a con- 

The bail which he said he would require was excessive, 
against which the complainant had the same speedy and certain 


Seyer v. Seyer. 

remedy that every other citizen who stands accused has. The 
mistakes of officers of inferior tribunals are not unalterable. 

As to the constable, it appears that he took the prisoner a cir- 
cuitous route to the office of the justice, and on the way met the 
minister, who followed on to the court-room. When they first 
met the minister he urged complainant to marry, but he refused. 
The officer and prisoner proceed to the justice ; the defendant, the 
minister and at least two friends of the complainant appeared 
there also. After they reached the office, the complainant and 
defendant had an interview, at the termination of which the de- 
fendant expressed a willingness to postpone the ceremony for a few 
days, giving her reasons, when the minister interposed and insisted 
on the immediate consummation of the work. At about this point 
the justice remarked to the prisoner that if he would marry the 
girl he would discharge him on his ovvn recognizance, at which 
the constable said, " There is a chance for you now." 

I cannot find that the constable conspired against the complain-^ 
ant. Therefore, the charge of conspiracy to injure is without 

Considering the threats urged for cause, I do not think them 

Complainant says : 

" During all the proceedings there, I found I could only escape going to jail 
by marrying her." 

He married her, then, to escape going to jail. The manner and 
the words of others may have operated on his mind; but the 
court must take into consideration, as well, what he says was the 
impelling cause, when he speaks from the witness-stand months 
afterwards. And this brings the case sufficiently near to the 
very wise and healthy principle laid down in Sickles v. Carson, 
11 C. E. Gr. 4-^0, for me to refer to and rely upon it. 

Then it is said this marriage was never consummated, because 
the parties did not cohabit as man and wife after the ceremony. 
Although no copulation after, there doubtless was before, and 
therefore, in the eye of the law, a consummation. Blackstone 
has said that a subsequent marriq,ge legitimates the issue. Had 

IOSte'.v.] may term, 1883. 213 

Carson v. Marshall. 

the defendant's child been born alive it would have been freed 
from the odious epithet of " nullius filius." The complainant 
never once denied the impeachment made. He says the constable 
informed him, at the time of the arrest, of the grounds thereof. 
He did not then, or at any other time, say that he had had 
nothing to do with the defendant. 

And as to this branch of the case, it may be said that when the 
court is satisfied that ante-nuptial incontinence has taken place, 
the charge of threat or menace unlawful, or fraud or duress, 
must be most fully and satisfactorily established before the court 
will annul the marriage. Carris v. Carris, 9 C. E. Gr. 516. 

I will advise that the bill in this case be dismissed. 

Isaac Carson et al. 


David H. Marshall et al. 

Trustees are never permitted, without the aid of the court, to buy the prop* 
Tty which they hold as such, 

Mr. C. A, Bergen^ for complainants. 

Mr. S. H. Grey, for defendants. 

Bird, V. C. 

This bill was filed by creditors of David E. Marshall, de- 
ceased, asking the aid of this court in collecting the amount of 
their claims against his estate. They charge that he died leaving 
a large tract of land, and leaving a will appointing David H. 
Marshall, Charles Stevenson and Randall E. Morgan executors, 
giving them power to rent his real estate and to sell so much 
thereof as should be necessary to pay his debts. They accepted 
the trust. At the death of the testator there were three judg- 


Carson v. Marshall. 

ments against him, amounting to over $18,000, on which execu- 
tions had been issued and levies taken, covering all the lands of 
the testator. Some time after his death, the sheriff advertised the 
lands for sale and sold them, at public vendue, to two of the 
executors named in said will. 

The bill proceeds, in its stating part, upon the presumption 
that the executors who purchased attended said sale in the interest 
of the estate of David E. Marshall, and under a promise and ob- 
ligation to purchase the land for the benefit of ci'editors and legatees 
unless it sold for a full and fair price, and not in their own private 
interests; and that it did not sell for a fair price; and that they 
refuse to make a resale and claim that they hold the lauds as 
tlieir own. In the confederating and charging part of the bill 
it is stated that the defendants had no right to buy. The bill 
prays that the defendants may be decreed to hold the land which 
they have not sold to bona fide purchasers, for the said estate ; 
that it may be sold under the direction of this court, and that 
the defendants may account. A great volume of testimony was 
taken before the master, before it was referred to me, upon the 
presumption that the executors had made such promise and were 
under such obligation, and, having purchased, held the lands 
for the estate. The values of the lands in question, and of many 
others, had been given in detail, which seemed to render it quite 
necessary for the defendants to have leave to follow over the same 
ground. Hence the mass of matter before the court. 

But I think this case turns not upon any alleged agreement 
nor mere inadequacy of price, but upon the ground scarcely 
hinted at in the stating part of the bill : that trustees are never 
permitted, without the aid of the court, to buy the property which 
they hold as such. The purchasers at the sheriff's sale were the 
executors of the deceased debtor. The debtor, in and by his 
will, had invested these executors with certain powers and duties 
respecting his real estate, one of the powers being to sell so much 
as should be required to pay debts. They did not pay the debts^ 
nor take measures to be able to pay them. The sheriff sold the- 
lands to pay the judgments in his hands, leaving a large indebt- 

10 Stew.] MAY TERM, 1883. 215 

Carson v. Marshall. 

I will not Wait to consider. what obligation the executors were 
under from any promise, nor the fairness of the sale, nor the in- 
adequacy of the price. I shall only look at the naked question 
advanced at the close of the argument for complainants — Had 
the executors the right to purchase ? I think not. Than this, 
perhaps, there is no rule of law more unlimited, inexorable and 
better fortified by reason, necessity and experience. So firmly 
has this vigorous root imbedded itself in the judicial mind that 
courts will not, under any circumstances, allow trustees to judge 
for themselves when to bid, but require them, if the necessity 
springs up, to state the situation to the court, and ask aid and 
permission to bid. 

The question is not, under such circumstances, who makes the 
sale — whether the trustee himself, or other person — but whether 
the property sold is held in trust or not. If held in trust, there 
is no condition on which the trustee can buy on his own private 
account. If called upon for an account of the profits, or for a 
resale by those interested, he must account in the one case and 
make sale in the other. Oreveling v. Fritts, 7 Stew. Eq. 134- ; 
Romaine v. Hendrickson, 12 C. E. Or. 163 ; Colgate v. Colgate, 
8 C. E. Or. 372 ; Michoud v. Oirod, ^ How. {U. S.) 503; 
Booraem v. Wells, Jf, O. E. Or. 87. 

Thus far generally, but particularly when sales of trust prop- 
erty are made by others than the trustees themselves, see Staats 
V. Berge7i, 2 C. E. Or. 297 ; S. C. on appeal, 2 C. E. Or. 554.; 
Jeweit V. Miller, 10 N. Y. 4-02 ; Van Epps v. Van Epp.% 9 Paige 
237 ; Fulton v. Whitney, 66 N. Y. 548; Bennett v. Austin, 81 
N. Y. 308, 332. 

The case of Earl v. Halsey, 1 MeCai't. 332, which has been 
urged as precisely like the present case, is not, as I understand 
the facts, like this in any essential particular. In that case the 
land was given to another in fee, and the executors had no inter- 
est in it whatever, nor power over it, nor in connection with it. 
The report says that the bill expressly alleges that the executors 
had no power of sale. 

The law, therefore, requires me to advise that the defendants 
hold the land which they purchased in trust, and that so much 


Yawger v. Yawger. 

thereof as they still hold the title to, be sold in the presence of 
and under the directions of one of the masters of this court, and 
that the said defendants account for all advances on the price 
they paid, for any of the land sold by them, with interest, and 
also for all the rents and profits of that unsold, they to be allowed 
interest on all money invested, and the actual cost of all perma- 
nent improvements, with interest. The complainants are enti- 
tled to costs. 

"William H. Yawqer's executor 


Andrew C. Yawger et al. 

1. The testator devised to his son a farm, for which the son was to pay $80 
per acre. He also gave to the son one-seventli of his entire estate. The son 
dying soon after the testator, and without having expressed any intention as to 
his election — Held, that the presumption is that he elected to accept of the 
provisions of the will in his behalf, because beneficial to him. — Held, also, that 
the payment required is a lien on the land, which, if not discharged by the 
heirs-at-law of the devisee, can be enforced by the executor. 

2. Where a testator directs legacies to two of his children, to be invested 
And the interest paid to them, and legacies to five without any qualification, 
except this general one — " Should any of my children die not leaving lawful 
issue, the shares that would be due to them to be equally divided among my 
living children and the survivors of them " — Held, that the qualification as to 
the five last named refers only to the period of distribution. 

3. The court prefers such a construction as will prevent a partial intestacy. 

4. He who accepts a benefit under a will must bear the burden imposed. 

Mr. H. A. Fluch and Mr. J. A. Bulloch, for complainant. 

Mr. J. N. Voorhees, for the administrator and heirs-at-law of 
John C. Yawger, deceased. 

Mr. W. C. Parker, for Andrew C. Yawger et al. 

10 Stew.] MAY TERM, 1883. 217 

Yawger v. Yawger. 

Bird, V. C. 

The bill shows that William H. Yawger died, leaving his last 
will, in and by which he provided for the payment of his debts; 
gave to his wife the interest of $8,000 during her life; devised 
to his son John C. a farm of one hundred and three acres, " by 
his allowing and paying for the same the sum or price of $80 
per acre;" devised to his son William H. another farm, by his 
paying $100 per acre ; directed his executors to secure the $8,000 
above named on the said two farms, which $8,000 was to be 
divided amongst all his children after the widow's death ; orders 
bis executors to divide all his estate equally between his children; 
the shares of Andrew and Peter to be placed at interest, and the 
interest to be collected and paid to him, and after his death the 
principal to be paid to his children ; gives to his daughters, 
Sarah, Catharine and Mary, and to his sons, John C. and Wil- 
liam H., each the one-seventh part in so many separate para- 
graphs, and then says : 

" Should any of my children die not leaving lawful issue, the shares that 
would be due to them to be equally divided between my living children and the 
survivors of them." 

John C. and William H. were appointed executors. 

The testator died September 11th, 1882, and his son John C. 
October 6th following. The death of John C. left the title to 
the land devised to him in so mucii uncertainty as to move the 
tixecutor to ask this court for instructions in that particular, and 
also with respect to the disposition to be made of tlie legacies 
given to Sarah, Catharine, Mary, John C. and W^illiara during 
their lives. It is alleged that while John C, in his lifetime, did 
not reject the provisions of tlie will in his behalf, he did not 
accept them; in other words, he made no positive election. 

It was suggested that because John did not in some positive 
way signify his acceptance of the devise of the land and the be- 
quest of the legacy, that the title never descended to him, but 
was, by force of law, cast upon the heirs-;at-law of the testator. 
I think this view is erroneous. If controlling, very great em- 
barrassments must ensue in the administration of the estate; if 


Y.awger v. Yawger. 

this cfevise does not prevail, tlien, as to that farm, the testator 
died intestate. 

Now the law prefers a construction which will prevent a par- 
tial intestacy. Vernon v. Vernon, 53 N. Y. 351. 

The devise and the legacy to John were beneficial to him. 
He must therefore be presumed to have accepted them. Best on 
Ev. § 343. " A gift imports a benefit, and an assumption to 
take a benefit may well be presumed." Ibid. 

Again, supposing John did not regard the devise as a benefit, 
the legacy certainly was, and the law would not allow him to reject 
the former and accept the latter. " He who accepts a benefit 
under a deed or will must adopt the whole contents of the in- 
strument, renouncing every right inconsistent with it." 1 Jar, 
on Wills 384.; Talbot v. Earl of Radnor, 3 31. & R. 251^; 2 Wms. 
on Exrs. 12Jf.2 ; Vet-non v. Vernon, 53 N. Y. 351 ; Van Duyne v. 
Van Duyne, 1 McCart. 4-9 ; Stevenson v. Brown, 3 Gr. Ch. 503. 

Under this very reasonable and reliable principle, if the court 
were to hold that- John C. refused to accept the devise, it would 
also be obliged to hold that he rejected the whole will, and con- 
sequently that his children can now claim no share of their 
grandfather's estate at the hands of the executors. Fortunately^ 
the law has long been so clearly pronounced that I am free from 
enforcing any such palpable injustice. 

Therefore, I conclude that the title to the farm devised to 
John C. vested in him, and that upon his death it descended to 
his heirs-at-law, subject to the burden imposed by the will. It 
is liable in their hands to the payment of the $8,000. And 
there is no difficulty in th« way of the executor proceeding to re- 
cover it. Skillman v. Van Pelt, Sax. 511. If the heirs-at-law 
of John C. do not pay that sum, the executor can file a bill in 
this court to enforce the payment. In my judgment, he has not 
the power to sell under the will. This court can direct a sale to 
enable the executor to carry out the provisions of the will. 

It is urged that, as the law is declared in Rowe's Exrs. v. 
White, 1 a E. Gr. 4II, and in Jones's Exrs. v. Stites, 4- 0. E. 
Gr. 824,, the principal of the legacies to the daughters and t» 
John and William, are not to be paid to them, but are to be in- 

10 Stew.] MAY TERM, 1883. 219 

Yawger v. Yawger. 

vested and the interest thereof, only, paid to them. The case of 
Rowe's Ex7-s. v. White, and all the cases referred to in that case, 
and in Jones's Exrs. v. Stites, make it plain that if a contrary in- 
tention appears, that intention must prevail. I think there is 
that intention in this case very clearly expressed. He first di- 
rects that the shares to Andrew and Peter shall be invested on 
bond and mortgage for life, and the interest paid to each, and at his 
death, the principal to his children, and then says with reference 
to the balance of his estate and his other five children : " To my 
daughter Sarah I give and bequeath the one-seventh part," using 
similar language in separate clauses in gifts to the other four, 
adding : 

" And should any of my children die not leaving lawful issue, the shares that 
vould be due to them to be equally divided among my living children and the 
survivors of them." 

I think it is plain that the testator did not mean to suspend 
the payment of the principal in the latter case beyond the period 
of distribution. Hawkins on Wills 259 ; Williamson v. Cham- 
berlain, 2 Stock 373. 

Under these authorities, in my judgment, the language of the 
testator with respect to the period of payment of the legacies 
given to the daughters and to William and Mary, refers to the 
time of the distribution thereof, and that those who were living 
at that time take absolutely. 






MAY TERM, 1883. 

Theodore Runyon, Esq., Ordinary. 

GusTAVUS A. HoLLiNGER, appellant, 


Samuel R. Syms, executor &c., respondent. 

1. A testator's mental delusion as to his physical condition, or the cause 
thereof, does not constitute- testamentary incapacity. 

2. Where reasonable grounds for contesting a will exist, and the caveator's 
costs and expenses in the orphans court have been allowed there, a counsel fee 
siioald also be included. 

Appeal from a decree of the orphans court of Hudson county, 

Mr, H. A, Gaede and Mr. O. Collins, for appellant. 

Mr. J. C. Besson and Mr. F. B. Ogdm, for respondent. 



Hollinger v. Syms. 

The Ordinary. 

Gustavus A. Hollinger appeals from the decree of the orphans 
court of Hudson county, because it admits to probate two papers, 
one purporting to be the last will and testament of his brother, 
Edward N. Hollinger, deceased, late of Hoboken, and the other 
a codicil thereto, and also because it does not award to him 
counsel fees of the litigation out of the estate. The will is dated 
and was made February 8th, 1881, and the codicil on the 14th 
of March following. The testator committed suicide on the 
30th of the following May. He was about forty-two years old 
when he died. He was never married. His nearest relations 
were his brother, the caveator, and his half-sister, Emilie, a nun 
in a convent in Germany. By the will he first directs payment 
of all his debts and funeral expenses, and says that the only 
debt then existing against him was a loan from the First National 
Bank of Hoboken to him, secured by a deposit of bonds. He 
directs that his body be buried in his lot in the Hoboken ceme- 
tery, at an expense of $100, and that the lot be enclosed and a 
gravestone erected at an expense not exceeding $200. He then 
gives to his brother Gustavus a lot of land, which he describes 
as situated on the Paterson plank road, in Hudson county, in 
this state, containing four and seventy-two hundredths acres, 
purchased October 7th, 1868, of Mrs. Anne Vickerman, and on 
January 1st, 1869, of his brother Gustave. He then gives to 
August Schuberth, of North Bergen, in this state, a lot of laud 
which he describes as situated on the plank road just mentioned, 
containing one and fifty-eight hundredths acres, purchased 
August 12th, 1867, of Abram Stillwell, and adds that it is the 
lot of land on which Schuberth then resided. He jjrovides that 
in case of Schuberth's death before his (the testator's) decease, 
the property should go to Schuberth's children surviving the tes- 
tator. He gives Schuberth any arrears of rent therefor, as a tes- 
timonial of Schuberth's friendship for and kindness to him. He 
next gives to John Ludwig Weber, of North Bergen, with like 
limitation over in case of Weber's death before his own decease, 
another lot of laud, which he describes as being on the plank 
road, and containing one and six hundred and fifty-nine thou- 

10 Stew.] MAY TERM, 1883. 223 

Hollinger v. Synis. 

sandths acres, purchased December lOlh, 1866, of Abram Still- 
well. This gift he makes as a testimonial of Weber's " honesty 
and straightforward character." He then gives to Mrs. M. E. 
Charles, of Hoboken, in case she should survive him, $250, 
with whatever furniture and clothing he might leave, as a testi- 
monial of his friendsiiip for her, and for her care of him while 
he was sick at her house ; and provides that in case she shall not 
survive him, the gift shall lapse and go to his residuary estate. 
He then gives to Louis Ernst, of the city of New York, in 
trust for Ernst's three children, whom he names, to be paid to 
them as they respectively attain to majority, five shares of stock 
of the New York Gaslight Company, in proportions which he 
specifies, and provides that in case he should dispose of the stock 
before his death, there be substituted, in place thereof, $500, to 
be distributed in the same proportions. He also provides that 
if either of the children should die before attaining majority, 
the decedent's share should go in equal shares to the survivors 
attaining majority. He then gives to Mrs. Marie Deck Bishoff, 
of Alsace, his cousin, and to her children surviving him, one 
first-mortgage seven per cent. $1,000 bond of the Toledo, Peoria 
and Western Railroad Company, and one first-mortgage seven 
per cent. $500 bond of the North Hudson Railway Company, 
substituting $1,500 in place of those bonds in case he should dis- 
pose of them before his death. He then makes to Josephine 
Deck, of Alsace, his cousin, the sister of the last-named legatee, 
a like bequest of like bonds, with like provision for substitution. 
He then gives, devises and bequeaths to his sister, Emilie Hol- 
linger, known otherwise as Soew Marcienne Hollinger, of Por- 
tieux, France, and her heirs, all the rest and residue of his 
estate, real and personal, and all claims, present and reversionary, 
to the balance of the estate of his father, Aloys Hollinger. He 
then says he thinks it wise to state that the rest and residue of 
his personal estate and personal property, exclusive of real estate, 
after deducting the executor's fee of $500 thereinafter mentioned 
and provided for, and the* payment of his loan from the First 
National Bank of Hoboken, and funeral expenses, as therein - 
above provided for and directed to be paid, then consisted of 


Hollinger v. Syms. 

$4,50*0 of North Hudsou Couuty Railway first-mortgage seveu 
per cent, bonds; $1,000 of Toledo, Peoria and Western Railway 
seven per cent, bonds; $500 of Wabash Railway Company six 
per cent, bonds ; ten shares of Mobile and Ohio Railroad Com- 
pany stock, and one share of Chesapeake and Ohio Railroad 
stock. He then appoints Samuel R. Syms, president of the 
First National Bank of Hoboken, executor of his will, and 
requests him to accept a $500 North Hudson Railway Company 
seven per cent, bond in full payment of his services and com- 
missions and expenses and surrogate's fees, if he can possibly do 
so. The will concludes with the following provision 

"The above devises and bequests are made on the express condition that if 
any of the said devisees or legatees contest or dispute this will, either in the 
probate or execution, or carrying out of the same, or any of its provisions, or 
cause the same, the execution or carrying out of the same, to be contested or 
disputed, then I do revoke and annul the devises and bequests to such devisee 
or legatee herein made." 

The will was drawn by Mr. John H. Stitt, a lawyer of New 
York, who was well acquainted with the testator, and with 
whom he had had business transactions, as representing Louis 
Ernst, manufacturer of pianos, or his firm of Ernst & Lighte, 
and also one, at least, on his own account, the drawing of an agree- 
ment between him and his brother. The instructions for the 
will were given by the testator himself, both verbally and in 
writing, and his written memorandum for the will is produced. 
He was otherwise careful as to the testamentary disposition he 
was about to make, requesting Mr. Stitt to ascertain what was 
the law of New Jersey in regard to aliens and kindred of the 
half-blood. He made a careful bargain with Mr. Stitt as to the 
price to be paid for drawing and superintending the execution 
of the will, and also as to the time when it was to be ready for 
execution. Mr. Stitt says the testator was anxious to have it 
drawn as soon as possible. At the appointed time he went to 
Mr. Stitt's office, and the will was h'anded to him by Mr. Stitt. 
He took it into an inner office and read it over and approved it, 
and it was then executed with all due formalities. He then paid 


10 Stew.] MAY TERM, 1883. 225 

HoUinger v. Syms. 

for it and took it away with him. The testamentary witnesses 
were Mr. Stitt and Mr. Charles S. Phillips, managing clerk of 
Mr. Stitt's law firm of G. S. & J. H. Stitt, and Mr. Giles F. 
Busiinell, a lawyer of New York, who happened to be present. 
Mr. Phillips had known testator for about five years, but Mr. 
Busiinell had had no acquaintance with him. Mr. Stitt gives it as 
his opinion that from the time he brought the memorandum 
until after the will was executed, the testator was of perfectly 
sound mind. 

He also says, in his answer to the question whether, in all his 
business transactions or conversations with him, he saw anything 
that might look like unsoundness of mind, that his opinion is 
that he was perfectly sound in mind ; that he was impetuous in 
temperament, but there was no unsoundness of mind. He also 
says that in explaining what he wanted, in giving instru(;tions 
for the will, he seemed to have no hesitation at all, and appeared 
to be very clear and decided as to what he wanted. Mr. Phil- 
lips says, speaking both of the time of drawing and the time of 
executing the will, that his conversation, which he overheard, 
in regard to the drawing of the will, was perfectly clear, and he 
seemed to have full control of all his mental powers ; and he 
also says that he has no doubt that the testator understood per- 
fectly what he was doing when he executed the will, and that 
from what he saw of him he had no doubt of his entire sanity. 
He adds that he regarded him as of a somewhat excitable tem- 
perament. Mr. Bushnell, who, as before stated, had had no 
previous acquaintance with the testator, says it was in a very dis- 
tinct manner that he published and declared the instrument to 
be his last will and testament. 

The^codicil appears to have been drawn by the testator himself, 
for the purpose of making a slight alteration in the will. 

The reason for it is given in his letter to Mr. Syms, dated May 
17th, 1881, a short time before his death, in which he says : 

"I have made one change in it [the will] in April or March, because Weber 
did not treat me right. Had he not made or tried to make an extortionate 
charge for the few days' attendance on nie [in his sickness] there would have 
been no change, I want my sister to get the money I left her. The poor girl 



Hoi linger v. Syms. 

is entirely disinherited by my father, she did not even receive the little money 
belonging to her from her mother's estate." 

The codicil is as follows : 

"For various reasons, which appear good and suflBcient to me, I hereby set 
aside, revoke and annul the bequest mentioned in the fourth article of ray will 
to John Ludwig Weber, or to his children, to a certain plot of land, containing 
one and six hundred and fifiy-nine thousandths acres of land, as said in said 
fourth article, and direct that said bequest shall revert to my sister and residu- 
ary legatee. Miss Emilie Hollinger." 

The witnesses to the execution of it were Eugene Brem, Louis 
Schwehm and Theodore Ernst, all of New York. It was exe- 
cuted by the testator in their presence, and without any profes- 
sional aid. Schwehm says that he had known the testator about 
twelve or fifteen years ; that the name of the testator, to the 
codicil, is in the testator's own hand, and he recognizes his own 
signature to the paper as a witness. He further says that when 
he signed, there were present Ernst and his sister, and Brehm and 
himself, and the testator; that the testator signed in the presence 
of all the witnesses, including himself, and said, " I want you to 
look that I am signing my name here," and that they all did 
look ; that then, after the testator signed his name, he asked 
the witness to sign the paper, and he did ; that the testator told 
him he wanted to make a little change in his will on account of 
some land he wanted to put over to his sister ; that the testator 
read the certificate of the witnesses at the bottom to them, and 
that it is correct as he read it ; and that the testator signed in 
the presence of all of the witnesses, and that they all signed in 
his presence and in the presence of each other. He further says, 
in answer to the question whether he considered the testator, 
when the latter signed the codicil, a sane man, understanding 
perfectly what he was about, "Yes; just every bit of it; he read 
it to us and told us to sign our names." Brehm testifies that the 
testator wrote his name to the codicil in his presence and in the 
presence of Schwehm and Miss Ernst; that the testator was 
present when the three witnesses all signed, and they were all 
present when each one signed. He says the testator informed 

10 Stew.] MAY TERM, 1883. 227 

Hollinger v. Syms. 

him of his object in making the codicil — to give the land he had 
given to Weber, in the will, to his sister. He also says that the 
testator read to him the certificate which the witness signed, and 
that the certificate was a correct statement of what took place in 
the execution of the paper. He says that he had known the 
testator two or three years, and that the testator called him in to 
sign the codicil through friendship. Miss Ernst testifies that the 
testator said he wished the witness to sign a little alteration that 
he was making in his will. She recognizes her own name and 
says she signed the codicil as a witness, and that the testator 
signed it in her presence and in the presence of all the others, 
and that they all signed in his presence, and that each signed in 
the presence of the others. 

In his book of accounts (it may be observed) the testator 
entered the payment of the fee to Mr. Stitt for drawing his will, 
and the names of the witnesses to the will. The method, care 
and prudent circumspection exhibited by the testator, not only in 
the disposition of his estate, but also in providing, as far as he 
could, against the contest, which, it appears from his correspond- 
ence and other evidence in the cause, he apprehended his brother, 
the caveator, would make to defeat that disposition, are such as 
to indicate the possession, not only of that degree of capacity 
which is in law regarded as sufficient for the disposition of one s 
estate, but also of business qualifications of a high order. And 
here it may be said that the evidence shows clearly that he was 
not only a skillful book-keeper, but was unusually accurate in his 
book-keeping, so that in the establishment in which he was em- 
ployed in that capacity for many years, his results were accepted 
as being undoubtedly correct as they came from his hands. He 
was also a careful and useful confidential clerk of the same house, 
jealous of their rights, and particular and persistent in securing 
them. It may be added that after he ceased, on account of his 
health, to engage regularly in business, he continued to be employed 
by Mr. Ernst, or his firm, in superintending their book-keeping 
ing and attending to their difficult collections, especially in this 
state, and he was so employed up to the time of his death. On 
the 12th of February, 1881, four days after his will was made, he 


Hollinger v. Syms. 

wrote to his sister Erailie, stating that he apprehended liability 
to sudden death, and that, under those circumstances, he had 
made his will, and had placed it, with his securities, in the Mer- 
cantile Safe Deposit Company of New York; that he had 
named Mr. Syras, the president of the First National Bank of 
Hoboken, as his executor; that, by the terms of the will, he had 
given to her securities of the money value of about $6,000, 
stating thetu particularly, and one and sixty-five hundredths 
acres of land, and also the amount still due him (stating the in- 
vestments) in remainder from his father's estate, and also what- 
ever money Mr. Schwartz might have. He adds that it may be 
necessary to pay a few expenses out of the property given to her, 
although he leaves nearly enough money in bank for funeral ex- 
penses &c. He then proceeds to state the rest of the dispositions 
made in his will. 

On the 4th of May, 1881, in the same month in which he died, 
he wrote a letter to Mr. Syras, in which he says that, thinking it 
unlikely that he can live long, he would notify him that his 
securities at the Mercantile Safe Deposit Company were as fol- 
lows, and then proceeds to state them in detail : $4,500 North 
Hudson Company bonds, $3,000 Toledo, Peoria and Western first 
mortgage, $500 Wabash bonds, five shares New York Gaslight 
Company stock, ten shares Mobile and Ohio stock, one share 
Chesapeake and Ohio first preferred stock, $494.40 note of C. M. 
Murch, due September, 1881. 

He adds that his desire is that in order to pay off his loan of 
$2,800 from Mr. Syms's bank, Mr. Syms should sell the $2,000 
Toledo, Peoria and AVestern bonds in his possession, worth, as he 
says, $116, and then adds — 

" 12,000 @ 116 $2,320 

Note of Murch 494 

$2,814 " 
He further says : 

" I have some money on deposit ($138.87) in the Hoboken Savings Bank, and 
$5*0.18 in the Citizens Bank of New Yorii. My only debts are about $5 for 

10 Stew.] MAY TERM, 1883. 229 

Hollinger v. Synis. 

medicines, and for twenty-three visits of Dr. Chabert, for which he said he 
would charge $1.50 each, and fourteen visits to his house, calling an average 
of ten minutes each." 

In another letter of the 17th of May, 1881, to Mr. Syms, the 
one already referred to, in which he mentioned the change in his 
will by the codicil, he says, referring to his weak physical condi- 
tion, that he feels as though it might be possible that he might 
die at any day ; that it had come to his knowledge that his 
brother, the caveator, meditated, in case of his death, contesting 
his will (which, he informs Mr. Syms, is in the keeping of the 
Mercantile Safe Deposit Company), on the plea that he was men- 
tally unsound when it was drawn. He says that a horrible story 
was got up by Dr. Chabert when he first called on him, and he 
attributed it to the fact that (as he insists) the doctor did not un- 
derstand his symptoms. He proceeds to say that in case any- 
thing happens to him he wants the letter to appeal to the feelings 
of any judge or jury, in case there should be a contest of his will, 
not to set it aside because an expert may come with his want of 
knowledge of the symptoms of disease. He says expert testimony 
is worthless, and he therefore encloses the names of people who 
had seen him since he made the will, and with whom he had 
talked, and who would testify that they never saw anything 
wrong in him since the day he was taken sick. Then follows, 
after his signature, a long list of persons, with the business which 
he had transacted with them, or the other opportunity which they 
had had of observing his mental condition. 

The evidence is plenary, from all the indications and facts and 
appearances on which reliance is ordinarily placed for ascertain- 
ing whether testamentary capacity exists, that at the time of mak- 
ing the will and codicil the testator was fully competent to trans- 
act the business in which he was engaged. He knew what his 
estate was, what the claims of others were upon him, and what 
disposition he desired to make. What he did was done with de- 
liberation, and after mature and careful reflection. It may be 
added that it is not usual to find so many and cogent proofs of 


Hoi linger v. Syins. 

tliougfitful discritni nation in the disposition of an estate by a tes- 

The caveator insists, however, that the testator was of unsound 
mind, and that one phase of his insanity was an unreasonable and 
unfounded prejudice against him, whicli displayed itself in the 
testator's disposition of his estate by the will and codicil under 
consideration. In the first place, the evidence of the caveator 
himself leaves no room to doubt that the relations between him 
and the testator were by no means such as to create any suspicion 
as to the testator's capacity from the smallness of the testamentary 
gift to the caveator. It appears clearly, from all the testimony 
in the cause, that the testator not only distrusted his brother but 
regarded him as having defrauded him. For years the testator 
refused to speak to him, and they were mutually angry with each 

The caveator says, in his testimony, that between 1878 and 
1880, for nearly two years, they hardly spoke to one another. 
He also says that in 1868 they bought some property on the 
Paterson plank road, and then had some little misunderstanding ; 
that he first bought one piece, and they then bought another on 
joint account between them; that the testator bought a third 
piece, and the pieces were all about equal in size ; that the testa- 
tor desired that his brother's piece, which lay in the middle, 
should be divided into two equal parts ; that he did not consent 
to it, and that the testator made a great deal of fuss and trouble 
until he finally consented, and divided it, as the testator desired, 
on the 1st of January, 1869 ; that after that they remained ou 
very friendly terms ; that in 1877 he was in financial embarrass- 
ment, through speculation, and concluded to accept an offer that 
the testator made him, to move to Hoboken and take a room from 
him in the house in which he lived ; that the testator agreed to 
let him have the room for nothing in case he could not get along, 
or for $2 a month in case he could get on ; that the testator col- 
lected his rent from him from the beginning ; that he had not 
lived in the house more than three months before the testator 
came to him one day and wanted him to move, and insisted upoa 

10 Stew.] MAY TERM, 1883. 231 

Hollinger v. Syms. 

his going out, and that he refused to leave until his year was up, 
but, at the end of eleven months, moved out. 

He says that he had nothing of any account to do with the 
testator until 1880; that he might have seen him once or twice, 
just bidding him the time of day, but had no intercourse with him 
until 1880, after his father's death occurred, which was on the 
30th of June, in that year. The father died in Germany. On 
the 9th of January, 1881, they met at the house of George G. 
Sturges, and the testator then not only refused to speak to the 
caveator, but declined to eat at the same table with him. They met 
on the 18th of the same month at an auction sale in New York, 
but the testator refused to recognize the caveator, and they passed 
each other without speaking. On the 11th of February follow- 
ing they met in the street in Hoboken and the testator refused to 
recognize him. 

Towards the end of the testator's life, later in February, 1881, 
the caveator called to see him, the testator then being sick, but 
the latter at first refused to see him, though* he subsequently con - 
sented, and from that time their relations were seemingly friendly, 
and the caveator, from thence to the time of the testator's death, 
frequently visited him. But that the reconciliation was only an 
apparent one is evidenced from a letter written by the testator to 
his sister, dated May 17th, 1881, only thirteen days before his 
death, in which he refers to these visits, and says: 

" Gustave has been to see me every day, generally twice. My principal ob- 
ject in writing this letter is the following : I told him that I had written to 
you two weeks ago that I feel very sick. I have been told that he has said to 
another that he at once wrote to you saying that I was better, because he was 
afraid that if you thought I was very sick you would write to the Catholic 
monastery to come and see me, and that I would leave my money to them. I 
will explain this. Last January, when I had my quarrel with him, I told 
George Sturges that I would sooner leave my money to the Catholic monastery 
than to him. That remark was repeated to him, and he knows I have made a 
will. He has tried to find out what it was from me, but I would not tell him_ 
But he has told different people that he should contest any will that did not 
leave all my money to him. * * * I know now one thing for sure — Gus- 
tave is after my money." 

He further says, in the same letter, referring to his health : 


Hollinger v. Syms. 

"A Aange may come at any moment, but above all I am sorry that I am 
not in Europe near you, so that nothing could prevent my will from being 
executed. I want my money to be divided exactly as I have directed, and I 
want you to keep this letter, and I have written it as a further safeguard in 
case anything further liappens to nie, for I now know for sure Gustave would 
contest my will. I have written this letter very slowly, for I am weak bodily but 
not mentally. I hope you never will have occasion to use it, for I want to live 
if possible." 

After some further statements in regard to his health, he 
says : 

" I have burned up all of your letters and those of my dear aunt, and many 
of my private papers. Tlie next letter I receive from you I shall read and 
then burn, unless I feel better. I do not wish Gustave to know what you write 
to me, or what I write to you." 

And here, it may be said, Mr. Syms testifies to what the tes- 
tator said touching his relations to his brother. He says that 
one day, in the bank, the testator either said he had made his 
will, or was about making it, and wished him to become his ex- 
ecutor ; that he at first declined, because he had too mucii busi- 
ness to undertake such a matter, and asked him if he had no 
relative who could act as his executor, that that would seem more 
proper; that he replied that he had no relatives in this country 
except a brother, with whom he was always quarreling, that he 
could not get along with his brother at all, and would not have 
his brother to have anything to do with his affairs ; that he hoped 
to get through with the sickness, that he had a very good consti- 
tution, but would like to prepare his business matters for any 
emeigency, and consequently was making a will, or had made a 
will, and wished Mr. Syms, very particularly, to act as his ex- 
ecutor, as he had no one else that he wanted to trust his business 
with ; and thereupon Mr. Syms says he let it stand as it was. 
He says the testator spoke again about his brother, and said he 
wished him (Syms) particularly to act, because he was afraid hi-i 
brother would oppose his will, and he wanted him as a disin- 
terested, unbiased person to take charge of his property and see 
that iiis will was carried out to the letter. 

10 Stew.] MAY TERM, 1883. 233 

Hollinger v. Syms. 

The caveator has put in a letter written by the testator to him, 
under date of January 6th, 1881, which not only shows conclu- 
eively that the testator was in full possession of his mental 
faculties so far as all business transactions were concerned, and 
was a man of unusual shrewdness, but that the relations betvveen 
hira and his brother were those of hostility and not of friend- 
ship, and that the hostility was due to resentment. The letter is 
a very long one, and is devoted to a review of their mutual 
transactions, setting them forth in detail so far as was necessary, 
either to justify the action of the testator which his brother had 
complained of, or to justify his own complaints of the conduct 
of his brother therein. It is bitter and ironical, and evidently 
was intended by the testator as a full expression of his sentiments 
to and towards his brother in reference to their mutual dealings, 
and he adds a postscript urging his brother not to consider the 
letter a private one, but giving him his full permission to show 
it to all his acquaintances. It may be remarked here that the 
gift to the caveator in the will is of the land on the plank road 
which is mentioned by the caveator in his testimony above 

It is urged, on the part of the caveator, that the prejudice or 
<lislike just referred to, was without cause, and wholly unjustifi- 
able, and that it w^as due to a delusion on the part of the testator 
in reference to the conduct of his brother in a transaction which 
took place when they were boys, in which the testator's father 
gave hira an unmerciful flogging with an unusually severe in- 
strument; that the testator charged his brother with having in- 
formed his father of the fact that the testator was in the posses- 
sion of a sum of money which he had found, and which he had 
been spending for trifles, and his father, through a belief that the 
testator had come by it unjustly, gave him the beating. But it is 
quite clear that the testator's dislike of his brother had a different 
origin, although that circumstance was not without its weight. 

It also appears that the transaction and his brother's conduct 
therein were no figment of his imagination, but were actualities. 

The letter just referred to shows causes of the dislike, but 
makes no reference to the flogging or the caveator's connection 


Hollinger v. Syms. 

therewith. It is a reply to a letter from the caveator dated two 
days previously, and designedly omitting the ordinary civilities 
of correspondence, it begins with the statement that the testator 
will take the trouble to answer that letter, as, otherwise, the 
caveator would confirm himself in the many false statements and 
suppositions that it contains. But as was said by this court in 
Dale V. Dale, 9 Stew. Eq. 269, it is obviously not for the court 
to annul a testator's disposition of his property by will on the 
ground that he has unequally or unjustly divided his estate, or 
capriciously or through prejudice given it away from those who, 
in view of his natural or social relations and obligations, have 
undoubted claims upon his bounty or his justice, and bestowed it 
upon less worthy, or even upon absolutely unworthy objects. It 
is enough to say that in the case in hand there appears to have 
been dislike and distrust not arising from delusion on the part 
of the testator towards his brother. 

It remains to consider whether the testator's testamentary ca- 
pacity was affected by what are regarded as his strange, if not 
insane views and convictions in regard to his physical condition, 
and the cause thereof. He appears to have been of opinion that 
a result of the castigation before referred to, given to him by his 
father (he was then only about eleven years old), was a great 
and radical change in his physical constitution. He entertained 
the idea that one-half of his body did not perform its functions; 
that he breathed only with one lung; that only one-half of his 
heart performed its operations, and so on. It is stated that he 
referred to himself as a double man, sometimes saying that one- 
half of him was, as it were, dead, and the other half alive. He 
was given to excessive dosing himself with purgative medicines, 
bought Brandreth's pills by the gross of boxes, and took them 
constantly with a view to the improvement of the condition of 
his blood. On one occasion, when he was sick, he thought he 
ought to be bled, and the doctor having deferred the operation, 
he undertook to bleed himself in the wrist, cut an artery, and 
well-nigh bled to death ; and he was addicted to an evil practice 
eminently deleterious to physical and mental health. He made 

10 Stew.] MAY TERM, 1883. 235 

Hollinger v. Syms. 

no concealment, in his conversations with his friends, of his ail- 
ments or the practice referred to. 

He had theories of his own as to his disease and the treatment 
from which relief might reasonably be expected, and he deferred 
but little, if at all, to the judgment of his physician in that re- 
spect, insisting that the latter misunderstood his complaint. 

No one can undertake to say that he had not the pains and 
sensations of which he complained. It is beyond all question 
that, for a long time before his death, which, as before stated, 
took place by suicide, he was afflicted with sleeplessness, which 
appeared to defy all his efforts and those of his physician to 
overcome, and it apparently was this that caused him to take 
his own life. His physician, Dr. Chabert, basing his judgment 
wholly upon his observation of him in reference to his com- 
plaints, and his theories in regard to them, says that he regarded 
him as a monomaniac on that particular subject. At the same 
time he says, with regard to the practice before referred to, that 
he does not think that it had made any inroad on his nervous or 
muscular system at all. And here, it may be observed, that 
when Dr. Chabert proposed the removal of the testator to a 
lunatic asylum, tlie caveator objected, and refused to act upon the 
proposition, on the ground that the testator was not insane. The 
caveator then said that the testator had talked as he then did, 
from illness and not from insanity, all the years lie had known 

There can be u<o doubt that at the time of making the will 
and codicil, the testator was sane in every other respect, whatever 
may be said of his theories in regard to his physical condition 
and the cause of it. In all his transactions up to his death he 
was honest, exact and methodical, and was careful, observant and 
prudent. His observation and attention to those things wliich 
affected his own estate were extraordinary. Mr. Syms says thtt 
during the time that he transacted business with their bank, which 
was up to the time of his death, his mind seemed clear, and ho 
wjis very intelligent in his conversations on railroad stocks and 
bonds, and that he showed that he knew more about them than 


Hollinger v. Syms. 

the witness did ; that he had studied them more closely. He also 
says that lie found the statement made in the testator's letter to 
him concerning his property very precise and careful ; that his 
papers were in very nice order, everything folded up and endorsed, 
with dates on them ; that they were mostly old papers ; that some 
of them were deeds, and that his securities were in envelopes. 
His book of accounts, which has been before referred to, was 
exceedingly well kept, neat and metiiodical, and he was em- 
ployed by Mr. Ernst or his firm up to his death in that sort of 
business which necessitated the possession of more than ordinary 
skill, intelligence and shrewdness. Up to his death those with 
whom he dealt and with whom he was brought in contact, not 
only had no suspicion that his mind was disordered, but, on the 
contrary, dealt with him, or would have done so, without hesita- 
tion, in the gravest transactions of life. The caveator, in his 
testimony, gives as the grounds of his belief in his insanity his 
conduct towards him, w^hich has already been considered, and 
the speculative opinions which he entertained in regard to his 
physical condition, but the caveator himself dealt with him as 
an entirely sane man. He entered into an agreement with him 
in regard to their father's estate — the agreement before men- 
tioned as having been drawn for them by Mr. Stitt. The letter 
of January 6th, 1881, written by the testator to his brother, was 
in reply, as has been before stated, to a letter dated two days 
previously from his brother to him. And not only did not the 
caveator ever deal with or treat the testator as being of unsound 
mind, but, as before stated, when Dr. Chabert proposed to re- 
move him to a lunatic asylum the caveator objected, and refused 
to take any action in that direction, on the ground that he be- 
lieved that the testator was entirely sane. 

It is scarcely necessary to remark that erroneous views in re- 
gard to medical theories and the causes of disease, however 
visionary they may seem, surely are not incompatible with the 
possession of testamentary capacity. In Siackhouse v. Horton, 2 
McCart. 202, it was held in this court in 1854 (B, Williamson, 
ordinary), that the existence of monomania in a testator who is 
otherwise sane, which does not affect the disposition made by the 

10 Stew.] MAY TERM, 1883. 237 

Hollinger v. Syrns. 

Avill, will not invalidate the instrument. And the same result 
has been readied in England in a recent thoroughly-considered 
case. Banks v. Goodfellow, L. R. {5 Q. B.) 64.9. There the will 
was made December 28th, 1863. It was beyond dispute that 
the testator had at former times ^een of unsound mind. He 
had been confined as far back as 1841 in a county lunatic asylum, 
and though he was after a time discharged therefrom, he re- 
mained subject to cert:iin fixed delusions. He had conceived a 
violent aversion towards a man, and, notwithstanding the death 
of that person, he for years afterwards continued to believe that 
he still pursued and molested him, and the mere mention of 
that man's name was enough to throw the testator into a state 
of violent excitement. He frequently believed that he was pur- 
sued and molested by devils or evil spirits, whom he believed 
to be visibly present. Besides these delusions, which were 
proved by two witnesses who were above suspicion, his physician 
and the clergyman of his parish, there was a body of evidence 
which, if believed, w^as strong to establish a case of general in- 
sanity. From September, 1863, he had a succession of epileptic 
fits, and a blister was applied to his head, and the physician 
who attended him throughout that period testified that his men- 
tal power, such as it was, suffered from the fits, and that h-e con- 
sidered him insane and incapable of doing business during the 
whole time. On the other hand, it was proved that the tes- 
tator attended to and managed his own money aifairs (which 
were not large, however), was careful of his money, and showed 
business knowledge and tact (but not to any extraordinary 
degree) in the management of his aifairs, and exhibited intelli- 
gence in the instructions for his will and the execution thereof. 
There was a verdict sustaining the will. A rule to show cause 
why the verdict should not be set aside as being against the 
weight of evidence was granted, but, after argument, was dis- 
charged, the court holding that thiC verdict must stand, seeing the 
testamentary disposition was not affected by the delusions which, 
as before stated, were that the testator was pursued and molested 
by evil spirits, and that a man long since dead cam* to molest 


Fogg's Case. 

him. See, also, the case of Thompson v. Quimby, 2 Br adj. 44^, 
m Barb. 107. 

I am clearly of the opinion that the will and codicil in ques- 
tion should be admitted to probate as the true last will and tes- 
tament of the testator. The decree of the court below will 
therefore be affirmed so far as the admission of the instruments 
to probate is concerned. 

The decree granted to the caveator costs and expenses of the 
litigation out of the estate, but gives him no counsel fee. The 
orphans court, by the decree, expressly and properly adjudge that 
he had reasonable cause for contesting the validity of the will and 
codicil, and therefore awarded him payment of his costs and ex- 
penses out of the estate. On the same ground he was equally en- 
titled to payment of his reasonable counsel fees. The decree will 
be modified in that particular, and a counsel fee of $500 in the 
orphans court allowed to him out of the estate. He will be al- 
lowed costs of the appeal, but no counsel fee in this court. 

In the matter of the settlement of the estate of James P. Fogg, 


A creditor holding a preferred claim against an insolvent estate must pre- 
sent it, under oath, to the assignee within the time limited by the order of the 

court, or be barred. 

— • 

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

Mr. M. P. Grey, for applieant. 

The Ordinary. 

The question presented for decision is whether, under proceed- 
ings to settle an insolvent estate, a preferred creditor may recover 
liis debt out of the assets (which are insufficient to pay the claims 
exhibited), notwithstanding his failure or omission to exhibit it, 
under oath, to the executor or administrator within the time 

10 Stew.] MAY TERM, 1883. 239 

Fogg's Case. 

limited by the order requiring creditors to exhibit their claims 
under oath. The statute provides that the estate of an insolvent 
<1ecedent shall be ratably distributed among his creditors in pro- 
portion to their debts, except that the preferred debts, and the 
allowance to the executor or administrator for care and expenses, 
shall be first paid. It provides also for notice to creditors, limit- 
ing them to a time to be designated by the court, within which they 
are to present to the executor or admiaistrator their claims under 
oath or affirmation. It provides also that the claims exhibited 
shall be in writing, specifying the amounts and particulars 
thereof, and verified by oath (or affirmation), and that the execu- 
tor or administrator shall report the claims exhibited, particularly 
specifying the demands and amounts thereof, at the time of the 
report and whether due by judgment, decree, bond, note, book 
account or otherwise, and that he shall also exhibit a true state- 
ment of the personal estate and an inventory of the real. The 
statute provides for exceptions to and trial of disputed claims, 
and it also provides that any creditor who shall not exhibit his 
claim to the executor or administrator according to the provisions 
of the statute within the time limited and prescribed by the court, 
shall be forever barred from prosecuting or recovering his claim, 
unless the estate prove sufficient, after all debts exhibited and 
allowed are fully satisfied, or he shall find property not inven- 
toried or accounted for, in which case he is to have his ratable 
proportion out of it. While the statute recognizes the priority 
of what are called therein preferred debts and their claim to 
payment in full, it at the same time requires the holders of such 
debts to exhibit them on oath or affirmation. The section barring 
creditors does not except preferred creditors, but by its terms it 
extends to all. The fact that a creditor has a preferred debt does 
not relieve him of the necessity of proving it. It will be pre- 
ferred if he duly exhibits it, but if he does not he will be barred 
like any other unpreferred creditor. It is the character of his 
debt that gives it preference, but to obtain the preference it must 
be duly exhibited. Such debts are of course liable to be dis- 
puted, but if they are not to be exhibited within the limited 
time, how is the court or the executor or administrator to know 


Polhemus v. Middleton. 

what debts entitled to preference there are, and what is due to 
such creditors? And how can the executor or administrator 
or other creditors except to and try such claims? If such a 
creditor does not exhibit his debt, according to the statute, within 
the time limited, he will be in precisely the same plight as any 
other creditor who fails to do so. 

John Polhemus, appellant, 


Geoege Middleton et al., administrators, respondents. 

1. Where administrators act in good faith and with ordinary prudence and 
discretion in selling their intestate's chattels after an, as yet, unproved and 
apparently unfounded claim therefor has been made, they should be allowed, 
out of the estate, the costs and reasonable counsel fees of a trial afterwards 
brought at law by the claimant, wherein he recovered a judgment for the 
value of the chattels so claimed. — Held, under the circumstances of this case, 
that thei;: should not be indemnified for the difference between the amount 
realized at their sale of the chattels and the value of the chattels as fixed by 
the verdict. 

2, Administrators cannot be allowed for taxes on their intestate's land, as- 
sessed and paid by tliem after his death. 

Appeal from decree of Monmouth orphans court. 
Mr. G. C. Beekman and Mr. J. Wilson, for appellant. 
Mr. W. H, Vredenburghy for respondents. 

The Ordinary. 

This is an appeal from a decree of the Monmouth orphans 
court, upon exceptions to the final account of George Middleton 
and Henry Larrison, two of the administrators of Tobias Polhe- 
mus, deceased. The intestate died in March, 1879. The except- 
ant and appellant is John Polhemus, one of his sons. John 

10 Stew.] MAY TERM, 1883. 241 

Polhemus v. Middleton. 

lived with his father on his father's farm at the time of his 
father's death. When the appraisement was made he claimed 
certain articles of the personal property on the premises where 
the intestate and he lived. What he claimed was not (with a 
single exception) inventoried, and none of those articles were 
sold. At the sale by the administrators he claimed almost all the 
personal property which they sold. His claim, on the latter oc- 
casion, was totally disregarded, and he subsequently brought suit 
in trover against the accountants (there were three administra- 
tors, the other being his brother Greorge) for damages for selling 
the goods. The suit was brought against them, not as adminis- 
trators, but in their individual capacity. The record shows that 
he recovered $1,642.60 damages and $72.62 costs, in all, $1,715.- 
22. At the sale (and after he made his claim to the goods), he 
bought some of the property which he claimed, and his brother 
George also bought some, which he turned over to John, By a 
receipt given on the settlement which John made of the judg- 
ment, it appears that the amount of those purchases by him and 
George (they did not pay for them) was put in the settlement at 
8900, and the amount of the verdict was stated to be $2,542.60, 
and after deducting the former from the latter the balance, with 
tiie costs, was paid to John by the defendants in the judgment. 
The orphans court allowed some of the exceptions and overruled 
others. From their depree, so far as it overruled his exceptions, 
the exceptant appealed. He alleges that his purchases and 
those of George did not together amount to $900, but were 
much less, viz., about $800, and he insists that the court below 
erred in allowing (as he alleges they did) the accountants, in the 
restatement of the account, a credit of $900 on that account. 
He also insists that the accountants ought not to have credit for 
the money which he says they paid for the special damages which 
he alleges were recovered by him against them in the trover suit» 
and which he says amounted to $100. Nor for the costs and ex- 
penses of defending that suit. He also insists that they ought 
not to have allowance for certain taxes paid on the intestate's 
land, or for certain school-district taxes paid by one of them, 
Mr. Middleton, in respect of the personal estate in his hands, 



Polhemus v. Middleton. 

at the place of his residence, which was not in the district in 
which the intestate lived. 

The record shows that the orphans court, in restating the ac- 
count, adopted a method which renders it unnecessary to consider 
the question as to the real amount of the purchases by John and 
George. As to that amount there is some contrariety of evi- 
dence. The court, in restating, charged the accountants with 
the balance which the account as presented by them showed, and 
debited them with the items for which they prayed allowance in 
connection with the exceptant's goods. As the account then 
stood the accountants were charged with the appraised value of 
the goods (in the inventory), and with all the items of allow- 
ance which they had claimed in respect thereto. The court then 
credited them with the appraised value of those goods, ^2,136.- 
60, and taking the amount for which the goods were sold by 
them, $1,196.22, from the amount of the judgment in the trover 
suit, $1,715.22, credited them with the balance, $519. So, it 
may be seen, the method of statement adopted rendered the ques- 
tion as to whether the purchases of the exceptant and George 
amounted to $900 or not, of no importance. And that method 
is correct, if the difference between the appraised value of the 
goods in question and the amount of the judgment in trover was 
properly allowed to the accounting administrators. There is, it 
may be remarked, no evidence that there was, in the judgment, 
any allowance of damages beyond the value of the property at 
the time of taking it. In the record (p. 61) there is what ap- 
pears to be an admission that, in the trover suit, the exceptants 
made no claim for damages beyond the value of the goods at the 
time when they were taken. But, however that may be, if the 
conduct of the accountants in selling the goods was fair and ju- 
dicious, and purely in the interest of the estate, they are entitled 
to indemnity from the estate. The property in question was, at 
the intestate's death, apparently in his possession. It was, with 
the exceptant's knowledge, and without any protest or objection 
on his part, taxed, after he became the owner of it, as the prop- 
erty of the intestate, who gave it in to the assessor as his, and 
paid the tax upon it as his accordingly. The exceptant derived 

10 Stew.] MAY TERM, 1883. 243 

Polhemus v. Middleton. 

his title to part of it by gift from liis father, the intestate, made 
in January or February, 1878. He did not inform his sisters, 
or either of them, that his father had given the property to him. 
The apparent possession and ownership of the property were not 
changed up to the death of the intestate. When, as has been 
before stated, the appraisal was made, the exceptant claimed some 
of the goods on the farm, but not all ; and those to which he 
laid claim were, with a single exception (and that article was not 
sold, but appears to have been removed by him) neither appraised 
nor inventoried. The night before the sale he made claim to the 
goods in question, and on being told by Mr. M!ddleton that he 
must have better evidence than his mere allegation, promised to 
prove his title the next day by two witnesses. He did not pro- 
duce any witness nor any evidence beyond his assertion, and tlie 
accountants (George did not concur in their action) proceeded to 
sell the goods notwithstanding the claim. Under the circum- 
stances, in view of the fact that the exceptant did not claim the 
goods when the inventory was made, but, while he claimed 
others did not lay claim to them, and that he producbd no evi- 
dence of his title ; that some of the goods had belonged to the intes- 
tate, and were apparently in his possession up to the time of his 
death ; that although, according to the exceptant's testimony, his 
father gave the property to him in 1878, his father was taxed for 
it that year, and he died before tiie next assessment ; that the 
rest of the children, except George, knew nothing of any claim 
to it by the exceptant ; that George signed and swore to the in- 
ventory which contained the property, and that other persons, 
entitled to distribution of the estate, were unwilling to allow the 
exceptant's claim, and were desirous of contesting it — Messrs. 
Middleton and Larrison are not to be censured for not yielding 
to the claim of the exceptant until it had been legally established, 
and they, therefore, ought to be indemnified out of the estate for 
tiie expenses ofthe trial of the cause, including the counsel fees 
paid, which, it is admitted, are reasonable in amount. But not so 
as to the loss on those goods. The estate ought not to be charged 
with that. When Messrs. Middleton and Larrison sold the goods 
they sold them, not only under the disadvantage of a public 


Polhemus v. Middleton. 

claim to the property made at the time by the exceptant, but 
also under that of a public protest by him and his brother 
George against the sale, on tiie ground that the property belonged 
to the exceptant and not to the intestate. Mr. Dawes testifies 
that Mr. Middleton came to him at the sale and told him of the 
exceptant's claim, and inquired of him as to what, in his opinion, 
he had better do under the circumstances. Mr, Dawes advised 
him to ascertain to whom the property belonged before selling. 
Mr. Middleton (who was indemnified for selling by some of the 
next of kin) did not follow his advice, but said he thought there 
would be no difficulty, as he could atrange it with the exceptant 
by arbitration or in some other way. To give the accountants 
credit for the $519, the difference between the amount of the 
judgment and the price which the exceptant's goods brought at 
the sale, is to compel the exceptant to bear part of the loss in- 
curred by selling his property below its value at a sale of it 
against his will and against his public claim and protest. 

The taxes assessed on the intestate's real estate after his death, 
paid by the accountants, are not a proper charge against the 
estate. By the exceptions objection was made to the payment of 
taxes assessed on the land in Upper Freehold township, in Mon- 
mouth county, and the land in Ocean county, for the years 187^ 
and 1880. The exceptions on these subjects were overruled. 
They ought to have been allowed. As there was no exception 
to the payment of the taxes of 1881 the appeal as to those items 
cannot be sustained. 

Nor was there any exception to the school tax paid by Mr. 

The decree of the orphans court will be reversed in respect to 
the $519 and the taxes paid on real estate in 1879 and 1880, but 
in those respects alone. The costs of the appeal will be paid out 
of the estate, but no allowance of counsel fees will be made ta 
either side. 

10 Stew.] MAY TERM, 1883. 245 

Luppie V. Winans. 

Mary Luppie, appellant, 


David R. Winans et ux., respondents. 

1. Although an order of the orphans court, granting letters of guardianship 
of an infant under fourteen, ought to have been set aside because no notice of 
the appointment had been given to the ward's mother and only surviving 
parent, yet if the application is afterwards fully heard in the presence of all 
the parties interested, such order will not be reversed ; nor will such order be 
reversed where it appears, on the merits, obviously for the infant's advantage 
that the person selected should be its guardian. 

2. Under the statute as to the adoption of infants, the consent of the parent 
is absolutely necessary, where, as in this case, such parent is not hopelessly in- 
temperate or insane, and has not abandoned the child, even though the child 
'be under fourteen. 

Appeal from decrees of Essex orphans court. 
Mr. Albert P. Condit, for appellant. 
Mr. Cortlandt Parker, for respondents. 

The Oedinary. 

The orphans court, on the application of David R. Winans, on 
iiis petition, appointed him guardian of the person and estate of 
Mary Luppie, an infant under the age of fourteen years. The 
appointment was made January 18th, 1882. On the 27th of the 
same month, Mary Luppie, mother of the infant, applied to the 
court to revoke the letters, and prayed that she herself might be 
appointed guardian. The infant had no property except her 
clothing, toys, books and other such articles, which had been pro- 
vided for her by Mr. Winans or members of his family or their 
friends. Neither he nor any of his family was related to or in 
any way connected with her. The mother had been a servant in 
his family, and when her service there began she was a widow 
and had the child, which was tiie offspring of her and her de- 


Luppie V. Winans. 

ceased *liusband. It was then a mere babe. It was taken by 
the family of Mr. Winans into their charge, with her consent^ 
and they cared for it as their own, under wliat they regarded as 
a surrender of it to Mr. Winans, to be brought up as his own by 
adoption. The arrangement under which it was so taken and held 
by them was merely verbal. When the application of Mr. Winans 
for the letters of guardianship was made, the mother had denied 
Mr. Winans's right to the child, and she repudiated the agree- 
ment, claiming that it was merely an arrangement terminable at 
will on her part. On the 23d of the same month of Janu- 
ary, three days after the appointment of Mr. Winans as guard- 
ian, he and his wife filed in the same court a joint petition, 
under the act of March 9th, 1877, "providing for the adoption 
of children " {Rev. p. ISIfS)^ praying that a decree might be made 
in accordance with the provisions of that act, declaring and ad- 
judging that from the date thereof the name of the child should 
be changed to and be only Mabel Winans, aad that the rights, 
duties, privileges and relations theretofore existing between the 
child and her parent should be in all respects at an end, except 
the right of inheritance ; and that the rights, duties, privileges 
and relations between the child and the petitioners, as her parents 
by adoption, should thenceforth be in all respects the same, in- 
cluding the right of inheritance, as if she had been born to them 
in lawful wedlock, except only as otherwise provided in the act, 
with all other rights as by the act provided. The petition stated 
that Mr. Winans was the guardian of the child under the before- 
mentioned letters; that as such guardian he thereby gave his 
written consent to the adoption ; that the child was about nine 
years old ; that her father was not living, to the knowlege or be- 
lief of the petitioners ; that if he was living he had abandoned 
the child ever since it was six months old ; that its mother was 
living and was then residing as a servant in a family in East 
Orange, in Essex county ; that the petitioners were upwards of 
sixty years of age, and were persons of good moral character and 
reputable standing in the community, and of ability to maintain 
and educate the child properly, having reference to the degree 
and condition in life of her parents; that the best interests of 

10 Stew.] MAY TERM, 1883. 247 

Luppie V. Winans. 

the child would be promoted by tlie adoption ; that ever since 
she was about six months old she had been, except for short in- 
tervals, an inmate of the family of the petitioners, having been 
left with them by her mother with a view to their adopting her, 
and on an agreement that they should do so ; and that the child 
had been since clothed, maintained and educated by the petition- 
ers wholly at their own expense. 

The grant of letters of guardianship to Mr. Winans was 
made without notice to the mother of the child. Her counsel 
obtained an order to show cause why the letters should not be 
revoked and letters granted to her. The application for the 
decree of adoption, and the order to show cause, came on for 
hearing at the same time. At the hearing and in the beginning 
of the proceedings, the counsel of the mother moved the court 
to revoke the letters of guardianship to Mr. Winans for want of 
notice. This motion the court denied, and proceeded under the 
order to show cause to hear testimony on the merits of the appli- 
cations for guardianship and adoption. The result was, that by 
its decree of May 13th, 1882, it revoked, on the ground of want 
of notice, the letters which had been previously granted to Mr, 
Winans, denied the application of the mother, and again granted 
letters to Mr. Winans, and by its decree of the same date granted 
and declared the adoption. It was the duty of the court to 
grant the motion to revoke for want of notice when it was made, 
but its refusal to do so did not, under the circumstances, preju- 
dice the appellant in any material respect. The opposing claims 
for guardianship were before the court for consideration under 
the order to show cause, and there is no substantial ground for 
complaint of want of notice as to the grant of letters to Mr. 
Winans which was made thereon, although the order to show 
cause only called on him to show cause why the letters granted to 
him should not be revoked and letters be granted to the mother, 
and did not call on her to show cause against his application. 
He, however, is dead, and the guardianship granted to him is at 
an end. On the merits, I do not consider the action of the 
court in refusing the grant of letters to the mother erroneous 
under the circumstances. The child was committed by her to 


Ltippie V. Winans. 

the care of Mr. Wiuans, and it lias lived for several years in his 
family, and has been educated by hira and brought up in refine- 
ment. Its interest would not be promoted by granting the 
guardianship to the mother. In Albert v. Perry, 1 McCart 54^0, 
it was said that in awarding guardianship the right of the 
mother, though it cannot be disregarded without justifiable 
cause, must be held in subordination to, and exercised in consist- 
ency with, the rights, the moral training and the highest welfare 
of the child. And it was also said that the law gives no coun- 
tenance to the idea that the moral and mental culture, the proper 
education and discipline of the child, are to be held in subordi- 
nation to the legal rights of the parent. It was also held in that 
case to be a circumstance entitled to very great consideration in 
determining to whom the guardianship should be granted, that 
the infant had never been, since her early infancy, under the 
care, control or custody of her mother, or been in any way inter- 
fered with or provided for by her, but that she had been under 
the care of her paternal grandfather and his family, to whose 
charge she was committed by the mother for a period of nearly 
eight years; that after the death of her grandparents she had 
continued under the care of her grandfather's family, including 
the paternal aunt, to whose guardianship she had been entrusted 
by the court by the decree under consideration, and that no ob- 
jection was suggested to the mode of treatment which she had 
experienced, or to the care and control which had been exercised 
over her ; that the interest of the infant could not be promoted 
by a change in her position, social relations, habits of life and 
mode of training at her then age, and that it was obviously for 
her best interests that she should remain where she was and 
where she had been, and was properly cared for and trained, 
until she should be at liberty to choose a guardian for herself. 

As this matter stands before me, there is indeed now no claim 
to the guardianship in opposition to that of the mother, but I 
deem it best to give an opportunity for some proper person of 
Mr. Winans's immediate family to make application for letters, 
and such application may be made in this court. The decree of 

10 Stew.] may TERM, 1883. 249 

Luppie V. Winans. 

May 13th, 1882, appointing Mr. Winans guardian and refusing 
to appoint the mother will be affirmed, but without costs. 

But not so the decree of adoption. That stands on different 
grounds. The statute provides that if the child whom it is pro- 
posed to adopt is over fourteen years of age, its consent in writ- 
ing duly acknowledged must be obtained and presented with the 
petition ; also the written consent of the parent, or parents, if 
living ; but if both be dead or unknown, or hopelessly intem- 
perate or insane, or shall have abandoned the child, there must 
be the written consent of the legal guardian, duly acknowledged, 
and if there be no guardian then some discreet and suitable per- 
son must be appointed by the court as next friend of the child, 
whose consent to the adoption must be had. It is silent as to 
the prerequisites where the child is under fourteen. There was 
in this case not only no consent on the part of the mother to 
the adoption, but, on the contrary, active opposition to the pro- 
ceedings. The fathei of the child was dead. The mother was 
" kiaown," was neither " hopelessly intemperate " nor " insane.'' 
Nor had she abandoned the child in any sense. The petition 
alleged none of these things against her. It did not even allege 
that she was an improper person to have the care and education 
of the child. It alleged that she had for many years left the 
child with the petitioners under an agreement between her and 
them that they should adopt it ; that was not by any means 
abandonment within the meaning of the statute. So far from 
deserting or abandoning the child in the sense of the statute, she 
was desirous of keeping it, notwithstanding that agreement, and 
her effort to regain possession of it was probably no small in- 
centive to the institution of the proceedings under consideration. 
The court, by its order to show cause on the petition, ordered 
that notice of the application be given to her. The child was 
under fourteen years of age, and the court, as appears by the 
opinion, construed the statute as requiring no consent, either on 
the part of parent or child, to the adoption in such a case, but 
held that in such cases the statute confides the whole matter to 
the discretion of the orphans court, without regard to the wishes 
of either parent or child. This construction is entirely inad- 


Liippie V. Winans. 

missible. It would make the law liable to be the instrument of 
the forcible transfer of one man's child to another person, in 
spite of the parents' opposition, provided the court deems it ad- 
vantageous for the child that the transfer be made. The law 
expressly gives to the decree of adoption the effect of severing 
absolutely the legal ties between the parent and the child, and 
putting at an end their reciprocal relations. It declares that 
from the date of the decree the rights, duties, privileges and 
relations between the child and the parent shall be in all respects 
at an end, except the right of inheritance, and transfers them all. 
Such an intention as that which the construction under consider- 
ation presumes, is not to be imputed to the legislature. It can- 
not be held to have contemplated any such disregard of the 
natural rights of a parent — rights so fully recognized by our law 
that it holds void at the will oJf the parent as again-st public 
policy his own contract for the permanent transfer of those 
rights, and will not enforce it except in the admitted exception of 
apprenticeship, and where the principles of legal adoption are 
part of the public policy. Schou. Dom. Rel. 3^3 ; Villarealv. 
Mellish, 2 Swanst. 533 ; Regina v. Smith, 16 E. L. & E. 221 ; 
People V. Mercein, 3 Hill 399 ; Mayne v. Bakhvin, 1 Hal. Ch. 
4-54- >' State v. Clover, 1 Harr. ^19; Albert v. Perry, 1 McCart. 
oJpO. A just, and it seems to me an o4)vious and necessary 
construction of our statute of adoption is, that if the child be 
under fourteen there need be no consent on its part, but the con- 
sent of the parent or parents, if there be any living, provided 
they be known and not hopelessly intemperate or insane, and 
have not abandoned the child, must be obtained. 

It seems entirely manifest that in this case the welfare of the 
child would be very greatly promoted by the adoption, especially 
in view of the very handsome pecuniary provision which it was 
said on the hearing Mr, Winans has made for it in his will, if 
the decree of adoption stands. That consideration, however, 
while it makes decision painful, cannot affect my judgment as to 
the legal validity of the decree. I must hold it invalid. It 
will therefore be reversed, with costs. 

10 Stew.] MAY TERM, 1883. 251 

Weldon V. Keen. 

Carrie "Weldon, appellant, 


Oscar Keen, respondent. 

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

Appeals from decrees of Essex orphans court. 
Mr. T. N. MeCarter, for appellant. 
Mr. J. W. Taylor, for respondent. 

The Ordinary. 

These appeals bring up for review two decrees of the orphans 
court of Essex county, one of November 28th, 1882, appointing 
the appellant guardian of her infant child (a boy of nine years 
old), provided she gave bond in the penalty of 8120,000 on or 
before the 11th of December following, and the other of the 12th 
of December, 1882, reciting that she had failed to give the bond, 
and appointing the respondent (a stranger to the infant) guardian 
oo bis giving bond in the sum of $50,000. The appellant is the 
widow of Thomas Weldon, deceased. He died intestate in 1879, 
leaving personal and real estate. His property all went to his 
widow and her child, subject, of course, to his debts. It appears 
that the personal estate amounts to about $58,000, and the real 
produces a net annual rental of about $3,000. The appellant 
applied for letters of guardianship, and after very full examina- 
tion of the subject, the orphans court appointed her on condition 
that she would give bond in $120,000 within a period of about 
two weeks from the date of the decree. The appointment of the 
respondent was made because and only because the appellant 
failed to give the bond within the limited time. It was made 


Weldon 7'. Keen. 

tlie fiext day after the time expired. It was the duty of the 
court to fix the amount of the bond, and it was within its power 
to limit the time within which the bond was to be given. Though 
the law leaves the subject of the amount of the bond to the dis- 
cretion of the court [Rev. p. 762 § Ji.S), that discretion is, of course, 
a judicial one, and there may be error in its exercise no less in 
requiring too large a bond than in fixing the amount at an inade- 
quate sum. That the amount of $120,000 was more than was 
requisite under the circumstances, appears not only from a con- 
sideration of the amount of the property of the infant subject to 
the control of the guardian, but also from the fact that the court 
fixed the amount of the bond to be given by the respondent at 
only $50,000. As before stated, the personal estate amounts to 
about $58,000, and the net annual rental of the real estate to 
about $3,000. The widow is entitled to one-third of each for 
her distributive share and dower, so that the infant's share of the 
personal property is about $38,600, and his proportion of the net 
annual rental of the real estate, $2,000. Inasmuch as every 
guardian is by law required to account yearly for all the money, 
goods and chattels he may receive, and all the rents, issues and 
profits of his ward's real estate in his possession {Rev. p. 773 § 
98), and in case of his failure to account, any person interested 
in the estate, or any other person as next friend of any infant 
interested may cite him to account, it seems unnecessary to re- 
quire, in this case, a bond in so large an amount as $120,000. 

The failure of the appellant to give the bond within the re- 
quired time is explained and excused by the testimony taken in 
this court, from which it appears that though the appellant was 
notified by the surrogate, by letter received on the 25th of Novem- 
ber (three days before the decree was signed), that the court re- 
quired her to give the bond " at once," neither she nor her proctor 
knew, until the day the respondent was appointed, that the court 
had fixed any time within which the bond was to be given. The 
decree was amended on the 12th of December (the day the re- 
spondent was appointed), by inserting therein a statement that the 
ai)pellant had notice of the decree when it was made. Both the 
court and the surrogate thought that the appellant and her proc- 

10 Stew.] MAY TERM, 1883. 253 

Weld on v. Keen. 

tor were present when the decree was made and signed, and 
hence the amendment ; but the evidence shows that this was a 
mistake. Both she and her proctor swear that they were not 
present, and that they did not know that the decree fixed any 
time. She testifies that she had obtained sureties to the amount 
of $80,000 as ear]y as Thursday, the 30th of November, and 
was taken seriously ill on the Wednesday following. Her proc- 
tor testifies that he went to the orphans court on the 12th of 
December, and made application for further time on the ground 
of her illness, which still continued, but the motion was denied. 
It should have been granted. The record discloses no reason, 
and none appears, why the amount of the bond required of the 
appellant should not have been reduced to the sum which the 
court fixed as sufficient security to be given by a stranger. Such 
a bond she could then have given, and could have given it as 
early as within two days from the date of her appointment. The 
court, in the exercise of its discretion, denied the guardianship to 
the mother, who was the only applicant, because she had not 
given a bond of $120,000, and gave it to a stranger on condition 
that he give a bond of only $50,000. 

But further : the court, under the circumstances, could not law- 
fully appoint a stranger. The mother was not an improper per- 
son to be guardian herself. She had a brother (her proctor in 
the suit) who had a claim to the guardianship, after her, and 
there may have been others of the infant's kindred proper per- 
sons to be guardian, and able to give the required security. The 
mother, and after her the next of kin of the infant, are entitled 
to be appointed guardian of a minor under the age of fourteen 
years ; and such claim cannot be disregarded, unless for some sat- 
isfactory reason. Rev. p. 759 § 36 ; Read v. Dixike, 1 Gr. Ch. 
78 ; Albai v. Perry, 1 MoCart 5Jfi. The appointment of the 
respondent was made without any notice to the mother or any of 
the next of kin of the infant, and so far as appears there existed 
no reason for disregarding the claims of the latter, even if the 
failure of the former to give the required bond of $120,000 
within the limited time could, under tiie circumstances, be re- 
garded as putting an end to her claims. 


Green's Case. 

The decree appointing the respondent will be reversed, and 
that appointing the appellant will also be reversed, as to and only 
as to the amount of security and the time within which it is to be 
given. The amount of the bond will be fixed at $75,000, and 
the appellant will be required to give the bond in twenty days 
from the time of entering the decree on this decision. The costs 
of both sides and a counsel fee of $100 to the counsel of each side 
will be paid out of the infant's estate. 

Ill the matter of the accounting of Charles E. Green, one of 
the executors of Henry W. Green, deceased. 

An executor received from the estate railroad stock, which he had the power, 
under the will, to assign to himself as trustee under a marriage settlement. In 
the exercise of reasonable care and caution, he sold the stock, in the course of 
administration, after it had depreciated considerably in value. — Held, that he 
was not required to consult or obtain the assent of the beneficiary under the 
marriage settlement, before effecting the sale, and was not personally liable for 
the loss sustained by the estate through the sale, although the market value 
of the stock afterwards increased. 

On exceptions to the account. 

Mr. H. C. Pitney, for the exceptants. 

Mr. B. Gummere, for the accountant.^ 

The Ordinary. 

This matter comes before me on exceptions to the account of 
Charles E. Green, one of the executors of the will of Henry 
AY. Green, deceased. The account was filed October 16th, 1877. 
The exceptions are filed by Mrs. Emily A. Blackwell, daughter 
and one of the residuary legatees, and her son, William B. 
Blackwell, Jr., who is interested under the provision of her 
marriage settlement. There are several exceptions, but the at- 
tention of the court was called, on- the argument, to only one of 

10 STEA7.] MAY TERM, 1883. 255 

Green's Case. 

those (the third) filed by each exceptant. That exception calls 
in question the conduct of the accountant in selling seven hun- 
dred and fifty shares of the stock of the Ciiicago, Burlington 
and Quincy Railroad Company, of the par value of $75,000, 
for $72,743.75. The stock was sold on or about the 21st and 
22d of March, 1877. It was derived from the estate of the 
testator's brother, John C. Green, deceased, and was received as 
part of the share of the testator of the residue of that estate. 
It was received after the testator's death. He died in January, 
1877. The will was proved on the 16th of that month, and an 
inventory was filed on the 30th. In the inventory appears the 
item of "Interest in the estate of the late John C. Green 
[brother of decedent], value not yet ascertained." The inventory 
was filed by both of the executors. The account is by only one. 

Note. — Executors or trustees have been held liable for not selling stocks 
&c. which were not sanctioned by law as investments, in the following cases : 

For not collecting a bond of their testator, while the obligor was solvent, 
Lowson V. Copeland, 2 Bro. C. C. 156 ; Powell v. Evcnis, 5 Vcs. 830 ; Bullock v. 
Wheatley, 1 Coll. 130 ; Chapman v. Shepherd, 24 OraU. 377 ; Pierce v. Pres- 
coit, 128 Mas^s. 14^^ ; Darrell v. Eden, 3 Desauss. 241 ; see East v. East, 5 Hare 
343; Holcomb v. Holcomb,3 Stock. 281, 301 ; Ashurst v. Poller, 2 Stew Eq. 
€25, 632 ; Lacey V. Stumper, 27 Oratt.42; Livingston v. Junes, Harring. {Mich.) 

For investing a legacy in bank stock and retaining it long after the bank 
was insolvent, Ackei'vian v. Emott, 4 Barb. 626. 

For investing in Exchequer Bills, in 1846, although, if they had been re- 
tained until the time of entering the decree, there would have been no loss, 
Knott V. Cottee, 16 Beav. 77. 

For retaining Crystal Palace shares, which were at a premium when the tes- 
tator died, but subsequently fell below par, Hughes v. Empson, 22 Beav. 181. 

For retaining bank stock of the testator for more than eighteen months after 
his death, Gillespie v. Brooks, 2 Jiedf. 349; Goodwin v. Howe, 62 How. Pr. 
134; McKenzie v. King (N. B.), Stevens's Dig. 666 I 13. 

For retaining bank stock turned over to him by his predecessor in the trust, 
Milh V. Hoffman, 26 Hun 594; Gilbert v. Welsch, 75 Ind. 657. 

For retaining canal shares for three years after the time fixed by order of 
the court to sell them, Davenport v. Stafford, 14 Beav. 310. 

For investing in and liolding stock in a navigation company, which paid 
very large dividends for eight years thereafter, Worrell's Appeal, 9 Pa. St. 
508; 23 Pa. St. 44- 

For delaying in selling cotton of the estate for fourteen mouths, under the 
belief that it would advance in price, Pulliam v. Pidliam, 10 Fed. Rep. 53. 


Green's Case. 

In a schedule appended to the account is a statement of the per- 
sonal property received by the accountant from the estate of John 
C. Green, among which are the shares of stock in question, 
which are there stated to be of the value of f^78,750, and the 
accountant prays allowance for the difference between the value 
stated in the schedule and the price obtained. The stock appears 
to have been received in February or March, 1877, and, as be- 
fore stated, was sold on or about the 21st or 22d of the latter 
month. The propriety of the sale is questioned by the except- 
ants, on two grounds. The first is tjiat the provisions of the will 
and the marriage settlement put upon the executors (who were 
the trustees under the latter) the duty of obtaining Mrs. Black- 
well's consent to the sale, which they did not do. The other is, 
that, granting that the executors had the power to sell without 

For subscribing for new stock under a privilege ofiered by the corporatior 
in which testator already held stock, Laceyv. Davis, 4 Redf. 402 ; see Brin- 
ley V. Orou, (Conn.) 14 Hep. 173. 

For paying an assessment on stock standing in the testator's name, Snow's 
Estate, Meyrick 97 ; Mills v. Hoffman, 26 Hun 594. See Ripley v. Sampson, 10 
Pick. 371. 

For transferring to himself bank stock standing in testator's name, Jameson 
V. Shdby, 2 Humph. 198. 

-For buying city bonds or scrip in addition to those of the same city donated 
by testator. Trustees v. Glay, 2 B. Mon. 385. 

For promissory notes turned over to and not collected by his successor, Fos- 
ter's Case, 15 Hun 387. See Laeey v. Stamper, 27 Oratt. 42. 

For not selling an unfinished yacht of testator for more than a year after his 
death, I/uf berry's Estate, 12 Phila. 6. 

They were held not liable in the following cases : 

For allowing testator's investment in Mexican bonds to remain a year and 
seven months after his death, and then selling them at a lower price than an 
earlier sale would have produced, Buxton v. Buxton, 1 Myl. & Or. 80, 

For retaining part of the assets in turnpike bonds, when directed to invest in 
other specified securities, Robinson v. Robin^Ron, 1 De O. M. & O. 247 ; see Mur- 
ray V. Feinour, 2 Md. Oh. 418; Contee v. Dawson, 2 Bland 264, 289 ; Barris- 
ter V. McKemie, 6 Munf. 447. 

For bona fide retaining stock in a steamboat company, Willimns v. Maitland, 
1 Ired. Eq. 92. 

For shipping and selling cotton in Liverpool instead of Charleston, whereby 
a loss ensued, Bryan v. Mulligan, 2 Hill Ch. 363 ; eee Clary v. Sanders, 43 Ala. 
287; Callaghan v. Hall, 1 S. & R. 241. 

For retaining a ward's estate in stock of the Bank of the United States for 

10 Stew.] MAY TERM, 1883. 257 

Green's Case. 

her consent, they ought not, in justice to those interested under 
the marriage settlement, to have sold the stock, because, although 
at the time of sale its market value had fallen, it was, in fact, a 
valuable dividend-paying investment, and so proved to be after- 
wards. The will of the testator, it may be observed, gives no 
direction as to investments, except that it provides that it shall 
be lawful for the trustees, under the marriage settlement, to hold, 
as part of the trust-funds, without being liable for the deprecia- 
tion of the same in value, any bonds, stocks or securities belong- 
ing to his estate, and which may be, by his executors, assigned to 
the trustees as part of his daughter's distributive share. The 
marriage settlement provides that it shall and may be lawful for 
the trustees and the survivors of them, and the executors, ad- 
four years, Boggs v. Adger, 4 Rich. Eq. 408 ; Nyces Estate, 5 W. & S. 254; 
French v. Qwrrier, ^7 N. H. 88. See Brisbane v. Bank, 4 Watts 92. 

For accepting from his predecessor and retaining judgment-bonds, which 
afterwards became worthle'ss through an extraordinary depreciation in real es- 
tate, Jack's Appeal, 94 Pa. St. 267. See Bietterich v. Heft, 5 Pa. St. 87. 

For depreciation in stock during the continuance of an injunction which re- 
strained the administratrix from disposing of the stock, Orelner v. Oreiner, 8 
Slew. Eq. 134. See Boiling v. Tate, 65 Ala. 417. 

For retaining, to await the result of a suit pending against the estate, the 
stock of a bank which was then considered safe, but failed before the suit was 
ended, Dugan v Hollins , 11 Md. 41 ; see Doster v. Arrmld, 60 Ou. 316 ; La- 
font V. Eicard, Bail. Eq. 4^7 ; Mickle v. Brown, 4 Baxt. 468; Matthews v. 
Downs, 1 Jones Eq. 321 ; Latimer v. Hanson, 1 Bland 51. 

For holding railroad stock until it had greatly depreciated, Mcltae v. Mc- 
Eae, 2 Bradf. 199. 

For exchanging notes of a manufacturing company held by testator for 
stock of another manufacturing company, Brmon v. Campbell, Hopk. 233 ; see 
Lovdl V. Minot, 20 Pick. 116 ; Adair v. Brimmer, 74 N. Y. 539 ; Pray's Ap- 
peal, 34 Pa. St. 100. 

For retaining railroad stock for six years, during great fluctuations in its 
price, and a financial panic, Weston v. Ward, 4 Redf. 415 ; affirmed, N. Y. Ct. 
of App., March, 1883 ; Troup v. Rice, 55 Miss. 278 ; Bowker v. Pierce, 130 Mass. 
262 ; see Foscue v. Lyon, 55 Ala. 440, 450 ,- Oray's Case, 27 Hun 455. 

For relinquishing several thousand dollars' worth of stock invested by the 
testator, by way of compromise, Pierson v Thompson, 1 Edw. Ch. 212. 

For retaining for four months an ostrich which had belonged to decedent 
and which then died, Secondo Bosio's Estate, 2 Ashm. 437. 

For retaining bank and navigation company's stock, then supposed to be un- 
exceptionable as investments. Barton's Estate, 1 Pars. Eq. 24 ; Rush's Estate. 



Green's Case. 

ministrators and assigns of such survivor (and they are thereby 
authorized to do so accordingly), at any time or times, by and 
with the consent of the settlor (the testator), and of his daughter 
Emily, or of the survivor of them, testified in writing, if they 
or either of them be living, and after the decease of the sur- 
vivor, then of the proper authority of the trustees or trustee for 
the time being, to sell, transfer and dispose of the bonds and 
securities which are the subject of the trust, and make new in- 
vestments on the same trust. It was held in Green v. Green, 3 
Stew. Eq. 4^1, that Mrs. Blackwell's share of the residue of the 
testator's estate was subject to the provisions of the marriage 
settlement, and that the executors, as trustees under the settle- 
ment, were at liberty to hold the identical securities which might 
be assigned to them for, or as part of, her share of the residue. 
The executors have not, in fact, made any assignment to or di- 
vision of the securities among the residuary legatees. It is in- 
sisted, however, by the exceptants, that that fact cannot affect 

12 Fa. St. 376; se.e McMurlrie v. Pa. Co., 9 Phila. 529, 75 Pa. St. 304; Dun- 
can V. Jaudon, 15 Wall. 165, 174. 

For assets of a dissolved insurance company in which both the intestate and 
the administrator had been stockholders, Harris v. Parker, ^/ Ala. 6O4. 
^ For holding second-mortgage railroad bonds, which were worth at testator's 
death about £150 each, for fifteen months, when they were worth about £54 
each, although frequently pressed meanwhile by one of the legatees to sell, 
Marsden v. Kent, L. R. [5 Ch, Div.) 598 ; but see Brown v. French, 125 Mass. 
410 ; McDonald's Case, 4 Bed/. 321; Clark v. Anderson, IS Bush 111. 

For leaving an investment in stock of the United States Bank, under a dis- 
cretion given to the trustees so to do, so long as they might deem it most for 
the interest of testator's family, Hogan v. De Feyster, 20 Barb. 100 ; Gray v. 
Lynch, 8 Gill 403. See Smith v. Smith, 7 J. J. Marsh. 238. 

For allowing government bonds of the estate to be kept, as testator had done, 
by his nephew, who converted them, McCahe v. Fowler, 84 N. Y. 314. 

For leaving in a savings bank funds deposited there by the testator, the 
bank having failed within a year after testator's death, Seidler's Estate, 5 Phila. 

For rents that might have been obtained by a more eflBcient agent than the 
one whom the testator had employed and his executors retained, Becl^s Estate, 
12 Phila. 74. 

Whether the trustees are to be charged with the money improperly invested, 
or with the value of the stock, at any time during the continuance of the in- 
vestment, 10 N. Y. Leg. Obs. 321 ; Livomore v. Wortmcin, 25 Hun S41.—B,bp. 

10 Stew.] MAY TERM, 1883. • 259 

Green's Case. 

the question of liability, because the sale of the stock was not 
necessary to pay the debts or to settle the estate. The persons 
who were interested in the stock in question were the accountant 
and his mother and his sister, Mrs. Blackwell, and her son. 
When the stock was sold, the settlement of the estate had been 
in progress for only about two months, and the stock was held 
by the executors as executors, and not as trustees under the mar- 
riage settlement. It had been depreciating in the market. 
Between the 1st and 19th of March it had, with some little 
fluctuations, run down in market price from one hundred and 
nine and one-half to ninety-five and one-half. The accountant 
gives as his reason for selling that there was a general feeling of 
apprehension and uncertainty in the minds of eminent financiers 
with regard to the stock ; that there was a rumor and a state- 
ment in the public press that a noted speculator, whom he names, 
was endeavoring to get hold of a certain part of the railroad, 
"with a view to efiecting his own purposes, antagonistic to the in- 
terest of the company, and that, on consultation with gentle- 
men of high standing in financial matters in New York, he was 
induced, in view of their opinion and of the circumstances, to 
sell. It is noteworthy that he was himself interested to the 
extent of one-third in the stock and his mother to a like extent. 
It is also worthy of remark that his co executor, who was the 
owner in his own right of seven hundred and fifty sliares of the 
stock, sold four hundred and fifty of them below par, apparently 
about the same time. He says he sold his stock in the exercise 
of his best judgment, and for the preservation of his estate. 
The company was located at a distance. The investment was 
not of such a character as the court would approve. The 
executor appears to have acted in the matter in perfect good 
faith, and with commendable circumspection, care and prudence, 
and with wise caution. That the stock subsequently rose in 
value, and the sequel proved that it would have been more 
profitable to the estate if it had been held, does not affect the 
determination of the question whether his act was lawful and 
proper at the time. Had he, under the circumstances, continued 
to hold the stock, and had it fallen still lower and a loss been 


Green's Case. 

occasioned to the estate by his failure to sell when he did, he 
would have been guilty of a devastavit. It was his duty to sell 
when he did. 

But it is urged that the marriage settlement made it obliga- 
tory on him, as trustee, not to change the investment with- 
out the consent of Mrs. Blackwell. It is enough to say that 
the stock had not, when it was sold, been assigned in any way 
to her share, but constituted part of the testator's estate in the 
accountant's hands for administration. Nor was there any obli- 
gation on the executors to assign any part of the stock to Mrs. 
Blackwell's trustees. They might have done so had they seen 
fit, but they were not bound to do it. The will gave them 
permission to hold, as trustees under the marriage settlement, 
such securities as they might see fit to assign for the purpose, but 
it did not require them to assign any. As matters stood when 
the sale of the stock took place, they would not have been justi- 
fiable in assigning the stock, which was then falling in the 
market, to the marriage settlement trust. The exceptions will 
be overruled, with costs. 






JUNE TERM, 1883. 

Alfred I. Claypool et ah, executors, appellants, 


Joseph Norcross, respondent. 

1. In appeals to the prerogative court in a probate case there must be a de- 
mand of an appeal evidenced in writing in some form in the orphans court 
Avithin the period limited by the statute. 

2. The case of Hillyer v. Schenck, 2 McCart. 398, approved and followed 

On appeal from a decree by the ordinary, whose opinion is re- 
ported in Claypool v. Norcross, 9 Stew. Eq. 52j^. 

Mr, F. Voorhees and 3Ir. G. 8. Cannon, for appellants. 

Mr. C. E. Hendrichson and Mr. B. Gummere, for respondent. 



CI ay pool V. Norcross. 
The opinion of the court was delivered by 

Beasley, C. J. 

The only question in this case is whether an appeal was prop- 
erly taken in a probate case from the orphans court to the pre- 
rogative court. 

The one hundred and seventy-sixth section of the orphans 
court act {Rev. p. 791) requires that an appeal of this kind shall 
be made within thirty days after the making and signing of the 
decree in the orphans court. It is admitted in this case that no 
written demand of an appeal, nor any written memorandum of a 
verbal demand of an appeal, was made in the orphans court 
within the time thus prescribed. What is claimed to have been 
done is that an oral demand of an appeal was made in such court 
within such period, and that before the expiration of the thirty 
days a petition of appeal- was filed in the prerogative court, and 
a copy duly served on the solicitor of the opposite party. 

I shall not refer to the testimony before the court for the pur- 
pose of settling the disputed fact whether or not there was in the 
present case an oral demand of an appeal made to the orphans 
court within the thirty days defned by the statute. Such a 
question seems to me of no importance to this inquiry. More than 
twenty years ago, in Hillyefr v. Schenck, 2 MoCaH. 398, it was 
decided, after a thorough examination, by Chancellor Green, 
sitting as surrogate-general, that when the statute referred to a 
demand of an appeal, it had reference to an established course of 
proceeding, that is, to a demand made to the orphans court and 
evidenced by a writing in that court. The experienced and pains- 
taking judge who expressed this view, rested it, not only on the 
practice of the English ecclesiastical courts, but also on the long- 
established procedure in this state. He stated that so far as his 
knowledge extended, an appeal in these cases had never rested on 
an oral demand, and it is safe to say that since that decision no 
such course has been attempted until the occurrence of the pres- 
ent instance. To sustain the present appeal, in despite of the 
legal rule thus established and promulged, would introduce a 
public inconvenience, for it would leave no rule, that would be 

10 Stew.] JUNE TERM, 1883. 263 

Raub V. Raub. 

entitled to be called a definite one, as a guide to practitioners. I 
think the rule should be adhered to which requires, in these ap- 
peals, a demand evidenced in some form, in writing, before the 
orphans court within the statutory period. 
The decree appealed from should be affirmed. 

For affirmance — The Chief-Justice, Depue, Knapp, 
Magie, Reed, Scudder, Van Syckel, Cole, Green, Kirk, 
Whitaker — 11. 

For reversal — Dixon, Paterson — 2. 

Madison K. Raub, appellant, 


Daniel Raub, respondent. 

This case was affirmed on the merits. 

On appeal from a decree advised by Advisory-Master Ship- 


Mr. W. A. Stryker, for appellant. 
Mr. W. M. Davis, for respondent. 
The opinion of the court was delivered by 

Beasley, C. J. 

This is a matter-of-fact case, the question involved being 
whether the mortgages ought to be foreclosed (for the conveyance 
was admitted to be, in equity, a mortgage), was to stand as se- 
curity to the complainant for the sum then due him, or for such 
sum and for such future moneys as he might advance to the de- 


Cadmus v. Combes. 

fendatit. It would serve no purpose to discuss the testimouy, 
for it is conflicting, and it is sufficient to say that, on the whole 
case, the master was warranted in drawing the conclusion which 
he did, to the efPectthat the complainant had the right to look to 
the property as a security for his entire claim. 
The decree must be affirmed. 

Decree unanimously affirmed. 

Cathalina Cadmus, appellant, 


John Combes et al., respondents. 

The testator gave the income of all his real and personal estate to his wife 
for her life, giving the executors a power in their discretion of selling any 
part of his real estate. — Held, that the taxes on the real estate were to be paid 
by the personal estate, and that no part of the real estate could be sold for 
that purpose. 

On appeal from a decree of the chancellor, whose opinion is 
reported in Combes v. Cadmus, 9 Slew. Eq. 382. 

Mr. R. Wayne Parker, for appellant. 

Messrs. Benlley & Harlshorne, for respondents. 

The opinion of the court was delivered by 

Beasley, C. J. 

This is a bill exhibited by an executor, seeking a construction, 
with respect to several particulars, of the will under which he is 
acting. The bill shows that the complainant's testator was 
seized, at the time of his death, of a large tract of land, situa- 
ted in tlie city of Bayonne, containing about one hundied acres, 
and also of a large personal estate of about the value of $100,- 

10 Stew.] JUNE TERM, 1883. 265 

Cadmus v. Combes. 

000, and that the pertinent parts of the will in question were 
in these words, viz. : 

" I give, devise and bequeath unto ray wife, Cathalina, my son-in-law; John 
Combs, or the survivor of them, all the remainder of my estate, real and per- 
sonal, to have and to hold the same for the following use, to wit: After paying 
all my debts, to pay unto my wife, Cathalina, while she shall remain my widow, 
the income of all my estate, whether real or personal. But if sTie shall remarry, 
then to pay unto her the interest of $6,000 only. After the death or re- 
marriage of my said wife, then to divide my personal estate amongst my five 
children, equally. 

" As to my real estate unsold at the death or remarriage of ray said wife, I 
order my executors above named, or the survivor of them, to sell the same as 
soon as properly can be, having a care, however, not to sacrifice the same, and 
at the end of each year to divide the proceeds made by sales during such year 
amongst my five children, equally, if all shall then be living. I hereby au- 
thorize and direct my executors, or the survivor of them, to sell and convey 
all or any part or portion of my real estate as to them shall seem for the best 
interest of ray estate." 

The bill further states that the personal estate which came to 
the executors consists, in a great measure, of bonds secured by 
mortgages on unimproved lands, and that these moneys are at 
present uncollectible, owing to the depressed condition of the 
market with respect to lands, and that the consequence is that 
the proceeds of tlie real and personal estate have not been much 
more than sufficient to pay the taxes and necessary expenses of 
tlie real estate. As the lands are unproductive, the widow has 
been deprived of all income or benefit derived from her late hus- 
band's estate, except in the respect that she occupies the home- 
stead. She now claims that the interest-moneys arising from the 
personal estate cannot be appropriated to tiie payment of the 
taxes and necessary expenses of the real estate, and that she is 
entitled to the gross and not the net income. It is upon this 
point that the executor applies to the court for its opinion. 

The conclusion of the chancellor was that this claim of the 
widow was not well founded, and this conclusion seems to me 
manifestly correct. It is undoubtedly true that the testator in- 
tended to provide a liberal income for his wife, but it is also true 
that he intended that such income should be such as would arise 
out of the interest of his personalty and the rents of his realty. 


American Dock and Improvement Co. v. Trustees for Public Scliools. 

By thts will, therefore, a fixed annual sum is not given to this 
appellant, but a sum is given which is entirely contingent on the 
productiveness of the estate, and thus the husband subjected his 
wife to the hazard of such an uncertainty. The husband had 
the undoubted right to leave her in this situation, and conse- 
quently the court cannot interfere with the disposition of the 
property. The widow is the equitable tenant for life in the real 
estate, and the rule is unquestionable that, as a condition of hold- 
ing such title, she must keep down the taxes. No part of the 
lands can be sold for such a purpose. And this is the entire 
.scope of the inquiry made of this court. If the bill had pre- 
sented the questions whether tlie widow had not the right to in- 
sist on a .sale of the real estate, at the earliest fair opportunity, 
and the funding of the proceeds of such sale for her benefit, or 
had inquired whether the executor was not bound to collect, no 
matter at what sacrifice, the annual interest accruing on the 
bonds constituting the bulk of the personal estate, question,s 
of interest would have been before us, demanding, it may be, a 
careful consideration. But upon the point drawn in question, 
the rules of law seem to me to be clear, and consequently I 
think the decree should be affirmed, but without costs. 

Decree unanimously affirmed. 

The American Dock and Improvement Company, ap- 


Trustees for Public Schools and William Z. Larned, 
receiver, respondents. 

1. Where a cause is allowed to stand over, with leave to bring an action or 
directing an action at law, the action is prosecuted in compliance with the 
practice and proceedings in ordinary actions at law, the proceedings are re- 
viewable by rule to show cause and writ of error in tlie usual manner, and 

10 Stew.] JUNE TERM, 1883. 267 

American Dock and Improvement Co. v. Trustees for Public Schools. 

judgment at law will be entered, vrhicli will be accepted in the equity- court as 
a finality. 

2. Where an issue is sent out of chancery, the whole proceeding is under 
the control of the court of chancery, and the conduct and result of the trial 
are subject to review in that court only. 

3. A feigned issue is a mode of procedure adopted from the civil law as a 
means of having some question of fact arising incidentally, and to be made 
the foundation of some order or decree in a cause, determined by the verdict of 
a jury. 

4. Whether an order is for an action at law or an issue out of chancery, 
does not depend upon the form in which the issue is framed. For convenience 
of trial the issue must be given the form of a common law action, with appro- 
priate pleadings at law, to raise an issue ; but the nature and purpose of the 
issue give it character as a feigned issue, or otherwise, and not the form in 
which the issue is expressed. 

5. An appeal will lie from an order directing an issue, but the court of ap- 
peal will not interfere with the discretion of the chancellor as to the form of 
the issue, if the form be appropriate to secure a fair presentation of the issue 
at the trial. 

6. The general rule is that the court of chancery has no jurisdiction to try 
or establish the title to lands, nor to quiet a party in his possession, until after 
his title has been determined by a court of law. A prior determination of 
the title in one or more actions at law is, therefore, ordinarily a condition pre- 
cedent to tiie filing of the bill. 

7. In one particular the act entitled " A.n act to compel the determination 
of claims to real estate in certain cases, and to quiet the title to the same" 
{Rev. p. 11S9), enlarged the jurisdiction of chancery in this respect. It gives a 
party who is in peaceable possession, where his title is disputed, a right to 
come into chancery in advance of the determination of the title at law, where 
no suit to enforce or test the validity of the title is pending. 

8. Whether this statute has deprived, or, under the constitution, could de- 
prive, a defendant brought into chancery under its provisions, of the right to 
an action at law, as distinguished from an issue out of chancery, in order to 
determine the title, not considered ; for a party may waive his right to an 
action at law, and even to an issue; and these parties, by the several orders 
obtained and consented to, have waived all objections to the mode of trial pro- 
posed by an issue out of chancery. 

On appeal from an order of the chancellor settling the form 
of an issue out of chancery, whose opinion is reported in Ameri- 
can Dock and Improvement Co. v. Trustees of Public Schools, 9 
Stew. Eq. 16. 

The receiver of the New Jersey West Line Railroad Com- 


American Dock and Improvement Co. v. Trustees for Public Schools, 

• ■ « ■ 

pany* one of the defendants in the above suit, ajiplied for leave 
to bring an action of ejectment against the receiver of the Cen- 
tral Railroad Company of New Jersey to try the title to and re- 
cover possession of the premises described in the bill of com- 

By an order made in this cause, dated August 3d, 1882, the 
chancellor granted leave to bring one or more actions of eject- 
ment, on condition that the said actions should be under the con- 
trol of the court of chancery as to the venue, and in all other 
respects in the same manner and to the same extent in all things 
as if the same were an issue framed by the court in the usual 
form, to determine the question of title to the said land. 

The complainants subsequently applied to have the above 
order modified, and for a feigned issue at law ; and the chancellor, 
by an order dated September 18th, 1882, made by the consent of 
the defendants, stayed the actions of ejectment and ordered that 
there be a feigned issue, and that the declaration in said issue 
should be in the usual form adopted in feigned issues out of the 
court of chancery. 

By a subsequent order, dated February 20th, 1883, the chan- 
cellor settled the form of the issue and decided that the feigned 
issue, provided for in the order of September 18th, 1882, should 
be in a form which he approved, being substantially in con- 
formity with the pleadings in an action of ejectment. 

No appeal was taken from either of the orders of August 3d 
or September 18th. The complainants appealed from the last 
order of February 20th, 1883, with respect to the form adopted 
for an issue. 

Mr, John W. Taylor, for appellants. 

Mr. R. Gilchrist and 3Ir. T. N. McCarter, for respondents. 

The opinion of the court was delivered by 

Depue, J. 

The object of this appeal seems to have been to obtain the de- 

10 Stew.] JUNE TERM, 1883. 269 

American Dock and Improvement Co. v. Trustees I'or Public Schools. 

cision of this court as to the nature of this issue, with a view to 
the guidance of counsel in the proceedings upon the trial. 

The distinction between the suspension of jjroceedings in an 
equity suit, with leave to a party to bring a suit at law, or di- 
recting an action and an issue out of chancery, is well settled. 
If the cause is allowed to stand over with leave to bring an action, 
or directing an action at law, the action is prosecuted in compli- 
ance with the practice and proceedings in ordinary actions at law. 
Bills of exceptions may be taken at the trial, and the proceedings 
are reviewable by rule to show cause and writ of error in the usual 
manner, and judgment at law will be entered, which will be ac- 
cepted in the equity court as a finality. Booth v. Blandell, 19 
Ves. 4^4-y 509 ; Ex parte Kensington, Geo. Coop. 96 ; Hope v. 
Hope, 10 Beav. 581, 583, 586 ; Smith v. Earl of EJinghavi, Id. 
589, 59$ ; Apthorp v. Comstock, 2 Paige Jf.82. But where an issue 
is sent out of chancery, the whole proceeding is under the control 
of the chancellor. No bill of exceptions can be taken, and no judg- 
ment entered ; the circuit record and postea are sent to the court 
of chancery, and the conduct and result of the trial are subject to 
review in that court only. Trenton Banking Co. v. Rossell, 1 Gr. 
Oh. 511; S. C, Id. 1^92; Hohombe v. Managers, 1 Stock. 457 ; 
Freeman v. Staats, Id. 816 ; Black v. Lamb, 1 Beas. 108, 2 Id. 
455 ; Johnson v. Harmon, 94- U. S. 371; Clayton v. iord Nugent, 
1 Coll. 363; 13 L. J. {N. S.) Exch. 363. 

Whether an order is for an action at law or an issue out of 
chancery, does not depend upon the form in which the issue is 
framed. An issue, or, as it is commonly called, a feigned issue, 
is a mode of procedure adopted from the civil law by courts of 
law as well as courts of equity as a means of having some ques- 
tion of fact arising incidentally, and to be made the foundation 
of some order or decree, determined by the verdict of a jury. It 
is called a feigned issue for the reason that its object is not the 
establishment of a legal right on which a judgment shall regu- 
larly follow, but the ascertainment by a formal trial of some issue 
of fact arising in another cause, and material to the decision of 
the latter. For convenience of trial the issue must be given 
the form of a common law action, with appropriate pleadings, 


American Dock and Improvement Co. v. Trustees for Public Schools. 

and ah issue thereon ; but, nevertheless, the nature and purpose 
of the issue give it character as a feigned issue or otherwise, and 
not the form in which the issue is expressed. The issue may be 
in any form adapted for a trial in a court of law before a jury. 
AVhere convenience requires it, the issue may be framed aa if 
upon a wager; or, if practicable, formal pleadings in an ordinary 
action at law may be resorted to, and the issue may be in such 
form as to present the real subject matter in controversy without 
losing its character as a feigned issue. In Barrow v. Bispham, 
6 Hal. 110, the question whether a bond on which judgment by 
confession was entered had been obtained by fraud, was tried 
upon a feigned issue in the form of an action of assumpsit on 
promises. In Becker v. Caskey, Sax. 4-^7, on bill filed for the 
discovery and production of a deed of conveyance alleged to 
have been lost or destroyed, and the foreclosure of a mortgage 
upon the premises made by the grantee named in the conveyance 
— it being alleged in the answer that the deed was never deliv- 
ered, and that the grantor was not competent to make the con- 
veyance — an issue as to the existence and validity of the deed 
was ordered to be tried at law, under the direction of the chan- 
cellor, in an action of ejectment. 

We must look, therefore, at the order of the chancellor direct- 
ing the issue, to decide whether the issue is an issue out of 
chancery or an ordinary action at law. An appeal will lie from 
an order directing an issue. N. & N. Y. R. E. Co. v. Newark, 8 
C. E. Gr. 575. But the court of appeal will not interfere with 
the discretion of the chancellor as to the form of the issue, unless 
the issue is not adapted to the case made in the pleadings in 
equity, or was framed so as to put the burden of proof on the 
wrong party. Smyth v. Nangle, 7 CI. & Fin. 4-05 ; Broicne v. 
Mcaintock, L. R. {6 H. of L.) 456, 4,67. 

The substance of the complainants' bill and the defendants' 
answers is stated in the report of this case in 8 Stew. Eq. 181. The 
bill, among other things, sets out a claim of title to the premises in 
controversy by the New Jersey West Line Railroad Company, 
under a grant executed by the governor, attorney-general and 
riparian commissioners, on March 19th, 1872. It denies the 

10 Stew.] JUNE TERM, 1883. 271 

American Dock and Improvement Co. v. Trustees for Public Schools. 

validity of the title of the West Line company under its grant, 
and contains averments of a superior title to the same premises 
in the complainants or some one of them, setting forth, specific- 
ally, the grounds and sources of such title. The answer affirms 
the validity of the title of the West Line company under its 
grant, and denies the several titles under which the complainants 
make their claim. Both the bill and answer contain averments 
of special equities in the parties respectively, the use and force 
of which may be subjects of consideration after the issue of title 
is disposed of. 

The bill charges that the complainants had for years been in 
possession of the premises. It avers that the bill is filed to have 
the grant to the West Line company declared invalid, and to 
restrain any one claiming under it from setting up title there- 
under, and from disturbing the complainants in their possession, 
and to I'emove the cloud the said grant casts upon their title. 
The prayer of the bill is, among other things, to the effect that 
the title of the West Line company to the premises be declared 
to be invalid, and that peaceable possession thereof by the com- 
plainants may be protected by a decree of the court. With some 
imperfection in form, the bill in substance is an appeal to the juris- 
diction which a court of equity exercises to quiet the title to lands. 

It is apparent, from the inspection of the several orders of the 
chancellor, that the issue in question is an issue out of chancery. 
The form of the issue adopted is in accordance with the sub- 
stance of the pleadings under the ejectment act, and must so be 
considered ; otherwise the plea would not be appropriate to raise 
an issue of title. Eev. pp. 327, 334 § 13. But the chancellor's 
order in directing the issue and the recital in the issue directed, 
show that his purpose was to retain the trial of the title under 
his control ; and the form of the issue approved is appropriate 
to secure a fair presentation of the issue of title at the trial. 

The power of the court of chancery to order an issue, instead 
of allowing an action at law to be brought, is indisputable, 
where an issue is applied for or assented to by the parties. 
The general rule is that a court of equity has no jurisdiction 
to establish by its decree the title to lands, its jurisdiction 


American Dock and Improvement Co. v. Trustees for Public Schools. 

being "limited to an interposition to quiet the possession of a 
party after his title has been determined by a court of law. 
Lord Tenham v. Herbert, 9 Atk. JfS3 ; Welby v. Duke of Rut- 
land, 6 Bro. P. a 575; Weller v. Smeaion, 1 Bro. C. C. 572, 1 
Cox 102 ; Devonsher v. Newenham, 2 Sch. & L. 199. The prin- 
ciple upon which courts of equity interposed to quiet the title 
was, that judgments in ejectment, not being conclusive, and 
operating only to transfer the possession, without conclusively 
settling the title, a court of equity, after the title had been satis- 
factorily determined by actions at law, would interpose to put an 
end to further litigations — the court, assuming that the complain- 
ant's legal title had already been determined at law, intervened 
to prevent a litigation which had become vexatious and op- 
pressive, because unnecessary and unavailing. A prior deter- 
mination of the title in one or more actions at law is, therefore,^ 
ordinarily a condition precedent to the filing of the bill. 1 
Spen. Eq. Jur. 658 ; 1 Pom. Eq. Jur. 254^. Under some cir- 
cumstances a court of equity would entertain a bill before the 
title had been determined at law, to remove obstacles in the way 
of a trial of the title in an action at law, as in Leighton v. 
Leighton, 1 P. Wms. 671. So, also, in a suit in equity to carry 
into effect the trusts of a will of real estate, the heir-at-law 
might be brought in for the purpose of establishing the will. 1 
Spen. Eq. Jur. 4-58 note g. But, at whatever period of time 
the trial of title was had, it was the settled doctrine that the 
title must be determined at law or by an action, before the court 
would undertake to quiet the possession, unless the right to such 
a trial was waived. Butlin v. Masters, 2 Phil. 289, 293, 529; 
Grove v. Young, 15 Jur. 810 ; 2 Story Eq. Jur. §§ 1U5, 14-46, 

In one particular the act entitled "An act to compel the 
determination of claims to real estate in certain cases, and to 
quiet the title to the same," enlarged the jurisdiction of the court 
of chancery in this respect. It gives a party, who is in peaceable 
possession of lands where his title is disputed, a right to come 
into chancery to settle the title in advauce of a determination of 
the title at law, where no suit to enforce or test the validity of 

10 Stew.] JUNE TERM, 1883. 273 

Camden and Atlantic E. E. Co. v. Elkins. 

the title is pending. Rev. p. 1189 § 1. Whether this statute 
necessarily requires the construction that a defendant brought 
into the court of chancery under its provisions shall be denied 
the right to an action at law, and be put to an issue, and whether 
the legislature can constitutionally deprive a party of the right 
to submit his title to a trial by an action at law — the advantage 
of which will be aj>parent by a comparison of Tatham v. Wright, 
in equity, 2 Ri/ss. & Myl. 1, with the result of an action at law 
upon the same will, in Taiham v. Wright, 1 A. & E. 3, 7 Id. 
313, 5 CI. & F. 670 — need not now be considered ; for the right 
to an action at law, and to even an issue, may be waived. 2 
Story Eq. Jur. §§ 14-4-5, 144^- An heir-at-law is entitled to an 
action at law or an issue devisavit vel non, at his option. Grove 
v. Young, 15 Jur. 810. If he elects to have an action at law, 
the proceedings at the trial are subject to review in the law 
court, and the proceedings in the equity court are determined by 
the result of the action. Banks v. Goodfellow, L. R. {11 Eq.) 
4-72, L. R. {6 Q. B.) 54^. If he accepts an issue, the conduct 
of the trial and the propriety of the verdict are reviewable in 
the equity court, and in that court alone. Tatham v. Wright, 2 
Buss. & Myl 1. 

The several orders obtained and consented to by the parties 
respectively, as steps toward the trial of the contested issue of 
title, constitute a waiver with respect to the mode of trial 

The order appealed from should be affirmed. 

Decree unanimously affirmed. 

The Camden and Atlantic R. R. Co., appellants, 

William L. Elkins, respondent. 

1. Appeal from an interlocutory order for an injunction forbidding directors 
of a corporation from hindering a new election of directors, dismissed, the 
appeal having been taken after the day for election had passed, and the ajv- 



Camden and Atlantic R. K. Co. v. Elkins 

pellants having adequate relief by summary proceedings in the supreme court 
to set aside tlie election if illegal. 

2. Directors of a corporation who are in ofSce cannot dispute the right of a 
stockholder to have a new election of directors held in accordance with the 
by-laws, on the ground that the stockholder bought his stock with the money 
of rival companies, and intends to use his legal rights as the holder of a ma- 
jority of the capital stock for purposes detrimental to the interests of the cor- 
poration, and that the proposed election of directors is a step towards the illegal 
control of the property and the business of tlie corporation. 

On appeal from a decree advised by Vice-Chancel lor Van 
Fleet, whose opinion is reported in Elkina v. Camden and At- 
lantic R. R. Co., 9 Stew. Eq. 4-67. 

Mr. Barker Gummere, for appellants. 

Mr. S. H. Grey, for respondent. 

The opinion of the court was delivered by 

Depue, J. 

The complainant's bill is purely an injunction bill. 

The charter of the corporation provides for annual meetings 
of the stockholders for the election of directors. For some years 
it had been usual to hold elections for directors on the fourth 
Thursday in October. By a by-law, which was adopted by the 
directors July 21st, 1881, and was conformed to by the stock- 
holders, the time for holding elections was changed to the fourth 
Thursday in February. The defendants were elected directors 
at an election held on the fourth Thursday in February, 1882, 
and for the term of one year. On the 19th of October, 1882, 
these directors, by a resolution, undertook to amend the by-law 
so as to change the time of the annual election, and to make it 
come on the fourth Thursday in October. 

The day for the next election of directors, as designated by 
the by-law in force when the resolution of October 19th was 
adopted, would have been the 22d of February, 1883. The 
effect of this resolution, if valid, would be to postpone the next 
ensuing election of directors until the fourth Thursday in October, 

10 Stew.] JUNE TERM, 1883. 275 

Camden and Atlantic K. R. Co. v. Elkins. 

1883, and thus extend the term of office of these directors beyond 
"the year for which they were elected. The bill was filed November 
16th, 1882. It prayed an injunction to restrain the directors 
from making any change in the by-laws, and forbidding the 
postponement of the election for directors. On the bill, answer 
and affidavits, and a hearing upon a rule to show cause, an order 
was signed by the chancellor, February O-th, 1883, that an in- 
junction should issue restraining the directors from doing any- 
thing that would defeat or prevent a meeting of the stockholders 
being held for the election of directors on the 22d of February 
next ensuing. The petition of appeal was filed March 23d, 

The injunction order appealed from simply restrained inter- 
ference with an election proposed to be held on the 22d of Feb- 
ruary. That day had passed when the appeal was taken, and 
the injunction had then accomplished its whole purpose. A re- 
versal of the order at this time would be a nugatory act, and no 
useful end would be accomplished by retaining the appeal ; for, 
if the resolution of the directors changing the time of the election 
was valid, the appellants have adequate relief by summary pro- 
oeedings in the supreme court to set aside any new election of 
directors that may have been held under the protection of this 
injunction. Rev. p. 184- § 44- i ^^ ^"^ '^^- Lawrence Steamboat 
Co., 15 Vr. 529. Under such circumstances the appeal should 
be dismissed. Trustees of Huntington v. NicoU, 3 Johns. 566 ; 
Terhune v. Midland R. R. Co., 9 Stew. Eq. 318. 

The appellants urge the retention of the appeal on the ground 
that the complainant is not a bona fide holder of stock of the cor- 
poration. They insist that he became the purchaser of the stock 
he holds with the money of rival companies, and that he holds it 
in the interest of those companies, and contemplates the use of it 
for the pur[Jose of controlling the business of the corporation for 
the advantage of those other companies. They insist that there- 
fore he has no standing in a court of equity to seek its aid in ac- 
complishing his purposes. 

The complainant appears, on the company's books, to be the 
owner of thirteen hundred and fifty shares of its capital stock, 


Camden and Atlantic R. K. Co. v. Elkins. 

being more than a majority of its entire capital stock, and the 
stock be holds was regularly issued by the company and was 
regularly transferred to the complainant on the company's books. 
The statute makes the stock of a corporation personal property, 
and transferable on the books of the corporation. It vests in the 
stockholders the right to elect directors, who shall manage the 
business of the corporation for them. It secures to each stock- 
holder the right to one vote, at every election of directors, for 
each share of the capital stock of the company held by him, and 
makes the books of the corporation plenary and conclusive evi- 
dence of the ownership of stock and of the right to vote in virtue 
of such ownership. The right to hold elections for the directors 
of a corporation, and to vote at such elections, is a right that is 
inherent in the ownership of stock ; and a stockholder who ap- 
pears by the books to be such cannot be deprived of these rights 
upon the allegation that he proposes to use his legal rights for pur- 
poses which others may think to be detrimental to the interests 
of the corporation. Pender v. Lushlngton, L. R. {6 Ch. Dlv.) 70. 
If the complainant, in virtue of his ownership of a majority of 
the stock, elected a board of directors of his own selection, and 
they should endeavor to misuse the franchises of the corpora- 
tion, or improperly manage its affairs in the interest of other 
companies, to the prejudice of its stockholders as a class, the 
remedy is by proceedings by the attoruey-geuei'al as the repre- 
sentative of the public, or by other stockholders whose rights 
may be injured by the unlawful acts of the directors. The di- 
rectors who are in office, and who are the mere ministerial agents 
of the corporation, cannot dispute the right of stockholders to 
obtain a new election of directors, and prolong their own author- 
ity, on the ground that the proposed election is a step toward the 
illegal and improper control of the property or the business of 
tlie corporation. When that event occurs, or is impending, the 
proper means to redress or avert the wrong is in other parties and 
by other proceedings. 

The appeal should be dismissed. 

Appeal unanimously dismissed. 

10 Stew.] JUNE TERM, 1883. 277 

Lindsley v. First Christian Society ia Camptown. 

Joseph C. Lindsley et al., appellants, 


The First Christian Society in Camptown, respondents. 

1. Testator, by liis will, gave his estate, real and personal, to his wife for and 
during her natural life, and after her death to his daugliier for life, with 
power to the daughter to dispose of the same by her last will and testament. 
The daughter made her will in due form and died in the lifetime of her 
mother. — Held, that it was a good execution of the power of appointment. 

2. A testatrix may, by the same clause in her will, dispose of her own prop- 
erty and that over which she has simply the power of appointment. 

3. The fund disposed of under the power of appointment must be paid by 
the executors of the testator to the beneficiaries named in the will of the 
daughter and not to her executors. 

On appeal from a decree advised by Vice-Chancellor Van 
Fleet, whose conclusions were as follows : 

Fi7^sL The power given by the will of Caleb H. Camp, de- 
ceased, to his daughter, Mary Ann Baldwin, vested immediately 
on the probate of his will, and she had good right to it, 
in the appointed method, at any time thereafter. 

Second. The power was only intended to be effectual against 
that part of the testator's estate which is limited over to the child 
or children of Mary Ann Baldwin, " in case she shall die without 
executing a last will and testament, or instrument in writing in 
the nature thereof; " which was, of course, such part of the corpus 
of the personal estate as it should not be necessary to expend for 
the convenient and comfortable support of Mary Ann Baldwin, 
and the remainder in fee of the real estate, after the termination 
of two life estates, one vested, and the other contingent on the 
taker's surviving her mother. 

Third. Under the codicil to the will of Caleb H. Camp, Mary 
Ann Baldwin took the proceeds of the sale of the real estate, in 
case it was conveyed pursuant to the testator's direction, abso- 


Lindsley v. First Christian Society in Camptown. 

lately, subject, of course, to her mother's right to the interest for 

Fourth. Mary Ann Baldwin, by the codicil to her will, exer- 
cised both her power of appointment and her power of testa- 
mentary disposition; in other words, she disposed of both the 
property which she held in her own right as well as that over 
which she had a power of appointment. The doctrine is settled, 
that a testator may, by the same clause of his will, exercise both 
his power of appointment and his right of testamentary disposi- 
tion — he may by the same clause dispose of both his own prop- 
erty and that over which he has simply a power of appointment. 
Elliott V. Elliott, 15 Sim. 321 ; Ferrier v. Jay, L. B. {10 Eq.f 
550 ; In re Teape's Trusts, L. R. {16 Eq.) JfJ^. 

It has also been held that where a testator intends to execute 
a power, which he supposes he holds, and so declares by his will, 
but it turns out that he does not possess the power, or that no 
such power exists, yet if it appears that the fund which he at- 
tempted to dispose of, by the exercise of the power, is his, his 
will will pass it. 1 Wms. on Exrs. {6th Am. ed.) 106, citing 
Southall V. Jones, 1 Sw. & Tr. 298. 

The intention of the testator in such cases, as in all other tes- 
tamentary matters, is the law by which the judgment of the 
court must be goverred. The language in which the testatrix, 
has ex[)ressed her purposes, leaves no doubt whatever in my 
mind that she intended, by the codicil, to dispose of the whole of 
her father's estate, including both that which she owned in her 
own right, as well as that over which she had a power of ap- 

Fifth. The defendants, the First Christian Society of Camp- 
town, arc a de facto corporation, and as such are entitled, in tliis 
court, to full recognition and protection. If they are not a cor- 
poration de jure, the parties interested in having that fact ad- 
judged must seek their remedy elsewhere. National Docks Rail- 
way Co. V. Central Railroad Co. of New Jersey, 5 Stew. Eq. 755^ 

Sixth. The misnomer of the defendants will not defeat the be- 
quest made to them. Smith's Exr. v. Presbyterian Church of 
Bloomsbury, 11 C. E. Gr. 132. 

10 Stew.] JUNE TERM, 1883. 279 

Lindsley v. First Christi:in Society in Camptown. 

Seventh. The executors of the appointee are the proper persons 
to execute the appointment. Cowx v. Foster, 1 Johns. & H. 30 ; 
Ferrier v. Jay, L. R. [10 Eg.) 550. 

The complainant will be directed to pay and deliver the estate 
in his hands to the executor of Mary A. Baldwin, deceased. 

Mr. John Whitehead, for ajjpellants. 

Mr. E. C Harris J for society. 

The opinion of the court was delivered by 

Van Syckel, J. 

Caleb H. Camp, by his last will and testament, admitted to 
probate in Essex county on the 19th of March, 1872, among 
other things, devised and bequeathed as follows : 

"I also give and bequeath to my said wife (Experience Camp) the use of 
my house and lot, and all other real estate of which I may die seized, and the 
interest and income of all the residue of my personal estate for and during 
her natural life, or so long as she remains my widow. 

" Upon the death or marriage of my wife I give and bequeath to my daugh- 
ter, Mary Ann Baldwin, wife of Harris M. Baldwin, the use of all my real es- 
tate aforesaid, and the interest and income of all the residue of my personal 
estate aforesaid, to use, occupy and possess the said real estate, or to receive 
the lents and profits thereof, and the interest and income of said personal es- 
tate for her own use, and upon her own receipts and subject to her own con- 
trol during her life; I do further hereby authorize and empower my said 
daughter absolutely to dispose of all the said real and personal estate that may 
remain at the time of her death, by her last will and testament or an instru- 
ment in writing in the nature thereof, signed in the presence of two witnesses, 
and in case she shall die without executing such will or instrument in writing 
in the nature thereof, then I do give and bequeath the said real and personal 
estate to the child or children of my said daughter, if any she shall have, their 
heirs and assigns, and in case she shall have no child or children, then I give 
and bequeath the same to my own riglit heirs and next of kin, to be divided 
and distributed according to the laws of this state." 

Mary Ann Baldwin died in June, 1881, having, by her last 
will and testament, executed in due form, exercised the power of 
appointment conferred upon her by her father's will. 


Lindsley v. First Christian Society in Camptown. 

Her" mother, Experience Camp, who surv^ived her, died in 
April, 1882. 

The first question in the cause is, whether the power of ap- 
pointment given to Mary A. Baldwin by the will of her father, 
vested immediately on the probate of his will, so that she could 
make a valid exercise of it before her mother's death. 

In Countess of Sutherland v. Norihmore, 1 Dick. 56, where a 
feme covert hud power, under a marriage settlement, to create a 
term and raise money after the death of her husband, and 
being in distress executed that power in the lifetime of her hus- 
band, it was held that the power was well executed and effective 
at his death. 

In Dalby v. Pullen, 2 Bing. 144-y the testator devised estates to 
trustees for the use of his daughter for life, remainder to the use 
of her son in fee, but in case he should die without issue in the 
lifetime of the daughter, and there should be no other issue of 
her body then living, then to the use of such persons as she 
should, by deed or will, appoint ; and there being no other issue, 
the mother and son executed an appointment and conveyance in 
fee. The power of appointment was held to be well executed by 
the mother in the lifetime of the son. 

In Wandesforde v. Carrick, L. R. (-5 Irish Eq.) 4^6, the rule 
was declared to be, that where a power is given to a designated 
person, to be executed upon a contingency, it may be executed 
before the happening of the contingency, and it will be valid on 
the subsequent happening of the event. The two cases above 
referred to were cited in support of the doctrine. 

Ashford V. Cafe, 7 Sim. SJfl, is to the same effect. There 
the testator gave a fund to trustees for his sister for life, and after 
her death in trust to transfer it to his niece, her executors &c., 
in case she should be then unmarried ; but in case she should be 
then married, in trust to transfer the same to such persons as she, 
whether sole or married, should by deed or will appoint, and in 
default of appointment, in trust to pay the dividends to her for 
her separate use for life, and subject to the trusts aforesaid ; the 
capital to be in trust for her, her executors &c. The niece mar- 
ried after the testator's death and, during her coverture and in 

10 Stew.] JUNE TERM, 1883. 281 

Lindsley v. First Christian Society of Cainptown. 

the lifetime of the testator's sister, made a will purporting to be 
an execution of the power given to her by the testator, and died 
before the life tenant. — Held, that the will was a good exercise 
of the power. 

In Doe V. Tomkinson, 3 M. & 8. 165, the exercise ot the 
power by one sister in the lifetime of the other was held to be 
invalid, where the devise was to sisters and survivor, for lifej 
with power to survivor to devise. 

Lord Ellenborough distinguished the case from Sutherland v. 
Northmore, in that the power there was given to a designated 
person to be executed upon a contingency ; here the power was 
given to a contingent person, it being uncertain which sister 
would survive the other. 

The rule is correctly stated in these cases, and it must be held 
that Mary A. Baldwin could well exercise the power in the life- 
time of her mother. 

There is nothing in the testator's will to indicate an intention 
to engraft a limitation upon the power that it shall be contingent 
upon the survival of Mary, The gift over is made only in the 
event that she fails to exercise the power in her lifetime, and. not 
upon the contingency that she shall survive her mother. The 
testator's intention clearly was that his daughter should have the 
absolute power of disposition of his estate subject only to the 
provision for his wife ; that she should at least so far enjoy it as 
to be permitted to make a testamentary disposition of it. 

Caleb H. Camp, by a codicil to his last will and testament, also 
duly proved, directed that, in case his wife and his said daughter, 
Mary Ann Baldwin, should agree thereto in writing, his execu- 
tors should sell and convey all his real estate in fee and invest 
the proceeds safely, and pay over the interest and income thereof 
to his wife for and during her natural life or so long as she re- 
mained his widow, and upon the death or remarriage of his said 
wife he gave the proceeds of said real estate to his daughter 
Mary Ann, to her own use and subject to her own control. 

Under the authority of this codicil certain real estate of which 
Caleb H. Camp died seized was sold and conveyed in fee in 
May, 1872, and the proceeds thereof duly invested. 


Lindsley v. First Christian Society of Camptown. 

It is the well-settled rule that where a person bequeaths a 
sum of money or other personal estate to one for life, and after 
his decease to another, the interest of the second legatee is 
vested ; and his personal representatives will be entitled to the 
property though he dies in the lifetime of the person to whoni 
the property is bequeathed for life. 2 Wms. on Exrs. 1064- ; 1 
Fearne en Remainders 552 (note) ; Fairly v. Kline, 2 Penn. 322 ^ 

Under this codicil, therefore, Mary Ann Baldwin had a vested 
estate in the proceeds of the sale of these lands subject to her 
mother's right to the interest for life. 

By a codicil to her last will and testament, dated June 16th, 
1881, she provides as follows: 

"In pursuance of the power and authority given to me, in and by the last 
will of ray father, Caleb H. Camp, to dispose absolutely of all the property, 
real and personal, which I am entitled to use after the death of my mother, 
and whereof my mother. Experience Camp, now has the use, I do hereby, by 
this codicil to my last will, dispose of in manner following: I give and be- 
queath unto my said cousin, Emma Davey, wife of Joseph Davey, the sum of 
$500, and to my cousin, Ann Camp, the sum of $500, said sums to be paid out 
of the said property in and by my father's said will given to my mother to 
use during her life, and to me to use after her death, and to dispose of by my 
will. All the rest and residue of the said property so bequeathed and devised 
as aforesaid, by my father's will, I give, devise and bequeath to the trustees 
of the First Christian Church of Irvington." [Now known by the name of 
the First Christian Society in Camptown]. 

By this language she exercised not only the power of appoint- 
ment under her father's will, but also her own power of testa- 
mentary disposition. She passed the property vvhich she held in 
her own right under the codicil to her father's will, as well as 
that over which she had the power of appointment. The lan- 
guage of the codicil to her will is : 

" All the rest and residue of the said property so bequeathed and devised as 
aforesaid by my father's will." ("Which embraces everything of which her 
mother had the nse for life]. 

A testator may, liy the pame clause, dispose of his own property 

10 Stew.] JUNE TERM, 1883. 283 

Lindsley v. First Christian Society of Camptown. 

and that over which he has simply the power of appointment. 
Elliott V. Elliott, 15 Sim. 321 ; Ferrier v. Jay, L. R. {10 Eq>. 
660; III re Teape's Trusts, L. R. {16 Eq.) JfJ^. 

The only remaining question is whether the executors of 
Mary A. Baldwin, the appointee under Caleb H. Camp's will, 
or the administrator de bonis nan of Caleb H. Camp, shall 
execute the appointment made by Mary A. Baldwin. 

The fund which Mary Ann Baldwin disposed of under the 
power of appointment contained in her father's will is properly 
in the hands of his administrator de bonis non, and can, in pur- 
suance of his will, be paid only to such person or persons, as the 
said Mary Ann shall appoint. By her will she has not appointed 
her executors to receive and disburse this fund, but has be- 
queathed it to certain specified persons — that is to say, to Emma 
Davey and Ann Camp — each the sum of $500 and the balance 
to the respondent, to whom it is the duty of Caleb H. Camp's 
personal representative to pay it, and thereby to execute the ap- 

The cases relied upon to maintain the light of Mary A. Bald- 
win's executors to receive this fund are not in point. 

In Cowx V. Foster, 1 Johns. & H. SO, the fund was directed 
to be paid to the trustees, to whom the person who had the right 
to exercise the power expressly gave it. 

So in Ferrier v. Joy, L. R. {10 Eq.) 550, a daughter who, 
by her father's will, had a power of appointment, gave her 
portion to trustees for certain objects in her will specified, and 
the vice-chancellor properly directed that the fund should be 
paid to the trustees under the daughter's will. 

If Mary Ann Baldwin had in her will appointed trustees to 
receive the fund and distribute it among specified objects, they 
would have been entitled to receive and dispose of it. 

The proceeds of the sale of the real estate, which vested abso- 
lutely in Mary A. Baldwin under the codicil to the will of her 
father, pass, by her will, into the hands of her executors. The 
fund which she disposes of under the power must be paid by 
the personal representative of Caleb H. Camp to the beneficia- 


Coopftr V. Louanstein. 

ries'named iu her codicil, and not to her executors. In this 
respect the decree below must be modified ; in all other respects 
it should be affirmed. 

Decree unanimously affi,rmed. 

Margaretta E. Cooper, appellant, 


Augustus Louanstein, respondent. 

1. In 1867, appellant's grantor, Cooper, and the respondent were the owaers 
of adjoining town lots. Cooper's lot was unimproved. On respondent's lot, 
and built up to the division line, stood a dwelling about eleven feet back from 
the street. In 1870, Cooper discovered that the eaves of respondent's house, in 
consequence of alterations, projected over the division line about a foot, and 
thereapon respondent, after negotiating, purchased, and Cooper conveyed lo 
him, the strip one foot wide, by a deed which contained this clause: "This 
deed is made and accepted upon this express condition and reservation that 
the said William J. Cooper and his heirs or whosoever may at any time here- 
after own the adjoining land of said Cooper, shall have the full right, liberty 
and privilege of building up to the line of tho lot hereby conveyed, and of 
having and enjoying two windows, one on the first story and one on the second 
story in the side of such bnilding as he or they may put up, looking out on said 
lot, which windows shall not be hindered or obstructed in any way by said Louan- 
stein or his heirs or ass^igns to any other or greater extent than such windows if now 
erected could be obstructed by the house of said Louanstein at present standing on his 
said lot." During the same year (1870), Cooper erected a store and dwelling 
extending to the street in front of his lot and to the new diviaion line on the 
side, placing in that side two windows overlooking respondent's front yard. 
In 1880, Cooper conveyed his lot to his wife, the appellant. In 1882, the re- 
spondent began an addition to his house, extending to the front line of his lot 
and to the old division side line, and of a height sufficient lo obstruct the view 
from appellant's side windows. On a bill to enjoin such obstructiun— ifeW, 
that the above-recited stipulation in the deed did not entitle appellant to have 
the whole of respondent's front yard, as it existed in 1870, unobstructed by 
buildings for the benefit of her side windows, but only the strip of land one 
foot in width, conveyed by said deed. 

2. A deed not executed by the grantee, but accepted by him, containing a 
grant of an easement in lands of the gran),ee, such lands not being passed to him 

IT) Stew.] JUNE TERM, 1883. 285 

Cooper V. Louaustein. 

by the conveyance, is not to be regarded, with respect to the grant of such ease- 
ment, as the deed of the grantee. Per Beasley, O. J. 

3. A grantor may, by a clause of reservation in his deed of conveyance, ob- 
tain an easement, or a right in the nature of an easement, in other lands of the 
grantee as well as in the lands conveyed. A stipulation to that effect in a 
deed accepted by the grantee, if not technically the covenant of the grantee, is 
nevertheless a contract in writing which cannot be varied by parol evidence, 
and a court of equity will give effect to such a contract, and protect the grantor 
in the enjoyment of the right so stipulated for. Per Depue, J. 

On appeal from a decree advised by Joseph F. Randolph, 
Esq., special master. 

Mr. Henry C. Pitney^ for appellant. 

The learned special master was of the opinion, (1) that the 
restrictive clause, by its true construction, did apply to the whole 
of defendant's lot and was not confined to the one-foot strip ; (2) 
that the grantor did and the defendant did not so understand it 
when he accepted the deed, and that consequently neither com- 
plainant nor defendant was entitled to- affirmative relief. 

Note. — A covenant or stipulationf inserted in a deed-poll binds the grantee, 
his heirs and assigns, where such stipulation directly relates to the premises 
conveyed. Stines v. Dorman, 25 Ohio St. 5S0 ; Clark v. Martin, 49 Pa. St. 289 
Seymour v. McDonald, 4 Sandf. Ch. 502 ; Atlantic Dock Co. v. Leavitt, 50 Barb 
135, 54 N. Y. 35; Anonymous, 2 Abb. N. C. 56; Kimpton v. Walker, 9 Vt. 191 
and also where it relates to the premises conveyed and the adjoining premises, 
as a fence, Kellogg v. Robinson, 6 Vt. 276 ; Burbank v. Pillsbury, 48 N. H. 4'^ 5 
Harriman v. Park, 55 N. H. 471 ; Newell v. Hill, 2. Melc. {Mass.) ISO ; Bron- 
son V. Coffin, 108. Mass. 175, 118 Id. 156 ; Blain v. Taylor, 19 Abb. Pr. 2 
Hadetl v. Sinclair, 76 Ind. 488 ; Easter v. Little Miami R. R. Co., H Ohio St 
48; Boyle v. Tamlyn, 6 B. & C. 329; Walsh v. Barton, 24 Ohio St. 28; Duffy 
V. N. Y. & H. R. R. Co., 2 Hilt. 496 ; but see Emerson v. Simpson, 43 N. H. 
4'75 ; Parish v. Whitney, 3 Gray 516 ; or party-Wall, Maine v. Oumston, 98 
Mass. 317 ; Burlock v. Peck, 2 Duer 90; but see Scott v. McMillan, 76 N. Y. 
141 ; Bloch V. Isham, 28 Ind. 37. 

Unless building restrictions &c. appear to have been inserted for the benefit 
of adjacent lands, they are merely personal, and do not run with the land, 
Skinner v. Shepard, 130 3Iass. 180; Pierce v. Keator, 9 Him 532, 70 N. Y. 4^9; 
Goddard on Eas. {Benneis ed.) 367, note; Wagner v. Hanna, 38 Cal. Ill ; 
Keates v. Lyon, L. R (4 Ch. App.) 218 ; Renals v. Cowlishaw, L. R. {9 Ch. 
Div.) 125, {11 Ch. Div. 866); Thurston v. Minke, 32 Md. 487; see Peck v. 


Cooper V. Louanstein. 

I. The restrictive clause is capable of but one construction. 
Tiie windows to be inserted in Cooper's house " looking oiU 

upon said lot " were " not to be hindered or obstructed in any way 
by said Louanstein or his heirs or assigns to any other or greater 
extent than such windows if now erected could be obsti'uded by 
the house of said Louanstein at present standing on his said lot" 
There can be no mistake as to what is meant by " the house nf 
said Louanstein" and there is no dispute but that the structure 
in course of erection when the bill was filed, and which was en- 
joined by the 'chancellor, does obstruct that window to a greater 
extent than the house did. The jjhrase " hinder and obstruct " 
applied to a window can ordinarily mean nothing less than a 
cutting off or lessening the view from the window or the light 
and air coming to it. The object and use of a window are view, 
light and air. That the parties used the words hinder and ob- 
struct in that sense in this conveyance was not and could not be 

II. This deed must be held as binding on defendant, even at 
law, to the same extent as if executed by him, Finley v. Simp- 
son, 2 Zab. 311, and the cases which have followed it. 

Conway, 119 Mass. o4G ; Herrick v. Marshall, 66 Me. 4^5 ; Badger v. Boardman, 
16 Gray 559. 

In Athey v. McHenry, 6 B. Mon. 50, A. was the owner of a house adjoining 
on the noitli a vacant lot thirty feet wide and two hundred feet deep. The 
house projected slightly over the line of the vacant lot, and had a door and 
several windows opening thereon. M. had contracted to buy the vacant lot, 
and also another one beyond and adjoining it, but agreed, through his agent, 
that the owner of tlie thirty feet might sell ten feet thereof to A., next to A.'s 
lot, on condition, as alleged, "that it was to be forever left open and not 
further built upon," in order that " it siiould remain forever an open space 
between A.h house and the house which M. was about to build, to afford air and 
light to both." Tiie deed was executed and delivered, but contained no re- 
strictions whatever — a fact that M. did not discover until some time afterwards. 
M. built his house adjoining the south line of the ten-feet strip, and A. after- 
wards built a coal-house on the back part of the strip, and also nailed up 
boards near and in front of M.'s windows on the north side of M.'s house, so as 
to cover them and exclude the light and air therefrom. M. filed a bill to cor- 
rect A.'s deed by inserting the above-quoted stipulation, and to compel A. to 
remove the coal-house, and also tiie boards which darkened the windows, and 
to prevent any further erections on said strip. — ITeld, that the circumstances 
of the transfer of the strip, the relative positions of the parties, and their 

10 Stew.] JUNE TERM, 1883. 287 

Cooper V. Louanstein. 

If the defendant had executed it, its proper construction re- 
sults in a grant of an easement by defendant over his lot in 
favor of complainant's lot. It is not necessary to use the word 
''grant" although easements lie only in grant. A covenant or 
agreement for the use of a way amounts to a grant of a way. 
Goddard on Eas. [Bennett ed.) 108, and cases cited. Holmes v. 
Seller, 3 Lev. 305; Northam v. Hurley, 1 E. & B. 665; D. & 
8. R. Co. V. Walker, 2 A. & E. {N. 8) 94-0 ; argument of Mr. 
Addison, 950, and, in reply, 9^,8, opinion, 967 ; Wickham v. 
Hawker, 7 31. & W. 63; Pordage v. Coh, 1 8aund.320 ; Bush 
V. Coles, 12 Mod. £4., 1 8how. 88 ; 2 Coke on Lit. § 37^ p. 230 
b, 231 a ; Hadson v. Coppard, 7 Jur. [N. 8.) 11, which was the 
case of a conveyance upon condition ; Hubhel v. Warren^ 8 
Allen 173 ; Piatt on Covenants *31 et seq. ; 2 Pars, on Con. 
{5th ed.) 510. 

These citations support the text of Mr. Goddard (p. 108.) 

" An easement cannot strictly be made the subject either of 

exception or reservation in a deed of conveyance of land, for it 

is neither parcel of the land granted, which circumstance is 

requisite to enable a thing to be excepted, nor does it issue out of 

motives and acts before and after the strip was sold, could be inquired into ; 
and the deed was ordered to be reformed so as to contain a clause preventing 
A.'s building on the strip only as far hack as the houses stood, and requiring him 
to remove the boards, but not the coal-house. 

In Woodruff v. Trenton Water Power Co., 2 Stock. 4^9, a corporation stipu- 
lated in a deed of lands to them for a raceway, that they would erect and 
maintain a bridge across their raceway, and also a landing-place on the Dela- 
ware river on other lands of the grantor, and all necessary fences, and that the 
grantor might use the raceway to water his cattle and to take ice therefrom, 
the premises to revert in case of breach. — Held, that the covenants ran with 
the land and were enforceable by the heir of the grantor against the successors 
of the grantees, but that equity could not compel specific performance because 
the complainant could, by tl>e terras of the deed, enforce the forfeiture of the 
estate at pleasure. &ee Ryan v. Lockhart, 1 Pug. [N. B.) 127. 

In Cooke v. Chilcott, L. R. {3 Ch. Div.) 694, a purchaser of a piece of land, 
with a well or spring upon it, covenanted with the vendor, who retained land 
adjoining to be disposed of for building sites, to erect a pump and reservoir, 
^nd to supply water therefrom to all houses built on vendor's other land. — Held, 
a covenant running with the land, and enforceable by the purchaser of one of 
original vendor's lots against the vendee of t'he original purchaser. [This 


Cooper V. Louanstein. 

the land, as it should to render it capable of being the subject of 
a reservation. If, therefore, an easement be incorrectly reserved to 
a grantor of land or excepted from the land conveyed, the reser- 
vation or exception operates as a grant of a newly-created ease- 
ment by the grantee of the land to the grantor.^' And this doc- 
trine has the express approbation of the supreme court of this 
tate, in Earle v. New Brunswick, 9 Vr. Jf7, 51, 53. 

It is undeniable that the defendant might have granted to Mr. 
Cooper, by express grant, the easement in question without any 
conveyance of land. It is also undeniable that without any con- 
veyance of land, the two adjoining owners could have agreed 
that neither should build on his land beyond a certain line, or 
have entered into any other mutual arrangement as to the use of 
their several properties. Greene v. Creighton, 7 R. I. 1 ; Wolfe 
V. Frost, If, 8andf. Ch. 72 ; Tallmadge v. East River Bank, 2 Duer 
6U; Norfket v, Cromwell, 6J,. N. C. 1, 70 N. C. 634.. Tiiat such 
a clause may give an easement in lands of the grantee not con- 
veyed was distinctly ruled in Arthur v. Case, 1 Paige :^7. In 
that case, General Schuyler owning land on one side of a river, 
had granted to Nichol, the owner of the land on the opposite 

case was questioned in Haywood v. Brunswick Build. Soc, L. R. {8 Q. B. D.) 


lu Daniel v. Stepney, L. R. {9 Ex,ch. 185, a power of distress in a demise of 
mines over '' any lands in wiiieh there shall be, for the time being, any pits or 
openings by or through which the coal or culm by the said deed demised shall, 
for the time being, be in course of working by the lessees, their executors, ad- 
ministrators and assigns, was held to authorize, as against the assignees of the 
lessees, with notice, a distress at pits not included in the demise, but referred to 
in it, and then worked by the lessees. 

In Catt V. Tourle, L. R. (4 Ch. App.) 654, the plaintiff sold a piece of land 
to a society which covenanted with him that he, his heirs and assigns, should 
have the exclusive right of supplying beer to any public house erected on the 
land, but the plaintiff entered into no covenant to supply it. — Htld, that plaintiff 
could enjoin the defendant, who had purchased part of the laud and erected a 
public house thereon, from supplying such public house with his own beer. 

In Luker v. Dennis, L. R. [7 Ch. Div.) 227, a brewer leased a public hotise 
to a publican, who, in the lease, covenanted, for himself, his representatives 
and assigns, to piirchase from the lessor all tlie beer consumed at that public 
house, and also at another public house of which the publican held a lease under 
another landlord. — Hdd, that the latter covenant was binding, in equity, upon 

10 Stew.] JUNE TERM, 1883. 289 

Cooper V. Louanstein. 

side, a right to abut a dam on Schuyler's side, reserving to himself 
a right to abut a dam on Nichol's side. Nichol did not execute 
the deed. Chancellor Walworth {p. 64.9) says : " The right to 
butt dams on the lands of the grantees on the north bank of the 
river is not technically correct as a reservation, because it was no 
part of the thing granted. It must be construed in the same 
manner as though the deed was executed by the grantees and 
this was inserted as a covenant on their part." 

And on appeal, sub nom. Case v. Haight, 3 Wend. 632, where 
the terms of the grant and the facts are set out more fully, Suther- 
land, J., delivering the unanimous opinion of the court says (p. 
635) : " The reservation can have no effect as an exception. An 
exception is something reserved by the grantor out of that which 
he has before granted. It is indisjjensable to a good exception 
that the thing excepted should be part of the thing previously 
granted, and not of any other thing," 3 Q-uise's Dig. tit. 33 ch. 
3 §§ ^, J^9; Shep. Touch. 77; Comyn's Big. tit. "Fait," E 5, 6, 
7, 8 ; Oro. EUz. 6 ; Coke on Lit. 4-7 a, 147, a. The deed of Gen- 
eral Schuyler did not convey or profess to convey any part of the 

an assignee of the lease of the second public house, who had notice of the 


In Biggar v. Allen, 15 Grant's C-h. 35S, the plaintiff claimed under a grantee 
to whom had been conveyed a lot bordering on a lane leading to the grantor's 
dwelling On this lot the original grantee had built a hotel with windows 
looking out on the lane, under the verbal assurance of the grantor that tlie lane 
should not be built upon opposite the adjacent liouses. — Held, that jdaintiff 
could enjoin the grantor's widow from building on the lane so as to close the 
windows of his hotel. 

In Roekford R R. Co. v. Bechemeier, 72 III. 267, the natural and proximate 
loss (such as i-nconvenience in shipping grain) to the grantor in a deed-poll, 
from the grantees' failure to comply with a provision in the deed whicli re- 
quired them to erect a depot "upon the section of land" on which the grantor's 
farm was situated, was lield recoverable, but not speculative damages. 

In Morse v. Copeland, 2 Gray 302, in 1825, the Copelands, still owning other 
adjacent lands, conveyed tlieir interest in a factory and water privilege to the 
Easton company, together with the right to flow all their (Copelands'j lands 
as then flowed ; and the Easton company conveyed the same to Leach, tlirough 
whom the plaintiff claims. In 1831, Leach gave the Copelands an oral license 
to erect a dam on their omi land to exclude the water therefrom, which they 
did, and it remained untnl 1853. In 1831, Leach also gave the Copelands au 



Cooper V. Louanstein. 

north shore ; he could uot, therefore, reserve a right to build a 
dam against it. But though void as an exception, the reservation is 
bindiixg upon the grantees and their assigns, and becomes operative 
either as an implied covenant or by way of estoppel." " The deed 
is to be construed as though the parties had mutually covenanted 
that each should have a right to butt a dam upon the shore of 
the other ; and, considered in this point of view, I see no ground 
for contending that it was the intention of the parties that the 
grantor should have a greater right in the use of the water than 
the grantees." 

This doctrine has the express approval of Chief-Justice Shaw 
in Dyer v. Sanford, 9 Mete. 395. Tiiat case is precisely like the 
one before the court, except that the reservation in favor of the 
windows does not contain any language importing a right to 
light over the land not conveyed. At p. JfiJf,, Chief-Justice Shaw 
says: "A case was cited from New York, by plaintiflF's counsel, 
to show that a reservation may be made of something not coming 
out of the estate granted, but from the grantee's own estate. 
Case V. Haight, 3 Wend. 635. As a proper reservation or ex- 
ception, we think the principle stated is correct — that it must be 

^ral license to dig a ditch across hu (Leach's) lauds (now owned by the plain- 
tiffs) to drain whatever water migiit accumulate on their land in consequence 
of having erected their dam. The ditch was dug and continued by them 
until 1853, when the plaintifls gave the defendants (the present owners of the 
Copelands' lands not conveyed to the Easton company) a written notice to dis- 
continue the ditch and to remove the dam, and revoking the license therefor- 
— Held, that he could revoke the license as to the ditch, even after twenty 
years, but not as to the dam. See Elting v. Clinton Mills Co., 36 Conn. 296; 
Williamson v. Tingling, 80 Ind. 379 ; Carr v. Lowi-y, 27 Pa. St. 257 ; Goddard 
on Ease. (Bennetts ed.) 472 el seq. ; Junction R. B. Co. v. Sayres, 28 Ind. §18. 

In Woolisa'oJ't v. Norton, 15 Wis. 198, the owners of a dam and several mill- 
sites, conveyed one of those sites to Stevens & Older, by a deed covenanting 
that the grantees would pay their ratable share of the expenses of keeping in 
repair the dam and raceway not on their lands. — Held, binding on Stevens & 
OldeHs grantees. See Spensley v. Valentine, 34- Wis. 154. 

In McLean v. McKay, L. B. {5 P. C.) 327, a grantor conveyed a tract of land 
leaving a vacant lot belonging to the grantor between the lot on which his 
own house stood and the lot conveyed. The deed contained a clause tliat, " by 
the true intent which was unanimously agreed upon between the parties [the 
vacant lot] should never be hereafter sold, but left for the common benefit of 
both parties, their successors" &c. — Held, that the grantee's vendee could com- 

10 Stew.] JUNE TERM, 1883. 291 

Cooper V. Louanstein. 

something out of the estate granted. But we have no doubt 
that by apt words, even in a deed-poll, a grantor may acquire 
^ome right in the estate of the grantee. It is not, however, strictly 
by way of reservation, but by way of condition or implied cove- 
nant, even though the term 'reserving' or 'reservation' is used. 
If a grant is made to A, reserving the performance of a duty, to 
wit, tiie payment of a sura of money to a third person, for the 
benefit of the grantor, an acceptance of the grant binds A to the 
payment of the money. Goodwin v. Gilbert, 9 Mass. 510. So 
where a demise is made to A, reserving a rent in money or in 
service, it is not strictly a reservation out of the demised premi- 
ses ; but the acceptance of it raises an implied obligation to pay 
the money. So, we think a grant may be so made as to create a right 
in the grantee's land in favor of the grantor. For instance : suppose 
A has close No. 2, lying between two closes, Nos. 1 and 3, of B, 
and A grants to B the rio;ht to lay and maintain a drain from 
close No. 1, across his close No. 2, thence to be continued through 
bis own close No. 3, to its outlet ; and A, in his grant to B, should 

pel the guardian of the grantor's heir, who represented the deceased grantor, 
;o remove a building erected by him on the vacant lot. Also, Brew v. Van 
Deman, 6 Heisk. 433 ; Phcenix Ins. Co. v. Coniinenlal Ins. Co., 14 Abb. Pr. {N. 
S.) S66 ; Gay v. Walker, 36 Me. 54; Fuller v. Arms, 4S Vt. 400. 

In Martin v. Drinan, 12S Mass. 515, an agreement by the grantee in a deed- 
poll to keep in repair a building on adjoining land of the grantor, was held 
lot to be a covenant, and not enforceable by a subsequent grantee of the ad- 
joining land. 

In Bishop of R'lphoe v. Hawkesworth, 1 Hud. & Br. 606, lands were de- 
mised to the defendant by the bishop of R. on condition that if the uefendant 
should grind grain grown on the demised premises, at any mill save the mill 
belonging to the bishop of R. for the time being, he should pay to the lessor 
and his successors 5s. for each barrel of grain so ground, as if the same had 
been due for rent. The mill was not on the demised lands. — Held, enforceable 
by the bishop of R.'s successor against the lessee, as rent. Also, Dunbar v. 
Jumper, 2 Yeates 74 ; Wadsworth v. Smith, 11 Me. 278 ; Adams v. Morse, 51 
Me. 407 ; Bartlett v. Peaslee, 20 N. H. 547 ; Morse v. Garner, 1 Strobh. 514. 

In Hodge v. Boothby, 4^ Me. 68, a deed from A to B reserved to C " a right 
to cross said lot, and to take and haul away stone" &c. — Held, that B, by ac- 
cepting his deed, was precluded from questioning C's rights in the premises. 
See Wiekham v. Hawker, 7 M. & W. 63; Ives v. Van Auken, 34 Barb. 566; 
Eyaaman v. Eysaman, 24 Hun 430; Bexford v. Marquis, 7 Lans. 249 ; May- 
nard V. Muynard, 4 Edw. Ch. 711.— B,EF. 


Cooper V. Louanstein. 

reserve the right to enter his drain, for the benefit of his interme- 
diate dose, with the right and privilege of having the waste 
water therefrom pass off freely through the grantee's close No. 3- 
forever. In effect, this, if accepted, would secure to the grantor 
a right in the grantee's land ; but we think it would ensue by 
way of implied grant or covenant, and not strictly as a reserva- 
tion. It results from the 2:)lain terms of the contract." 

Randall v. Latham, 36 Conn. J^S, was decided on the same 
principle and is a direct authority for complainant. One Thomas, 
grantor of petitioner, conveyed land to the defendant, Latham, 
" reserving and excepting * * * the privilege of draw- 
ing the water from the ditch of said Latham's grist-mill, * * 
* and the said Latham and his successor are to keep a spout 
ten inches square * * * at the bottom of said ditch, 
to which the said grantor shall at all times have access for the 
purpose of drawing water." Both the ditch and the place of the 
spout were on the land of grantee, who did not execute the deetl. 
The petition was to compel Latham to put in the spout. Tiie 
court {p. 62) says : " But the deed purports to require the re- 
spondent to put in the spout upon land not conveyed, and the 
question is, whether a court of equity can compel him to do it 
under the circumstances of the case. That the respondent, hy 
accepting the deed containing this provision, thereby agreed to per- 
form this duty there can be no doubt. The case of Hinsdale v. 
Humphrey, 15 Conn. 4^31, is in point. See, also, Townsend v 
Ward, 27 Conn. 610; Felch v. Taylor, 13 Pick. 133; Goodwin 
V. Gilbert, 9 Blass. 610; Burnett v. Lynch, 6 B. & C. 689. 
This duty was a. part of the consideration of his deed. The re- 
spondent has received full compensation, and it is difficult to see 
why he is not bound to perform it." 

Hinsdale v. Humphrey, 16 Conn. 1^31, decides that Finley v. 
Simpson is law in Conuecticut, but that covenant will not lie 
against a party grantee who has not in fact sealed, though the 
grantee in such case is liable in some form or nature of action. 

Toionsend v. Ward, 27 Conn. 610, affirms the familiar doctrine 
of the liability of a grantee to pay a mortgage assumed by him 
as a part of the consideration. 

10 Stew.] JUNE TERM 1883. 293 

Cooper V. Louanstein. 

Emerson v. Mooney, 50 N. H. 315, abstracted and approved 
in Washh. on Ease. (Sded.) *22, is quite in point in favor of com- 
plainant here. 

A mere parol agreement for a consideration by the defendant 
not to build out in front of his house, acted upon by Cooper in 
such a manner and to such an extent that he could not be re- 
stored to his former position, would also be binding on the de- 
fendant in equity, and it would restrain him from violating it. 
An executed license or agreement of this character cannot be 
revoked in equity. Rerick v. Kern, IJ/, S. cfc R. S67 ; 2 Am. 
Lead. Cos. 733 and cases cited; Banghart v. Flummerfelt, 14> 
Vr. 28, 31, 32, 33. It is no part of the doctrine of Finley v. 
Simpson that the covenant should relate to the land conveyed. 
Tbat case, and some of those which have followed it in this state, 
were instances of mere personal covenants. Golden v. Knapp, 
12 Vr. 215 ; Sparkman v. Gove, 15 Vr. 252. Besides all the 
cases of assumption of mortgages in our chancery. The case in 
hand has all the merit of the cases of assumption of mortgages 
as a part of the consideration, to which so much weight was at- 
tached by Chief-Justice Green at the close of his opinion in Fin- 
ley V. Simpson. The covenant here in question was a part of the 
consideration of the conveyance. 

III. Leaving out of view the defence of " mistake," this is a 
proper case for the interference of equity, and the defence of 
hard bargain, inadequacy of consideration &c., has no place. 

1. This is not a case of specific performance. We are not 
asking Louanstein to execute a deed. The contract was fully 
executed and completed by a deed duly sealed and delivered. 
Nothing remained to be done. Each party was at onci entitled 
to and in fact did enter upon the enjoyment of the fruits of the 
contract. The consideration on each side passed, Louanstein re- 
tained the cornice and eaves of his house undisturbed, the light 
and ventilation from the side windows, and also the benefit of 
the increased width of view from his front windows due to the 
removal of Cooper's building one foot further away from his 
front. He got the title to the foot of land. He has enjoyed all 
these benefits for thirteen years, and he can never restore them to 


Cooper V. Louanstein. 

Cooper.* Even if the title to the one-foot strip should be re- 
vested, that would not change the location of Cooper's building. 

On the other hand, Cooper received the ^100, and was vested 
with the easement provided for in the deed. Defendant is try- 
ing to interfere with and disturb that easement to such an extent 
as amounts to a destruction of it. His proposed building is a 

The case is, in equity, precisely the same as if Louanstein had 
made to Cooper an independent grant under his hand and seal 
of the easement of light and view. 

Suppose such a grant had been made for an inadequate or 
nominal consideration. Would the court refuse to protect the 
easement on account of the inadequacy of the original considera- 
tion paid for it? Certainly not. No precedent can be found 
where, in the absence of fraud, any such consideration has been 
listened to. 

The reports, as well English as American, are full of cases of 
this character, and many of them were cases of great hardship. 
In no case where the right was established has the remedy by 
injunction, or, if need be, abatement, been denied on any such 
ground. Kerr on Inj. 352 et seq. In most of tlie English cases 
the right has accrued by prescription, and the question has been 
one of degree of obstruction. High on Inj. 859 et seq. ; Washb, 
on Ease. {3d ed.) *63 et seq ; Goddard on Ease. [Bennet's ed.) 363 
et seq. ; Winfield v. Henning, 6 C. E. Gr. ISS ; Kirkpatrick v. 
Feshine, 9 C. E. Gr. 206 ; Barneti v. Johnson, 2 McCart. J^l ; 
Martin v. Headon, L R {2 Eq.) ^^5, 4^4.. 

2. It is the case of the erection of a nuisance for which the 
remedy by successive actions at law and pecuniary damages is 
inadequate. Wuod on Nuisances §§ 152, 154- et seq. ; Hills v. 
Miller, 3 Paige 254. 

TV. There is no such inadequacy of price shown here as to 
shock the conscience. 

V. The defence of "mistake" is not made out with the degree 
of certainty and completeness required in such cases. It ia 
hardly necessary to cite the numerous authorities suppoi-ting the 

10 Stew.] JUNE TER^r, 1883. 295 

Cooper V. Louanstein. 

rule that, when the parties have, as here, deliberately put their 
rontract in writing and executed it, the clearest, strongest and 
most satisfactory evidence is required in order to materially alter 
that contract ; and tiie rule hardens where the evidence relied 
upon is wholly unwritten. Firmstone v De Cam]), 2 C. E. Gr. 
317, 323; Story's Eq. Jur. § 152 ; Waterman on Spec. Perf. § 
380; 2 Pom. Eq. Jar. 325 § 859; Siockbridge Iron Co. v. 
Hudson Iron Co., 102 Mass. ^-5, 4^9 ; Durant v. Bacot, 2 Mc- 
Cart. 4.11, 414. 

Again : No evidence can satisfy the rule, nor any theory of 
ihe facts satisfy the court, which does not include and account for 
all the undisputed facts in the case [recapitulating the facts]. 

Again : The clear weight of the evidence is, that the clause, 
as it was actually inserted, accorded with Cooper's understanding 
of the contract. The master has so found and has refused to 
reform the contract or to give costs against the complainant. This 
case is in marked contrast with that class of cases where there has 
been an omission of a clause or a word which should have been 
inserted, as the word heirs where it was intended to convey a fee, as 
in Sisson v. Donnelly, 7 Vr. 4-^2, 2 Stew. Eq. I4I j or as the red- 
dendnm clause in a lease for years, so that no provision is made 
for the payment of any rent; or the insertion of a clause which 
should not have been inserted, as in CNeil v. Clark, 6 Stew. Eq. 
444) and Stevens Institute v. Sheridan, 3 Steio. Eq. 23 ; or the 
insertion of the description of a lot not intended to be conveyed 
instead of the one intended, as in Potts v. Arnow, 4 Hal. Ch. 322; 
or where a familiar and convenient, but, under the circumstances, 
ambiguous and improper descriptive word has been used, as i^n 
Firmstone v. Be Camp, 2 C. E. Gr. 319. 

VI. Defendant is estopped from setting up this mistake on 
his part, if there be one, for tlie simple reason that he perpetrated 
it himself, and he alone is responsible for it, and Cooper has acted 
upon it in good faith to such an extent that he and his assignee, 
the coinpliiinaut, cannot be restored to his previous position. 

Under these circumstances, the consummation or perpetration 
of this mistake was self-inflicted by Louanstein. He is respon- 
sible for the conduct of his counsel. Dillett v. Kemble, 10 C. E. 


Cooper V. Louanstein. 

Gr. 66; Mott v. Shreve, 10 C. E. Gr. 4,38; Voorhis v. Murphy, 11 
C. E. Gr. 4.U; Hayes v. Stiger, 2 Stew. Eq. 196; Glen v. Stat- 
ler, 4.2 Iowa 107 ; Duke of Beaufort v. Neeld, 13 CI. & F. 348; 
Diman v. R. R. Co., 5 R. I. 130 ; Green v. R. R. Co , 1 Beas. 
169, 170 ; Kent v. Manchester, 39 Barb. 595 ; Wooden v. Havi- 
land, 18 Conn. 101. 

The matter might be summed up in this proposition : the de- 
fendant, having accepted this deed, and there being no misrep- 
resentation as to its contents, and he having every opportunity to 
know them, and the grantor having acted upon it in such a way 
that he cannot be restored, defendant is estopped. Waterman on 
Spec. Ferf § 384; Powell v. Smith, L. R. (li Eq ) 88; Fhillips 
v. Gallart, 63 N. Y. 356. 

The doctrine of Fichard v. Sears, 6 Ad. d- E. 469 ; Freeman 
v. Cooke, 3 W. H. & G. 663, m^A the language of Blackburn, J., 
ill Smith V. Hughes, L. R. {6 Q. B.) 597, 607, apply. Whart. 
on Con. tit. " Error and. Mistake" § 196 ; Cornish v. Abingfon, 4- 
H. & N. 549, 555; 3 Fom. Eq. Jur. §§ 803-806; Horn v. 
Cole, 51 N. H. 387, 389; Tamplin v. James, L. R. {15 Ch. D.) 

VII. The defence set up in the amendment cannot prevail. 
It is (1) that, by the true construction of the deed from King to 
Louanstein, his title reached beyond the side of the foundation 
of his house and included the very foot conveyed ; and (2) that 
he had a right to air and light for the windows on that side of 
the house by implied grant from King, and that he really owned 
all he purchased from Cooper, was acting under a misapprehen- 
sion of his rights and should be relieved. 

There are several answers to this part of the case. (1) The 
calls of the deed from King to defendant are fully satisfied, and 
can only be satisfied, by running along the side of the founda- 
tion of the house. (2) As to the implied grant of light and air 
to those windows, there is no such implication in this country. 
3Iyers v. Gemmel, 10 Barb. 537 ; Falmer v. Wetmore, 3 Sandf. 
816; Doyle v. Lord, 64, N. Y. 423, 438, 439; Keats v. Hugo, 
115 Mass. 304-, 316. The opinion was by Gray, J. The cases 
are cited on pages 213 and 214, and the reasoning is on page 

10 Stew.] JUNE TERM, 1883. 297 

Cooper V. LouansteJn. 

215. Randal V. Sanderson, 111 Mass. 114-; Ray v. Sweeney, 
14- Bush 1 ; 29 Am. R. 388, note at p. 398, citing many cases ; 
Morrison v. Marquardt, 34- Iowa 35; 7 Am. L. Reg. {N. 8.) 
836, elaborate opinion by Chief-Justice Dillon, citing all the 
cases ; Mullen v. Strieker, 19 Ohio St. 135, 14^ ; Haverstick v. 
Sipe, 83 Pa. St. 368, 371. (3) Louanstein built an addition on 
the rear of his house with windows opening on the side, and 
there could be no protection for those in any implied grant. 
(4) It was advantageous to him to have the new building placed 
farther away from his front. (5) His right at least was not 
clear, and, if necessary, the arrangement would be sustained as a 
compromise. (6) There was no proof of any fraud or overbear- 
ing conduct on the part of Cooper. Louanstein is a sharp, 
shrewd German, perfectly able to take care of himself. 

VIII. There can be no decree for reformation of the contract 
unless the court is satisfied by the evidence beyond a reasonable 
doubt, not only that Louanstein did not understand the contract 
as it was written, but also that Cooper, the other party, under- 
stood it in the same way as Louanstein did. 

The court will not make a contract when the proof does not 
show a meeting of minds. If the contract has not been executed 
the remedy is to rescind and not reform in such a case. The au- 
thorities are all one way and very decided to that eifect. Ram- 
sey V. Smith, 6 Stew. Eq. 28, and cases cited ; Diman v. R R, 
Co., 5 R. I. 130; Pollock on Con. 4^3, and cases cited; 
Mortimer v. Shortall, 2 Dr. & War. 368, 372 ; Mead v. Fire Ins. 
Co., 64 N. Y. 4S8, 4-55; Philip v. Galkmt, 62 N. Y. 256; 2 
llliite & T. Lead. Cas. in Eq. {4th Am. ed.) 986 ; Fowler v. Fow- 
ler, 4 De Q. & J. 250, 264, ^65; 2 Pom. Eq. .Tur. § 870; 
Townshend v. Stangroom, 6 Ves. 328 ; Sawyer v. Hovey, 3 Allen 

IX. There was no fraud on the part of Cooper in procurmg 
this contract. 

X. It follows necessarily from the foregoing that complain- 
ant is entitled to relief. The contract cannot be reformed to 
correspond with the understanding of the defendant, because the 


Cooper V. Louanstein. 

complainant did not so understand it. It cannot be rescinded or 
canceled in part without a total rescission or cancellation, and it 
cannot be totally rescinded or canceled, because Cooper or his 
grantee cannot be restored to his former position. This last rule 
obtains even in cases where the contract is sought to be set aside 
on account of fraud. Pollock on Con. 510, 511 ; Ken' on 
Frauds {Am. ed.) oo4, 335 ; Sheffield Nickel Co. v. Unwin, L. 
R. (^ Q. B. D.) 228. 

The remedy at law is inadequate on two grounds — (1) The in- 
jury to the complainant's property cannot be measured in dam- 
ages. (2) Those damages can only be recovered in a series of 
actions. The remedy by perpetual injunction will put the com- 
plainant in the full enjoyment of her right, and that is what 
equity strives to do. 

The learned master refused to give complainant affirmative re- 
lief, on the idea, as I am informed, that this was to be viewed 
as a suit for specific performance. I have already argued 
against that view, but I contend that it is not every mistake that 
will defeat specific performance, and that the supposed mis- 
take here would not do it. In the jirst place, the mistake was 
one as to the construction of a contract, and therefore in the 
nature, at least, of a mistake of law. In the second, place, the de- 
fendant is wholly responsible for it, it having been perpetrated 
by his own counsel. In the third place, the contract has been 
executed in good faith by the one party, and he cannot be restored 
to his former position. Pf*ioell v. Smith, L. R. {14- Eq.) 85 ; 
Beaufort v. Neeld, 12 CI. & Fin. 24-8 ; Tamplin v. James, L. R. 
{15 Ch Div.) 215 ; Hawralty v. Warren, 3 G. E. Gr. 12^ ; 
Fry on Spec. Perf. § 508 ; Pomeroy on Spec. Perf. § 233 ; CarlisU 
V. Cooper, 6 G. E. Gr. 576, 591, 592. 

I have shown, I think, conclusively, that the effect of the clause 
is to create an easement in favor of complainant's lot over defend- 
ant's lot; and that such an easement is as much property as the 
land itself. Now, a court of equity will never permit one per- 
son to take and appropriate to himself the property of another 
(except in the exercise of eminent domain) upon the expectation 

10 Stew.] JUNE TERM, 1883. 299 

Cooper V. Louanstein. 

of his being made whole in pecuniary damages. It will never 
give a party the privilege of purchasing a right to erect or con- 
tinue a nuisance upon paying for it in damages. Hence it will 
always restrain even a mere trespass whenever it will result in 
an actual destruction or the taking without claim of right of 
another's property, or rather, equity considers any conduct which 
results in a taking or destruction of property, as something more 
than a mere trespass. Johnson v. Vail, 1 McCart. 4^33 ; Watson 
v. Sutherland, 5 Wall. 7^. 

Suppose VI e bring an action at law, and suppose the rules of 
law permit us to recover damages paid once for all — who shall 
warrant us the payment of the judgment ? But the law does not 
compel us to accept pecuniary damages in such cases, nor to sue 
for and recover damages once for all. The object of the remedy 
by action at law is to recover damages already suffered and to 
compel the defendant to abate the nuisance. Shadwell v. Hutch- 
inson {fi7'st suit), 3 Carr. & P. 615 ; S. 0. (^second suit) at Nisi 
Prius, 4, Carr. & P. 333— In lane, ^ B. & Ad. 97 ; Battishill v. 
Reed, 18 C. B. 696, 713 ; Holmes v. Wilson, 10 Ad & E. 503; 
Mayne on Damages {^d Eng. ed.) 334-; Grain y. Beach, 2 Barb. 
MO; Fish v. Folley, 6 Hill 54, 2 N. Y. 86; Veghte v. Hoag- 
land, 1 Vr. 516 ; 1 Sutherland on Damages 198, and cases 
cited ; Field on Damages § 74-8, and cases cited. 

Another consideration: I have shown, as I think, that the re- 
sult of the deed in this case was to create an easement; and I 
think it was an easement of which a court of law must take 
notice and enforce. But if there be any doubt upon that subject 
— if it be doubtful whether an action on the case for nuisance or 
in covenant will lie — then there is so much the more reason why 
equity should aid us. It was held by the supreme court in 
Banghart v. Flummerfelt, 14 Vr. '28, that an casement cannot be 
created by parol of which a court of law can take notice, and 
the court encouraged the plaintiff to go into equity ; and so, if 
the non-execution of this deed by Louanstein leaves us in that 
predicament, we fall at once into that class of cases of which 
Barnet v. Johnson, Winfield v. Henning, Kirkpatrick v. Peshine, 


Cooper V. Louanstein. 

in our court ; Hills v. Miller-, Tahnadge v. East River Bank, supra, 
and Parker v. Nightingale^ 6 Allen 34-1, are examples. See 
Washb. on Ease. *63 et seq. ; Goddard on Ease. {Bennet's ed.) 367 
The duty of the court to interfere in such cases is fully recog- 
nized by this court in Brewer v. Marshall, 4- G. E. Or. 537, 543, 
per Beasley, Chief-Justice. 

The estoppel is effectual in equity as well as at law, and must 
decide this case in favor of the complainant. 

Mr. Alfred Mills and Mr. B. Gummere, for respondent. 

The opinion of the court was delivered by 

Dixon, J. 

The complainant's grantor, William J. Cooper, and the de- 
fendant, were in 1870 owners of adjoining lots on Market street, 
in Morristown. On the defendant's lot stood a dwelling about 
eleven feet back from the street. Cooper being about to erect a 
building o« his lot, discovered that the eaves of defendant's 
house projected over the division line, and thereupon an arrange- 
ment was made between him and the defendant in fulfillment of 
which he, for a cash consideration of $100, conveyed to the de- 
fendant in fee a strip of ground one foot wide along the dividing 
line, the deed therefor containing the following clause: 

"This deed is made arid accepted upon this express condition and reserva- 
tion that tlie said William J. Cooper, and his heirs or whosoever may a! any 
time hereafter own the adjoining land of said Cooper, shall have the full right, 
liberty and privilege of building up to the line of the lot hereby conveyed and 
of having and enjoying two windows, one on the first story and one on the 
second story in the side of such building as he or they may put up, h)oking out 
upon said lot, which windows shall not be hindered or obstructed in any way 
by said Louanstein or his heirs or assigns to any other or greater extent than 
such windows if now erected could be obstructed by the house of said Louan- 
stein at present standing on his said lot." 

Cooper then erected a brick building upon his lot, extending 
to the street line in front and to the newly-constituted division 
line on the side toward the defendant, and in that side placed a 
window in the second story, near the front, overlooking the de- 

10 Stew ] JUNE TERM, 1883. 301 

Cooper V. Louanstein. 

fendant's front yard. In January, 1882, the defendant began 
the erection of an addition to his house, extending to the front 
of his lot and to the old division line between him and Cooper, 
and being of a height sufficient to obstruct the view from the 
window before mentioned. The complainant's bill is filed to 
enjoin such obstruction. 

Under the view which we have adopted in this case, no other 
question need be decided than that of the true meaning of the 
clause upon which the complainant relies for the maintenance of 
her suit. She contends that by the " condition and reservation" 
in the deed from her grantor to the defendant, she has a right to 
have her window unobstructed by any erection on the defendant's 
lot save the building which stood there when the deed was made. 
This claim, if maintained, practically deprives the defendant of 
the use of the front part of his lot except for the purposes of a 
yard. In view of the facts that in purchasing the one-foot strip, 
he was protecting only the eaves of his house, and that he paid 
in cash the full value of the land he bought, it is plain that the 
claim is one which a priori would be thought not likely to accord 
with the intention of the defendant. These circumstances may 
legitimately be regarded as throwing light upon the language of 
the written instrument, for the court is called upon to put itself 
in the position of the parties and to avoid, if it fairly can, any 
interpretation of their words and acts which will lead to an un- 
reasonable result. 

Turning, then, to the language of the clause, we see that the 
rights which Cooper affirmatively reserved were : 1st, that of 
building up to the line of the lot conveyed, viz., the one-foot 
strip ; 2d, that of having two windows in the side of his buiid- 
ing, looking out upon said lot ; and then was added a negative 
sentence as to the obstruction of these windows. Of these 
affirnaative reservations, the right of building up to the line of 
the lot conveyed and the right of having two windows in the 
side of his building, were such as would have belonged to Cooper 
without being expressly preserved, and the only important words 
to be found are the phrase " looking out upon said lot." This it 


Cooper V. liouanstein. 

is that gives character and scope to the right whicli the parties 
intended to secure. There can be no question of the meaning of 
this phrase; "said lot" is the one-foot strip, just before men- 
tioned, and therefore the windows which Cooper reserved the 
right to have and enjoy were windows looking out upon the one- 
foot strip. If the entire clause of the deed stopped here, no 
reasonable doubt could be raised about its interpretation. It would 
clearly import that the strip, and the strip only, was to be kept 
open for the use of the windows; an examination of the re- 
mainder of the clause does not, I think, disclose any different 
purpose. It in effect f(>rbids Louanstein to create any new ob- 
struction to the windows, and permits him to maintain whatever 
obstruction his old building interposed. But in determining the 
extent of this prohibition, we are to bear in mind that the sig- 
nificant feature of the windows protected is that they are win- 
dows looking out upon the one-foot strip, and hence it is quite 
reasonable to conclude that this outlook constitutes the measure 
of the prohibition. In accord with the same notion is the per- 
mission to maintain the old obstruction, for, as the house then 
standing on the defendant's lot overlapped a portion of thi« strip, 
he would have been required to remove this projection, unless 
this permission had been added to qualify the right before re- 

My conclusion therefore is, that by this deed the parties de- 
signed to vest in Louanstein the fee of this one-foot strip, and to 
reserve to Cooper and his heirs and assigns a right to the use of 
said strip for his two windows, except so far as such use was 
already impaired by the house then standing on defendant's lot. 

An additional circumstance favoring this conclusion is found 
in the fact that the grantor in this deed denominated the reten- 
tion of his right a "reservation," a sufficiently apt terra, if ap- 
plied to something which he might otherwise have been thought 
to be surrendering, a totally inapt term, if applied to something 
which he was then for the first seeking to acquire. 

The chancellor's decree dismissing the complainant's bill should 
be affirmed, on the ground that the complainant is not entitled to 
the right which she sets up. 

10 Stew.] JUNE TERM, 1883. 303 

Cooper V. Louanstein. 

Beasley, C. J. 

The question before the court does not, in my opinion, depend 
on the construction of a written contract, for the conveyance from 
"Cooper to Louanstein is not regarded by me, with respect to the 
subject of the easement in controversy, as the deed of the lat- 
ter. In point of fact, that instrument was not executed by him, 
and, touching the point in dispute, it is not to be attributed to 
him as a matter of law. As I understand the authorities, none 
of them lend any countenance whatever to such an attribution, 
and they can be made to wear such a semblance only by failing 
to discriminate between the facts to which such authorities prop- 
MT\y apply and the facts involved in the present case. 

The inquiry before the court relates to the grant of an ease- 
ment by force of a deed not actually executed by the grantee, 
in lands of the grantee, and which are not, either in whole or in 
part, transferred by the conveyance. The case is the same as 
though A should convey to B a tract of land situated in the city 
of Trenton, and should insert in such conveyance the grant of a 
right of way over the lands of B, located in Princeton. The 
question is, by the acceptance of such a deed, is it the deed of B 
with respect to the transfer of the right of way ? To this query 
I answer unhesitatingly in the negative. 

And in the first place it should be noted that if the instrument 
in the case suggested, and in the one before the court, is to be 
taken as the deed of the grantee, still it is indisputable that rest- 
ing on its own footing alone, it would be unenforceable against 
him, either at law or in equity. This is the effect of the statute 
of frauds, which requires the signature of the person desirous of 
passing such an interest in his land. So that if we were to adopt 
the theory which is rejected by me, we would have the anomaly 
presented of a deed of a party being utterly ineffectual for the 
purpose for which it was designed. It would be styled a grant, 
but nothing in point of law or of fact would pass under it. If 
the complainant in the present case had not set forth in his bill 
acts of part performance of the agreement for this easement, 
which he asserts is contained in this attributed deed, he would 
have exhibited a case without any legal or equitable basis ; and to 


Cooper 1'. Louanstein. 

such a case the ascription of the deed to the defendant is not a 
necessity, for if the agreement in question had been by parol it 
would have been, under the alleged facts, quite as efficacious as 
though it were under seal. The technical doctrine, therefore, 
which has in some instances the effect of attributing a deed as the 
act of a person who never signed or sealed it, is by no means 
essential or beueficial to the equitable disposition of the class of 
cases to which the present one belongs, nor indeed to any class 
of cases that can be imagined. 

The principles on which the decisions rest, which ascribe a 
deed to a uon-executing grantee, do not warrant their application 
to the present case. Such decisions relate to stipulations on the 
part of the grantee, which are connected with or relate to the 
land embraced in the conveyance. Covenants contained in such 
instruments, which have been declared to be binding, have uni- 
versally been of this character. Such agreements may indeed be 
collateral to the conveyance, but they must relate to the premises 
whose title is transferred. This was the condition of things in 
Fiiiley V. Simpson, 2 Zab. 811, for in that instance the covenant 
ascribed, as a matter of law, to the grantee, was that he would 
pay off the money which was secured by a mortgage on the 
land granted. It is, I think, very plain that if the moneys in 
question had not been a burthen on the land, the statement of the 
assumption of the debt by the non-executing grantee contained in 
the deed of the grantor would not have been imputed to the 
former as his covenant. And yet that, in effect, is what is 
claimed on the side of the complainant in the present case. Such 
a doctrine is not supported by the decision just quoted, nor by 
any of the authorities which form its foundation. I have ex- 
amined all of those authorities, and I find that, without exception, 
they relate to covenants connected with the premises demised or 
conveyed. Not one of them indicates the doctrine that a state- 
ment of an agreement touching alien lands will be imputed to 
the grantee. Among such authorities the leading one is the case 
cited from the year-books, 38 Edw. III. c. 8, 9. The facts involved 
were these : a demise was made to two lessees, only one of whom 
executed the counterpart of the lease, but both went into posses- 

10 Stew.] JUNE TERM, 1833. 305 

Cooper V. Louanstein. 

session. The lease contained a covenant, on the part of the les- 
sees, to pay £20 if certain conditions were not complied with. 
The court decided that the instrument was the deed of both 
lessees. But the conditions referred to all related to the land de- 
mised, and consequently such judgment was a proper basis for 
the decision in Finley v. Simpson, but will afford no basis for 
the decision of the present case. Neither Sir Edward Coke nor 
Chief-Baron Comyns nor any other legal writer intimates any 
opinion that the technical rule in question can be carried any 
further than it was in this case from the year-books. In Shep- 
pard's Touchstone vol. 1 p. 177, the law on this head is stated 
with exactness. This learned writer says : " If a feoffment or a 
lease be made to two, or to a man and his wife, and there are 
divers covenants in the deed to be performed on the part of the 
lessees, and one of them doth not seal, or the wife doth or doth 
not seal during coverture, and he or she that doth not seal doth 
notwithstanding accept of the estate and occupy the lands con- 
veyed or demised ; in these cases, as touching all inherent cove- 
nants, as for payment of rent and the accessories thereof, or 
clauses of distress, or re-entry, nomine poeiice, reparations and 
the like, they are bound by these covenants as if they did seal 
tlie deed." Both this distinguished author and Lord Coke ex- 
pressly declare that the root of this legal rule is in the maxim : 
Qui sentit commodum sentire debet et onus, et transit tei'ra cum 
onere — that is, that he who takes the land conveyed or demised 
must take it with the burthen upon it. It is obvious that this 
maxim cannot be applied to the case before the court. If cove- 
nants relating to alien lauds are to be construed as the agree- 
ments by specialty of a non executing grantee, it would fallow 
that any other stipulation which the grantor might insert in 
his conveyance would be so regarded. Thus the grantee might 
in such form be made to convey his lands, or to sell a ship or a 
stock of goods. It seems to me that a rule of law of this kind 
would be fraught with mischief. If a grantor wishes to obtain 
a conveyance of lands from his grantee, or wishes to obtain 
an easement in such lands, it is the reasonable and safe course 
to require him to obtain a deed to that end, executed by sucJi 



Cooper V. Louanstein. 

grantee. The law gives a peculiar efficacy to deeds, on the 
ground that the act of signing, sealing and delivering such in- 
struments denotes caution and deliberation in the person execut- 
ing them. It would be an unwise policy to introduce into the 
law, instruments having such efficacy which have not been, in 
their formation, attended with such formalities. 

My footing, therefore, in the present matter is this : I do not 
regard the clause relating to the easement in question, as con- 
tained in a deed of the defendant, Louanstein ; but I regard such 
statement, the deed being accepted by Louanstein, as a circum- 
stance of evidence, more or less strong, as the case may be, tend- 
ing to show a parol agreement for such easement. If this were 
the deed of the defendant it could not be contradicted or altered 
by extraneous evidence ; it would have to speak for itself, and 
all that this court could do would be to enforce its terms. Tiiis 
is the force that I refuse to give to it, looking upon it as simply 
evidence of a character susceptible of explanation or alteration by 
the other facts in the case. If there were no other proof on this 
subject except the statement of the bargain in the grantor's deed, 
I should treat it as was done in the case cited from the New 
York reports, as full proof of an agreement in the terms of such 
statement, and, as the transaction has in part been executed, 
should favor its enforcement. But the matter does not stand on 
such statement alone ; there is other testimony on the subject 
that has satisfied me that the easement, as claimed by the com- 
plainant, was not a part of the bargain. The defendant did not 
agree to grant the easement to the extent set up in the complain- 
ant's bill. Taking this view of the testimony, I will vote, on 
that ground, to affirm this decree. 

Depue, J. {dissenting). 

I concur in the view of the special master that the defendant 
has made no case under his cross-bill for the reformation of the 
deed. But I cannot approve of the decree he advised dismiss- 
ing the complainant's bill. 

The doctrine of the common law was, and the law of this 
state is, that, if the grantee in an indenture of bargain and sale, 

10 Stew.] JUNE TERM, 1883. 307 

Cooper V. Louanstein. 

|)urporting to be inte)- partes, accept the deed and the estate 
thereby conveyed, the deed becomes ipso facto his deed as well as 
the deed of the grantor, though it be not executed and delivered 
by him. The engagements and undertakings expressed in the 
deed to be performed by the grantee are regarded as covenants 
on his part, and on a breach he may be sued at law in an action 
•of covenant, as for a covenant broken. The common law author- 
ities for this principle are cited in the brief of Mr. (now Justice) 
Bradley, in Finley v. Simpson, 2 Zab. 311, and the principle was 
adopted by the court in its decision. 

This doctrine is not restricted to such stipulations as are in the 
nature of covenants real and annexed to the inheritance, or re- 
lating to the mode in which the premises granted shall be used 
or enjoyed. On the contrary, the precedents of the judicial en- 
forcements of this principle are mainly those in which actions 
have been brought on such covenants where they related to mat- 
ters collateral to the grant, which were not in any sense qualifi- 
cations of or restrictions upon the estate granted or the mode in 
which the premises should be used or enjoyed. Chief-Baron 
Comyn says : " If a lease be to A and B by indenture, and A 
seals a counterpart, and B agrees to the lease but does not seal, 
yet B may be charged for a covenant broken, though the cove- 
nant be collateral and not annexed to the land." Com. Dig. tit. 
"Covenant " A 1. "An indenture of lease is engrossed between A 
of the one part, and D and E, of the other part, which purport- 
eth to be a demise for years by A to D and R. A sealeth and 
delivereth the indenture to D, and D sealeth a counterpart to A, 
but R did not seal or deliver it. By the same indenture it is 
mentioned that D and R did grant to be bound to the plaintiff 
in £20, in case certain conditions comprised in the indenture 
were not performed. For this £20 A brought action against D 
only. The defendant pleaded that the demise by indenture was 
made to D and R, and the non-joinder of R. The plaintiff re- 
plied that R did never seal and deliver the indenture, and so his 
writ was good against D sole. The counsel of the plaintiff took 
a diversity between a rent reserved which is parcel of the lease, 
and the land charged therewith, and a sum in gross, as here the 


Cooper V. Louanstein. 

£20 is ; for as to the rent they agreed that by the agreement of 
R to the lease, he was bound to pay it, but for the £20, that is a 
sum in gross, and collateral to the lease, and not annexed to the 
land, and groweth due only by the deed, and therefore R said he 
was not chargeable therewith, for that he had not sealed and de- 
livered the deed. But inasmuch as he had agreed to the lease, 
which was made by indenture, he was chargeable by the inden- 
ture for the same sum in gross ; and for that R was not named' 
in the writ, it was adjudged that the writ did abate." Coke on- 
Lit. 231 a. A contract by the grantee to assume and pay a mort- 
gage made by the grantor upon the premises is a collateral con- 
tract; and yet it has repeatedly been held by the courts of this 
state, that the deed, though executed by the grantor only, is the 
deed of the grantee also, and that tlie latter may be sued in an 
action of covenant, upon the contract of assumption contained in 
the deed. Finhy v. Simpson, supra ; Golden v. Knapp, 12 V>\ 
S15 ; Sparkman v. Gove, 15 Id. 252. 

Nor is there anything in the nature of an easement that for 
technical reasons would restrain the force of a covenant by the 
grantee to the premises granted. An easement, strictly speaking, 
cannot be made the subject of an exception or reservation, for it is 
neither parcel of the land granted nor does it issue out of the land. 
A clause in a deed of conveyance reserving an easement operates 
as a grant of a newly created easement. Godd. on Ease. 108. 
The reservation is considered, as was said by Lord Westbury, 
precisely as if it were a counter-grant by the grantee. Goold v. 
G. W. Deep Coal Co., 2 DeG. J. & S. 600. It would undoubt- 
edly have been competent for Louanstein, by a counter-grant, to 
grant to Cooper and those who succeeded to his estate, an ease- 
ment of light as a servitude upon his adjoining lands, as well as 
in the premises granted ; and if the clause in question in this 
deed be treated as a clause of reservation merely, it would, in its 
strictest sense, be effective to create an easement in the premises 
granted, and the superadded covenant would be operative to 
prohibit such acts of interference with the easement granted as 
he covenanted to abstain from. 

But if there should be any difficulty in giving effect to 

10 Stew.] JUXE TERM, 1883. 309 

Cooper V. Louanstein. 

Louanstein's coveDaut iu a court of law, arising out of the 
notion that at law the covenant can be effective only to create an 
easement in the lands granted, no such difficulty exists in a court 
of equity. In equity it is clear that a stipulation of this kind 
iu a deed accepted by a grantee will create an easement or a right 
in the nature of an easement in other lands of tlie grantee not 
comprised in the grant. In Case v. Haight, 3 Wcid. 632 ; S. C, 
1 Paige 44-'^ i Schuyler owned the south side of tiie lower falls in 
-the outlet of Lake George, and also the land under the bed of 
the stream. He made a grant to Deals & Nichols of the bed 
of the stream. The deed contained a reservation of the right to 
Schuyler, his heirs and assigns, to abut any dam or dams on 
both shores of the river. The grantees were the owners of the 
lands on the north shore. The question arose as to the effect of 
this reservation. Sutherland, J., delivering the opinion of the 
court of appeals, said : " The reservation can have no effect as 
an exception. ***** 'j'jjg deed of Schuyler did not 
<;ouvey or profess to convey any part of the north shore ; he 
could not, therefore, reserve a right to build a dam against it. 
But, though void as an exception, the reservation is binding upon 
the grantees and their assigns, and becomes operative either as 
~an implied covenant or by way of estoppel ; the deed is to be 
construed as though the parties had mutually covenanted that 
-each should have a right to abut a dam upon the shore of the 
-other." This case was approved by Chief-Justice Shaw, as 
founded upon the indubitable principle that a grantor, by a 
j'eservation in his deed, may acquire a right in other lands of the 
grantee not granted to him by the deed ; and the learned chief- 
justice gives illustrations of such grants, resulting, as he ex- 
presses it^ "from the plain terms of the contract." Dyer v. 
Sandford, 9 Mete. 395—4-04: In Randall v. Latham^ 36 Conn. 
4B^ on a bill for specific performance of an agreement with re- 
gard to water from the respondent's raceway, the complainant 
-claimed a right to water from the raceway under one Thomas. 
Thomas and the respondent, Latham, were respectively the 
owners of mills on the same stream. Thumas conveyed to Lat- 
.ham a tract of thirty acres adjoining the mill of the latter. The 


Cooper V. Louanstein. 

deed contained a reservation that the grantor should have the 
privilege of drawing water from the ditch of Latham's grist- 
mill, and that Latham and his successors should keep a spout 
ten inches square in the inside at the bottom of the ditch, to 
which the grantor should at all times have access for the purpose 
of drawing water. The ditch was never owned by Thomas, and 
he had no interest in it beyond that acquired by this provision in 
his deed (o Latham. The court sustained the complainant's bill, 
saying: " The deed purports to require the respondent to put in 
the spout upon land not conveyed, and the question is whether a 
court of • equity will compel him to do it under the circumstances 
of the case. That the respondent, by accepting the deed con- 
taining the provision, thereby agreed to perform this duty, there 
can be no doubt. This duty was part of the consideration of 
his deed. The respondent has received full compensation, and it 
is difficult to see why he is not bound to perform it." 

But if we should yield to the reasoning that this stipulation, 
on technical grounds, is not the covenant of Louanstein because 
he did not sign and seal the deed, the complainant would never- 
theless be entitled to the benefit of its provisions in a court of 
equity. A contract, the terms of which are reduced to writing, 
though signed by one party only, if delivered and accepted by 
the other party, becomes the written contract of both parties. 
For instance, the conditions of insurance contained in a policy 
signed by the insurer only, become, by the acceptance of the 
policy, contracts of warranty on the part of the insured. A 
carrier's bill of lading, or his ticket issued to a passenger, be- 
comes, by the acceptajice, a contract in writing between the car- 
rier and the consignor or passenger, and neither party can vary 
the terms of such a contract by parol evidence. Long v. R. R. 
Co., 50 iV. F. 76; Burke v. S. E. R. R. Co., L. R. {5 C. P. D.) 
1; Harris v. G. W. R. R. Co., L. R. {1 Q. B. D) 515; WatUmt 
v. Rymill, L. R. {10 Q. B. D.) 178; 2 Whart. Ev. § 921. 

All the authorities agree that the grantee in a deed whicli has 
been accepted by him, is bound by the stipulations on his part 
contained therein. The only controversy has been with respect 
to the form of action or procedure by which his liability shall 

10 Stew.] JUNE TERM, 1883. 311 

4 Cooper V. Louaustein. 

be enforced. If an action of covenant will not lie for a breach, 
for the reason that his contract is not technically a covenant, he 
is bound in equity by his agreement contained in the deed. The 
deed is evixlence that he made the agreement contained in it, and 
a court of equity will restrain him from doing what he agreed 
not to do. Atlantic Dock Co. v. Leavitt, 54- N. Y. 35-4-^. 

In any view of the nature of this stipulation — whether it be 
considered as a covenant or only as a contract in writing — the 
question is simply one of construction. In putting a construc- 
tion upon the agreement in question, there is no place for the 
application of the maxim vei'ba charf.arum fortius accipiuntur 
Gontra p'oferenteni ; for in indentures the words are the words of 
all the parties, and the intention is to be regarded. 1 Leon. 318 ; 
2 Id. 47, 192 ; Lord Say and Seal's Case, 10 Mod. 40, 48. And 
the maxim quoted is the last to be resorted to, and is never to be 
relied upon but when all other rules of exposition fail, and if any 
other come in place, tliis giveth place. Bac. Max. Reg. 3 pi. I4. 

Before this deed was executed the parties were owners of ad- 
joining lots fronting on Market street — Cooper's lot having a 
frontage of fifty feet, Louanstein's a frontage of twenty-six feet. 
On Louanstein's lot there was an old house standing back eleven 
feet from the line of the street. In 1868, Louaustein altered 
and repaired his house. In the spring of 1870, Cooper made 
preparations to build on his lot, and it was then ascertained that 
the division line between the two lots "cut into the weather- 
boards on a portion of the southwesterly side of Louanstein's 
house about a half or three-quarters of an inch," and that the 
cornice projected over the line sixteen or seventeen inches. To 
settle this difficulty the deed in question was made, conveying to 
Louanstein one foot of land. In this deed Louanstein agreed 
that Cooper and his heirs and assigns should have the — 

"Full right, liberty and privilege of building up to the line of the lot hereby 
conveyed, and of having and enjoying two windows, one on the first story and 
one on the second story, in the side of such building as he or they may put up, 
looking out on said lot." 

Cooper then changed the plan of his proposed building, and 


Cooper V. Lonmistein. « 

erected on his lot a brick building flush up to the new division 
line, and ]>laced in it two windows on the side towards Louan- 
stein's lot. In constructing this building the cornice of Louan- 
stein's house was sawed off and reduced to one foot in width, 
and flushed up against Cooper's building. Louanstein now pro- 
poses to extend his house on the line of his origiual lot, out to 
the line of the street, which will bring his house directly in front 
of Cooper's windows. His right to do so under the stipulation 
in the deed is the subject-matter of this suit. 

It will be observed that it is admitted that the reservation in 
the deed creates an easement of light and air. The words 
already quoted are of such import as to be decisive on that sub- 
ject. The question, then, is, how far that easement so created is 
protected from hindrance or obstruction by the contract of Louen- 
stein. In the concluding portion of this stipulation he covenants 

" Which windows shall not be hindered or obstructed in any way by said 
Louanstein, or his heirs or assigns, to any other or greater extent than such 
windows, if now erected, could be obstructed by the house of said Louanstein, 
ai present standing on his said lot." 

Tlie contention of the defendant is that this stipulation on4y 
prohibits the erection of any building on the one foot con- 
veyed, and consequently he proposes to extend his house on 
the line of his original lot to the street, leaving a space of only 
one foot between his proposed building and Cooper's windows, 
practically cutting off light and air from the windows, and leav- 
ing a space not sufficient for the swinging of shutters. If a 
stipulation of such an import had been in the contemplation of 
the parties, it would have occurred to any scrivener, much moro 
to a lawyer (and this deed was prepared by a lawyer), simply to 
interdict the erection of any building on the strip conveyed. 
Instead of this obvious method of expressing the understanding 
of the parties, the draughtsman of the deed adopted the sweep- 
ing language that the said windows shall not be hindered or ob- 
structed in any way ; and, as if to remove all doubt, he adds, 

10 Stew.1 JUNE TERM, 1883. 313 

Cooper V. Louanstein. 

" To any other or greater extent than such windows?, if now erected, could 
be obstructed by the house of said Louanstein, at present standing on his said 

To support his contention the defendant relies on two grounds 
— First, that the reservation cannot be construed, or rather be 
operative to create an easement or a right in the grantor in any- 
other land of the grantee than that which is the subject of the 
conveyance. This contention, as I have shown, is discredited by- 
judicial decisions, and, I believe, is wholly without approval or 
countenance in any judicial opinion. The other ground is an 
interpretation of this stipulation constructed upon the words " on 
said lot," and " standing on his said lot." It is argued that 
these are words of reference to some lot antecedently mentioned, 
and therefore must restrict the covenant to the land conveyed. 

But on referring to the description of the premises in the 
deed, it will be found that in the first course there is a call for a 
boundary " along the line of the lot conveyed by King and wife 
to said Louanstein," which is Louanstein's original lot; and the 
house is referred to as " the house now owned and occupied by 
said Louanstein." The first time the words " said lot " are used 
in the expression " windows * * * looking out on said 
lot," they were merely descriptive of the location of windows to 
be placed in a house to be erected. And the words " on his said 
lot," as afterwards used, would naturally be referable to the lot 
Louanstein previously owned rather than to the premises con- 
veyed ; for it is not usual in a deed which takes effect and vests 
property from delivery to speak of the premises conveyed as 
being the property of the grantee. Especially is this construction 
more probable and rational where the reference is to a house all 
of which except from a half to three-quarters of an inch of the 
thickness of its weather-boards, and its projecting cornice, is on 
a lot in the ownership of the grantee, and the house is described 
as " at present standing on his said lot," and is previously men- 
tioned in the deed as a house owned and occupied by the grantee. 

But these grammatical criticisms, however well founded they 
may be, are in my judgment of little avail as against the lan- 
guage of this covenant taken as a whole, and the purpose the 


Cooper V. Lonanstein. 

parties had in view in inserting the covenant in the deed. The 
parties were contracting for an easement of light and air — an 
easement which could not be enjoyed except by an open space 
reasonably sufficient for the admission of light and air. Such an 
easement is hindered and obstructed in a legal sense by any im- 
pediment to the passage of light and air which interferes with 
the reasonable enjoyment of the privilege. The complainant, by 
the reservation in his deed, obtained a right of having and en- 
joying two windows in his building on that side, and he required 
and obtained, in arklition thereto, a covenant that his windows — 
which are the mere instruments by which his easement of light 
and air is enjoyed— should not be obstructed to any other or 
greater extent than such windows would be obstructed by the 
house then standing on the defendant's lot. The proposed ex- 
tension of the defendant's house would make this easement, as 
an easement of light and air, practically useless, and it seems to 
me to be a forced construction of this covenant, to impute to it a 
meaning that the parties contemplated a useless privilege whei> 
they contracted that the right reserved should be as free and un- 
obstructed as it would be with the defendant's house as it then 

It will also be observed that any other construction than that 
I adopt will expunge the whole of the covenant with respect to 
hindrance and obstruction from the deed ; for the complainant^ 
under the grant in the introductory part of the stipulation " of 
the full right, liberty and privilege * * * of having and 
enjoying two windows * * * jn the side of his building, 
looking out on said lot," will be entitled to all the rights now 
proposed to be accorded to him, and the subsequent covenant 
against hindrance and obstruction which is annexed to the grant 
is made nugatory — rejected, and practically expunged from the 

I think, also, that the complainant is entitled to have his right 
protected by a decree of a court of equity instead of being re- 
mitted to his action at law as the master advises ; for, when a 
right to light is claimed as a special right created by a covenant, 
a court of equity will protect it by injunction, under circura- 

10 Stew.] JUNE TERM, 1883. 315 

Earle v. Roberts. 

stances where the court would withhold such protection from an 
ordinary easement. Leech v. Schweder, L. R. [9 Ch. App.) 4-6S. 

I think the decree should be reversed, and a decree made in 
accordance with the prayer of the bill. 

For affirmance — The Chief- Justice, Dixon, Knapp, 
Magie, Paeker, Scudder, Van Syckel, Clement, Cole, 
Green, Kirk — 11. 

For reversal — Depue, Reed, Paterson, Whitaker — ^1. 

Augustus Trimmer, administrator, appellant, ^ 


Antoinette Middaugh, respondent. 

Mr. Wm. H. Morrow, for appellant. 

Mr. Nicholas Harris and Mr. Henry S. Harris, for respond- 

Per Curiam. 

This decree unanimously affirmed for the reasons given by the 
chancellor in Middaugh v. Trimmer, 7 8iew. Eq. 82. 

George B. Earle et al., appellants, 


Edward F. Roberts et al., respondents. 

On appeal from a decree advised by Vice-Chancellor Van 
Fleet, whose opinion is reported in Earle v. Norfolk and New 
Brunswick Co., 9 Stew. Eq. 188. 


Vanderbeck v, Hankinson. 

Mr.. "/S. Tuttle and J/r. /. D. Bedle, for appellants. 

Mr. Woodbridge Strong and Mr. Barker Gummere, for re- 

Per Curiam. 

This decree unanimously affirmed for the reasons given by 
Vioe-Chancellor Van Fleet. 

Joseph T. Farrington, appellant, 


Ira M. Harrison, administrator, respondent. 

On appeal from a decree of the chancellor, whose opinion is 
reported in Harrison v. Farrington, 9 Stew. Eq. 107. 

Mr. 8. C. Mount, for appellant. 

Mr. John W. Taylor, for respondent. 

Per Curiam. 

This decree unanimously affirmed for the reasons given by the 

Abraham Vanderbeck, appellant, 


John B. Hankinson et al., respondents. 

On appeal from a decree advised by Advisory-Master Gum- 
mere, whose conclusions were as follows : 

10 Stew.1 JUNE TERM, 1883. 317 

Vanderbeck v. Hankinson. 

1. I find and determine that John B. Hankinson and wife 
executed the mortgage set forth in the complainant's bill, dated 
November 8th, 1875, and securing the principal sum of ^12,000, 
with interest, upon a corrupt and fraudulent agreement with the 
complainant, that the mortgage should be placed upon record by 
the complainant when requested by said Hankinson, for the pur- 
pose of protecting the premises therein described from the credit- 
ors of said Hankinson, and of hindering, delaying and defrauding 
them in the collection of their debts, and that it was wholly 
without consideration at the time of its execution. 

2. I find and determine that on March 21st, 1876, the com- 
plainant lent to the defendant Hankinson the sum of $3,000 
solely upon his personal security, and took from him his promis- 
sory note of that date payable six months after date, with in- 
terest, as the evidence and sole security of said debt, and that 
on or about August 1st, 1876, and before said note became 
due, the defendant Hankinson delivered to the complainant the 
said mortgage, upon an agreement between them that the com- 
plainant should have the same recorded, and should hold the 
same as security for the payment of said promissory note for 
$3,000, and also to protect the mortgaged premises from the 
creditors of the said Hankinson, and to hinder, delay and de- 
fraud them in the collection of their debts, and that no new con- 
sideration moved from the complainant to the defendant Han- 
kinson for the delivery of said mortgage. 

3. I find and determine that the defendant Hankinson, on or 
about March 28th, 1877, procured the complainant to entrust the 
said mortgage to him for the purpose of raising money by nego- 
tiating an assignment thereof, for the payment of the said note 
fur $3,000, and the interest thereon, and that the said Hankin- 
son, whilst so holding the said mortgage, caused the same to be 
canceled of record, without the privity or authority of the com- 

4. I determine, as matter of law, that the said mortgage of the 
complainant is void and of none effect as against the defendant 
Joseph Wells, and that the judgments and decree recovered by 
the said Wells against the said Hankinson and set forth in the 


Mayor and Common Council of Hoboken o. Shannon. 

answer of the said Wells, are liens upon the said mortgaged 
premises and are entitled to be paid and satisfied thereout before 
the payment thereout of the complainant's mortgage. 

5. I determine, as matter of law, that the mortgage of the com- 
plainant is valid, as between tlie complainant and the defendant 
Hankinson, and that it is a valid and subsisting lien thereon to 
the amount of the principal and interest remaining due upon the 
aforesaid note for $3,000, and to that amount is entitled to be 
paid out of said mortgaged premises. 

Let an interlocutory decree be prepared in conformity to these 
findings and referring it to a master of this court to ascertain and 
report the amount due the complainant, and the defendant Wells 
upon their aforesaid encumbrances. 

Mr. Frederick Voorhees, for appellant. 

Mr. Mark R. Sooy, for respondent. 

Per Curiam. 
This decree affirmed. 

For affirmance — The Chief-Justice, Dixon, Knapp, 

Magie, Reed, Scudder, Van Syckel, Clement, Cole, 
Kirk, Paterson, Whitaker — 12. 

For reversal — Parker — 1. 

The Mayor and Common Council op the City of Hobo- 
ken, appellants, 


John M. Shannon et al., respondents. 

On appeal from a decree advised by Vice-Chancel lor Van 
Fleet, whose opinion is reported in Shannon v. Hoboken, 10 
Stew. Eq. 123. 

10 Stew.] JUNE TERM, 1883. 319 

Gove V. Colborn. 

Mr. \V. S. Stuhr, for appellants. 

Mr. J. B. Vredenburgh, for respondents. 

Per Curiam. 

This decree unanimously affirmed for the reasons given by 
Vice-Chanceilor Van Fleet. 

Charles Backer et ux., appellants, 


James C. Denman, respondent. 

On appeal from a decree advised by Vice-Cbancellor Van 

Mr. Wm. R. Wilson, lor appellants. 

Mr. P. H. Gilhooly, for respondents. 

Per Curiam. 

This decree unanimously affirmed. 

Henry F. Gove et al., appellants, 


Laura A. Colborn, respondent. 
Bills for relief. On final hearing on pleadings and proofs. 
Mr. H. C. Pitney, for appellants. 
Mr. John Linn and Mr. Wm. H. Davis, for respondent. 


Gove V. Colborn. 

On appeal from a decree of the chancellor, who filed the fol- 
lowing opinion, May term, 1882 : 

The Chancellor. 

These two causes were argued together. One is a suit to set 
aside, on the ground of surprise, a sheriff's sale under foreclosure 
proceedings, and the other to enforce a mining agreement. The 
connection of the two subjects will appear by the subjoined 
statement. On the 9th of April, 1877, Francis N. Gove, who 
was then the owner of a tract of land (containing minerals) of 
about seventy-five acres, in Morris county, leased the lands and 
mines to David B. Jardine for five years, at a royalty of fifty 
cents per ton of twenty-two hundred and forty pounds for all 
ore mined, raised and carried away from the demised premises 
during the term. On the 28th of tlie same month Gove made 
an assignment to Cornelius L. Leport, under the assignment act 
of this state, for the equal benefit of his creditors ; which trust 
Leport accepted. On the 7th of July, in the same year, Jardine 
assigned the lease to Mrs. Leport, the wife of Cornelius L. 
Leport, and she, on the 28th of August following, assigned it to 
Henry F. Gove (son of Francis N.), who, on the 31st of that 
month, leased the mine, with all the engines and machinery on 
the demised premises, to the complainant, at the same royalty. 
That lease contained an agreement that Francis N. Gove should 
have the exclusive privilege of doing the work of the mining, 
raising and delivering (the delivery to be on board the Delaware, 
Lackawanna and Western railroad at Shippenport) of all the ore 
to be mined and raised during the continuance of the lease, and 
that the complainant should pay him the sum of $3 per ton for 
each and every ton of iron ore so raised and delivered. And it 
was thereby further provided and agreed that Francis N. Gove 
might at pleasure, at any time, relinquish that privilege, in which 
case the complainant was to do the work and pay the royalty; 
and that while he (Gove) did the work and received the $3 per 
ton, she was to be released from payment of the royalty. And 
the complainant thereby bound herself to advance to him 
$1,000, lialf on the execution of the lease and the rest in sixty 

10 Stew.] JUNE TERM, 1883. 321 

Gove V. Colborn. 

days thereafter, to be repaid to her by him, without interest, pro 
rata, within four months after he should have mined, raised, de- 
livered and received payment for the first one hundred tons; 
and that she, her heirs and assigns, would mine, raise and re- 
move, or cause to be mined, raised and removed, five thousand 
tons of ore a year, during the continuance of the lease, or on 
failure to do so should, at the option of Henry F. Gove, her 
lessor, surrender and forfeit her rights under the lease. And it 
was further agreed (though no such provision was in the lease to 
Jardine, and Henry F. Gove had no interest in the property ex- 
cept as lessee) that the complainant should have the right of 
renewal for a further term of fifteen years from the expiration 
of the lease, on terms of purchasing the machinery and paying 
a royalty of seventy-five instead of fifty cents. She and her 
heirs and assigns were to ha,ve the right to terminate the lease on 
six months' notice in writing. Francis N. Gove guaranteed the 
fulfillment of the lease on the part of his son, the lessor, and 
Daniel K. Colborn, the complainant's husband, gave a like 
guaranty for her. By a supplemental agreement, made Septem- 
ber 2d, 1878, between the parties to the lease, it was agreed that 
Francis N. Gove would put the mine in working order, and that 
the $1,000 were advanced to him for that purpose, and that he 
would take out and deliver at least five thousand tons of ore a 
year, unless the mine should fail ; and that there should be nc 
forfeiture for failure to mine so much in the year so long as he 
should work the mine under the before-mentioned agreement 
contained in the lease. On the 1st of October, 1878, Harry G. 
Blackwell, by agreement with Francis N. Gove, began to mine 
under the complainant's agreement with the latter, and continued 
to do so until the last day of February, 1878, when he quit 
mining; but for three months afterwards he kept a watchman at 
the mine. Of the $1,000 the complainant paid, according to 
the receipts, half on the 3d of September, 1878, and the rest on 
the 8th of November following, she paid to Francis N. Gove, 
on account of the work to be done by him in raining, raising and 
delivering ore under the agreement, $2,100 more in November 
and December, 1878, and January, 1879. No more payments 



Gove V. Colborn. 

were ever made. Blackwell furnished the complainant with 
about four hundred and fifteen tons of ore on the order of Mr. 
Colborn, the complainant's husband and agent. Mr. Colborn 
could not find a profitable market for any more, and therefore 
ordered him to send no more. Blackwell, or Francis N. Gove, 
in hi« stead, urged Mr. Colborn to furnish more money in 
December, 1878, or January following. He did not furnish it, 
and the work, therefore, stopped. Blackwell says he stopped 
because he could not get money enough to pay his men or store- 
bills, or to repair machinery. The mine lay idle from that time 
until September, 1879, when Francis N. Gove himself took pos- 
session of and operated it, and he has worked it ever since. 
When the lease was made to the complainant there were two 
mortgages on the property, one originally for $1,000 and inter- 
est, dated November 1st, 1873, given to and held by Abraham 
D. Salmon, and the other for $3,000 and interest, dated January 
29th, 1877, given to and held by James W. Valentine. Under 
foreclosure proceedings upon the former mortgage (the holder of 
the other being a party to the suit and proving his claim), the 
property was advertised for sale, the sale to take place on the 3d 
of March, 1879. Mr. Colborn, having heard that the property 
was so advertised for sale, caused an examination of the title to 
be made by his attorney, who investigated it and reported upon 
it. A few days afterwards the complainant obtained from Mr. 
Leport his confirmation, as husband, of the assignment of his 
wife to Henry F. Gove, and his confirmation as assignee of 
Francis N. Gove, of the lease from Henry F. Gove to the com- 
plainant. In order, as the complainant alleges, to prevent sale 
of the property and to protect her lease, George Clarke, from 
whom she had borrowed the money she had paid under the 
agreement, afterwards obtained an assignment of the interest of 
Salmon and Valentine, under the decree in the foreclosure suit, 
by paying the amount due thereon. After those assignments had 
been made there was negotiation between Francis N. Gove and 
Clarke with a view to the taking, by the latter, of a lease for the 
premises, the lease of the complainant, in that case, to be an- 
nulled. The negotiation failed. In December, 1879, the com- 

10 Stew.] JUNE TERM, 1883. 323 

Gove V, Colborn. 

plainant made an agreement with Alexander Elliott to sell him 
twelve thousand tons of the ore, for future delivery, at $4 a ton, 
payable in advance, the ore to be delivered in lots of one hundred 
tons each, on the railroad cars at Shippenport, or on the Central 
railroad at Drakesville, as Elliott should direct. Gove refused, 
not only to furnish any ore to Elliott, but to anyone else, on the 
complainant's order. The sale of the property under the execu- 
tion was adjourned, from week to week, until the 5th of January, 
1880, when the sheriff, at the request of Mr. Leport, the assignee, 
and against the earnest remonstrance of Mr. Davis, the solicitor 
of Mr. Clarke, and of the complainant, put up the property for 
sale and struck it off on a single bid of $10,000, to James 
Sutherland, whose attendance at the sale to buy the property 
Francis N. Gove had procured, lending him $4,000 for the 
purpose of paying the percentage which might be required to be 
paid on the sale. The sheriff, in a very few days afterwards, 
delivered the deed for the property to Sutherland. 

By one of these .suits the complainant seeks to set aside the 
5ale as a surprise, and as fraudulent as against her ; and by the 
other she seeks to obtain what she regards as her rights under the 
lease. That the sale was a surprise upon the complainant there 
can be no doubt; and it is manifest that if it be permitted to 
stand, the very provision (the purchase of the decree) made for 
her protection against Gove will have been made the means of 
effectuating the purpose against which she sought to guard her- 
self. It is clear that the fact that the sale took place was really 
due to Gove alone. He produced the only bidder, having previ- 
ously provided him with the means to purchase the property on 
that day, and it is not denied that the purchase was made in 
Gove's interest. The property, it may be remarked, appears to 
have been sold for an inadequate price. Clarke has obtained 
title, by purchase, to all the claims except two (together amount- 
ing to less than $30) which were proved against Gove's estate. 
If the complainant is not to be held to have abandoned her lease 
or to have forfeited all claim to the aid of equity, the sale ought 
to be set aside. The sheriff's deed was, as before stated, deliv- 
ered in a very few days after the sale, and the purchaser appears 


Gove V. Colborn. 

to have given, before the filing of the bill, a mortgage of $3,000 
on the property, to raise purchase-money. The holders of that 
mortgage should have been parties to this suit. 

To consider the merits of the controversy as to the complain- 
ant's claim under the lease : The complainant advanced to Gove 
$3,100 between the 2d of September, 1878, and the 29th of 
January following. For this she has received only about four 
hundred and fifteen tons of ore, equivalent to about $1,600. In 
December, 1878, or January, 1879, Gove and Blackwell urged 
Mr. Colborn to advance more money, untruly representing that 
there were three thousand tons of ore rained and on the bank, 
while in fact there were less than fourteen hundred. He did not 
advance the money, however. He says the reason was that he 
heard of the encumbrances on the property, and was unwilling 
to make any more advances until some arrangement had beeii 
made as to them. About that time Colborn appears to have 
ascertained, for the first time, that the property was advertised 
for sale under foreclosure proceedings, and Clarke, to befriend 
the complainant by assisting her to hold the lease, and thus 
secure himself against loss for his advances of money to her (for 
she had obtained all the $3,100 from him), immediately set about 
obtaining control of the mortgages, and- got it accordingly. And 
he otherwise (by obtaining the instruments of confirmation) for- 
tified the complainant's title to the lease. It is urged that Mr. 
Colborn was well aware of the existence of the mortgages before 
the lease was made ; and in this connection, it may be added, it 
is also said that he or his attorney was at the same time told that 
the lease was legally of no binding efi*ect whatever. It is enough 
to say on both those points that if (and there is a contrariety of 
evidence on the subject) the complainant or her agent or attorney 
was, when the lease was made, apprised of tl>9 fact that there 
were encumbrances on the property, it is quite evident that they 
were led to suppose that they were in hands entirely friendly, 
and that no trouble or disturbance was to be apprehended from 
them ; and it is very improbable that the complainant would have 
advanced over $3,000, as she did, on a lease that she was in- 
formed, when she entered into it, was legally entirely worthless. 

10 Stew.] JUNE TERM, 1883. 825 

Gove V. Colborn. 

It is a significant lact, iu this latter connection, that the lease 
was drawn by Mr. Leport, the assignee, himself, who appears to 
have accompanied Gove as his counsel in the negotiation ; and, 
moreover, it may be added, the assignee in February, 1879, 
solemnly confirmed the lease. 

According to the evidence, the lease was not only not intended 
to !)e a fraud on Gove's creditors, but it was regarded, both by 
Oove and his assignee, as a legitimate means of enabling the 
former to pay oif, by means of the royalty, the claims of his 
creditors against him. Gove was at liberty, at his pleasure, to 
surrender the privilege of mining, but he did not do so. On the 
contrary, he proceeded with the work in October, 1879; and 
when, in December following, the complainant had found a pur- 
c'aaser for twelve tliousand tons of the ore, to be paid for in 
advance, in lots of one hundred tons each, Gove refused to 
deliver the ore or recognize the complainant's right to it. There 
is no evidence that the complainant intended to abandon the 
lease. The evidence adduced by Gove on the subject shows only 
a- desire on his own part to substitute, if ke could, a lease with 
Clarke as lessee foT the lease to the complainant. He did not 
take the steps necessary, under the lease, to put an end to it. If 
he was unwillins' to work under the agreement which it con- 
tained, he should have notified the complainant of the fact. He 
did not do so, but, as before stated, continued to work under it. 
The non-payment of the money due him nnder the agreement 
tlid not work a forfeiture of the lease ; nor could there be any 
for non-payment of royalty or failure to take out ore while he 
continued to work the mine under the agreement; for, by the 
terms of the agreement, there was to be no forfeiture for failure 
to pay royalty, or to mine less than five thousand tons a year 
during that time. Nor can the complainant, under the circum- 
stances, be defeated in her claim under the lease by the fact that 
the original assignee had no power, as assignee, to recogni;:e the 
lease. As before shown, the rights of the creditors under the 
assignment are not involved in this controversy, Clarke having 
acquired them all with the exception of two insignificant claims 
(the owners of which cannot be found), which can be perfectly 


O'Mara v. Nugent. 

protected consistently with the enforcement of equity between 
the real parties to the controversy, the complainant and Gove. 
There will be a decree in the one suit when all the necessary 
parties shall have been brought in, that the sheriff's sale be set 
aside, but on such terms as to protect the purchaser and his 
mortgagees, whose mortgage will be set aside with the setting 
aside of the sale. The $4,000 paid to the sheriff appear to be 
in his hands yet, and he still holds the check given to him by 
the purchaser for the balance of the purchase-money. There 
will be a decree in the other suit securing to the complainant the 
benefit of the lease. And Francis N. Gove will be decreed to 
pay the costs of each suit. 

Per Curiam. 

This decree unanimously affirmed. 

Mary S. O'Mara et al., appellants, 


Elizabeth Nugent, respondent, 

A husband and wife assigned policies of life insurance held by the wife on 
the life of her husband, to secure their assignee from loss as administrator of 
the husband's deceased partner, to whose estate the husband was largely in- 
debted. — Held, 

(!) That while snch an assignment was valid, yet as the administrator had 
released an endorser on the note which represented his or his intestate's claim 
against the husband, the wife was entitled to have the policies surrendered 
and transferred to her, although she had allowed the assignment to remain 
unquestioned for several years thereafter. 

(2) That the fact that the premiums on the policies had been paid by the 
husband out of his own funds, could not be raised by the defendants, because 
the pleadings liad not been framed su as to include that question. 

J/r. John W. Taylor, for appellants. 
Mr Fred. H. Teese, for respondent. 

10 Si-EW.] JUNE TER^r, 1883. 327 

O'Mara v. Nugent. 

On appeal from a decree advised by Vice Chancellor Bird, 
whose opinion is as follows : 

The bill in this case was filed to compel the surrender of two 
policies of insurance on the life of Christopher Nugent for the 
benefit of his wife. 

The policies were assigned to David O'Mara in his lifetime by 
C. Nugent and his wife, the complainant. The assignment is 
under seal, purports to be for a valuable consideration, and is 
absolute on its face. The bill alleges, however, that the real 
purpose of the assignment was to secure David O'Mara against 
any loss because of his becoming administrator of the estate of 
one Farrell — to which estate Nugent was largely indebted. The 
answer admits that the policies were assigned for such pur[)ose, 
but charges that they were also assigned for the further purpose 
of securing to said O'Mara a large amount due to him personally. 

To arrive at the truth, parol testimony became necessary. 

Christopher Nugent says that O'Mara asked him to have the 
assignment made to secure the money due the Farrell estate ; 
that he asked his wife to make the assignment for that purpose, 
and that it was assigned for that purpose and no other. He also 
says there was no subsequent arrangement respecting it. The 
complainant says they were assigned to secure the payment of 
the debt due from her husband to the Farrell estate, and for no 
other purpose. 

David O'Mara died soon after. His widow, Mary, adminis- 
tered upon his estate. According to her statements under oath, 
she had a very intimate knowledge of her husband's affairs. She 
says she knew of Nugent's liability to the Farrell estate, of 
which her husband was administrator, and of the liability of 
Nugent & Co. to her husband personally. She was thus inter- 
rogated : 

" Q. Have you auy personal knowledge of the purpose or object of that 
assignment ? 

''A. Any personal knowledge? 

"Q. Yes? 

" A. It was given for the Farrell estate." 


O'Mara v. Nugent. 
Then again, after many other questions : 

" Q. Do you know when your husband first got it? 

"A. At tlie time he was made administrator of the Farrell estate. 

" Q. You knew he had it ? 

"A. Yes, sir J I saw it several times. 

" Q. Do you know — I think I asked you whether you knew the object of 
that assignment ? 

" A. Of the policy ? 

"Q. Yes? 

" /I. For the Farrell estate? 

"Q. Solely? 

"A. No, sir. 

" Q. What do you know about it ? 

"A. I knew, at the time that Mr. O'Mara was made administrator of the 
Farrell estate, that Mr. Nugent owed Mr. O'Mara a great deal of money, at 
least to my knowledge at that time, $16,000 ; then when Mr. O'Mara took the 
position of administrator, in — he also knew that Mr. — he had these policies 
given him as security for this estate, and he really would have always felt that 
they were part security for the loan to him — money that was loaned to him." 

My mind is fully satisfied from this evidence that the assign- 
ment was not made for any other purpose than to secure the 
Farrell estate. This view is enforced by the consideration that 
the administrator changed the character or form of the indebted- 
ness. Although it is not clearly established, it was admitted 
that the Nugents and Farrell were in business as partners, and 
that the Nugents became liable to Farrell in the sum of $20,000. 
This is so when O'Mara undertakes the administration. Instead 
of running risks as administrator, he accepts of the notes of the 
Nugents, in all probability giving time. Well might he, as a 
prudent trustee, insist on further security. And when it is re- 
membered that the assignment was made at the same time, no 
reasonable doubt remains. 

It is not to be overlooked that the individual claim of O'Mara 
was of long standing, and had never been pressed for payment, 
and was not for years after the payment of the Farrell claim. 
But as I understand the testimony, what is most convincing is 
that at the time of the execution of this assignment Mr. Oscar 
Baldwin was endorser on the notes held by O'Mara against Nu- 
gent. It is reasonable, therefore, to suppose, as C. Nugent swears, 

10 Stew.] JUNE TERM, 1883. 329 

O'Mara v. Nugent. 

that O'Mara had all the security for that claim which he de- 

But should there be a mistake in this, and the parties really 
intended to secure the claims of O'Mara as well as the Farrell 
claim, then the complainant urges in bar the fifth section of the 
act respecting the rights of married women, which forbids them 
becoming surety or liable for the debt or default of afiy other 
person ; and also the fifteenth section, which declares that the 
rights and property of a married woman shall not be subject to 
the disposal of her husband, nor liable for his debts. 

However, the authorities all hold that a married woman may, 
with her husband, mortgage her lands to pay her debts or the 
debts of any other person, for which she is in no way liable. 
Merchant v. Thompson, 7 Stew. Eq. 73, and cases cited. 

Certainly, if she may assign an interest in lands as collateral 
security for the payment of the debts of another, she may her 
interest in a chattel, or chose in action. 

But this cannot avail the defendant, since I do not find that 
there was any assignment of these policies to secure the O'Mara 

Counsel for defendants does not rest his case on the assignment 
alone, but also on the fact that the policies were so long allowed 
fio remain with defendants. The Farrell claim was paid in 1875 ; 
David O'Mara died in 1876 ; and this bill was not filed until 
June, 1882. Since no consent to this whatever of Mrs. Nugent 
is satisfactorily shown, in my judgment, not the slightest presump- 
tion arises against her on this account. To create an obligation 
under a married woman under such circumstances, not only her 
knowledge of the purpose for which her property was adversely 
held, but her assent thereto, should be established. 

In addition to this, the defendants claim that, the premiums 
on these policies having all been paid by C. Nugent out of his 
own private funds, therefore to the extent of such payments they 
liave a just and equitable lien on these policies. I think the 
pleadings are not so framed as to embrace this claim. There is 
no cross-bill, nor any charge in the nature of a cross-bill, nor 
prayer for such equitable relief upon which a decree can be based. 


Long Dock Co. v. Bentley. 

Tlie answers of defendants allege that the premiums were all 
paid by C. Nugent, Here the defence is rested. Without pre 
senting such a case by the pleadings as would be sufficient, on 
original bill filed, for the court to grant a decree upon such facts 
as the counsel allege are sufficiently proved, would, I think, be 
highly inequitable and might work great injustice. 

But he who urges equity must do equity. If these policies 
were assigned so as to give O'Mara an equitable lien upon them, 
that lieo was lost not only when the time was extended for the 
paymeiit of the amount due, but also when Oscar Baldwin, as 
endorser, was released. These were such violations of the rights 
of Mrs. Nugent as the court must notice. See Brandt on Surety 
and Guaranty, §§ 21, S2. 

I will advise a decree for complainant. 

Pee Curiam. 

This decree unanimously affirmed for the reasons given by 
Vice-Chancellor Bird. 

The Long Dock Company, appellants, 


Marqaret E. Bentley, respondent. 

On appeal from a decree of the chancellor, whose opiniou is 
reported in Long Dock Co. v. Bentley, 9 Stew. Eq. 15. 

Messrs. C. & R. W. Parker, for appellants. 

Mr. A. Zabriskie, for respondent. 

Per Curiam. 

This decree unanimously affirmed for the reasons given by the 

10 Stew.] JUNE TERM, 1883. 331 

Lister v. Lister. 

Peter H. Beckmann et al, appellants, 


HoBOKEN Bank for Savings, respondent. 

On appeal from a decree of the chancellor, whose opinion is 
reported m Hohohen Bank for Savings v. Beokmann, 9 Stew. Eq. 

Mr. Randolph Parmly and Mr. Gilbert Collins, for appellants. 
Mr. Malcolm W. Niven, for respondent. 

Per Curiam. 

This decree unanimously reversed as to the amount of the 
consideration, and remitted to a master to ascertain tlie correct 

Edwin Lister, appellant, 


Hannah A. Lister, respondent. 

On appeal from a decree of the chancellor, whose opinion is 
reported in Lister v. Lister, 8 Stew. Eq. 4^. 

Mr. Wm. H. Francis and Mr. J. D. Bedle, for appellant. 

Mr. Wm. B. Guild, Jr., and Mr. C. Parker, for respondent. 

Per Curiam. 

This decree unanimously affirmed for the reasons given by the 







Theodore Rujstyon, Esq., Chancellor. 

Abraham Y. Van Fleet and John T. Bird, Esqs., Yice- 

ElCHARD A. Eoss 


Lewis T. Titsworth. 

1. in a suit by one partner against the other, for settlement of the partner- 
ship concerns, this court does not get such control of the assets as to enable it 
to prevent the firm's creditors from proceeding at law to judgment and execu- 
tion, and levy upon the assets, until after decree of dissolution providing for 
calling in the creditors, and some creditor has come in. 

2. Where judgment creditors had recovered their judgments against part- 
ners after the filing of a bill by one partner against the other for settlement of 
the affairs of the copartnership, and had issued execution thereon, before 
decree for dissolution and call for creditors, though after the appointment of a 
receiver, by consent —Se/d, that they were entitled to the benefit of their 



Koss V. Titsworth. 

3. To obtain relief here they must be made parties. Leave given. to them to 
apply to be let in. 

Bill for relief. On petition of judgment creditors. 

Mr. W. B. Maxson and Mr. H. C. Suydam, for petitioners. 

Mr. R. V. Lindabury, contra. 

The Chancellor. 

The complainant, by his bill, which is exhibited against his 
copartner, states that prior to June 1st, 1876, he was the sole 
owner of a certain planing-mill and sash and blind and mould- 
ing-factory at Bound Brook, with the necessary stock, machinery 
and fixtures for carrying on the business ; that about that time 
he entered into copartnership with the defendant in the busi- 
ness, the latter buying one-third of the stock, machinery and fix- 
tures, and to have one-third of the profits, the complainant to 
have two-thirds ; that the terms of the agreement were not re- 
duced to writing and there was no limit fixed to the du^ration of 
the partnership ; that the defendant was to pay $2,716.59 for his 
interest, but never paid more than $2,000 of that sum ; that the 
business was continued until April 1st, 1882, when the defend- 
ant abandoned it without making any settlement of the partner- 
ship affairs, and tiiat they have never since been settled, either 
wholly or in part ; that the business, while it was carried on by 
the firm, produced but a small profit, and on the whole was con- 
ducted at a great loss to both partners, but particularly to the 
complainant; that he lent large sums to the firm, some of which 
were never repaid, while the defendant never contributed any- 
thing, except in paying the $2,000 on account of the price of his 
interest in the property, and that on the 1st of April, 1882, there 
was due from the firm to the defendant about $173, and to the 
complainant about $900. The bill further states that on the 
last-mentioned day the value of the assets of the firm was 
$5,010.27, and the amount of the liabilities $7,073.93; that 
since that time the complainant has continued to carry on the 


Koss V. Titsworth. 

business, and has done so as well as he could ; that he has 
used all the proceeds for paying the debts, and has paid about 
$1,000 of the liabilities ; that the uncollected balance of the book 
accounts which the firna had at that date is nearly worthless ; 
that the stock is worth about $300 less than it was then ; that 
the book accounts since that time amount to about $800, and the 
bills payable, created since then, to about $700 ; that tiie defend- 
ant has refused and still refuses to make any settlement of the co- 
partnership matters or to do anything by which an adjustment 
can be obtained, and, on the other hand, seeks to prevent a settle- 
ment; that Isaac D. Titsworth, the defendant's father, and an- 
other creditor, have brought suits against the firm, which were 
pending when the bill was filed, and will soon obtain judgments, 
and that soon the partnership [)roperty will be sold under execu- 
tions at a great loss to the partners and the creditors of the firm. 
The bill furtiier states that more capital is needed to carry on 
the business; that the defendant has no property except his in- 
terest in the business, and is unable to advance any more capital 
and that the complainant is unwilling, if not unable, to advance 
any more, and is unwilling to continue in the business any 
longer the amount he has advanced beyond his share of the capi- 
tal ; that it is impracticable to go on with the business except at 
a great loss, and that in the present situation of affairs the busi- 
ness cannot be carried on. It prays for an answer without oath ; 
that an account may be taken of all the copartnership affairs ; 
that a receiver may be appointed to take charge of and settle all 
the copartnership matters under the direction of this court, and 
for general relief. 

The bill was filed January 9th, 1883, and on the 23d of that 
month a receiver was appoined with "full power to demand, sue 
for, collect and receive and take into his possession all the goods 
and chattels, rights and credits, moneys and effects, lands and 
tenements, books, papers, choses in action, bills, notes and prop- 
erty of every description belonging to the copartnership, and to 
take charge of and settle all of the copartnership matters, under 
the direction of this court, according to law and the practice of 
this court." Isaac D. Titsworth, the creditor above named, re- 


Koss V. Titsworth. 

covered judgment against the firm on the 29th of January, six 
days after the receiver was appointed, and issued execution 
thereon and levied on the partnership property. McNabb & 
Co., creditors of the firm, began suit against it on the 23d of 
December, 1882, and recovered judgment on the 26th of Janu- 
ary, 1883, on which judgment execution has been issued. 

Those creditors ask that their judgments may be paid out of 
the property in the receiver's hands. The application is resisted 
on the ground that in view of the appointment of the receiver 
they are not entitled to any priority over the other creditors of 
the firm. They were diligent creditors, pursuing their lawful 
remedy for the recovery of their debts when the bill was filed. 
If they are to lose the benefit of their diligence it must be be- 
cause the other creditors who have not sued have obtained an 
interest in the assets which forbids, and that can only be true on 
the ground that this court has assumed an administration of the 
affairs of this concern, which ensures a just and equitable appli- 
cation of its assets to the payment of its debts. If the proceed- 
ings under consideration — this suit — were, from the moment the 
receiver was appointed, beyond the control of the parties to them^ 
at least so far as that the parties could not discontinue them with- 
out the consent of all the creditors, such a distribution would be 
insured. But the suit is at this moment, and has been ever since 
it was begun, under the control of the parties — the two copart- 
ners. If they agree to discoutinue the suit and discharge the re- 
ceiver, whether in order to go on with the business, or for any 
other reason, or merely at will, can this court refuse to grant the 
order of discontinuance or dismissal? It surely cannot. How, 
then, can any distribution of the assets be ensured at this stage 
of the proceedings? Has this court obtained such a hold of the 
assets as places them beyond the reach of the parties? Have the 
parties lost all control of the property, so that henceforth it must 
be administered here, and the partnership affairs settled here, 
without regard to the wishes of the partners ? 

The bill prays no dissolution. It does not expressly allege 
insolvency, though it shows it. When the proceedings in such a 
suit have gone to the extent of an order of this court that the 

10 Stew.] OCTOBER TERM, 1883. 337 

Koss V. Titsworth. 

assets be distributed among the creditors, and the creditors have 
been called in, and any of them have come in, the parties to the 
suit have lost their absolute control, and the creditors who have 
come in have acquired an interest in the proceeding which will 
prevent a discontinuance without their consent. But it is most 
obvious that before that time the parties will not have lost their 
control of the suit. Such a suit is unlike one brought under the 
statute in insolvency against a corporation. Under that statute 
the court proceeds against the corporation to wind up its affairs 
and distribute its assets. If the court is satisfied that the com- 
])any is within the provision of the statute as to insolvency &c., 
it will enjoin it from exercising its privileges or franchises, and 
fiom collecting or receiving its debts and from disposing of its 
property. That proceeding is of the nature of a bankruptcy 
proceeding, and the complainant or petitioner therein has no 
control of it after the court has entered on the administration of 
the assets. But such suits as this are suits between individuals 
in regard to the settlement of their own affairs, and though there 
may come a time in them when the creditors will have such an 
interest in the proceedings that the court will not permit the 
])arties to discontinue, but will administer the assets, it is clear 
that until that time it ought to favor and not restrain the dili- 
gent creditor. Until the time comes when this court has control 
of the proceedings as against the parties to them, so that it may 
disregard their wishes as to the withdrawal or discontinuance of 
the proceedings and deny them control over the assets, it lias not 
the requisite jurisdiction to forbid the creditors from acquiring 
liens by virtue of legal proceedings. Until there is a decree of 
dissolution, providing for calling in the creditors and ascertain- 
ing their demands, and some creditor has come in, the proceed- 
ings are within the control of the parties, and until tiien the 
creditors of the firm may proceed at law to acquire liens upon 
the property for their debts. After the decree of dissolution 
they may be enjoined, because then the court has provided a 
mode of collecting their claims. This view of the subject was 
taken in Waring v. Robinson, Hoffm. Ch. 5'2Jp, a well-considered 
case. And so, too, in Adams v. Hackett, 7 Cal. 187. See, also, 



Eoss V. Titsworth. 

Aclanis v. Woods, 8 Col. 152 ; Adams v. Woods, 9 Cal. S4-; and 
EUicott V. U. S. Ins. Co., 7 Gill 358. In Holmes y. 3IcDoivell, 
15 Hun 585 (affirmed 76 N. Y. 596, on the jirevailiug opinion 
of the court below), a contrary doctrine was held by the majority 
of the court, but the dissenting opinion of Learned, P. J., pre- 
sented what seems to me to be the true view. In the opinion of the 
majority of the court, stress is laid on the fact that the parties 
had come into court to distribute the assets among the creditors, 
and that action on their part was regarded as equivalent to an 
assignmpnt for the equal benefit of the creditors. But that 
view cannot be maintained, for an assignment for the equal benefit 
of creditors is irrevocable, while the proceeding in equity is, as 
before stated, up to the time when the court has called in the 
creditors, and some creditor has come in, revocable. 

It is suggested that this court favors proceedings here for the 
distribution of the assets of partnerships, because it can secure 
equality in the administration of the property. But the maxim 
"equality is equity," is not applied in the administration of the 
assets of partnerships to deprive a diligent creditor of the lien he 
has lawfully acquired before the court has undertaken the dis- 
tribution. A creditor at-large of a partnership cannot maintain 
a suit even to restrain an execution creditor of a member of the 
firm from enforcing his legal remedy against the partnership 
property. Young v. Frier, 1 Stock. 4-^5 ; Mitlnight v. Smith, 2 
C. E. Gr. 259. The parties to such a suit as this may, up to a 
certain period in its progress, dismiss it and give preferences, and 
the court cannot prevent it. 

In the case in hand the order appointing the receiver was made 
by consent. It empowered him, indeed, to take into his posses- 
sion the assets, and to take charge of and settle all of the copart- 
nership matters under the direction of the court, according to law 
and the practice of the court; but there was no decree of disso- 
lution nor of insolvency, nor any direction to call in the cred- 
itors, and when the judgments in question were recovered there 
had been no further proceedings in the cause, nor had any credi- 
tor come in. Did this court, by that order, obtain such control 
of the assets that it could have denied the application of the 

10 Stew.] OCTOBER TERM, 1883. 339 

Kinney v. Emery. 

parties to dismiss the bill and discharge the receiver the next day- 
after it was made? Clearly, it did not. Nor could it, indeed, 
deny such an application if made now. 

The answers to the petitions state that after the making of the 
order appointing the receiver, the partners, by bill of sale, trans- 
ferred the partnershij) property to him, "in consideration of his 
appointment and in furtherance of the trust." That fact does 
not affect the decision of the question. The receiver's title under 
the voluntary bill of sale is not valid as against these judgment 
creditors, unless it be because it was created in aid of the re- 
ceivership, and that transfer would not prevent the parties from 
putting an end to this suit by dismissing the bill. 

I have thus considered the merits of these applications, without 
regard to the irregularity of the proceedings, because no objec- 
tion was made on that ground, and it was deemed desirable that 
the question should be decided, with as little delay as practicable on 
its merits, as presented on the petitions and answers and the bill. 
The petitioners are not parties to this suit, and it is settled prac- 
tice that no motion can be made in a cause by one who is not 
a party to it, except tliat he be made a party. Linn v. Wheelei^, 
6 C E. Gr. 231. These creditors may be made parties, and 
thereupon the relief prayed, or other appropriate relief to the 
same end, will be accorded to them. 

RoBERTHA S. Kinney et al. 


Emery and Stewart. 

The fact that a subpoena ad respondendum is returnable on a legal holiday is 
not ground for setting it aside. 

Motion to quash subpoena ad respondendum 


Kinney v. Emery. 
Mr. H. A. Fluck and Mr. J. A. Bullock, for the motion. 

Mr. W. A. Cotter, contra. 

The Chancellor. 

The subpoena to answer was made returnable on the 30th of 
May, which is one of tlie legal holidays on which it is provided 

Note. — Courts will notice, judicially, Christmas and other holidays, Brough 
V. Parkings, Ld. Raym. 993 ; Sasscer v. Farmers Bank, 4 Md. 409 ; Ellis v. 
Reddin, 12 Kan. 306; Rice v. Mead, 22 How. Pr. 445; State v. Minnick, 15 
Iowa 123 ; Hanson v. Spackellon, 4 Dowl. 4^ ; see Swindle v: Poore, 59 Oa. 336 ; 
Chrisman v. Tuttle, 59 Ind. 155. 

Ministerial and even judicial proceedings which would be invalid on Sun- 
day may be lawfully done on a holiday. At common law the issuing of process 
on Sunday was not illegal, Clough v. Shepherd, 31 N. H. 490 ; Johnson v. Day, 
17 Pick. 106 ; nor in the ecclesiastical courts, Alancon v. Brookbank, Carth. 504; 
and process may not be tested on Sunday, Helm v. Rodgers, 5 Humph. 105 ; 
Haines v. McOormick, 5 Ark. 663 ; Van Vechten v. Paddock, 12 Johns. 178 ; see 
Hibemia Bank v. 0' Grady, 47 Cal. 579 ; Langabier v. Fairbury R. R., 64 III. 243 ; 
nor notices, Sloan v. Williford, 3 Ired. 307; see Taylor v. Thomas, 1 Gr. Ch. 106 ; 
Haynes v. Sledge, 2 Porter 530; Carlisle Bank v. Rheem, 10 Phila. 462, 76 Pa. 
St. 132 ; nor orders, Coleman v. Henderson, Liit. Sel. Cas. 171 ; but a writ of 
error will not be quMshed because is^^ued on Christmas, Starke v. Marshall, 3 Ala. 
44; see Dean v. Jackson, 5 Low. Can. 164; Stale v. Calijonua Co., 13 Net:. 
203 ; nor a justice's summons, because issued on Washington's birthday, 
Smith V. Bding, 47 Mich. 6I4. 

An officer is not obliged to receive process tendered on Sunday, Fentress v. 
Broxm, Phil. {N. C.) 375; Whitney v. Butlerfield, 13 Cal. 335; see Samuel v. 
Buller, 1 Exch. 439 ; nor instructions as to executing il, Stern's Appeal, 64 Pa. 

St. 447. 

Ordinary writs or notices cannot be served on Sunday, Mclleham v. Smith, 
8 T. R. 86; Hughes v. Badd, 4 Jur. 150; Shaw v. Dodge, 5 N. H 462; 
Anderson V. Birce, 3 Mich. 280 ; Field x. Park, 20 Johns. I40 ; Chesapeake & 
.0. Co. V. Bradley, 4 Oranch C. C. 193; Cavendish v. Wethersfield Co., 2 Vt. 531; 
Rob V. MoffxM, 3 Johns. 257; Mackreth v. Nicholson, 19 Ves. 367; Rrg. v. 
Middlesex, 11 Jur. 434; see O'Leary v. Cavanagh, Hny. & Jon. 373 ; Baxley v. 
Bennett, 33 Gn. I46 ; Staplelon v. Reynolds, 5 Ain. Law Rec. 242 ; Deblieux v. 
Bullard, 1 Rob. (La.) 66 ; nor published, Chicago v. Vulcan Iron Works, 93 111. 
222; People v. McCain, 51 Cal. 360 ; Scammon v. Chicago, 40 III. 146; Case v. 
Fowler, 65 Ind. 29 ; Excelsior Ins. Co. Case, 16 Abb. Pr. 8 ; Shaw v. Williams, 
16 Cent. L. J. 375, and note; Kellogg v. Carrico, 47 Mo. 157 ; see McVerry v. 
Boyd, 57 Cal. 4O6 ; a notice to quit may be served on Sunday, Sangster v. Nny, 
16 L. T. [N. S.) 157 ; can a capias returnable on Sunday be executed on Satur- 
day? see Loveridge v. Piaistow, 2 H. Bl.'29; Case v. Fowler, 65 Ind. 29 ; and 

10 Stew.] OCTOBER TERM, 1883. 341 

Kinney v. Emery. 

by law, '' no court shall be held except in the cases where," at the 
passage of the act, " it would sit on the first day of the week." 
Rev. p. 4^1. The defendants now move to quash the writ on the 
ground that it was returnable on that day. No action of any 
kind is required of a defendant in a subpoena on the return-day 
of the writ. He is not required to appear or enter an appearance 
then. On the contrary, he is informed by the note at the bottom 

Sunday is not a holiday wliereon, in an emergency, process may be served, 
Moore v. Hagan, 2 Duv. 437 ; see Swinney v. Johnson, IS Ai/c. 534; Phillips v. 
Junes, 4 CI. & Fin. 246. 

Delivery of process by post on Sunday is not service, iJejr. v, Leominster, 2 
B. & S. 391 ; see Central Bank v. Alden, 41 How. Fr. 102. Process cannot be 
served on Thanksgiving, Gladwin v. Lewis, 6 Conn. 49 ; it may be served on 
the Fourth of July, Horn v. Ferry, 11 W. Va. 694; or a deposition be taken, 
Ptogers v. Brooks, 30 Ark. 612 ; and a notice to a sheriff for failing to return 
an execution may be served on election day, Stephens v. Hume, 1 Lilt. G ; or a 
Judicial sale held. King v. Piatt, 37 N. Y. 155 ; and a subpoena and injunction 
served, Wheeler v. Bartlett, 1 Edw. Ch. 323; see Meeks v. Noxon, 1 Abb. Fr. 
280 ; Fierce v. Smith, 2 Abb. Fr. 411 ; an attachment may be served on Christ- 
mas, L-ish v. Wright, S Bob. {La.) 428. 

An execution cannot be levied on Sunday, Feirce v. Hill, 9 Porter 151 ; 
Bland y. Whitfield, 1 Jones 122; Fox v. Abel, 2 Conn. 541; see Perciral v. 
Slump, 9 Exch. 167 ; nor an inquiry executed, Hoyle v. Comwallis, 1 Stra. 
-387 ; Butler v. Kelsey, 15 Johns. 177 ; nor a sequestration, Foy v. Harper, 3 
La. An. 275 ; nor a distress, Mayfield v. White, 1 Browne {Pa.) 241 ; nor an 
attachment for contempt, Cecil v. Nottingham, 12 Mod. 34S. See Walsh v. Jor- 
dan, Sm. & Bat. 433. 

A writ cannot be returnable or returned on Sunday, Swan v. Broome, 3 Burr. 
1595; Prime v. Mason, 11 Mod. 120; Feck v. Car ell, 16 Mich. 9; Gould y. 
Spencer, 5 Paige 541 ; Arctic Fire Ins. Co. v. Hicks, 7 Abb. Fr. 204 ; Harvey v. 
Brood, 6 Mod. 148 ; but is amendable, Boyd v. Vanderkemp, 1 Barb. Ch. 273 ; 
nor will*a false return on Monday avail. Smith v. Noe, SO Ind. 117 ; nor can 
objections be made to an assessment taken on Saturday under a notice to be 
heard on Sunday, Louden v. East Saginaw, 41 Mich. 18 ; Burton v. Chicago, 
53 III. 87 ; Case v. Fowler, 65 Ind. 29 ; nor a foreclosure sale be held, Sayles 
V. Smith, 12 Wend. 57 ; a sale falling on Thanksgiving, which was designated 
after the sale had been advertised, may be adjourned on Thanksgiving to a 
subsequent day. White v. Zust, 1 Slew. Eg. 107 ; an administrator's account 
cannot be settled, McRee v. McRee, 34 Ala. 165 ; a poor debtor cannot be dis- 
charged on Fast Day, Estes v. Mitchell, 14 Allen 156 ; but costs may be taxed 
in a British province on Good Friday, Gillmore v. Gilbert, 2 Allen {N. B.) 50. 

Sunday laid under a videlicet in pleading, although judicially noticed, is not 
material unless exception be taken, Dawkins v. Smithwick, 4 Fla. 158; see 
Soyle y. Comwallis, 1 Stra. 387 ; so if by error a creditor's bill allege that his 


Kinney v. Emery, 

of the writ that notliing is required of him at that time. By the 
act respcctiug the court of chancery it is provided that to every 
subpoena ad respondendum a notice shall be added that the 
defcndaut is not required to appear at Trenton in person, at the 
return-day, but if he intend to make a defence it is only neces- 
sary for him to answer, plead or demur to the bill within the 
time required by law. Eev. p. 105 § 8. This direction is exactly 

judgment was recovered on Sunday, it may be amended, Ayres v. Valentine, 2 
Edw. Ch. 4^^ ; and so may an incorrect copy of a summons that is tested on 
Sundiiy, Coirall v. Foulkes, 5 D. & L. 590 ; or a misentry in a justice's judg- 
ment, York V. Ackerman, Pen. *900 ; and in an action on a note dated on Sun- 
day, it is competent to allege and prove tliat it was in fact executed and de- 
livered on a different day, Aldridge v. Bank, 17 Ala. 45 ; Finney v. Callendar, 8 
Minn. 41 ; Kepner v. Keefer, 6 Watts 231 ; Ray v. Catlett, 12 B. Mon. 536. A 
pleading may be filed on the following day if the last day for filing it falls on 
a lioiiduy, as Christmas, Feuchtwanger v. McCool, 2 Stew. Eq. 151 ; or New- 
Years, Catherwood v. Shepard, SO La. Ann. 677 ; see Siegbert v. Stiles, 39 Wis. 
533 ; or the last day for obtaining an appeal, Garland v. Holmes, 12 Rob. {La.) 
421 ; see Cooney v. Burt, 123 Mass. 579 ; Ooswiler's Estate, 2 P. & W. {Pa.) 
200 ; Buckdaff v. Hanville, U Wis. 77; Russell v. Pickering, 17 111. 31; Dodges 
Case, 7 Cow. 14^; People v. Luther, 1 Wend. 42. 

The time for pleading expired on May 25th ; the queen's birthday fell on 
the 24th (which was Sunday), and was kept on the 25th, and all the offices 
were closed. A judgment signed on the 26th on the opening of the offices, 
was held good, Wilkinson v. Brilton, 1 Scott N. R. 348, 1 Mann. & Gr. 557; 
see Asmole v. Goodwin, 2 Salk. 624; Wheeler v. Green, 7 Bowl. 194; Catherwood 
y. Shepard, SO La. Ann. 677 ; a warrant of arrest in a civil case cannot be 
issued and served on Sunday, Moore v. Hogan, 2 Duv. 437. Bail above may 
be put in on the Feast of the Purification, Baddely v. Adams, 5 T. R. 170 ; 
Bee Broome v. Wellington, 1 Sandf.G64; and if a rule to plead expires on that 
day, the defendant is bound to plead on or before that day, Mesure v. Britten, 
S H. Bl. 616 ; see Cock v. Bunn, 6 Johns. 326 ; but a judgment fortvant of 
a plea cannot be signed, Harrison v. Smith, 9 B. & C. 243 ; nor on Washing- 
ton's Birthday, Hemmens v. Bentley, 32 Mich. 89. 

An adjournment to take depositions the next day cannot be made on San- 
day, Kirkpatrick v. Bait. & 0. R. R., 3 Cent. L. J. 792; but it seems the exami- 
nation would have stood over without an adjournment, Cheeseborough v. Van 
Ness, 12 Ga. 380 ; see Speiddl v. Fash, 1 Cow. 234; depositions taken on a 
holiday, against objection, are invalid, Wilson v. Bayley, IS Vr. 134. 

Whether an affidavit, which appears by the jurat to have been sworn in 
court on Sunday, is void, Williamson v. Roe, 3 D. & L. 328. 

Thanksgiving is not to be excluded from the forty-eight hours within which 
a defendant must make his challenges, after having been served with the panel, 
of jurors, State v. Green, 66 Mo. 631. See Franklin v. Holden, 7 R. I. 215. 

10 Stew.] OCTOBER TERM, 1883. 343 

Kinney v. Emery. 

in accordance with the practice as it existed when the act was 
passed. Of course if the defendant does not intend to make 
defence, the fact that the return-day of the subpoena is a legal 
holiday, on which the court cannot sit, cannot be of the slightest 
importance or concern to him. And if he does, the fact can do 
him no wrong in any way. To hold the writ in this case valid 
is not violative even of the terms of the act. The act provides 

A clerk may file the transcript of a judgment on Christmas, and the credit- 
or's lien acquired thereby is valid, Worthington's Case, 7 4oo, reversing 
S. C, 3 Cent. L. J. 526 ; but a cause cannot be tried and judgment rendered 
on February 22d, Lampe v. Manniny, 38 Wis 673; see Perkins v. Jones, 28 
Wis. 243 ; although a criminal was, against his protest, tried on New Years, 
Duvlap V. State, 9 Tex. Ct. App. 179 ; Pender v. State, 12 Tex. Ct. App. 496; 
see State v. McGinisey, 80 N. C. 377 ; Society v. Commonwealth, 52 Pa. St. 125 ; 
People V. Lightner, 49 Cal. 226 ; Bass v. Irvin, 49 Ga. 436 ; Chapman v. State, 
5 BlackJ. Ill ; Jones v. Johnson, 61 Ind. 257. 

A confession of judgment and praecipe for a fi.ja. handed to a prothonotary 
OH Sunday, who entered the judgment and issued the execution the next day, 
was held valid, Kauffman's Appeul, 70 Pa. St. 261 ■ and a judgment confessed 
on a warrant which is dated on Sunday, Baker v. Lukens, 35 Pa. St. I46 ; and 
a replevin bond executed on Sunday, but not delivered until Monday, is valid, 
Prather v. Harlan, 6 Bush 187. 

Where there is conflicting evidence whether a judgment was actually ren- 
dered on Sunday or not, it will be sustained. Bishop v. Carter, 29 Iowa 165. 

As to other acts on holidays, see Hagerty v. Engle, I4 Vr. 299 ; Commer- 
cial Ins. Co. V. Union Ins. Co., 19 How. 320 ; State v. Schnierle, 5 Rich. 299. 

The Fourth of July is a holiday, Svdnney v. Johnson, 18 Ark. 534 / Munro 
V. Allaire, 2 Caines 183 ; Cuyler v. Stevens, 4 Wend. 566 ; see Ruge v. State, 62 
Ind. 388 ; and Christmas, Reithmiller v. People, 44 Mich. 280; Tassell v. 
Lewis, 1 Ld. liaym. 743. 

As to Commencement, see City Bank v. Cutter, 3 Pick. 414; and Saturday 
for a Jew, Undo v. Unsworth, 2 Camp. 602 ; Isaacs v. Beth Hamedash Soc, 1 
Hilt. 469; Stansbury v. Marks, 2 Dali. 213; Simon v. Gratz, 2 P. & W. {Pa.) 
412; Society v. Com., 52 Pa. St. 125; Marks v. Wilson, 11 Abb. Pr. 87. 

Whether holidays are, by usage, included in contracts &c., Reg. v. Stoke, 5 
A. & E. {N. S.) 303 ; Cochran v. Relberg, 3 Esp. 121 ; School District v. Gage, 
S9 Mich. 484; Hosky v. Black, 28 N. Y. 438; Brooks v. Minturn, 1 Cal. 481; 
Rigney v. White, 4 Daly 4OO. 

Exceptions to judicial proceedings on Sunday may be waived, Venable v. 
Baptist Church, 25 Kan. 177 ; Comer v. Jackson, 50 Ala. 384 ; Wright v. Jef- 
frey, 5 Cow. 15 ; Grider v. Apperson, 38 Ark. 388 ; Pierce v. Rehfuss, 35 Mich. 
53 ; Roberts v. Bower, 5 Hun 558 ; see Hanson v. Shackelton, 4 Dowl. 48 ; Van- 
derpool v. Wright, 1 Cow. 209 ; Taylor v. Phillips, 3 East 155; Louden v. East 
Saginaw, 4I Mich. 18. — Rep. 


Lambert v. Miller. 

that the court sliall uot be held on the holiday, but it is not nec- 
essary to make a subpoena to answer returnable on some day on 
which court is held. The chancery act provides that the court 
shall be considered always open for the return of such writs. 
Hev. p. 104- § o. The motion is denied, but without costs. 

Geeshom Lambert et al. 


Luther L. Miller et al. 

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

Motion for rehearing. 

Mr. L. H. Sergeant and Mr. C. A. SJcillman, for the motion. 

Mr. F. C. Lowthorp, Jr., contra. 

The Chancellor. 

This matter comes before me on an application for a rehearing 
of an order signed on an advisory certificate, appointing a 
receiver to take into his possession and sell for the benefit of the 
complainants' judgment creditors and the defendant Mrs. Miller, 
prior mortgagee thereof, the goods and chattels levied upon 
under executions on the judgments. The bill was filed to set 
asi-de the mortgage on the ground of fraud. The findings are 
that the allegations of fraud in the bill have all been fully met 
and that as the case stands the mortgagee is entitled to her 
money out of the mortgaged property, but that the interests of 
the complainants should be protected in equity so far as to 
restrain the mortgagee's trustee, tp whom the mortgage was 

10 Stew.] OCTOBER TERM, 18S3. 345 

Thompson v. Behrmann. 

made, from selling, and provide for making the sale under the 
direction of this court, because the property can be more advan- 
tageously sold by a receiver than it probably will be by the 
trustee, who is proceeding to sell on advertisement without suit 
for foreclosure. It is admitted that he is proceeding legally. 
The allegations of fraud being disposed of, the case on the find- 
ings presents the simple question whether the court will assume 
the sale of property for the payment of creditors or others having 
legal liens thereon, upon the sole ground that a sale can be made 
here more advantageously for all parties as to price than it can 
be at law. This court has no jurisdiction to interfere with legal 
proceedings on that ground alone. If it had, obviously almost 
every judicial proposed sale might be stayed in equity. The com- 
plainants' remedy in this case is to redeem the mortgage. The 
order in question will be vacated, with costs. 

John Thompson et al. 


Henry Behrmann. 

A preliminary injunction restraining the proprietor of a shooting-gallery from 
so using it or permitting it to be used as to annoy the neighbors with the noise 
and smoke of the shooting was granted on order to show cause, it appearing 
that it was a nuisance at the time of filing the bill, though the evidence was 
conflicting whether it was so or not at the time of hearing the order to show 

Bill for injunction. On order to show cause and depositions 
taken thereunder. 

Mr. Z. M. Ward, for complainants. 

Mr. J. W. Griggs, for defendant. 


Thompson v. Behrmann. 

Thi? Chancellor. 

Each of the two complainants is the owner of a dwelling-house 
in Paterson, in which he resides with his family. The defend- 
ant has a rifle range, established in June last, on a lot laterally 
adjoining the property of Thompson, one of the complainants^ 
and about forty feet from the lot of Heinrich, the other. There 
is a store in each of those dwelling-houses. The bill states that 
for the period of two months past the defendant has, for hire, 
permitted large numbers of persons to shoot in the range, and 
has, almost continuously during that time, allowed the shooting 
to be kept up until late at night; that the complainants and 
their families, and the tenants of Thompson, are and have been 
greatly annoyed and disturbed by the noise of the shooting in the 
range ; that Thom|)Son and his family and tenants have been 
awakened from their sleep and kept awake by it at night, and 
are and have been so annoyed by the smoke from the powder^ 
tiiat they are atid have been compelled to keep their windows 
shut in order to exclude it, and that Heinrich's children have 
been awakened and kept awake by the noise of the shooting. 

The defendant, by ii is answer, denies that the shooting in the 
range is a nuisance, and alleges that since the 8th of August last 
(the bill wag filed on the 25th of that month), he has used no 
rifle there but one of small calibre and adapted to and made ex- 
pressly for rifle galleries in cities. He admits that he keeps the 
range open until eleven o'clock on Saturday nights and until teji 

Note. — As to nuisances caused by noise &c., see Demarest v. Hardham, 7 
Slew. Eq. 470, note; Wood on Nuisances ch. XVL; 15 Alb. L. J. 2^5 ; Belle- 
monl Co. V. Fifth Baptist Church, 27 Alb. L. J. 4^8 ; Poole v. Coleman, 8 Daly 
113; Broder v. Sailiard, L. B. (2 Ch. Div.) 692 ; Campbell v. Seaman, 63 N. 
Y. 568 ; Penna. Lead Co.'s Appeal, 96 Pa. St. 116 ; Sturges v. Bridgman, L. R. 
(11 Ch. Div.) 852; Davis v. Sawyer, 133 3fass. 289. 

Making a public speech in a street is not, per se, a nuisance, Fairbanks v. 
Kerr, 70 Pa. St. 86 ; but collecting a crowd of noisy and disorderly people by 
entertainments of music and fireworks is a nuisance. Walker v. Brewster, L. 
R. [5 Eq.) 25 ; Rex v. Monre, 3 B. & Ad. 184; or the shouting and music 
from a circus, Inchbald v. Robinson, L. R. (4 Ch. App.) 388. 

As to noise and annoyunce caused by rifle practice authorized by statute for 
military purposes, see Hawlcy v. Steele, L. R. [6 Ch. Div.) 521. See, further, 
22 Am. Law Reg. {Oct., 1883) a?.5.— Rep. 

10 Stew.] OCTOBER TERM, 1883. 347 

Detwiller v. Hartman. 

on other week-day nights. He was notified on behalf of the com- 
plainaats on the 11th of August that the shooting was a great 
annoyance to them, and was requested to put a stop to it. He 
paid no attention to the notice. I am satisfied from a careful 
examination of the evidence that when the bill was filed and the 
order to show cause served, the shooting in the range was a nui- 
sance, not only to the complainants, but to other persons residing 
in the neighborhood, and that it was one of such a character as 
to warrant the application to this court. Since that time it ap- 
pears that there has been much less annoyance. The defendant 
insists that there is none at all. Perhaps the shooting can be so 
coiulucted as not to annoy the neighbors. There is a conflict of 
testimony as to whether it is so conducted now. Being satisfied 
that there was ground for an injunction when the bill was filed, 
it is my duty, under the circumstances, to grant the writ. The 
defendant has not stopped the shooting, but is now using a rifle 
of smaller calibre. Had he ceased altogether there would have 
been no need of an injunction, but he has not, and he may again 
conduct the business in such a way as (o be a nuisance, if he 
does not do so now. The complainants have a right to protec- 
tion. There will, therefore, be an injunction restraining the de- 
fendant from so using the shooting-gallery or rifle range, or per- 
mitting it to be used, as in any way to annoy the corajjlainants 
or their families, or tenants occupying their respective premises, 
by the noise of the shooting or the smoke therefrom. 

John J. Detwiller, executor &c., 
David Hartman et al. 

1. A trust to buy a burial plot, and erect tliereon a monument to the testa- 
tor's memory, to cost not more than $50,000 and not kss than |i4t>,000, and a 
fence to protect the monument, is valid. A tes-tator has a right to provide for 


Detwiller v. Hartman. 

such tilings by his will, and the exercise of the right cannot be denied or 
abridged by the consideration of the inappropriateness of the provision, 
whether in view of the amount of his property or his station in life. 

2. A gift of a fund to keep, with the interest, testator's " family monument 
and burial place" in repair, not being a charity, is void for perpetuity, and so 
also is a gift of a fund to equip and maintain, with the interest forever, a brass 
band, to be called by testator's name, which was directed to march to his 
grave on the recurring anniversary of his death, as well as on holidays " and 
other proper occasions," and there play a funeral march and other appropriate 

3. The question whether a will was duly executed, is not within the juris- 
diction of this court. 

4. A gift by a codicil is not, without words showing such intention, entitled 
to preference over other gifts in the will, and it will therefore abate propor- 
tionately in case of deficiency. 

5. Lands expressly directed to be sold by a testator in order that the pro- 
ceeds may be used to pay legacies or carry out objects provided for by the 
will, need not be sold if the proceeds are not needed to carry out the purposes 
of the will. 

6. After bequeathing certain gifts and funds in trust to designated pereons, 
the testator provided that his surplus estate should be divided among them 
equally ; and there was no other residuary provision. Some of the gifts were 
void. — Held, that the estate being insufficient to pay all the legacies and raise 
the trust funds, there was no surplus within the meaning of the provision, and 
that the testator died intestate as to the amount of the unlawful trust funds. 

Bill for construction of will. On final hearing on pleadings. 

Mr. J. M. Robeson and Mr. H. J. Reeder, of Penna., for com- 

Mr. J. G. Shipman, for Elizabeth Hamlin. 

Mr. F. C. Lowthorp, Jr., for David Hartman and others. 

The Chancellor. 

Wilson J. H. Bruch, of Easton, Pennsylvania, died in May, 
1880, leaving a will dated in June, 1878. By the will, after 
dii-ecting payment of his debts and funeral expenses, he devi-sed 
and bequeathed all his property, real and personal, to his execu- 
tor, John J. Detwiller, the complainant, on the following trusts: 

10 Stew.] OCTOBER TERM, 1883. M9 

Detwiller v. Hartman. 

To pay certain relatives named in the will certain specified sums 
of money (amounting in the aggregate to $13,100) and $1,000 to 
any relation or relations equally near to him by blood with them, 
whom he might not have remembered ; and if none, then the 
$1,000 to be divided in equal shares among the legatees pre- 
viously named, or the survivors of them ; to permit Mary Russel 
to occupy and possess and receive the rents, issues and profits of 
the undivided half of a certain house and lot in Phillipsburg, for 
1 ife ; the undivided half of the property to be sold after her decease, 
and the proceeds of the sale to be added to what the testator calls 
the cemetery fund, to purchase a burial plot of ground one 
hundred feet square in the Easton cemetery, and cause to be 
erected thereon a granite monument, the cost not to exceed $50,- 
000, nor less than $40,000 ; the plan and style of the monument 
to be in accordance with directions which he intended to leave or 
deposit with his executor if his life and health should permit j 
but if he should leave none, he directed the executur to call to 
his aid some competent architect to act in connection with the 
executor, and a friend of the testator's whom he names, and who 
is still living, and to whom he says he has made known his 
wishes and plans ; the monument to be built according to the 
plan and in the style they three may adopt. And he orders the 
executor to cause to be erected a substantial iron fence around 

Note. — Whether a bequest for a monument to the testator is valid, see 
Oilmer v. Gilmer, 42 Ala. 9 ; Emans v. Hickman, 12 Hun 4^5 ; Frazer's Case, 
92 N. Y. 239 ; Luckej/s Estate, 4 Redf. 95. See Wilson v. Staats, 6 Stew. Eq. 
528, note; Laird v. Arnold, 25 Hun 4; Menzies v. Ridley, 2 Grant's Ch. 544- 

The court will not, on their petition and before auditing their accounts, 
order executors to erect a monument to their testator, although so directed by 
him. Hirst's Estate (Pa.), 12 W. N. C. 323. 

That a gift to keep a monument or tomb in repair is void, see Thompson v. 
Pitcher, 3 M. & S. 643, 6 Taunt. 359, 369 ; Fowler v. Fowler, 33 Beav. 616; 
Dawson v. Small, L. R. {18 Eq.) 114; Hunter v. Bullock, L. R. (14 Eq.) 45 ; 
Birkett's Case, L. R. [9 Ch. Div.) 576 ; Hornberger v. Hornberger, 12 Hei.'^k. 
635; Piper v. Moulton, 72 Me. 155; Bates v. Bates {Mass.), 27 Alb. L. J. 243 ; 
also Gravenor v. Hallum, Amb. 643; Durrour v. Motteaux, 1 Ves., Sr. 320 ; 
Willis V. Brown, 2 Jur. 987 ; Lloyd v. Lloyd, 2 Sim. {N. S.) 255; Swasey v. 
Amer. Bible Soc., 57 Me. 527 ; Jones v. Habersham, 3 Woods 443, 470, Bradley, 
J.; 27 Alb. L. J. 294 {U. S. S. C), Gray, J.; Frazer's Case, 92 N. Y. 239.— 


Detwiller i;. Hartraan. 

the plot — sufficient to protect it and tlio monument. He further 
orders him to invest in the bonds of the United States $5,000; 
and such additional sum or sums as may be set apart by him, the 
testator, and the accumulations thereof, and out of the proceeds 
thereof to pay all sums of money expended in keeping the "said 
family monument and burial plot" and the inclosure thereof in 
good repair. He further orders that, in case his estate at his 
death shall not be sufficient to pay in full the legatees and the 
money for the cemetery plot and monument, and to create the 
fund for repairs, the legacies and the monument and cemetery 
fund shall abate proportionately. He also orders his executor 
to pay over to the inhabitants of the town of Phillipsburg, in 
their corporate capacity, $10,000, to be held in trust forever by 
the corporation, to pay yearly the interest thereof, or so much as 
shall be necessary for the purpose, to establish and support a 
military band of music, to be called The Bruch Cornet Band of 
the town of Phillipsburg, whose duty it shall be to march to the 
before-mentioned cemetery on the anniversary of his death, and 
on such holy days (holidays) as are established by law, and on 
other proper occasions, and then and there perform a funeral 
march and such other appropriate music as the leader of the 
band shall designate and appoint. He further provides (by the 
sixth clause) that in case there shall be any part of his estate 
undisposed of after the payment of the legacies and the creation 
of the trust funds, and purchase of the burial plot, and paying 
for the monument and fence, the surplus be distributed 'pro rata 
among the legacies and the cemetery and band funds. 

He also declares that in case any of the legatees shall contest 
the validity of the will, he revokes the legacy or legacies of such 
objecting party or parties, and gives it or them to the inhabitants 
of the town of Phillipsburg, in trust to pay the interest thereof 
for the support of the common schools of that place. He orders 
and directs his executor not to pay any of the legacies until after 
the executor shall have reduced all the personal and real estate 
to money, or such interest-bearing securities as may be readily 
convertible into money, in order that the executor may be fully 
advised of the amount of the estate : and he authorizes him to 

10 Stew.] OCTOBER TERM, 1883. 351 

Detwiller v. Hartman. 

defer selling the real estate for five years from his, the testator's, 
death, if he shall deem it for the interest of the estate to do so. 
And he directs him to invest and keep invested all his personal 
€state and the interest thereon until his real estate, except the 
property the use of half whereof is given to Mrs. Russel, shall 
be sold. By a codicil he bequeaths the yearly income of $5,000 
to Elizabeth Hamlin, so long as she remains single, bearing that 
name, and directs that after her death the principal go to the 
cemetery fund, to keep his grave in repair. 

The executor aska for a construction of the wiH on various 
points : whether the trusts for the purchase of the burial plot, 
the erection of a monument and the erection of the fence, for the 
keeping of the plot, monument and inclosure in good repair, and 
for the establishment and maintenance of a military band, are 
valid ; whether the gift of $10,000 for the band is entitled to 
preference in payment over the other legacies, in case there 
should not be sufficient assets to pay all ; whether the codicil was 
properly executed ; and, if so, whether the gift to Elizabeth 
Hamlin therein is entitled to priority over the legacies given by 
the will itself; whether, in case it shall turn out that there was 
sufficient funds to pay the lawful legacies without selling the 
real estate, tiie executor would still be authorized to sell the 
property, and whether, as to any surplus after paying the debts, 
expenses and lawful legacies, the testator died intestate thereof, 
or whether it is to be distributed among the legatees under the 
sixth clause of the will. He also asks that he be directed as to 
what sum he shall expend upon the monument and fence, and 
what sum he shall retain to provide for repairs to the burial 
plot, monument and fence. 

The estate of the testator, it is said, falls very short of being 
sufficient for the purposes which he contemplated. The legacies 
given by the will to his relations amount to $13,100, to which 
is to be added the sum of $5,000 for the legacy given to Eliza- 
beth Hamlin by the codicil. According to the bill, the estate 
will not exceed $35,000. The legacies and trust funds, all to- 
gether, amount to $73,100, reckoning the cost of the burial plot, 
monument and fence at the minimum sum fixed therefor in the 


Detwiller v. Hartman. 

will, $40,000. At the maximum sum, $50,000, the legacies and 
trust funds amount to $83,100. 

The trust to buy a burial plot and erect a monument thereon 
to the memory of the testator, and to provide a fence for the 
plot to protect it and the monument, is valid. To hold other- 
wise would be to deny the right of the testator to dispose of hi& 
estate. It is conceded that a testator may make provision by 
his will for the erection of a memorial to himself at his grave, 
but his right to provide for one so expensive as that which this 
testator contemplated, and for which he has provided in the will 
under consideration, is denied. It is obvious that if the right to 
dispose of any part of his estate for the purpose exists, as it un- 
doubtedly does, this court cannot limit its exercise except as the 
necessities of the administration may require. 

The suggestion that a much less expensive and ostentatious 
memorial would be more appropriate than that for which the 
testator has seen fit to provide, cannot enter into the consideration 
of the matter. The testator was the sole judge on that subject, 
and his judgment is not liable to be reviewed in any court. As 
this court manifestly cannot deal with the provision as a viola- 
tion of good taste, neither can it deal with it on the ground that 
it is a wasteful expenditure. As to that, too, the testator was the 
sole judge. In Mellick v. President and Guardians of the Asylum, 
1 Jac. 180, where the testator (the will was made in 1784), after 
giving various minute directions as to his funeral, and bequeaih- 
ing several pecuniary legacies, devised his freehold estates t(^ 
trustees, upon trust, to sell and apply the produce as follows : 
£2,000 in erecting a monument to perpetuate his memory in the 
parish church of St. John, Southwark ; £100 to Dr. Samuel John- 
son on condition of his writing an epitaph for it, and twenty 
guineas to the rector of the parish on his consenting to the placing 
up of the monument, the master of the rolls. Sir Thomas 
Plumer, said : " Now, what are charitable uses have been 
enumerated in the statute of Elizabeth and in Duke. They are 
when the donor appropriates a gift, either to charity or to some 
public purpose, such as the repair of bridges, ports and havens 
&c., not operating in any manner to the benefit of himself. But 

10 Stew.] OCTOBER TERM, 1883. 353 

Detwiller v. Hartman. 

the statute of mortmain does not bear a resemblance to anything 
like a sumptuary law, and does not apply to property expended 
like this — by the party on himself, for the gratification of his 
own vanity, or an object which, instead of having any simili- 
tude to charity, is the very reverse of it. The builder of the 
monument is to be paid for his labor only. It stands on the 
same footing as an expensive funeral, and it has never been 
argued that the expenses of a funeral cannot be defrayed out of 
real estate. There is nothing to control the general right, inci- 
dent to property, of disposing of it, either in the. party's lifetime 
or after his death, as he may think proper; and though the sura 
which this testator has devoted to the erection of his monument 
may be disproportioned to his station in life, the court cannot 
on any such grounds extend the construction of the statute." 
Masters v. Masters, 1 P. Wms. 4^1 ; Adnam v. Cole, 6 Beav. 353 ; 
Mitford V. Reynolds, 16 Sim. 105, and Bainhiidge^s Appeal, 97 
Pa. St. Jf.82, are also cases in which such bequests have been 
held valid. The testator in this case has fixed (by limitation), 
as he had a right to do, the amount to be expended on the burial 
plot, monument and fence, and his will is law on the subject. 
He also has provided that in case his estate should not prove 
sufficient to pay the legacies and raise the trust funds in full, 
they shall abate proportionately. The amount to be expended 
on the plot, monument and fence will, in the existing situation 
of the estate, be fixed by a very simple calculation in proj)()rtion. 
The trust to provide for repairs is not valid. It is a per- 
petual one, and the object is not a charity. It is purely ])rivate, 
the keeping in repair of the testator's burial place. Though he 
speaks of the monument and burial place as a "family monu- 
ment and burial place," they are merely his own. He appears 
to have had no fauiily of his own, and they were intended for 
himself alone. And if they had been intended for his family it 
would make no difference. The gift is not to a general public 
use. It is not within the legal definition of a charity. Mr. Jus- 
tice Gray's well-known definition of a charity in a legal sense, 
is " a gift to be applied consistently with existing laws for the 
benefit of an indefinite number of persons, either by bringing 



Detwiller r. Hartman. 

their hearts under the influence of education or religion, by re- 
lieving their bodies from disease, suffering or constraint, by as- 
sisting them to establish themselves for life, or by erecting or 
maintaining public buildings or works, or otherwise lessening the 
burden of government." 

The American courts have followed the English rule against 
perpetuities except where qualified Vjy statute. Trusts created 
for charitable or public purposes here, as there, are not subject to 
the rule. The direction in this case does not limit the continu- 
ance of the fund for repairs, and the testator makes no disposi- 
tion whatever of the principal. The provision, therefore, is to 
be regarded as creating a perpetuity — as locking up $5,000 for- 
ever for the purpose of keeping the testator's burial place and 
monument in good repair. That object is not a charity, and 
therefore the bequest, because it is a perpetuity, cannot be sus- 
tained. Richard V. Robson, SI Beav. S44-> Hoare v. Osborne, 
L. R. [1 Eq.) 6So ; Fisk v. Attorney -General, L. R. (^ Eq.) 521 ; 
Fowler v. F&wler, 10 Jur. (N. S.) 64B ; Lloyd v. Lloyd, 10 Fkg. 
L. & Eq. 139; and i2« WUliams, L. R. (5 Ch. Div.) 735, are 
cases in which such bequests have been held void as perpetuities. 
See, also, Wms. on Exrs. 1073; 2 Red/, on Wills 851 ; 1 Jarm. 
on Wills 211. In Cool v. Higgins, 8 C. E. Gr. 308, the execu- 
tors were specially directed by the will to erect a fence around a 
cemetery lot, and no one else was either required or authorized 
to do it, and the amount required for it was charged upon the 
land. It was held that suit for the money was rightly brought 
by the executors. But there was no perpetual trust in that case. 

For the same reasons just given, the trust for the establishment 
and maintenance of a military band cannot be sustained. The 
object is not charitable, and the trust is in express terms a per- 
petuity. The purpose of the testator was to j)rovide for the 
establishment and maintenance forever of a military band of 
musicians, to be called by his name, and whose sole duty it 
should be to march to his grave on the recurring anniversary of 
liis death, and on the holidays established by law, and "other 
projjer occasions," and there play a funeral march and other ap- 
propriate (presumably solemn) music. The sole ol)ject of tiiis 

10 Stew.] OCTOBER TERM, ] 883. 355 

Detwiller v. Hartman. 

provision for a band is to keep the testator's memory alive in 
the public mind ; not to furnish the means of education in mu'iic 
for the public, nor even to provide musical entertainment for 
them. This bequest does not differ in principle from a gift to a 
church to supply a choir to sing a dirge annually on the anni- 
versary of the donor's death, and it will not be contended that 
that would be a legal charity. 

The question whether the codicil was duly executed cannot be 
raised here. The subject is not within the jurisdiction of this 
court. Trustees v. Wilkinson, 9 Sfew. Eq. l^-l. 

The gift to Elizabeth Hamlin, in the codicil, is entitled to no 
preference over the legacies given by the will, but will abate 
proportionately with them in case of deficiency. 

The direction of the testator to sell his real estate is positive. 
He directs that there shall be no payment of the legacies until 
after the sale of the real property. Aceordiug to the statement 
of the bill as to the amount of the estate, the personal property 
will not provide enough to pay the valid legacies and furnish 
the minimum sum fixed in the will for the cost of the burial 
plot, monument and fence. It will, therefore, be necessary to 
sell the real estate, and to sell all of it, except that the use of 
which is given to Mrs. Russel. 

Should it, however, not be necessary to sell the real estate for 
the lawful purposes of the will, a sale need not be made; for 
the testator's express object in directing that the real estate be 
converted into money was the complete distribution of the estate 
among the persons and for the objects designated in the will, 
and if the failure of some of those objects should render a sale 
unnecessary, it should not be made. 

If the estate prove to be not more than sufficient in amount to 
pay the legacies and raise the trust funds provided for by the 
will, and after paying the legacies and raising the money for the 
lawful trusts, there be a surplus, the testator must be held to 
have died intestate of such surplus. It is not disposed of by the 
will. The sixth section provides that any surplus which may 
remain after payment of the legacies and trust funds, and pro- 
viding for the purchase of the burial plot, and for the cost of 


Ackerman v. Halsey. 

the monument and fence, shall be distributed pro rata amongst 
all the legatees, the cemetery fund and the band fund. There 
is no other residuary clause. The surplus under consideration 
is not that which is disposed of in the sixth clause, but is that 
part of the estate which is given for the unlawful trusts. 

Warren Ackerman 


Joseph A. Halsey et a . 

1. Where the receiver of aa insolvent bank refuses to bring suit, a creditor 
and stockholder thereof may, for the benefit of himself and of such other 
creditors and stockholders as elect to join him, maintain a suit against the 
president and directors for gross oflBcial neglect and mismanagement, whereby 
the bank was financially ruined. 

2. Particular instances of oflGlcial misfeasance and carelessness, which stand- 
ing alone might not fix personal liability, are sufficient, when connected with 
general allegations of official misconduct and culpable negligence, to sustain a 
bill in such case on general demurrer. 

3. That some of the defendants have been directors longer than others is no 
ground of demurrer, because the court can discriminate between them, and 
hold those elected recently onlj' liable for losses incurred during their term 
of office. 

4. Damages for such negligence may be assessed in equity in a case where 
an adequate remedy at law does not exist. 

Bill for relief. On general demurrer. 

Mr. J. W. Taylor, for Joseph A. Halsey, Joseph S. Halsey, 
George A. Halsey, Edward H. Wright and Lewis C. Grover. 

Mr. A. P. Condit, for William Clark. 

Mr. J. Henry Stone, for Henry C. Howell. 

Mr. Corilandt Parker, for Stephen H. Condict. 

10 Stew.] OCTOBER TERM, 1883. 357 

Ackerman v. Halsey. 
Mr. Carl Lentz, for Joseph Hensler. 

Mr. J. H. Ackerman, for complainant. 

The Chancellor. 

The bill is filed by Warren Ackerman, a creditor and stock- 
holder of the Mechanics National Bank of Newark, against the 
persons who were, at the time of the failure of that bank, its direct- 
•ors. The receiver is also a defendant. The suit is brought for 
the benefit of the complainant and all other creditors and stock- 
holders of the corporation who may come in and contribute to 
the expenses of the litigation. The bill alleges that the bank is, 
and for more than fifteen years before the filing of the bill was, a 
^corporation under the national banking act ; that seven of the de- 
fendant directors, Joseph A. Halsey, Stephen H. Condict, George 
A. Halsey, Lewis C. Grover, Oscar L. Baldwin, William Clark 
and Edward H. Wright, were duly elected to their offices, first, in 
1873, another, Joseph S. Halsey, in 1878, and the other two, Henry 
•C. Howell and Joseph Hensler, in 1879, and that each of the ten 
duly accepted the office, and immediately after his election took 
■and filed the oath prescribed by the act that he would, so far as the 
■duty devolved on him, diligently and honestly administer the 
^airs of the bank &c. ; that from year to year, from the time of 
their first election down to the time of the failure of the bank, 
■they were duly and regularly elected directors and took and filed 
that oath ; that they are still directors of the bank, and are the sole 
surviving ones ; that they were its directors and managers while 
its money and funds were being abstracted and misapplied by the 
<!ashier, as stated in the bill ; that the bank failed in October, 
1881 ; that its capital stock was $500,000, divided into ten thou- 
sand shares of $50 each ; that the complainant before 1873 be- 
came, and still is, the owner of one hundred and fifty-five 
shares of stock, and continued to be so by reason of his reli- 
ance on the fact that the defendant directors were such, and 
on their reports published from time to time from the organiza- 
tion of the bank, of the financial condition of the institution ; 
that these reports, which were signed by them or by some of 


Ackerman v. Halsev. 

them, stated in substance that the capital was unimpaired, and 
that the bank had also a large surplus over and above the pay- 
ment of its debts and liabilities, and was in a sound and solvent 
condition, while in fact it had no surplus for several years before 
its failure, but was insolvent. The bill also states that if the 
defendant directors had discharged their duties as they were 
legally bound to do, the most ordinary inspection of and exami- 
nation into its affairs would have revealed to them its true condi- 
tion, and ihe fact of the abstraction and misappropriation of its 
funds by its cashier, and that it was expressly the duty of the 
president, who was Joseph A. Halsey, to exercise a more con- 
stant, immediate and personal control and supervision of its 
affairs than was required of the other directors. It then proceeds 
to set forth in detail the various duties of the president, and states 
that he was annually paid a salary of ^3,000 by the bank for 
his services. It also in like manner sets forth the duties of 
the directors, and avers that they had at all times the fullest 
opportunities and facilities for, and abundant means of honestly 
and diligently performing their duties, and of knowing the exact 
condition of the affairs of the bank and of administering them 
honestly and diligently, as required by their oath, and of pre- 
venting the loss and injury which the bank sustained, and that a 
very moderate exercise and performance of the duties expected 
and required of them would have prevented the ruin of the bank, 
and the consequent injury to the complainant, as stated in the 
bill ; that the defendant, the president, and each of the other 
directors, utterly failed and neglected to perform tlieir official 
duties, and wholly omitted, without any reasonable excuse, to 
give any reasonable or proper attention to the business of the 
bank, and the care and management of its property, affairs and 
concerns, and, in consequence of such neglect, the bank has been 
utterly ruined by having its funds abstracted and misapplied by 
its cashier, and its stock rendered worthless, to the injury of the 
complainant and its other creditors ; that the president was so 
grossly neglectful of his duties as president, and so culpably 
delinquent in the honest and diligent management of his trust, 
that he utterly neglected to perform his duties, and most negli- 

10 Stew.] OCTOBER TERM, 1883. 359 

Ackerman v. Halse\. 

gently permitted the cashier to have absolute control of the 
affairs of the bank, and to use and lend its moneys and assets as 
he saw fit, according to his own will and pleasure, and without 
having required of him any security for the faithful and honest 
performance of his duties, and that the cashier, encouraged and 
aided by such negligence of the president, wrongfully abstracted 
and misapplied the money and assets of the bank to an amount 
exceeding $2,000,000, which has completely ruined the bank and 
rendered the stock worthless; that the defendant directors did 
not honestly and diligently administer the affairs of the bank, 
but, on the contrary, suffered and most negligently permitted its 
money, property and effects to be in the possession and under the 
control of dishonest and incompetent persons, without having 
any security for the honest and faithful discharge of the duties 
expected and required of such persons, and carelessly permitted 
the money, property and effects of the bank to be stolen, wasted 
and squandered, to the ruin of the bank and injury of the com- 
plainant and all the creditors of the bank; that it was their duty 
to employ only such persons as were competent and honest to 
serve as officers of the bank, and to take from all persons so em- 
ployed adequate security for the faithful performance of their 
duties, but tiiey failed to discharge and neglected that duty; 
that the president was elected and kept in office and paid for his 
services (which, the bill says, were merely nominal) for more 
than ten years before the failure of the bank, although the di- 
rectors knew he was incompetent to discharge the duties of the 
office, or to give such personal attention to the business of the 
bank as the office required, and that they refused to remove him 
or give him proper assistance ; that they employed a person as 
cashier who abstracted and willfully misappropriated its funds 
to the extent of over $2,000,000, and permitted him to have 
unrestrained control of all the money and assets of the bank, 
withoLit taking from him or requiring him to give any security 
for the faithful performance of his duties as cashier; that the 
only security ever required of him, as the complainant is in- 
formed and believes, was a bond of $20,000, which was *' allowed 
to become outlawed through not being renewed for fifteen years;" 


Ackerman v. Halsey. 

and that they did not keep or cause to be kept correct books of 
account of all the affairs of the bank, but, on the contrary, suf- 
fered the accounts to be falsified by false and deceptive entries 
through negligently omitting to examine the books or cause them 
to be examined properly. The bill then specifies certain false 
and fraudulent entries of §600,000, readily detectable, made to 
deceive the bank examiner, and states that almost the entire 
amount of the funds of the bank abstracted by the cashier was 
concealed on its books by him by means of entries of false charges, 
the falsity of which could very readily have been discovered j 
that the defendant directors were satisfied with and accepted as 
final, without verification and without any examination as to 
their truthfulness, the statements of the cashier; that without 
any knowledge as to whether the bank was solvent or not, they 
declared and paid dividends on the stock from May 1st, 1880 
when the bank was, in fact, insolvent ; that they permitted irre- 
sponsible persons to overdraw their accounts to a large amount 
without security, whereby large sums of money were lost to the 
bank, and negligently permitted the money of the bank to be lent 
to irresponsible persons without adequate security, by reason 
whereof the money lent was lost; that they permitted false re- 
ports, showing that the bank was in a solvent, flourishing condi- 
tion, to be made and transmitted to the comptroller of the cur- 
rency, and caused them to be published up to the 6th of October, 
1881, and that at no time was there had by the defendant di- 
rectors, or under their direction, a careful, thorough and complete 
examination of the affairs of the bank. The hill states that in 
October, 1881, the comptroller of the currency appointed the 
receiver, and that, by reason of the insolvency of the bank, it 
became necessary for the comptroller to make an assessment oi 
the full amount of the par value of the stock upon the stock- 
holders in order to pay the depositors of the bank ; that the 
assessment was made in November, 1881, through the receiver, 
and that the complainant was compelled to pay, as his assess- 
ment, $7,839.17. The complainant alleges that he has, by reason 
of the misconduct and mismanagement of the defendant direc- 
tors, set forth in the bill, sustained damage to the amount of 

10 Stew.] OCTOBER TERM, 1883. 361 

Ackerman v. Halsey. 

^15,589.17, with interest, and that each of the stockholders has 
sustained damage to an amount equal to double the par value of 
his or her stock. The bill states that before the beginning of 
this suit the complainant requested the receiver to commence and 
prosecute proceedings against the president and directors, to re- 
cover from them the damages which the bank and the stock- 
holders had sustained by reason of the negligence and official 
misconduct of the president and directors, but he refused to do 
so. The prayer of the bill is that the damages of the creditors 
and stockholders in the premises may be ascertained, and the 
defendant directors adjudged to pay them to the receiver for the 
benefit of the creditors and stockholders; or that the complain- 
ant may recover against them his damages as a stockholder, and 
that the other creditors and stockholders who may come in may 
have such relief in the premises as they may be entitled to. The 
<]efendaut directors have all filed general demurrers. 

Under these demurrers are presented the questions whether 
this court has jurisdiction of the case; whether, if it has, the 
allegations of the bill (which, on demurrer, are to be taken as 
true) are sufficient to entitle the complainant to the relief which 
he seeks ; and whether, as to three of the defendants, Messrs. 
Joseph S. Halsey, Howell and Hensler, there is not a misjoinder, 
seeing that the period of their directorship is shorter by several 
years than that of the others, and the bill seeks relief against all, 
without discrimination or distinction. 

That the subject of this litigation is within the jurisdiction of 
this court, will admit of no question. The suit is brought by a 
creditor and stockholder of the bank against the directors, to 
obtain redress for the waste of the entire capital and surplus of 
the bank, whereby he has been subjected to loss as a creditor of 
the bank, and has, as a stockholder, lost not only his stock, 
but also a sum of money equal to its par value. The ground 
of the claim is that the directors utterly neglected to dis- 
charge any of the duties of their office. For such a wrong 
there is a remedy in equity. For any willful breach of their 
trust or misapplication of the corporate funds, or for any gross 
neglect of, or inattention to, their official duties, directors are 


Ackerman v. Halsey. 

liable in this court. Field on Corp. § 173 ; Ang. d- Ames on 
Corp. § 312 ; Citizens Loan Assoc, v. Lyon,- 2 Stew. Eq. 110 ; 
Robinson v. Smith, 3 Paige '222 ; Citizens Build. Assoc, v. 
Coriell, 7 Stew. Eq. 383 ; Brincherhoff v. Bostwich, 88 N. Y. 
52; Trustees v. Bosseiux, 3 Fed. Rep. 817. And the liability 
is to the corporation in the first instance, where the corporation 
is capable of acting; but if it refuses to do so, then a person 
aggrieved may bring the suit. If the corporation be insolvent 
and its affairs in the hands of a receiver, he may maintain the 
litigation. If he refuses or is himself involved, a person ag- 
grieved may sue. Chester v. Halliard, 7 Stew. Eq. 3If.l ; Brinch- 
erhoff V. Bostwick, ubi supra. That is to say, primarily the 
cor^xiration, or, if insolvent, its representative, must sue ; but in 
case of their disability or refusal, a person aggrieved may bring 
the suit, making the corporation or its representative a defend- 
ant. Here the corporation is insolvent and there is a receiver. 
Under the national banking law, he would have been the proper 
})erson to bring the suit if he would. Conway v. Halsey, 15 
Vr. J^62 ; Brincherhoff v. Bostwick, ubi supi-a. He, however^ 
refuses to do so. The bill states, generally, that the defendant 
directors have utterly neglected to discharge their duty in every 
essential respect. It avers that they "had the fullest oppor- 
tunities and facilities for, and abundant means of, honestly and 
diligently performing their duties, and of and for knowing at 
all times the exact condition of the affairs of the bank, and of 
and for administering its affairs honestly and diligently as re- 
quired by their oath, and for preventing the loss and injury com- 
plained of, and that a very moderate exercise and performance 
of the duties expected and required of them would have pre- 
vented the ruin of the bank and the consequent injury to the 
complainant; but that they utterly failed and neglected to per- 
form their official duties and wholly omitted, without any reason- 
able excuse, to give any reasonable or proper personal attention 
to the business of the bank and the care and management of its 
concerns; and that in consequence of such neglect, the bank has 
been utterly ruined by having its funds abstracted and misap- 
plied by its cashier, and its stock rejidered worthless, to the in- 

10 Stew.] OCTOBER TERM, 1883. 363 

Ackerman v. Halsey. 

jury of the complainant and its other creditors." It proceeds to 
state particular derelictions of duty. These are the negligent 
abandonment of the control of the whole of the affairs of the 
bank to the cashier, without requiring any security from him 
for the honest and faithful performance of his duties, by which 
means the funds and property of the bank were abstracted and 
misapplied by him to the amount of over $2,000,000 — the com- 
plete ruin of the bank ; carelessly permitting the money, prop- 
erty and effects of the bank to be in the possession and under the 
control of dishonest and incompetent persons, without security ; 
carelessly permitting the property, money and effects of the 
bank to l^e stolen, wasted and squandered ; employing for many 
years an incompetent person for president; permitting the ac- 
counts to be falsified ; accepting the cashier's false statements of 
the condition of the bank, without examination as to their truth 
or correctness; paying dividends when the bank was insolvent, 
without seeking \o know its true condition ; negligently permit- 
ting the money of the bank to be lent to irresponsible persons, 
without adequate security, to the loss of the bank ; permitting 
irresponsible persons to overdraw their accounts, without secu- 
rity, whereby the bank lost large sums of money ; accepting and 
certifying and publishing the false reports of the caehier to the 
comptroller of the currency, and never making, or causing to be 
made, any careful, thorough or complete examination of the 
affairs of the bank, so as to know whether its affairs were being 
honestly and diligently administered. 

As a general rule, the directors of a corporation are only re- 
quired, in the management of its affairs, to keep within the limits 
of its powers, and to exercise good faith and honesty. They 
only undertake, b}' virtue of their assumption of the duties in- 
cumbent on them, to perform those duties according to the best 
of their judgment and with reasonable diligence, and a mere error 
of judgment will not subject them to personal liability for its 
consequences. And unless there. has been some violation of the 
charter or the constating instruments of the company, or unless 
tliere is shown to be a want of good faith, or a willful abuse of 
discretion, or negligence, there will be no personal liability 


Ackerman v. Halsey. 

They are personally only bound in the management of the af- 
fairs of the corporation to use reasonable diligence and prudence, 
such as men usually exercise in the management of their own 
affairs of a similar nature. Field on Corp. §§ 169, 171 ; Aug. 
& Ames on Corp. § 314^ ; Spering's Appjeal, 71 Pa. St. 1 ; Over- 
end & Gumey Co., L. R. {6 H. of L.) 480; Hodges v. N. E. 
Screw Co., 1 R. I. 312 ; Citizens Building Assoc, v. Conell, 7 
Stew. Eq. 383. But they are personally liable if they suffer the 
corporate funds or property to be wasted by gross negligence and 
inattention to the duties of their trust. Robinson v. Smith, ubi 
supra; Citizens Building Assoc, v. Coriell, ubi supra. The case 
made by the bill is one of absolute neglect by the defendant 
directors of all the essential duties of their ofiGce. Conceding 
that the specific violations of duty pointed out might not of them- 
selves, if they stood alone, suflSce to fix personal liability, in con- 
nection with the general statement aud charge of absolute neglect 
of all essential duties, they obviously assume a different charac- 
ter, for the allegations are to be taken all together, and the speci- 
fications areto be considered in the light of the general statement. 
The allegations of the bill are sufficient to fix personal liability 
upon the directors. The case made by them is one of the most 
absolute and unqualified inattention and neglect. If the case 
made by the bill is not sufficient to fix personal liability, then no 
neglect of duty, however gross and extreme, will render directors 
personally liable. 

It is urged that the bill, while it states that false reports of 
the solvency and flourishing condition of the bank were made 
from the time of its organization, also states that the bank was 
insolvent during all that time; and it is urged that if it be true 
that the bank was in fact insolvent from its organization, no 
harm was done to the complainant by the false reports. But the 
statement of the bill is not that the bank was insolvent from the 
beginning, but for several years before its failure. Tiie injury 
done by false reports to the creditors and stockholders is, that 
persons are led to give the bank credit, perhaps, to their ultimate 
loss, and that of tlie stockholders. The false reports work in- 
jury to the stockholders in another way also. They not only 

10 Stew.] OCTOBER TERM, 1883. 365 

Ackerman v. Halsey. 

disarm suspicion, but inspire them with confidence in the man- 
agement of the affairs of the institution, and so induce them to 
keep the directors in office until the disaster comes and the bank 
is, perhaps, utterly ruined. They also avert the scrutiny of the 
comptroller of the currency. It is also urged that the statement 
that the cashier's bond was barred by limitation, because not re- 
newed for fifteen years, is on its face a misstatement from mis- 
take of law. But the statement is an immaterial one ; the charge 
(and allegation) in connection with which it is made is, that the 
directors required no security of the cashier. 

It remains to consider the objection made by Messrs. Joseph S. 
Halsey, Howell and Hensler, that the bill charges misconduct 
which occurred before they were members of the board, and hence 
they claim that it is as to them nmltifarious. But in a bill of this 
peculiar character, where the management of the affairs of a cor- 
poration, through a series of years, is the subject of litigation, and 
it appears on the face of the bill when the administration of each 
director began, the objection in question is not possessed of much 
weight. Each director will answer only for the period of his ad- 
ministraiion, and in making its decree the court will of course dis- 
criminate between those who are culpable and those who are not. 
Citizens B. & L. Assoc, v. Goriell, ubl supra. In Charitable Corp. 
V. Sutton, 3 Atk. 4-00, a similar objection was made and con- 
sidered. The suit was brought to be relieved against the de- 
fendants, fifty in number, who were either committeemen or in 
other offices of the corporation, and to obtain satisfaction for a 
breach of trust, fraud and mismanagement. It was there urged 
that the court could make no decree against the defendants which 
would be just, for it was said that every man's attendance or 
omission of his duty was his own default, and that each particu- 
lar person must bear such a proportion as would be suitable to 
the loss arising from his particular neglect, which made it (it wa» 
argued) a case out of the power of the court. Tlie objection was 
not sustained. Lord Hardwicke dismissed the bill as to some of 
the defendants. As to others, he decreed that they were liable in 
the first place, and their associates secondarily. 

Another objection is made that this court cannot assess dam- 


Parker v. Johnson. 

ages for negligence. That proposition is not true where there is 
no adequate remedy at law. There can be no question that this 
court will assess damages against a trustee for culpable negli- 
gence in the performance of his duty, whereby he failed to re- 
ceive such profits upon the trust estate as he otiierwise would have 
done. Osgood v. Franklin, 2 Johns. Ch. 1, I4. Johns. 527 ; Melick 
V. Voorhees, 9 C. E. Or. 305. If this court has jurisdiction in 
such a case as this, as it undoubtedly has, it must have the power 
to assess the damages against the defendants. Charitable Corp. v. 
Sutton, ubi supra, is an instance of the exercise of the power. 
Of course all the cases in which it has been held that suit may be 
maintained against directors for such redress as is sought in this 
suit, are necessarily instances of the exercise of the power. The 
demurrers will all be overruled, with costs. 

Richard Wayne Parker, trustee, 


Emeline H. Johnson et al. 

1. a trustee may employ, and pay out of the fund, such assistants as are 
necessary in executing his trust. 

2. A trustee purchased certain lands at a foreclosure sale of his mortgage 
thereon. He afterwards sold them and realized about $1,700 above the amount 
of the original loan, besides interest and costs. — Held, that this surplus was 
not payable to the life tenant of the trust fund, but should be held by the 
trustee as part of the corpits, or to meet any future losses on investments, if 
thev should occur. 

On exceptions to master's report. 

Mr. G. \V. Hubbell, for the exceptions. 

Mr. R. Wayne Parker, in pro. pers., contra. 

[In this case there were fifteen different points raised by the 
exceptions and decided, but as all except the ninth and twelfth 
involved only facts, they have not been published. — Rep.] 

10 Stew.] OCTOBER TERM, 1883. 367 

Parker v. Johnson. 

The Chancellor. 

The ninth exception is that tlie master has allowed the trustee 
$238.86 commissions on the rents collected, and has allowed him 
in addition five per cent, on the sums disbursed ; thus subjecting 
the rents to fifteen per cent, commissions for collection and dis- 

A trustee may employ necessary assistants in executing his 
trust, and pay them. He may employ agents, collectors, ac- 
countants and other persons properly employed in similar affairs. 
Perry on Trusts § 912 ; Wilkinson v. Wilkinson, 2 Sim. & Stu. 
237. No complaint is made in this case tiiat the allowances to 
the agent and trustee are too great for the services, aud they do 
not appear to be so. 

The twelfth exception is that the master has reported that the 
profit realized on the sale of the Orange street property should 
not be credited to the life tenant. 

He was not directed by the order to report on this subject at 
all. The property in question is one on' which the trustee held 
a mortgage. On foreclosure he was compelled to buy it in. 
He has since sold it, and realized about $1,700 more than the 
amount of principal and interest of the investment, and all costs, 
charges and expenses. There are three other pieces of property 
of which he is in possession, either as mortgagee or as owner 
under foreclosure, and on which, or some of them, the fund may 
meet a loss. There is an investment on mortgage of chattels in 
New York (not made by the trustee but received by him as part 
of the assets on assuming his trust), on which it is very proba- 
ble that there will be a loss to the fund. The life tenant asks 
that the $1,700 be applied to the payment of the arrears of in- 
terest on the suspended investments. The master reports that 
under the circumstances it will not be prudent to grant the re- 
quest or to apply the money in any way, except to make up the 

Note. — Profit on tlie sale of stock belongs to the corpus of the estate, and 
not to the life tenant, Whitney v. Phcenix, 4 Redf. ISO ; and also premiums re- 
ceived from or paid for investments, Van Blarcom v. Dager, 4 Stew. Eq. 7SS, 
and note; Pollock's Case, 3 Redf. 100 ; Speahman's Appeal, 71 Pa. St. 25 ; and 
appreciation in value of unproductive property, before sale by the executors, 
Outcall V. Appleby, 9 Stew. Eq. 7S. — Rep. 


House v. Ewen. 

deficiency of principal. That view is correct. There are na 
arrears on the investment which was made on the Orange street 
property. They have all been paid out of the proceeds of the 
sale of the property by the trustee. There are arrears of interest 
on the suspended investments, and the question is whether the 
life tenant is entitled to be paid those arrears out of the profit on 
the sale, or whether the profit should be held to make up a pos- 
sible if not probable deficiency in the principal through losses on 
the suspended investments. The profit is not income. It was 
made by the trustee in the process of converting the investment, 
and, like a premium realized on the sale of government bonds in 
which the funds might be invested, it belongs to the fund. The 
trustee in this case is to keep the fund invested, and the tenant 
for life is entitled to the interest. It is clearly the duty of the 
trustee to apply the profits on one investment to making up the 
losses on others. 

Jacob House et al., executors, 


Jonathan H. Ewen et al. 

1. On a bill by executors for the construction of a will, and for directions, 
the court will not adjudicate upon the nature of the estate of the devisees 
under the will, where the executors, as such, have no interest in the question ; 
and so also, of course, as to the question whether a tenant for life may, with- 
out committing waste, convert part of the woodland on his devised premises 
into arable land. 

2. A gift " to E. H., the interest of $3,000 her lifetime, and after her death 
to her son, J. H., his lifetime," and " to J. H. the interest of #2,000 his life- 
time," gives to each of them the interest only for life, although no disposition 
is made of the principal after their deaths. 

3. A testator gave legacies, amounting in the aggregate to f 12,000, to all his 
grandchildren, some contingent and some vested, and then provided that all 
his " railroad stock, bank stock and government bonds be kept at interest, 
and dividends be paid to my living grandchildren until all my grandchildren's 
legacies be paid, then the dividend of stock and interest of bonds be equally 

10 Stew.] OCTOBER TERM, 1883. 369 

House V. Ewen. 

divided" between his four children, naming them. There was no residuary 
clause. The specified stocks and bonds amounted to $43,000, and the other 
personalty to $58,000. — Held, that the executors were to retain the specitied' 
stocks and bonds, and appropriate the income therefrom to paying the grand- 
children's legacies until they had all been paid in full; that, thereafter, the 
four named children were entitled absolutely to the principal of those stocks 
and bonds ; and that testator had died intestate as to so much of the $58,000 
as was not needed to pay his other legacies, debts &c. 

Bill for construction of will, and directions to executors. On 
final hearing on pleadings and proofs. 

Mr. C. H. Sinyiickson, for complainanis. 

The Chancellor. 

This suit is brought to obtain a construction of the will of 
Jonathan House, deceased, late of the county of Salem, and for 
directions to his executors. By the will the testator made the 
following devises : 

" I give to my daughter, Mary H. Ewen, the farm of one hundred acres, 
with fifty acres of woodland lying both sides of the Friesburg road, her life- 
time, with the brick house in Allowaystown, her lifetime ; and after her death 
the farm of one hundred acres to my grandson, Jonathan H. Ewen^ and to 
my grandson, Warren Ewen, the brick house in Allowaystown, with fifty 
acres of woodland lying both sides of the road to Friesburg. If Jonathan H, 
Ewen and Warren Ewen die without heir, the property to be sold and divi- 
ded among my grandchildren. 

" I give to my daughter, Ann White, the mortgage I hold on the house 
where she lives, in Bridgeton, in fee, with one hundred and ninety acres of 
woodland, bought of Hazlehurst, with the farm-house in Allowaystown, where 
J. P. E-eeves lives, her lifetime, and after her death to be sold and equally 
divided between my grandchildren. 

" I give to my son, Jonathan House, the farm of one hundred and two acres, 
with fifty acres of woodland joining the pond meadow, his lifetime, and at his 
death the farm goes to his son, George House, and fifty acres to his daughter, 
Fanny House. If George and Fanny die without heir, to be divided between 
my living grandchildren." 

He also made the following bequests : 

" I give to my son's widow, Elizabeth House, the interest of |3,000 her life- 
time, and after her death to her son his lifetime. 



House I'. Ewen. 

" I g'lve to my grandson, John House, his lifetime, the interest of $2,000, 
his lifetime ; the interest to be paid half yearly by my executors to Elizabeth 
Hpuse and John House. 

" I give to my grandson, Jonathan H. Ewen, |2.000 in fee simple. 

" I give to my grandson, Warren Ewen, $2,000 in fee simple. 

" I give to my grandson, Oakford House, $2,000, with forty acres of wood- 
land bought of J. Ayera. 

"I give to Harry House $2,000, with the Melic lot of woodland of twenty- 
three acres. 

" I give to my grandson, George House, $2,000, at the age of twenty-one 

"I give to my granddaughter, Mary White, $1,000." 

He then gave to three others of his granddaughters $1,000 
apiece at the age of twenty-one years, and after other legacies, 
provided as follows: 

"I do order that my railroad stock, bank stock and government bonds be 
kept at interest, ancj the interest and the dividend to be paid to my living 
grandchildren until all my grandchildren's legacies be paid ; then the divi- 
dend of stock and interest of bonds be equally divided between Mary H. 
Ewen, Ann White, Jacob House, Jonathan House." 

The last-meutioned persons were and are all of the testator's 
living children. The grandchildren to whom legacies are given 
are all of his grandchildren. The will contains no residuary 
clause ; it makes no disposition of the residue, nor of any part 
of the testator's personal estate undisposed of by the will, nor 
of the legacies which may lapse. The railroad stock, bank stock 
and government bonds mentioned in the above-quoted provision, 
amount to $43,380, and the testator's other personal property 
amounts to $58,331.51. 

The executors are the testator's children, his two sons and 
two daughters. By the bill they ask for the construction of the 
will on the following points : 

What is the nature of the estate given to Jonathan H. and 
Warren Ewen by the above devise of real estate to them in re- 
mainder ? 

If under the provisions of that devise it should become neces- 
sary to sell, are the executors charged with that duty? And are 

10 Stew.] OCTOBER TERM, 1883. 371 

House V. Ewen. 

they charged with the duty of selling, under the devise to Ann 

Of the farm of one hundred and two acres given to Jonathan 
House for life, only about thirty acres are cleared land ; the rest 
is woodland. Is the property to remain in its present condition, 
so far as the wood and timber on it are ^concerned, for the life of 
the life tenant, or may he cut off the wood and timber to clear 
the land and complete the conversion of it from woodland to 
farm land ? What is the nature of the estate of George and 
Fanny House under that devise? 

What are the rights of John House under the bequests of the 
interest to him and his mother, Elizabeth House, and what are the 
■duties of the executors in regard to those bequests, and to whom 
is the interest, thereby bequeathed, payable ? 

When are the several legacies to the grandchildren due and 
payable, and out of what fund are they payable, and do any of 
them bear interest, and if so, from what time ? 

Are the interest and dividends mentioned in the above and 
last-quoted provision the fund out of which the several legacies 
to the grandchildren are to be paid ; and if so, in what order are 
those legacies to be paid out of it, and what disposition is to be 
made of the interest and dividends after payment of the legacies 
ouk of them, and until the youngest of the grandchildren reaches 
majority ? 

Or, are the grandchildren entitled to the interest and dividends, 
in addition to their legacies, up to the time when the youngest 
shall become of age ? 

What is the meaning of the words " living grandchildren " in 
that section ? 

What disposition is to be made of the railroad and bank stocks 
and government bonds after the payment of the legacies? 

What disposition is to be made of the other personal estate of 
the testator not disposed of by the will ? 

Two of the questions relate to the nature of the estates of 
Jonathan H. and Warren Ewen, and George and Fanny House, 
under the devises to them in remainder. It is not necessary to 
answer them, for it would not be proper to decide them in this 


House V. Ewen. 

suit, which is brought by the executors for a construction, of the 
will, and for directions to aid them in managing and administer- 
ing the trust in their hands under the will. The executors, as 
such, have no interest in those questions unless the duty of sell- 
ing the properties in the contingencies on which they are to go 
over from the devisees in remainder to the other grandchildren, 
devolves on them. But it does not. No power of sale is given 
to them, and they are not charged by the will with the duty of 
dividing the proceeds of the sale. Nor are those proceeds 
blended with the personal estate. The duty of sale and division 
does not devolve on them under the will. Seeger v. Seeger, 6 C. 
E. Gr. 90 ; Lippincott v. Lippincott, 4- C. E. Gr. 121 ; Geroe v. 
Winter, 1 Hal. Oh. 655 ; Drayton v. Drayton, 2 Dessaus. 250y 
n. ; Perry on Trusts § 501. What has been said on this subject 
is, of course, applicable to the provision for sale in the devise to 
Ann White. 

The question whether Jonathan House, under the devise to 
him for life of " the farm of one hundred and two acres," may 
cut off the wood and timber to "clear" the property and make 
farming land of that which is now woodland, is also one in which 
the executors, as such, have not and cannot have any interest. 
It is a question which may arise between the life tenant and 
those in remainder — a question of waste ; but it cannot concern 
the executors as such. It would not be proper to decide it in 
this suit. The case of Benham v. Hendrickson, 5 Stew. Eq. JfJi-l, 
cited as authority for the request for construction on this head, 
(liifers from this. There, there was uncertainty as to the extent 
of a devise, whether it covered land which the executor was 
about to sell under a power of sale given to him by the will. 

To answer the question as to the rights of John House under 
the bequests of interest to him and his mother for life, and the 
duties of the executors in respect to those gifts : The will gives 
to "Elizabeth House the interest of $3,000 her lifetime, and 
after her death to her son [John House] his lifetime." It then 
gives to "John House the interest of $2,000 his lifetime," and 
adds, " the interest to be paid half yearly to Elizabeth House and 
John House." The construction of these gifts presents no diffi- 

10 Stew.] OCTOBER TERM, 1883. 373 

House V. Ewen. 

■culty. The bequests are of the interest of funds, and are ex- 
pressly limited to the lifetime of each taker. The general rule is 
that when the interest or produce of a legacy is given to, or in 
trust for a legatee, or for the separate use of such legatee, with- 
out limitation as to continuance, the principal will be considered 
as bequeathed. But, notwithstanding, as a general rule tiie gift 
of interest and dividends, standing by itself, is a gift of the 
corpus, yet if from the nature of the subject, or the context of the 
will, it appear that the produce or interest of the fund only was 
intended for the legatee, the gift of the interest will not pass the 
principal. S Rop. on Leg. 14-76, 1848. In this case it will have 
been seen that the gift to each Mrs. House and her son is of the 
interest for life only. The gift to her is of the interest of a fund 
for her life, and after her death the interest is to go to her son for 
liis life. The next following bequest is a gift of interest to him 
— of the interest of another fund ; but this also is only for life. 
That the testator intended to limit the legatees to the interest of 
the funds, and did not mean that John should have the principal, 
is further evidenced by the fact that in the very next two be- 
quests, which are of sums of money, he adds the words " in fee 
simple," meaning thereby absolutely, and to distinguish them 
from the bequests to John and his mother. Though he does not 
make any disposition of the principal of the funds whereof the 
interest is given to Elizabeth and John House, that is true also 
as to a very large part of his personal estate. It is the duty of 
the executors to invest the sums mentioned in the bequests under 
consideration, and pay the interest thereof to the legatees, accord- 
ing to the directions of the will — to Elizabeth the interest of 
^3,000 for life, and after her death the interest of that fund to 
John for life, and to pay him the interest of the $2,000 for his 
life. The direction in the will, "the interest to be paid half- 
yearly by my executors to Elizabeth House and John House," 
was evidently inserted merely to provide that the payment of 
the interest to each of these legatees should be by semi-annual and 
«ot annual payments. 

The next question is as to when the legacies to the grand- 


House V. Ewen. 

children are payable, out of what fund, and whether any of 
them bear interest, and if so, from wliat time? 

The answer to these questions involves also a consideration of 
the next, as to the intention of the testator in the direction that 
his " railroad stock, bank stock and government bonds be kept 
at interest, and the interest and the dividend to be paid to his living 
grandchildren until all liis grandchildren's legacies be paid." 
Some of the legacies to grandchildren are absolute and some of 
them conditional. The latter are those which are contingent on 
the legatee's attaining to the age of twenty-one years. They are 
given to the legatee " at the age of twenty-one years," the time 
being annexed to the gift itself. They are, therefore, not vested, 
but contingent. 1 Rop. on Leg. 566, 567 ; Haxoh. on Wills 
S26; Gifford v. Thorn, 1 Stock. 702. The vested legacies bear 
interest from the end of one year from the death of the testator, 
there being nothing in the will to take them out of the general 
rule on that subject. The contingent legacies will lapse in case 
of the death of the legatees before arriving at the age of twenty- 
one years. 

The fund out of which the legacies to the grandchildren are 
to be paid is the dividends of the railroad and bank stocks and 
the interest of the government bonds. The testator directs the 
executors to continue these investments and pay the income to 
his "living grandchildren" until all the legacies to his grand- 
children be paid, and then to pay it to his children. There is 
no evidence that he intended this direction to pay the income to 
his grandchildren as a provision by way of cumulative legacy to 
them. He does not give or bequeath the income to them, but 
merely directs his executors to pay it to them until their legacies 
be paid. He does not direct that it be divided between them, 
but that it be paid to them until their legacies be paid, and then 
the payment is to cease. It seems to me quite clear that he in- 
tended by this direction to provide a means of paying the lega- 
cies to them without diminishing the principal of his personal 
estate, which he intended should go to his children. Some of 
the legatees were of age when he died, but others were not ; one 
of the latter was only ten years of age. It is not probable that 

10 Stew.] OCTOBER TERM, 1883. 375 

House V. Ewen. 

he intended, by the language under consideration, to give to his 
grandchildren the income of his investments in railroad and bank 
stocks and government bonds (about ^2,400 a year) until his 
youngest grandchild should have attained to his or her majority. 
It is not probable that he intended to give the income iunne- 
diately to grandchildren whose legacies he had made contingent 
on their attaining to majority. Unless he intended by this 
direction to })rovide a means for paying the legacies out of the 
income of these investments, he has not provided that they shall 
be paid out of them (either out of the income or corpus) at all, 
for he gives the income, after the legacies of the grandchildren 
shall have been paid, to his children. Therefore, to allow the 
claim that the grandchildren are entitled to the income, in addi- 
tion to their legacies, until the time when the last of the legacies 
to them shall have been paid, would necessitate a construction 
that the legacies are not to be paid out of those investments but 
out of the other personal estate, which is ample for the purpose, 
and that the grandchildren are to have the income of the invest- 
ments in. question, in addition to their legacies, up to the time 
when the youngest of them shall attain to majority. There is 
no evidence of such an intention on the part of the testator, but 
on the contrary, as before stated, it seems clear that what he in- 
tended was to provide a ready means of paying the legacies to 
his grandchildren without diminution of the principal of his 
estate. Nor has the language necessarily any other signification. 
The direction is to pay the income to the grandchildren until 
their legacies be paid ; that is, to pay it to tiiem until they shall 
have received out of it the amounts of their legacies. The words 
" until all my grandchildren's legacies be paid " signify not only 
the time when the payments are to cease, but also the amount of 
the payments — the measure and limit of the participation of the 
grandchildren in the income. 

In Creveling v. Jones, 1 Zab. 573, wliere the testator gave 
legacies of $400 each to two granddaughters, and directed 
that if they should not be of age at his death, his executors 
should pay each of them, yearly and every year, the interest of 
$400 until they attained to majority, and then further ordered 


House V. Ewen. 

his executors to pay out of his estate to one of them $400 in one 
year, and to the other $400 in two years after his death, in full 
of their legacies, it was held that he intended to give the lega- 
tees only $400 each, with interest until their majority, and stress 
was laid in the decision on the fact that there, as is the case here, 
the provision on which the claim that the latter provision was 
an additional legacy was based, was not a gift or bequest in terras, 
but merely a direction to pay. 

The executors should pay out of the income of the investments 
in railroad and bank stocks and government bonds, the legacies 
to the grandchildren. Those that are vested should be paid, 
ratably, out of the income, and out of the income the executors 
should retain a sum sufficient to pay the contingent legacies, 
when and as they may become vested. In case of lapse of any 
of those legacies, the amount of them will, so far as the fund (the 
stocks and government bonds) out of the income of which they 
are to be paid is concerned, go to the testator's children, to whom 
he gives the income after the legacies of the grandchildren shall 
have been p )id. The gift to the children is an unlimited one 
of the income after (or subject to) the payment of the legacies. 
By that gift, the corpus of the investments passes to the donees. 
Gulick V. Gulick, 10 C. E. Gr. 3U ; S. C. on appeal, 12 C. E. 
Gr. 498. 

By the words " living grandchildren " in the clause now under 
consideration, the testator probably meant grandchildren whose 
legacies had not lapsed by their death; intending, thus, to con- 
fine tlie payments to those who were or might be entitled to 
legacies. The will is unskillfully drawn, and the sense in which 
these wnrds "living grandchildren" are used in each of the two 
clauses in which they are found, is to be gathered from the con- 
text of those sections respectively. 

The testator must be held to have died intestate of so much 
of his personal estate other than his railroad and bank stocks 
and government bonds as is not needed for the payment of his 
debts and legacies and the expense of settling the estate. And 
this is true of any legacies which may lapse. The executors 

10 Stew.] OCTOBER TERM, 1883. 377 

Cleveland v. Carson. 

will hold such personal estate in trust for the next of kin of the 
testator, to whom it will go according to the statute of dis- 

William Cleveland, executor &c., 


Henry A. Carson et al. 

1. A testatrix, by her will, gave to A and B " the two certain mortgages 
which she, at the making of the will, held on their property." She in 
fact held three mortgages on the property — one for $320, another for $2,200 
and the other for $1,404. — Held, that she intended to give to them all the 
mortgage debts — the three mortgages. 

2. Hdd, also, that if it were held that the gift was of only two of the mort- 
gages, the legatees under the bequest would have the right to select. 

3. Evidence of instructions to the draftsman of the will held incompetent. 

Bill for construction of will. On final hearing on pleadings 
and proofs. 

Mr. W. Freeman, for complainant. 

Mr. C. F. Hill, for Henry A. and Philander B. Carson. 

Mr. D. A. Ryei'son, for Caroline, Philander and Granville W. 

The Chancellor. 

Charity Wilmot, of the city of Orange, died December 5th, 
1882, leaving a will dated September 15th, 1881. By it, after 
ordering payment of her debts and funeral expenses, including 
in the latter the cost of the erection of a plain lieadstone over 
her grave, she ordered that $300 be expended in the erection of 
headstones or a monument over the graves of her deceased sister, 
Sarah Bodwell, and tiie husband of the latter. Philander J. Bod- 


Cleveland v. Carson. 

well. She then gave $350 to John Freeman, and $1,000 to her 
sister, Jane Judd. She then (by the fifth clause) gave to Henry 
A. and Philander B. Carson, her great nephews, and to the sur- 
vivor of them, " the two certain mortgages which she then held 
upon their real estate in Orange, together with all interest due 
and to grow due upon the same." By the next, the sixth sec- 
tion, she gave to each of those two legatees $1,200. By the 
seventh, she gave the use of two-thirds of all the residue to her 
sister, Caroline Bodwell, for life, with remainder to Philander 
aud Granville W. Bodwell, children of the latter. By the 

Note. — In Tomkins v. Tomkins, cited in Sleech v. Thornigton, 2 Ves. Sr. 564^ 
19 Ves. 126, note, a testator gave £50 to his sister, and to her three children £50 
each, when, in fact, she had four children, and all of them were held to take^ 

In Sleech v. Thomtgton, 2 Ves. Sr. 560, a gift "unto the two servants that 
shall live with me at the time of my death, to be equally divided between 
them," the testatrix having but two when she made her will, but afterwards 
having taken another, who lived with her to the time of lier death, was equally 
divided among all three of them. 

In Slebhing v. Walkeij, 2 Bro. C. C. 85, 1 Cox 250, a bequest was made for 
the two daughters of S., and if either should die before a specified time, the 
whole was to go to the survivor, but libolh died, it was to fall into the residue. 
S. had three daughters, and all of them were held entitled. 

In Scott V. FenovlheU, 1 Cox 79, the gift was to each of the daughters of C. if 
bolhor either of them should survive D. C. had three daughters, all of whom 
survived D., and were held equally entitled. 

In Garvey v. Bibber t, 19 Ves. 125, M. gave to the three children of D. £600 
each. D. had four children, all born before the date of the will, who took 

In Lee v. Pain, 4 Hare 249, a legacy was given to the three sisters of A., who 
had four sisters, and all of them were let in. 

In Morrison v. Martin, 5 Hare 507, the bequest was of £100 each to the two 
children of testator's nephews, A and B. A had three children and B two, and 
each of the five children took £100. 

In Berkeley v. Palling, 1 Russ. 496, a residue was to be divided into eight 
equal shares, and disposed of as follows among the children of A : Two shares 
to each of the two daughters, and one share to each of the three sons of A, 
making together only seven shares. — Held, that the whole was divisible among 
the children of A in seven parts, each daughter taking two-sevenths and each son 

In Lane v. Green, 4 L>e G. & Sm. 239, a testator bequeathed £100 apiece to 
the four sons of A. H. by her former husband. She had four children by such 
former husband, but one of them was a daughter. — Held, that the daugh;er 
took a legacy of £100. 

10 Stew.] OCTOBER TERM, 1883. 379 

Cleveland v. Carson, 

eighth, she gave the use of the other third to Edward L. Hub- 
bell for life, with remainder to his heirs-at-law. When the will 
was made, aud at her death, she had three mortgages which had 
been given to her on the real property of the Carsons in Orange; 
one for $320, given by Philander J. Bodwell, July 1st, 1859 ; 
another for $2,200, given by the same person, May 8th, 1871, 
and the other for $1,404, given by Caroline A. Carson, July 1st, 
1872, and the question presented is, whether any, and if so, 
what mortgages are given to the Carsons by the fifth clause of 
the will. They insist that all the mortgages are thereby given 

In Bassetl's Estate, L. R. {14 Eq.) 54, the bequest was to W. and E. B.'s 
three children, £10 each, and of certain furniture, equally to be divided among 
them. W. and E. B. had four children. — Held, that each of the four was enti- 
tled to a legacy of £10, and to a share of the furniture. 

In Eddeis v. Johnson, 1 Oiff. 22, a testator having given to each of his six 
children a freehold estate, made a second devise to two of them, and then gave 
all his residuary estate unto his said four children, naming three only. — Seld, 
that all the four (other than the two) were entitled. 

In Spmctr v. Wnrd, L. R. (9 Eq.) 507, the gift was of £250 to each of the 
two children of S., who, in fact, had three children, and each of the three was 
held entitled to £250. 

In Lee v. Lee, 10 Jur. (N. S.) IO4I, testator gave his residuary estate to the 
four children of his deceased son Henry. His son Henry was still living, and 
had five children, all of whom were born at the date of the will, and known to 
the testator. — Held, that the five were entitled to the residue. 

In Harrison v. Harrison, 1 Russ. & Myl. 72, the Ijequest was to the two sons 
and the daughter of A — £50 each. At the date of the will and at the death 
of testator A had one son and four daughters, and each one was held entitled 
to £50. 

In Daniell v. Daniell, S De 0. & Sm. S37, the bequest in 1831 was to the 
three children of W., who then had only three children, as testatrix knew, 
but who afterwards had six others, as the testatrix was informed. In 1836, 
1842 and 1844, she made three new wills, revoking her former wills, and re- 
peating the above gift. — Held, that all nine of the children were included. 

In Yeates v. Yeates, 16 Beav. 170, the gift in 1829 was of " £40 a year to each 
of the seven children now living of J. S. Y.," who had nine children then liv- 
ing, and all were decreed to take. 

In McKechnie v. Vaughan, L. R. {15 Eq.) 2S9, a bequest was "unto each of 

my four nieces, , the daughters of my deceased brother Joseph " &c. 

There were five daughters of Joseph, who all survived testator, and each of the 
five was held entitled. 

In Williams v. Lane, 2 Car. L. Repos. {266) 246, a testator devised to his 
grandson " three hundred and fifty acres of land, being the upper part of a tract of 


Cles'eland v. Carson. 

to therh. Tlie Btxlwells, on the contrary, not only deny that 
claim, but insist that the gift is void for uncertainty. The court 
will not hold a devise or bequest to be void for uncertainty 
unless it is wholly unable to discover the testator's meaning. 
That the testatrix intended to give to the Carsons at least two 
of the mortgages which she held on their property in Orange, 
■will admit of no dispute whatever. She gives to them " the two 
mortgages" she held on their property. She may have been in 
€rror as to the number of mortgages, or, what is far more proba- 
ble, the will may fail to express her meaning. It may be that 

seven hundred acres ; and lo his two granddaugliters the lower part of the same 
tract, to be equally divided between them," and ilie tract was found to contain^ 
in fact, eleven hundred acres. The grandson took the three hundred and fifty 
acres and the granddaughters three hundred and seventy-five acres each. 

In Coleman v. Eberly, 76 Pa. St. 197, a devise to E. of " that part of the M. 
farm at present occupied and farmed by B., containing eight fields," passed the 
farm to E., although it contained nine fields. 

In Vemor v. Henry, 6 Watts 192, a gift to "the two daughters of A," he 
having three, went to the three. 

In Shepard v. Wright, 5 Jones Eq. SO, a testator, having seven daughters, 
provided for one of them, Eliza by name, and then directed that the residue 
should be divided into nine equal parts, three of which were to go to his three 
sons, and the oUier six parts to his daughters. — Held, that each of the six 
daughters, excluding Eliza, should have one of the six remaining equal parts. 

In Kalbfleisch v. Kalbfleisch, 67 N. Y. 354, the testator, at the time of making 
his will, had nine children, all of whom survived him. He gave to five of 
them pecuniary legacies for life, with remainder to their issue, and to his 
daughter Josephine he gave a specific legacy. He then gave to his three re- 
maining children certain real estate, "subject to the payment of $113,000 to 
the other eight of my children." He also gave other property to his son 
Franklin, subject to the payment of $15,000 to his executors. He then pro- 
vided that the $113,000 and $15,000 should be taken as part of the amoimts 
specifically devised to his ciiildren. — Held, that the word "eight" should be 
disregarded, but that Josephine could take no part of the f 113,000 and §15,000. 

In Morrell v. Morrell, L. R. {7 P. D.) 68, a testator gave instructions to the 
scrivener to give all his B. shares of stock to his nephews, but the scrivener, 
by mistake, inserted the word '• forty " several times before the word " shares," 
in describing the gift. The testator had, in fact, four hundred shares of B. 
stock.— jBTeW, on proof of these facts, that the word " forty ** should be struck 
out, and all of the stock was decreed to the nephews. See Eatherly v. Ealheiiy, 
1 Coldw. 461. 

In Adams v. Logan, 6 Mon. 175, a testator made a devise to his wife and 
tliree children, if his wife should not be enciente at his death ; but if she should, 

10 Stew.] OCTOBER TERM, 1883. 381 

Cleveland v. Carson. 

through some misunderstanding of the draftsman and inattention 
on her part, an error has crept into the bequest in the statement 
of the number of the mortgages. But however that may be, 
she clearly meant to give at least two of the mortgages, and she 
has not designated which, if she intended to give only two. If 
the gift is to be confined to two, the legatees would themselves 
have tlie right of selection. " Where the gift," says Mr. Jar- 
man, "comprises a definite portion of a larger quantity, it is not 
rendered nugatory by the omission of the testator to point out 

then to her and his four children. He lived until his wife had had the 
fourth child and was enciente of the fifth. — Held, that all the five children 
should be included. 

In Hampshire v. Pierce, 2 Ves. Sr. 216, under a gift to the four children of 
B., who, at the date of the will, had two children by a former husband and 
four by a second husband, all of whom survived her, parol evidence was ad- 
mitted to show that testatrix meant the four children by the second husband. 
See Osborne v. Varney, 7 Mete. 301; Savage v. Hears, 2 Rob. {Va.) 570; Qels- 
lon V. Shields, 16 Hun 143, 78 N. Y. 275. 

In Brokaw v. Peterson, 2 McCart. 194, under a gift to testator's three daugh- 
ters, parol evidence that he meant to include the son of a deceased daughter 
was not admitted. 

In Johnson v. Ooss, 12S Mass. 433, under a gift of " one mortgage on H. B., 
i)f L.," when, in fact, testator had two mortgages executed by H. B., of L., the 
legatee was held entitled to but one, which she might select from the two. 

In Ward v. Sutton, 5 Ired. Eq. 421, a residue was devised " to be equally 
divided between L. H.'s children, S. J. and her children, I. W.'s two children, 
E. and L., and K.'s children, to be equal in said residue with L. H.'s and S. 
J. and her children, and my nephew, S., to be equal with the two K. child- 
ren," and there were three K. children. — Held, the court could not strike out 
the word " two " in the bequest to S., but to effect the intention that word 
must be referred to W.'s children. 

In Selsey v. Lake, 1 Beav. 146, a rent charge was given to trustees during the 
life of A and her five daughters, in trust to pay to A for life, and after her 
death upon "trust for her said daughters and the survivors and survivor, and 
while more than one should be living to be divided between them in equal 
shares." A had five sons and one daughter, and the daughter alone was held 

In Wrighlson v. Calvert, 1 Johns. & Hem. 250, under a bequest as follows : 
"I give to the two grandchildren of A, £19 19s. each. They live near B.," 
it appearing that A had three grandchildren, of whom two only lived near B. 
— Held, that the third grandchild was not entitled. 

In Hull's Estate, 21 Beav. 314, bequest to all testator's nephews and nieces 
living at the death of his wife, namely, all the children of my brother, S. H., 


Cleveland v. Carson. 

the specific part which is to form such portion ; the devisee or 
legatee being in such case entitled to select." 1 Jarm. on Wills 
320. This rule was applied in Love v. Stiles, 10 C. K Gr. 381, 
and Youmans v. Youmans, 11 C. E. Gr. llfd. But the testatrix 
did not intend to limit the gift to two only of the mortgages. 
This is clearly indicated by her language. It is " the two cer- 
tain mortgages which I now hold upon their real estate in Orange 
aforesaid, together with all interest due and to grow due upon 
the same." She evidently meant to give them all her mortgage 
debt upon the property, and made a mistake in stating the num- 
ber of the mortgages. Had she intended not to give all, but 
only to give two of the three, she would have designated the two 
which she meant to give, for the mortgages are of very different 

&c. [naming the greater part but not all of his brothers and sisters, and ex- 
cepting one of his nieces by name, and giving her a legacy] — Udd, that only 
the children of the brothers and sisters specifically named took. 

In Glanville v. Glanville, 33 Beav. 302, a testator having four nephews and 
a niece, children of his brother Richard, bequeathed some stock, " in trust for 
my four nephews and niece, children of my brother Richard, namely, Robert, 
Richard, Francis and Margaret" [omitting Thomas, the fourth nephew]. 
Held, that Thomas could not be admitted to participate in the bequest. 

In Newman v. Fiercy, L. R. {4 Ch. Dlv.) 41, testatrix, by will made in 1873, 
bequeathed to each of the three children of Mrs. W., widow of W. W., £100. 
W. W. died in 1857, leaving a widow and three children, of whom one died 
in 1870, and two survived. Mrs. W. married again in 1858, and had six 
children by that marriage living in 1873. The testator knew there were 
children by the second marriage, but did not know their number. — Held, that 
the two surviving children of W. W. were alone entitled. See Mcyrton v. 
Morton, 2 Swan 318 ; Jone^s Appeal, 48 Conn. 60. 

In Goddard v. Brown, 12 B. I. 31, under a bequest to trustees, " to pay over 
and convey absolutely all my manufacturing property, consisting of all my 
interest and shares in the L. Co., the B. Co. and the H. Co." — Held, to include 
only the three corporations named, although testator owned other manufactur- 
ing property. 

In Emery's Estate, L. R. {3 Ch. Div.) 300, a testatrix, who died in Novem- 
ber, 1874, by her will of January, 1874, bequeathed to each of the three chil- 
dren of her niece £1,000. There was a codicil in June, 1874, confirming this 
gift. At the date of the will the niece had three childien living, the youngest 
being three years old, and a fourth child en ventre sa mire at the time, and 
born in July, 1874. — Held, that only the three children born at the date of the 
will were entitled. See Sherer v. Bishop, 4 Bro. C. C. 55 ; Starling v. Pnce, 16 
OhioSt.27.— 'REF. 

10 Stew.] OCTOBER TERM, 1883. 383 

Cleveland v. Carson. 

amounts— $320, $2,200 and $1,404. A mere mistake in the 
subject of a gift will not invalidate it. Shep. Touch. 4^2 ; Ward 
on Leg. ^02, W3. 

In Sampson v. Sampson, L. R. [8 Eq.) 479, the testator gave 
his four leasehold messuages in Laxton Place, with other tene- 
ments, in trust, out of the rents to pay the ground rents of the 
whole, and of another tenement in York Passage comprised in 
the lease under which two of the houses in Laxton Place were 
held, and to apply the surplus on certain trusts. He had five 
messuages in Laxton Place, held under four leases. It was held 
on the context that the five messuages passed under the bequest. 
In Richards v. Patterson, 15 Sim. 501, 11 Jur. 113, the testator 
bequeathed to his wife and another person all his property in the 
Austrian and Russian funds, " and also that vested in a Swedish 
mortgage security." He had several Swedish mortgages. It 
was held that the gift was not void for uncertainty, and that all 
his property invested in Swedish mortgage securities passed under 
the bequest. The testatrix, in the very next clause to that under 
consideration, gives to the same legatees $1,200 apiece. This 
fact makes it very improbable that she intended to require tliera 
to pay off one of the mortgages, and strengthens the conviction 
that she did not. It is, however, quite enough to say that it is 
clear, from the language of the bequest itself, that she meant to 
give them all the mortgage debts she had on their property. 
There is some evidence (adduced by the Carsons) to prove that 
the first mortgage (of $320) was included in the third, and testi- 
mony also as to the instructions of the testatrix to the draftsman 
of the will, but the former is not positive enough to amount to 
proof, and the latter is incompetent. The executor should de- 
liver up to the Carsons all three of the mortgages, to be canceled. 


Powles V. Griffith. 

Henry Powles et al. 


Charles Griffith et al. 

Merchant and Quinby, being owners of a tract of land, mortgaged it to 
Magie. They subsequently sold part of it to Hudnit and Slater, taking back a 
purchase-money mortgage. After Qninby's death his administrators and 
Merchant assigned that mortgage. The assignee foreclosed it, and Mercliant 
and four of Quinby's children bought the property at the foreclosure sale. 
Quinby's heirs-at-law afterwards proceeded la partition to divide the part of 
the property which Merchant and Qninby had not sold. The land not being 
susceptible of partition without great prejudice to the owners, it was sold by 
order of the court. Afterwards Merchant and three of Quinby's daughters 
bought the Magie mortgage and brought this suit to foreclose it. — Held, that 
the purchaser at the partition sale was not entitled to have the Hudnit and 
Slater parcel sold to pay the mortgage before recourse to his own, but that, on 
the contrary, the owners of the former tract were entitled to that equity as 
against his land, and that the sale in partition neither created any new equity 
nor affected the existing one, because it was merely a conversion of the land 
into money by judicial order for the purposes of the partition. 

Bill to foreclose. On final hearing on pleadings and proofs. 
Mr. F. W. Stevens, for complainant. 
Mr. T. N. McCarter, for C. Borcherling. 

The Chancellor. 

The bill is filed to foreclose a mortgage given September 1st, 
1870, by James M. Quinby and Silas Merchant, both now de- 
ceased, to William J. Magie, trustee, to secure the payment of 
$6,409.18 on a tract of land of about thirty-four and a half acres, 
lying in the counties of Essex and Union. The mortgage was, in 
January, 1882, assigned by Mr. Magie to the complainant Powles 
in trust for Silas Merchant and Anna E. Wright (widow), Maria 
Antoinette Quinby and Ida Scudder, wife of Wallace M. Soud- 
der. After the giving of the mortgage, and on tne 10th of 

10 Stew.] OCTOBER TERM, 1883. 385 

Powles V. Grifl5th. 

February, 1882, Quinby and Merchant, who then still owned the 
mortgaged premises, except a small piece sold by them December 
19th, 1870, to Charles Griffith, conveyed by deed of general 
Avarranty a part of the property to Samuel B. Hudnit and 
Gabriel H. Slater, who gave them a mortgage thereon of that 
date for ^9,000, payable in three years, with interest, for part of 
the purchase-money. On July 20th, 1874, Quinby died intestate, 
leaving one son, James N. Quinby, and four daughter's, the 
before-mentioned Anna E. Wright, Maria Antoinette Quinby, 
Ida Quinby (now Scudder) and Eliza Q. Borcherling, wife of 
Charles Borcherling. Mrs. Borcherling has since died intestate, 
leaving her husband aad an only child, Frederick A. Borcher- 
ling, who is a minor. The administrators of Mr. Quinby were 
his sons-in-law, Messrs. Borcherling and Wrigiit, and John C. 
Beardsley. On July 1st, 1876, Silas Merchant and Messrs. Bor- 
cherling and Wright, surviving administrators of Mr. Quinby 
(Mr. Beardsley had died), assigned the Hudnit and Slater bond 
and mortgage to the Newark Savings Institution as collateral 
security. In 1877 the savings institution brought suit to fore- 
close that mortgage, and the premises were sold by a master 
under execution in that suit in January, 1878, and were pur- 
chased at the sale by Mr. Merchant and Maria A. Quinby, 
Anna E. Wright, Ida Quinby (now Scudder) and James N. 
Quinby, and a deed therefor was given to them accordingly. In 
1878 Mrs. Wright, Maria A. Quinby, Ida Quinby and James 
N. Quinby brought a suit in this court against Mr. Merchant 
and Mr. Borcherling and his son for partition of the part of the 
original tract which Messrs. Merchant and Quinby owned after 
the sales to Griffith and Hudnit and Slater, and the property 
was, in March, 1881, sold in that suit to Mr. Borcherling for 
$306 (the estimated amount of the costs of the proceedings in 
partition), and conveyed to him accordingly by deed dated 
May 2d, 1881. The bill in this cause is filed by Mr. 
Powles as trustee, and his cestuis que trust, who are the execu- 
tors^ of Mr. Merchant, who is dead, and Mrs. Wright, Mrs. 
Scudder and Miss Quinby, to foreclose the Magie mortgage. 
Mr. Borcherling insists that he is, under the circumstances, 



Powles v. Griffith. . 

in equity entitled to have the Hudnit and Slater tract sold 
to pay the mortgage before recourse is had to his land. There is 
no ground for this claim. Hudnit and Slater, who held their 
part of the property under a deed of general warranty, had the 
right in equity to have the part of the property which 
Merchant and Quinby retained after the conveyance to them, 
sold for payment of the Magie mortgage before recourse to 
theirs. The purchasers at the foreclosure sale stand in their 
place in that respect, and are entitled to the same equity. It is 
Mrged, however, that inasmuch as these purchasers were Mr. 
Merchant and four of the heirs-at-law of Mr. Quinby, who, 
with the heir of the deceased daughter of Mr. Quinby and Mr^ 
Borcherling (as tenant by the curtesy of his wife's share), were 
the owners of the property sold in partition, they are not only 
not entitled to the equity, but that Mr. Borcherling is, as before 
stated, entitled to the equity which he claims against them. But 
the equity is one which is not confined to the original grantee. 
It is connected with the land, and passes to those who hold 
under him. Shannon v. Marselis, Saxt. 4-^3. And they will 
be entitled to it accordingly, unless some special reason appear to 
the contrary. Not only are those of Quinby's children who 
claim under the purchase at the foreclosure sale (Mrs. Wright is 
owner by purchase of her brother's interest in the property) enti- 
tled to stand, as to the equity, as strangers would have stood 
(that is, in Hudnit and Slater's place), but Merchant's represent- 
atives are so entitled also. When the purchase at that sale was 
made, the purchasers clearly had the right to have the rest of 
the tract (except, of course, what had been sold to Griffith) sold 
to pay the Magie mortgage before recourse to the Hudnit and 
Slater parcel. And there was nothing in the partition sale to 
aflFect it. That sale was a judicial one, made merely for the con- 
version of the property into money in order to make a partition 
which otherwise could not be made without great prejudice to 
the owners. The purchaser took the property subject to the 
mortgage (he so, in fact, understood it), and subject to the equities 
which the owners of the other parts of the whole tract were 
entitled to in respect to it. Cool v. Higgins, 8 C. E. Gh\ 308. 

IOStew.] OCTOBER TERM, 1883. 387 

Powles V. Griffith. 

The case under cousideration more briefly stated stands thus : 
Merchant and Quinby, being owners of the whole tract, mort- 
gaged it to Magie. They subsequently sold part of it to Hudnit 
and Slater, taking back a purchase-money mortgage. After 
Quinby's death, his administrators and Merchant assigned that 
mortgage. The assignee foreclosed it, and Merchant and four 
of Quinby's children bought the property at the foreclosure sale. 
Quinby's heirs-at-law afterwards proceeded in partition to divide 
the part of the property that Merchant and Quinby had not sold. 
The laud not being susceptible of division without great preju- 
dice to the owners, it was sold by order of the court, and Mr. 
Borcherling bought it, in March, 1881, subject to the Magie 
mortgage. Afterwards, in January, 1882, Merchant and three 
of Quinby's daughters bought the Magie mortgage, and this suit 
is brought to foreclose it. From this statement it seems entirely 
clear that as well after as before the partition sale, the owners of 
the Hudnit and Slater tract were entitled to the same equity 
against the land sold in partition as to the payment of the Magie 
mortgage, which Hudnit and Slater were entitled to as owners, 
and that that right is in no wise affected by the fact that they 
were part owners of the latter land when the sale in partition was 

It was alleged on the hearing that there was an understanding 
between Mr. Borcherling and those of the children of Mr. 
Quinby who purchased the Hudnit and Slater land at the mas- 
ter's sale, that the purchase should be for the benefit of Mr. 
Borcherling's son, with the others, which understanding was not 
observed, and it was urged that, therefore, in view of the im- 
puted breach of faith, it would be inequitable to concede to the 
purchasers the right in question if otherwise entitled to it. But 
in the first place, there is no issue in the cause as to this matter ; 
and in the next, if there were, and the fact had been established, 
it would not affect the question under decision. The owners of 
the Hudnit and Slater land are entitled to have the land sold in 
partition first sold to pay the mortgage in suit before recourse to 
their property 


Dunham v. Ramsey. 

Serring p. Dunham and John Maxwell 


Henry K. Ramsey et al. 

On a bill to set aside as fraudulent a mortgage given to indemnify the mort- 
gagee against his liability as endorser on certain promissory notes — BeZd, that 
the holders of the notes are necessary parties. 

Creditor's bill. On general demurrer. 
Mr. A. A. Clark, for demurrants. 
Mr. John Schomp, for complainants. 

The Chancellor. 

The bill is filed by two of the creditors of Henry K. Ramsey 
to obtain, with other relief, a decree setting aside as fraudulent 
and a sham, a mortgage given by him upon his hotel property in 
Bound Brook to his father, Joseph Ramsey. The mortgage con- 
tains a proviso for the payment to the mortgagee of $7,500, or 
to indemnify him against his liability as endorser upon certain 
promissory notes, amounting, in the aggregate, to that sum, of 
which $4,500 are in the Somerset County Bank " under dis- 
count;" $900 in the Plainfield Bank; $1,000 held by Abraham 
Van Doren, and $800 by Henry Van Doren. 

The defendants to the suit are Henry K. and Joseph Ramsey, 
Alvah A. Clark and George H. Large, assignee of Joseph Ram- 
sey. The demurrer brings up the question whether the holders 
of the notes mentioned in the mortgage, the two banks and the 
Van Dorens, are not necessary parties. AVhere an individual is 
in the actual enjoyment of the subject-matter of the suit, or has 
an interest in it, either in possession or expectancy, which is liable 
to be defeated or diminished by the complainant's claim, he has 
an immediate interest in resisting the demand, and is a necessarv 

10 Stew.] OCTOBER TERM, 1883. 389 

Carpenter v. Gray. 

party to the suit. 1 Dan. Ch. Pr. 2^6. As a general rule, 
where a surety, or a person standing in the situation of a surety 
for the payment of a debt, receives a security for his indemnity 
and to discharge such indebtedness, the principal creditor is in 
equity entitled to the full benefit of that security, and it makes 
no diflference that the principal creditor did not act upon the 
credit of such security in the first instance, or even know of its 
existence, and the right of the creditor is the same, where the 
security is a lien given after the principal and surety have both 
become bound, even though there may have been no previous 
agreement that indemnity should be given. Brandt on Surety- 
ship § 282. In this case, as before stated, the complainants at- 
tack and seek to annul the mortgage. It appears by the state- 
fuents of the bill that the Ramseys are both insolvent. The 
holders of the notes are in equity entitled to the benefit of the 
mortgage — to the benefit of the lien which it creates upon the 
mortgaged premises — for the payment of their debts. They 
therefore obviously have a direct and immediate interest in the 
subject-matter of the suit, so far as the mortgage is concerned. 
They are interested in maintaining the validity of the lien. They 
therefore are necessary parties. The demurrer will be allowed. 

Margaret Carpenter 


Alexander Gray, executor, et al. 

1. A plea by an administrator setting up a settlement of his account in the 
orphans court, is no defence to a bill by a legatee praying discovery as to the 
character of the security in which her legacy is invested, and for such action 
in this court as will protect her interests therein. 

2. A defendant cannot, by means of a cross-bill, litigate matters between 
himself and another defendant which are not the subject of the suit. 


Carpenter v. Gray. 

Bill for discovery &c. On motion to strike out parts of plea^ 
On notice and stipulation of counsel. 

3Ir. Howard Stanger, for complainant. 

Mr. J. J. Crandall, for Alexander Gray. 

Mr. W. J. Gibby, for Abram S. Myrick, administrator. 

The Chancellor. 

The bill is filed by Mrs. Carpenter against the administrator 
of her deceased brother, John Gray, who was one of the execu- 
tors of the will of her father, Alexander Gray, deceased, and her 
brother, Alexander Gray, who, at the filing of the bill, was one 
of the executors. It states that the testator died in April, 1873 ; 
that the will was proved by John and Alexander Gray ; that 
under it she is entitled to a certain share of the residuum of the 
estate which was to be invested by the executors during her life, 
and the interest paid over to her; that in May, 1874, John and 
Alexander Gray, as such executors, filed their account in ihe sur- 
rogate's office of Middlesex county, wherein they admitted that 
they held in trust for her under the will $3,000; that in 
January, 1874, previously to the filing of the account, John 
Gray, without the consent of Alexander, lent that money to the 
banking firm of Brown & Gray, of Wilkesbarre, Pennsylvania, 
at first in his own name as lender, but afterwards in the names 
of both himself and Alexander, and subsequently withdrew it 
and invested it in some way unknown to the complainant; that 
after the filing of the account before mentioned John filed a sep- 
arate account of the estate, in which he charged himself with 
the balance of the joint account, and cliarged himself with the 
$3,000 ijcld in trust for the complainant ; that he died in Decem- 
ber, 1882, and the defendant Abram S. Myrick was appointed 
administrator of his estate, in which were the $3,000; that the 
complainant cannot obtain any account of the income or interest 
which has been received from the investment of the $3,000, or of 
the way in which that money is invested, has been applied or dis- 

10 Stew.] OCTOBER TERM, 1883. * 391 

Carpenter v. Gray. 

posed of; that Myrick refuses to come to an account with her or 
to give her the desired information in regard to the disposition 
of the fund; that in the lifetime of John Gray she applied to 
him and his co-executor, Alexander Gray, to invest the $3,000 
on proper security for her, and that since John's death she has 
applied to his administrator to pay over the money, with the 
interest, to Alexander, and has requested the latter to obtain them 
from the administrator for her benefit under the will, but they 
liave refused. The bill prays an account of the $8,000, and the 
investment, application or disposition thereof, and an account of 
the interest, and that the defendants (who are Myrick, adminis- 
trator, and Alexander Gray) or one of them may be decreed to 
pay the interest to the complainant, and that the $3,000 and such 
share of the residue of her father's estate as she may appear to be 
entitled to, may be invested for her benefit by Alexander Gray, 
as surviving executor. There is also the general prayer. 

The defendant Alexander Gray has answered, admitting all 
the matters stated in the bill, and he answers also by way of 
cross-bill, in substance, that John Gray denied him participation 
in the administration of their father's estate, and kept in his own 
possession or under his control all the property and assets, and 
that since John's death his administrator has refused to give them 
up to him, and he prays tiiat Myrick, as administrator, may 
account to him for the $3,000 and interest, to the end that he 
may execute the trust under the will in regard thereto in favor 
of the complainant, and that Myrick may be decreed to deliver 
to him all the property and assets of the estate of the testator, 
Alexander Gray. 

To the bill and the answer in the nature of a cross-bill, Myrick 
has pleaded. By the plea he pleads that before the beginning 
of this suit, and on the 22d of May, 1883, he duly settled tiie 
account of John Gray, trustee of the complainant under the will, 
i« the orphans court of Middlesex county, and that on the 27th 
of March, 1882, that court, by an order which has never been 
vacated or modified, restrained Alexander Gray from acting as 
the executor of his father, and on the 7th of May, 1883, revoked 


Carpenter v. Gray. 

the letters testamentary issued to him on the will of his father, 
and removed him from tlie office of executor. 

The complainant and Alexander Gray move to strike out the 
substantial parts of the plea. To consider the matter first with 
regard to the bill. The plea purports to be to the whole of the 
bill. But conceding that notwithstanding this, that part of it 
which sets up the settlement in the orphans court is a good de- 
fence p?-o tanto to the account prayed for, it is no defence what- 
ever to the discovery, or to the claim of the complainant for such 
action of this court as may be proper to protect her legacy. As 
administrator of John Gray, Myrick holds the trust fund as he 
admits. The complainant has a clear right to know from him 
how it is invested, and to have the aid of this court, if necessary, 
by the appointment of a trustee, to protect the legacy and her 
inter st therein. It manifestly is no answer to her claim to such 
discovery and relief, to say that the administrator's account of the 
trust fund was settled up to May 22d, 1883, and that Alexander 
Gray has been removed from his office of executor. Where a plea 
is to the whole of the bill, but does not extend to, or, in techni- 
cal language, cover the whole, it is bad. Beames's Pleas in Eq. 
J}2. The plea, therefore, must, as to the bill, be overruled, with 
costs of the motion. It is unnecessary to consider the plea with 
reference to the answer in the nature of a cross- bill, for that answer 
itself cannot be sustained. The bill seeks the protection of the 
court for the interest of the complainant in a legacy under her 
father's will. Alexander Gray is made a defendant, because 
when the bill was filed March 21st, 1883, he was still an execu- 
tor of the will. He answers, as before stated, admitting all the 
statements of the bill to be true, and himself, by the cross-bill, 
seeks to institute a litigation with the administrator of his late 
co-executor, to obtain a decree that the latter deliver to him, not 
only the complainant's legacy, but also the whole of the property 
and assets of the testator's estate. This cannot be sustained on 
the ground that it is necessary to his defence, for he has no de- 
fence and makes none whatever. Indeed, so far from making a 
defence, he is in entire accord with the complainant, for he not 
only admits the truth of all the statements of her bill, but in his 

10 Steav.] OCTOBER TERM, 1833. 393 

Cass V. Demar'est. 

cross-bill prays the same relief for her against his codefendant 
which she prays for herself in her bill. A cross-bill should be 
confined to the matter contained in the original bill. The litiga- 
tion of the claims of Alexander Gray to the possession of all the 
property and assets of his father's estate is not in anywise neces- 
sary to the decision of the complainant's claim to relief, or to 
enable the court to grant her such relief effectually and com- 
pletely, if she should appear to be entitled to it. 

Alexander Gray, by the cross-bill, seeks to engraft on this liti- 
gation another one between himself and his brother's administra- 
tor in regard to other matters than those which are the subject 
of this suit. The answer in the nature of a cross-bill, and the 
plea to it, must be struck out. There will be no costs of this 
motion, however, either to or against Alexander Gray. 

Maria L. Cass 


Maegaret Demarest et al. 

A married woman may enjoin the execution creditors of her husband from 
selling lands, the title whereof stands in his name but which were bought by 
him, bona fide, for her, and paid for with her money. 

Bill for injunction. On final hearing on pleadings and proofs. 

Mr. C. H. Voorhis, for complainant. 

Mr. W. M. Johnson, for judgment creditors. 

The Chancellor. 

This suit is brought by Mrs. Maria L. Cass, wife of Alexander 
Cass, for an injunction to restrain judgment creditors of her hus- 


Cass V, Demarest. 

band from selling, under executions on their judgments, laud, 
the title whereto was in him when their judgments were recov- 
ered, but which she insists he held merely in trust for her. The 
land consists of three parcels, one of which was bought in 1863, 
another in 1864, and the other in 1866. The title to it re- 
mained in Mr. Cass until June, 1874, when he and his wife, by- 
two deeds, conveyed the property to Mrs Miller, the sister of 
the latter, for the purpose of transferring the title to the com- 
plainant by means of those deeds and a conveyance from Mrs. 
Miller and her husband to Mrs. Cass. The conveyance by Mrs. 
Miller and her husband to the complainant was not made until 
January, 1877. None of the deeds made to transfer the title to 
the complainant were recorded until after the commencement of 
this suit. In 1877, the judgment creditors recovered their judg- 
ments against Mr. Cass, and they do not appear to have had any 
notice that the property was claimed by the complainant until 
the suit was brought. The judgments were recovered for dis- 
tributive shares of an estate of which Mr. Cass was administra- 
tor. He was appointed administrator in 1870, and his final 
account was passed in 1874, 1875 or 1876, but it does not appear 
more particularly when it was passed. He was unable to pay 
the distributees in 1877, when the judgments were recovered, 
but iie swears he thinks he was able to do so in 1876. Two of 
the parcels of land in question were conveyed to him by Tunis 
Cooper; one by deed dated May 18th, 1863, for the considera- 
tion of §350; and the other by deed dated May 5th, 1866, for 
the consideration of $400. The other parcel was conveyed to 
him by Samuel B. Bogart by deed dated May 6th, 1864, for the 
consideration of $190. Mr. Cass swears that the several parcels 
were bougiit with his wife's money, and that there was a distinct 
understanding between him and her that she was to hold the 
title for the land when it was bought ; that the parcel first pur- 
chased was bought with money furnished by Mrs. Cass's mother, 
who, when she furnished it, directed that the property to be 
bought with it should belong to his wife ; that the other parcel, 
bought from Cooper, was bought partly with money furnished 
for the purpose by his wife's mother and partly with money fur- 

10 Stew.] OCTOBER TERM, 1883. 395 

Cass V. Demarest. 

nished by Mrs. Miller, his wife's sister; and tliat the land 
bought of Bogart was paid for wholly with his wife's money, 
^90 of it being money which she had earned in boarding and 
taking care of Bogart's wife, who boarded at his house, and 
died there while Bogart was absent from home during the war. 
He also swears that it was not by his direction or request that 
the deeds from Cooper were made to him. He is contradicted 
in this statement, so far as the second deed is concerned, by his 
own admission that that deed was drawn by himself. The first 
deed was nut. Mr. Miller (Mrs. Miller is dead, and so is the 
complainant's mother) corroborates him, however, in the rest of 
his statements in regard to the first deed from Cooper. He says 
he was present in 1863 when the complainant's mother fur- 
nished the money to buy that property ; that the amount was 
$400, and«that it was given, as he understood, to buy a lot in 
Englewood for Mrs. Cass. He says Mr. and Mrs. Cass, he and 
his wife and Mrs. Cass's mother were all present on the occasion. 
No evidence was offered by the defendants. While such trans- 
actions as that under consideration, where a husband buys prop- 
erty and takes the deed therefor in his own name, and years 
afterwards his wife asserts an equi-table title to the property as 
against his creditors under a claim of resulting trust, are to be 
carefully scrutinized to prevent the successful assertion of fraudu- 
lent claims, yet it is obvious that when the facts are sufficient to 
establish the right, the wife is entitled to the protection of the 
court as fully as a stranger would be. Here the proof is clear 
that the wife, either herself or through her mother or sister, who 
paid it for her, furnished all the purchase-money. The $90 for 
the board and care of Mrs. Bogart ajipear to have been money 
which it was agreed between her and her husband she should 
have as her own, and in consideration of the circumstances the 
agreement seems to have been quite reasonable and proper. It 
is proved that the agreement between her and her husband was 
that he was to buy the property for her, and that when pur- 
chased it was to be hers. I see no reason to doubt the bona fides 
of her claim. She is entitled to the relief which she prays — a 
perpetual injunction restraining the judgment creditors from 


Coulston V. Coulston. 

selling" the property — hut under the circumstances, seeing that 
they had no notice of her claim until the beginning of this suit, 
no costs should be awarded her. 

Jesse C. Coulston 


Charles W. Coulston et al. 

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

Bill to foreclose. On motion to vacate final decree and order 
of reference. 

Mr. C. Ewan Merritt, for motion. 

Mr. C. E. Hendrickson, contra. 

The Chancellor. 

The complainant filed his bill to foreclose a mortgage. The 
defendant Enoch Hollinshead answered, setting up in his an- 
swer, by way of cross-bill, the priority of his mortgage to that of 
the complainant. The cause was referred to one of the vice- 
chancellors, and Hollinshead's claim was sustained. His solici- 
tor thereupon drew the final decree and had it advised, and it 
was thereupon signed. He subsequently drew an order of refer- 
ence, which was also in like manner advised and signed on his 
motion. The complainani's solicitor now moves to vacate the 
decree and order on the ground that they were improvidently 
made. The complainant's solicitor did not lose his right to have 
charge of the suit by the fact that one of the defendants succeeded 
in establishing his right to priority for his encumbrance over that 

10 Stew.] OCTOBER TERM, 1883. S97 

Inhabitants of Woodbridge v. Inslee. 

of the complainant. It may be remarked that no cross -bill wag 
necessary in order to litigate the question whether Hollinshead 
was entitled to the priority he claimed. But if it had been, it 
would have made no difference as to the complainant's right to 
control the suit. He was magister litis and could not have been 
deprived of that character, except under the rule for his neglect 
or refusal to proceed with the suit. If, after the decision, he had 
unduly delayed entering the decree, the court, on the defendant's 
application, would have directed him to draw the decree and pre- 
sent it to be settled and signed, and had he not complied with 
the direction, it might then have ordered the defendant's solici- 
tor to draw it, or might have drawn it itself, or might have 
ordered the clerk to draw it. There appears to have been no rea- 
son for the action complained of, which evidently was due merely 
to a misapprehension of the practice. The decree and order must 
be set aside, with costs. 

The Inhabitants of the Township of Woodbridge 


Charles T. Inslee. 

An injunction-bill filed by a township alleged that in 1876, one W., owning 
a lot fronting on a highway in the township, excavated a part of the lot ad- 
joining the highway and also a part of the highway itself, for the purpose of 
obtaining pottery clay, and left the highway in a very unsafe condition ; that, 
in 1880, W. sold the premises to the defendant, who was afterwards notified to 
fill up the excavations. The bill also contained some allegations as to other 
excavations made by the defendant, but they were uncertain and insufficient, 
— Held, that no ground for relief in equity was shown. 

Bill for relief. On general demurrer. 
Mr, A. H. Strong, for demurrant. 


Inhabitants of Woodliridge v. Inslee. 
Mrl E. Cutter, for coraplaiuants. 

The Chancellor. 

The bill slates that, in or about February, 1876, William 
Inslee was the owner of a lot of land, of about eleven and a half 
acres, having a frontage of eight chains and eighty links on the 
easterly side of a public highway, in the township of Woodbridge ; 
that he then began to make excavations along his line in the high- 
way in front of that property for the purpose of digging out and 
removing certain deposits of merchantable clay lying beneath the 
surface of the highway there; that the highway in front of his 
land was one chain and thirteen links wide; that he only partly 
filled up the excavations which he made, and left them to remain 
about twelve feet deep, and for about a year and a half afterwards 
continued to make such excavations both in the highway and on 
his adjoining land; that at the end of that period he had made 
an extensive one, about twenty-three feet wide, twelve feet deep 
and two hundred and fifty feet long in the highway and on his 
land adjoining, but mainly in the former ; that the excavation 
was made without authority and under the pretence that it would 
be at once filled up and the road restored to its original condi- 
tion, and through the fraud and neglect of the overseer of the 
road district in which that part of the highway was, the 
encroachment was not prevented; that by reason of the excava- 
tion, which was to a great extent in the part of the highway 
used for travel, the road was greatly obstructed; that on or 
about January 31st, 1880, William Inslee conveyed the land to 
Charles T. Inslee, the defendant; the excavation then still 
remaining as last above stated, and that the latter has ever 
since been in possession of the land ; that William Inslee before, 
and the defendant after that conveyance, were frequently notified 
by the overseer of the road district to fill up the excavation and 
restore the road to its former condition ; that on the 18th of 
October, 1880, written notice to that effect was given to the 
defendant; that after service of that notice he did partially 
restore the highway but did not do so fully, and in that year and 
the year following he made further and other excavations in the 

10 Stew.] OCTOBER TERM, 1883. 399 

Inhabitants of Woodbridge u. Inslee. 

highway in front of his land, and piled np there large quantities 
of clay, earth, stones &c,, wliich were allowed to remain there, so 
that the highway was greatly obstructed thereby, and he also, in 
digging clay on his land, made an excavation there (on his laud) of 
about twenty feet deep, extending about two hundred feet south- 
erly of that before mentioned, and it was so close to the line of 
the road that the side of the latter caved into the excavation for 
want of support; that on the 24th of July, 1882, the complain- 
ants caused the overseer of the road district to notify him to 
remove immediately the heaps of clay &c. he had put in the 
highway, and to fill up the excavation and restore the highway 
to its original condition, and for the future to desist from 
encroaching on the highway and from removing the earth so close 
to it as to endanger its caving in, and that after the service of 
that notice he partly removed the piles of clay &c. and partly 
restored the highway, and promised to comply at once with the 
requirements of the notice, but although he might have done as 
he promised, he has not done so. 

The bill further states that a part of the excavation made by 
William Inslee in the highway still remains ; that it is of a 
triangular form, about one hundred and twenty feet long, along 
the easterly side of the road, and about one hundred and twenty- 
two feet on the westerly side of the excavation, twenty-three 
feet wide at the base, or southerly side, and gradually slopes from 
the surface of the road, at the northerly end, to a depth of twelve 
feet at the southerly end ; that it is used by the defendant, and 
has been, ever since he got his land, as a roadway to and into the 
clay pits thereon; that the highway still continues to be ob- 
structed by a pile of clay eighty feet long, six feet high, and 
about twelve feet wide, piled up along the side of the highway, 
just north of the excavation, and extending into it, stored there 
until sale, and by a pile of earth four feet high extending out 
from the defendant's land about three feet into the highway for a 
distance of about sixty-&ix feet, and that in some places there is 
danger that the side of the highway will cave into the excavation 
made by the defendant on his land ; that the highway, by reason 
of the existence of the excavation and the piles of clay &c., is 


Inhabitants of Wootlbridge v. Inslee. 

greatly*obstructecl, to the great danger and common nuisance of 
all the people of the township passing over it; that there are no 
fences or railings along the side of the excavation in the highway, 
and that by reason thereof the highway is rendered dangerous to 
travelers, and that the part of the road which has been restored lias 
been made higher than it was originally and higher than the rest 
of the road is, so that ditches cannot be constructed along the road 
on the side adjoining the defendant's land, and the surface-water 
which formerly ran into the ditches is caused to flow across and 
in the middle of the road, which is greatly damaged thereby. 
The bill further states that the defendant is still digging clay on 
his land, and the complainant fears that other and similar en- 
croachments and obstructions will be made or placed in the high- 
way, and that the defendant will continue to remove the earth 
close to the line of the road, as he has already done and threatens 
to do. It charges that he claims a right to encroach upon and 
obstruct the highway for the purpose of removing the deposits 
of clay therefrom, and from his land, and to pile clay &c. thereon. 
It denies his right, and charges that the complainants cannot fill 
up the excavations and remove the piles of clay &c. without 
great expense, and that were they to attempt it the defendant 
would probably resist them with violence. It sets forth the re- 
sponsibility of the complainants in regard to the condition of the 
road, and prays that the defendant may be directed to fill up the 
excavation in the road, and remove the piles of clay &c., and put 
the highway in the same condition it was in before the excava- 
tion and obstructions, and that he may be enjoined from further 
encroaching upon, obstructing or interfering with the highway, 
and from excavating on his land so close to it as to render i-t un- 
safe, or to cause the road to cave in. There is also the general 
prayer for relief. The defendant has filed a general demurrer. 
Though this court undoubtedly has jurisdiction to redress the 
injury of public nuisance, yet it is clearly established that it will 
not interfere where the object sought can be as well attained in 
the ordinary tribunals. Atty.-Gen. v. N. J. B. B. Co., 2 Gr. 
Ch. 136; Jet^sey City v. City of Hudson, 2 Beas. J^O ; M. & E. 
B. B. Co. V. Prudden, 5 C. E. Gr. 530 ; Atty.-Gen. v. Brown, 

10 Stew.] OCTOBER TERM, 1883. 401 

Inhabitants of Woodbridge v. Inslee. 

9 C. E. Gr. 89. A municipal corporation, charged with the care 
of the highways, may maintain suit to protect them against 
threatened injury. Township of Greenwich v. E. & A. R. R. 
Co., 9 a E. Gr. 217; 8. C. on appeal, 10 C. E. Gr. 565. 

It is quite obvious that no relief can be granted in this suit for 
or in respect to the injury to the highway in question done by 
the excavation made by William Inslee, the defendant's grantor. 
It appears that in October, 1880, the overseer of the road district 
notified the defendant to fill up that excavation, and that he did 
accordingly partly restore the road to its original condition ; but 
there neither w^s nor is any obligation upon him to comply with 
that requirement. The bill states, however, that after that notice 
he himself made further and other excavations in the highway, 
but the extent of them does not appear. It is stated that after a 
notice given to him in July, 1882, he partly restored the high- 
way. Whether he did not fill up all the excavation therein 
which he himself had made does not appear. It does appear, 
however, that the excavation in the highway complained of in 
the bill as still remaining, is a part of that which was made by 
William Inslee, and it would therefore seem that the defendant 
has filled up all the excavation made by him in the road. It is 
said that he excavated ©n his land so close to the line of the road 
that he thus caused the side of the road to fall in for want of the 
support of his adjoining land. But to what extent the highway 
was thus injured does not appear, and, besides, that injury had 
been done when the bill was filed. The bill states that the de- 
fendant threatens to continue to remove the earth on his land 
close to the line of the road, but it is not stated that he threatens 
to remove it so close as to endanger the road. For such a 
threatened injury there would, in a proper case, be a preventive 
remedy in equity, but the bill must contain the necessary aver- 
ments on that head ; otherwise it cannot be sustained on de- 
murrer. There is an adequate remedy in the ordinary tribunals 
for the obstruction of the piles of clay &c. It may be added 
that there does not appear to be any necessity for recourse to 
equity. The excavation made by William Inslee has existt^ 
since 1876, five years before the bill was filed, and it would seem 



Tliebaud v. Hollister. 

that the piles of clay &c. complained of were placed in the road 
Bome months before this suit was begun. It is not even averred 
that there is any need of immediate relief. Notwithstanding the 
excavation and obstructions, the road has been used by the pub- 
lic, and, 80 far as the bill shows, with safety. It follows, from 
what has been said, that the demurrer must be allowed. 

Edward Y. Thebaud 


Ann M. Hollister et al. 

An intestate died in January, 1875, leaving a widow and three children, 
Josephine, George and Henry. He had given (in 1871) a mortgage on the 
homestead to George for $800, in which his wife did not join. In May, 1875. 
George mortgaged his undivided third of the property to Hawley for $1,500. 
In May, 1882, Henry and his wife conveyed his interest to the complainant. 
The premises were rented by agents of the widow and George and Josephine, 
and the rents applied on the interest due on the Hawley mortgage. — Held, 

(1) On partition, that complainant, who took his title after the payment on 
the Hawley mortgage, was not entitled to have the rents which were so col- 
lected and applied, nor any part thereof, credited on George's mortgage, he 
having no right to any amount for rents accrued and collected before he got 
his title. 

(2) That George's mortgage was not merged by the descent to him of an 
undivided one-third of the premises. 

Bill for partition and account. On exceptions to master's re- 

Mr. J. B. Vredand, for the exceptants. 

Mr. E. D. Halsey, for complainant. 

The Chancellor. 

This suit is brought for a partition of a lot of land contain- 
ing about thirteen and one-half acres, in Morris county, of 

10 Stew.] OCTOBER TERM, 1883. 403 

Thebaud v. Hollister. 

^hich Clark Hollister, deceased, died seized. The property 
appears to have been Mr. Hollister's homestead. The build- 
ings are in the middle of the tract, and there is no more land 
in the latter than is required for such a property. Mr. Hol- 
lister died intestate in January, 1875. He left a widow, still 
living, one of the defendants in this suit, and three children, 
Josephine, George P. and Henry. In September, 1871, he gave 
a mortgage on the premises to George to secure the payment to 
the latter of ^800 in three years, with interest. His wife did 
not join in it. In May, 1875, George mortgaged his undivided 
third of the property to Abraham W. Hawley, one of the de- 
fendants, to secure the payment of $1,500 and interest. In May, 
1882, Henry, with his wife, conveyed his interest in the prop- 
erty to the complainant. The premises appear to have been 
rented, with the exception of a year or two, ever since the death 

Note. — In Jenkins v. Van Schaak, 3 Paige 2^2, only a moiety of an annuity 
charged upon land was held to be merged by the annuitant inheriting a moiety 
of the land as heir of the devisee of the grantor of the annuity. See Addams 
v. Heffeman, 9 Watts 529 ; Byam v. Sutton, 19 Beav. 556 ; Fitzgerald v. Fitz- 
gerald, L. R. (2 P. C.) 83. 

I-n Lansing v. Pine, 4 Paige 639, the lessee of land became the purchaser of 
a moiety of the rent and reversion, and the rent and lease were considered as 
extinguished pro (anto. See Martin v. Tobin, 12S Mass. 85 ; Phillips v. Clark- 
son, 2 Yeates 124; Spencer v. Austin, 38 Vt. 258 ; Fox v. Long, 8 Bush 551; 
Hyde v. Warden, L. B. {3 Ex. Div.) 72. 

In Knickerbocker v. Boutwell, 2 Sandf. Ch. 319, an assignment of a mortgage 
upon several lots to the owner of two of them, was held to merge it only as to 
the two lots. See Knowles v. Carpenter, 8 R. L 548. 

In James v. Morey, 2 Cow. 246, a mortgagee purchased, under execution 
on judgments subsequent to the mortgage, a part of the premises, which was 
sold in difierent tracts, and the mortgage was held lo be merged pro ianto. 

In Casey v. Butiolph, 12 Barb. 637, A purchased a lot and gave a mortgage 
for the purchase-money. He afterwards gave a quit-claim deed to B for the 
west half of the lot, the grantee to take possession on A's denth, and subse- 
quently A gave a similar deed to C for the east half. A paid part of the mort- 
gage and died. B paid the remainder and took an assignment of it, and had 
possession of the whole lot after A's death. C died, leaving a child and widow. 
The child died and the widow brought ejectment against B for tlie east half 
of the lot. — Held, that the mortgage was not merged as to the east half, and 
that B could defend as assignee of the mortgage. 

In Smith v. Roberts, 62 How. Pr. 196, 91 N. Y. 470, a purchase by and cou- 
Teyance to a mortgagee of an undivided part cf the mortgaged premises, where 

404 CASES IN CHANCERY. [37* Eq. 

Thebaud v. Hollister. 

of Clark Hollister, by two ageuts, one of whom acted under a 
power of attorney from the widow and George (this agent col- 
lected the rents up to February, 1882), and the other (he has 
collected them since that time) under a power of attorney from 
them and Josephine. The rents received were applied, after 
paying taxes, insurance and other expenses upon the property, to 
paying the interest on the Hawley mortgage (given, as before 
stated, by George on his third of the property), and the amount 
so paid is, according to the master's report, $765. The master 
reports that George should be charged with this sum on account 
of the principal and interest of his mortgage; that his mortgage 
was merged by the subsequent descent of an undivided interest 
in the property to him, and that the balance due on that mort- 
gage should be apportioned between him and Josephine and the 
complainant. The widow's dower has never been assigned to 

it did not appear that there was a payment or merger of the mortgage, or any 
portion thereof, was held to operate as a release of the portion conveyed from 
the lien of the mortgage, leaving it to rest solely upon the portion unconveyed. 
See First Nat. Bank v. Elmore, 52 Iowa 541. 

In Goodmn v. Keney, 47 Conn. 4^6, J., in 1846, mortgaged to A. an undi- 
vided fifth of certain lands, of which A. already owned three-fifths. A. took 
possession of the interest mortgaged and remained in possession until her 
death in 1866. Prior to 1862, A. had acquired J.'s equity of redemption, and 
in that year devised the premises to G. for life, with remainder to K. In 
1863, A. assigned the mortgage to the petitioner, and died in 1866. G. en- 
tered into possession under her devise, and was in the occupation thereof 
when, in 1878, the petitioner began a foreclosure of her mortgage against G. 
and K. — Htld, that there had been no merger of A.'s interest in the premises 
as mortgagee into the equity of redemption purchased by A. of J. 

In Barker v. Flood, lOS Mass. 474, an assignment of a mortgage to one of 
two owners of the equity of redemption, was held not to discharge it. Also, 
Duncan v. Drury, 9 Fa. St. SS2. 

In Model Assn. v. Boston, 114 Mass. 1S3, an assignment of a mortgage to the 
wife of the mortgagor, after he had conveyed away all his interest in the 
premises, was held not to extinguish it. See Bean v. Boothby, 57 Me. 295. 

In Dender v. OKeefe, 7 Stew. Eg. 361, B. held lands in trust for a married 
woman. A mortgage thereon given by his cestui que trust, before the convey- 
ance to B., was assigned to him after that conveyance. — Held, that the mort- 
gage did not merge. 

In Hal^s Appeal, 40 Pa. St. 209, a mortgage given to a trustee, in trust for 
a feme covert, was held not to be merged in a subsequent conveyance of the 
fee to her. — Kep. 

10 Stew.] OCTOBER TERM, 1883. 405 

Thebaud v. Hollister. 

her, and, as before stated, she did not join in the mortgage to 
George. It will be seen that the master has charged George 
with all the net rents of the property, wholly ignoring the right 
of the widow and Josephine to any part of them. The widow 
claims that they all belonged to her, seeing that the property was 
the homestead, and her dower has never been assigned. Had 
she, herself, let the property she would have been entitled to all 
the rent. McLaughlin v. McLaughlin, 7 C. E. Or. 505 ; Craige 
V. Morris, 10 C. E. Gr. 4-67. And apart from that consideration, 
-she was surely entitled to part of the rents, and Josephine and 
George also each had a right to part. The report charges George 
with all the rents, without regard to the rights of the widow and 
Josephine. The bill, it should be stated, while it prays an ac- 
count of the rents from George and Josephine, prays none from 
the widow. The complainant obtained his tide after the rents in 
question accrued and had been collected and paid over to Hawley. 
He has, therefore, no claim to any account from any one for 
them. His grantor is entitled, if any one, to that account. The 
money received from the rents was, in fact, with the consent of 
the widow and Josephine, paid over to Hawley. The widow 
and Josephine and George being in possession, received all the 
rents. George was, of course, entitled to his just share, and if 
the widow and Josephine chose to give him theirs, the complain- 
ant is not aggrieved by it, and can have no advantage from it. 
And as to his grantor's share of those rents, he has no claim on 
.the widow and George and Josephine, or any of them. 

George's mortgage was not merged in his legal title, which was 
to only an undivided one-third of the premises. And he is enti- 
tled to recover the mortgage-money out of the property, notwith- 
standing his interest in the latter, and he might foreclose the 
mortgage. Jones on Mort. § 8Jf3. The complainant and Jose- 
phine might redeem their shares of the property by paying each 
one- third of the amount due on the mortgage. The property must 
be sold to make partition. Under the circumstances, it should be 
sold clear of the mortgage, which is to be paid out of the proceeds 
of sale after satisfying the widow's claim for dower, which she 
desires to commute for a gross sum to be fixed by the court. 

The exceptions will be allowed, with costs. 


Vanderpool v. Willis. 

Eugene Vanderpool, treasurer &c., 


JouN S. Willis, executor, et al. 

Tlie fact that the complainant, who is a simple contract creditor, is a creditor 
of trustees, ;ind that the debt was incurred for the benefit of the cestui que trust, 
and that the trustees are alleged to be insolvent, and one of them wasting the 
estate, gives the complainant no right to collect his debt in equity, nor, to that 
end, to call the trustees to account here. 

Bill for relief. On final hearing on pleadings and proofs. 
Mr. S. H. Little, for complainant. 
Mr. G. T. PTerfe, for defendants. 

The Chancellor. 

This suit is brought by the treasurer of the state asylum for 
the insane at Morristown, against Charles B. Norris and John S. 
Willis, executors of the last will and testament of Andrew Shaw- 
ger, deceased, Charles B. Norris as the guardian of Mary 
Sliawger, a lunatic, widow of the testator, Mary Shawger, person- 
ally, and David Stone and Susannah Monks and Helen. Kincaid. 
The object is to collect the money due the complainant in Ivis 
official capacity for the support and care of the widow above 
mentioned, at the asylum. The testator, by his will, after direct- 
ing payment of his debts and funeral expenses, gave to his execu- 
tors in fee all his real estate to their use for the life of his wife, 
on the express trust to apply the net rents and profits to her 
support (she was then insane) while she should continue to be of 
unsound mind, and if necessary to sell the property itself, and 
in their discretion apply the proceeds or the interest or income 
thereof to the same use. And he also gave them the residue of 
his personal estate on a similar trust for her benefit. The will 
also declares the further trust to permit her, if restored to reason, 
to use and occupy, so long as she remains of sound mind, the 

10 Stew.] OCTOBER TERM, 1883. 407 

Vanderpool v. Willis. 

real estate which may not have been sold under the will, and 
receive the benefit thereof, and the income of the personal estate 
which may not have been expended ; and gives her power while 
of sound mind to dispose of the property by will. It also directs 
that if she die intestate, the property shall, at her death, be 
equally divided among David Stone, Susannah Monks and 
Helen Kincald. The testator died on December 9th, 1872. The 
will was proved by both executors on the 26th of that month. 
In July, 1873, an application was made to this court by Helen 
Kincaid, for a commission to inquire as to the lunacy of the 
widow, and it was issued. By the inquisition she was in the 
same month found to be of unsound mind, and on the 14th of 
October following, Norris was appointed her guardian. In 
September, 1873, previously to his appointment as guardian, 
Norris applied to the superintendent of the asylum to admit 
Mrs. Shawger as a patient there. The application was signed 
by himself alone and in his individual capacity, and not as 
executor. He and Willis, his co-executor, signed a bond to the 
treasurer of the asylum, whereby they bound themselves to pay 
$7 a week for the care and board of the lunatic while she should 
remain there. Norris signed the bond personally ; Willis added 
" Ex." to his signature. In December, 1879, the account of the 
executors was passed by the Morris orphans court. It showed a 
balance against them of ^1,570.82. On the 23d of December, 
1879, Norris was, on his own application, discharged as executor. 
Willis continued in office. The bill was filed May 13th, 1882. 
There was due to the asylum, for board and clothing of Mrs. 
Shawger, January 1st, 1883, the sum of $1,133.85. 

The bill alleges that the executors placed Mrs. Shawger in the 
institution, and that they refuse to pay the money due on the 
before-mentioned bond. It also states that both executors, 
Norris and Willis, are insolvent ; that the latter has appropriated 
the testator's personal estate to his own use, and has wasted 
the real estate, and has been guilty of a breach of his 
trust in failing to apply the estate to the support of Mrs. 
Shawger, and that Norris has long been aware of Willis's mis- 
conduct in misappropriating and wasting the trust property, 


Vanderpool v. Willis. 

but before his discharge did nothing to prevent it, and 
since then has refused to iiave anything to do with the estate. 
It prays that Willis may be removed from his trusteeship ; that 
a receiver may be appointed to take and hold the trust property 
and apply the income and the principal, if necessary, to the pay- 
ment of the complainant's debt, and, if necessary, to sell the real 
estate and apply the proceeds of the sale to the payment of the 
debt and the future support and care of Mrs. Shawger, according 
to the trust declared in the will ; that Willis may account for 
the estate in this court, and be required to deliver to the receiver 
all the securities and other personal property of the estate, and 
pay him the rents and profits of the real estate, and that Norris 
and Willis may be ordered to convey the real property to the re- 
ceiver. There is also the prayer for relief generally. Willis 
has answered. He denies that he placed Mrs. Shawger in the 
asylum, or that she was placed there in pursuance of the trust in 
the will, but he alleges that she was put there by Norris alone, as 
her guardian, and that though he, Willis, signed the bond, he 
did so at Norris's request, and merely as security for him as 
guardian. He denies the complainant's right to sue him in this 
court on the bond, or to call him to account. 

I do not see any ground on which this suit can be maintained. 
The complainant is a creditor merely by simple contract. He 
has not only not exhausted his remedy at law, but he has not 
had any recourse to law at all. He has therefore no standing 
here. In Oakley v. Pound, 1 McCart 178, cited on the part of 
the complainant, the suit of a simple contract creditor for the re- 
covery of his debt was indeed maintained in this court, but it 
was on the ground that the creditor had a lien on the property 
which the suit was brought to reach. Here there is not only no 
lien, but there is no claim of any, nor is there any ground for 
such claim. The fact that the debtor is a trustee, holding the 
trust property which ought, in justice, to be applied to the pay- 
ment of the debt, does not alter the case. The officers of the 
asylum, to secure payment for the care and board of Mrs. Shaw- 
ger, took a bond from Norris and Willis. The bill alleges that 
they are both insolvent, but there is no proof that Norris is so, 

10 Stew.] OCTOBER TERM, 1883. 409 

Williams v. McDonald. 

and if there was it would make no difference. The latter prob- 
ably made the application for the admission of Mrs. Shawger 
into the asylum in his capacity of executor, for he was not guard- 
ian at that time ; he was not appointed until afterwards. But 
he and Willis are both liable personally on the bond, and it is a 
matter of no importance how the application was made. The 
fact that a person is a creditor of the trustee of a trust estate in a 
liability incurred for the benefit of the cestui que trust, does not 
of itself give him the right to collect his debt in equity, and to 
that end to call the trustee to account. The claim in this case is 
of course a highly meritorious one, and the trust estate, if there 
be any in the hands of Willis, ought to be applied to the pur- 
pose for which he received and holds it, and, if necessary, the 
laud should be sold. But those considerations do not confer on 
the creditor the right which is claimed. Beyond question, Nor- 
ris and Willis are both liable to pay the complainant's debt, and, 
as before stated, it does not appear that jN orris is not able to pay 
it. And again, it is obvious that, as guardian of Mrs. Shawger, 
he is the proper person to call Willis to account, and to take any 
steps that may be necessary to protect the trust property. The 
bill will be dismissed, with costs. 

Washington B. Williams, receiver &c., 


Owen T. W. McDonald. 

Tiie charter of a savings bank provided that it should invest no money on 
mortgage excepting on real estate " worth at least double the sum invested, 
above all encumbrances." A by-law made it the duty of the finance commit- 
tee to attend to all applications for loans. The defendant was one of the 
managers of the savings bank and also a member of the finance committee. 
In 1875, the mortgagor purchased certain lands for $16,200, giving therefor, in 
part payment, two concurrent mortgages — one for $9,000, and the other for 
f2,000, and another subsequent one to the defendant for $4,000. At the re- 


Williams v. McDonald. 

quest of the president of the bank, the defendant, who, for the purpose of 
taking the mortgage, was about to draw from the bank money of his depositad 
there, permitted the bank to take the mortgage, and instead of retaining the 
morigage himself, assigned it to the bank. There was no satisfactory evidence 
that the transaction had ever been approved by the finance committee, the de- 
fendant testifying that, so far as he knew, it had never been submitted to them. 
He also testified that the property was then worth $22,000 or $23,000. In 
1878, the holder of the $9,000 mortgage began to foreclose it, making the bank 
a party, and he purchased the property thereunder in February, 1879, for 
$6,000. A receiver for the bank was appointed in May, 1879, who de 
manded indemnity from the defendant in 1881. — Held, that under the circum" 
stances the defendant, whose conduct in the matter appeared to have been in 
good faith, was not personally liable for the loss. 

Bill for relief. On final hearing on pleadings and proofs. 

Mr. W. B. Williams, for complainant. 

Mr. 1\ Ryei'son and Mr. G. Collins, for defendant. 

The Chancelloe. 

This suit is brought by the receiver of the Mechanics and 
Laborers Savings Bank of Jersey City, to compel the defendant, 
one of the board of managers of the bank, to indemnify the in- 
stitution against the loss sustained upon an investment made by 
it upon a mortgage of real estate in Jersey City. The grounds 
of the claim, as stated in the bill, are that the defendant, being 
at the time one of the managers of the bank and also a member 
of the finance committee, induced the bank unlawfully to invest, 
for his benefit, $4,000 of its funds in the mortgage in question. 
The charter of the institution provided that it should invest no 
money on mortgage excepting on real estate " worth at least 
double the sum invested, above all encumbrances." A by-law 
of the corporation made it the duty of the finance committee to 
attend to all applications for loans. The transaction upon which 
it is sought to fix the defendant's liability took place in June, 
1875, and was as follows : Michael Murphy and his wife had 
agreed to purchase certain real property in Jersey City, for 
$16,200. For $11,000 of this sum they were to give two mort- 
gages (concurrent liens), one for $9,000, and the other for $2,000, 

10 Stew.] OCTOBER TERM, 1883. 411 

Williams v. McDonald. 

and the defendant had agreed to lend them $4,000 on an imme- 
diately subsequent mortgage. The defendant went to the savings 
bank to draw the money to lend to them upon the mortgage. 
He had on deposit there about $13,000. The president of the 
bank requested him to let the bank have the mortgage as an in- 
vestment instead of taking it himself. The reason given was that 
the bank would thus have the benefit of the difference between the 
rate of interest which the mortgage bore (seven per cent.) and the 
rate which the bank paid to depositors, six per cent. To accom- 
modate the bank the defendant acceded to the request, and conse- 
quently assigned the mortgage, which had been made to him, ta 
the bank. The money was paid by a check to the defendant's 
order, which he endorsed. He received no benefit whatever 
from the transaction. It does not appear that the loan was sub- 
mitted to the finance committee. 

The allegat