1. A surviving trustee under a will being
about to sell the real estate, application was
made for the appointment of other trustees
to act with him, and that all might be re-
quired to give security. The matter was
referred to a referee, to whom the accounts
of the trustees were also referred, with
directions to take proof thereon and as to
commissions, and report the same with his
opinion. One P., who had purchased the
shares of certain of the heirs, was served
with the petition, order to show cause is-
sued thereon, the order of reference, and
with notices of hearing, but failed to ap-
pear. Held, That by these proceedings P. was
made a party to the accounting; that under
the order the referee had power to settle the
accounts of the trustee, and make him all
proper allowances for expenses and com-
missions, and that P. not having appeared
before the referee, the allowances could not
be reviewed in this court.-Sarage et al. v.
Sherman et al., 392.
2. An order to show cause why the referee's
report should not be confirmed was after-
wards made. On the hearing, P.'s counsel
presented an affidavit stating that neither
of the trustees had ever paid to P. the sum
stated in said report to have been paid, or
any part thereof. This was rejected. The
only evidence before the referee to show
payment was an unverified statement, pre-
sented by the trustees' counsel, containing a
credit for payment to P. "his share in
full," for which there was no voucher. Held,
That as an order to show cause was made,
and the reference was simply to report the
proofs and the referee's opinion, it was
competent for P. to object that payment to
him was not established by any proof, and
to support such objection by a sworn denial
that the fact existed, and his failure to ap-
pear on the reference did not preclude him
from taking that objection.—Id.
3. The order confirming the report required
P. to pay to each of the counsel represent-
ing other parties the same proportion of
their allowances as of the allowance made
to counsel for the trustee. Held, Error.—
Id.
4. A trustee is bound to invest trust funds
with the care of a diligent, careful and
prudent man in his own affairs.-Mills v.
Hoffman, 482.
5. As a general rule, it is his duty to invest in
Government or State securities, or in bond
and mortgage on unincumbered real prop-
erty.-Id.
See CORPORATIONS, 10, 15, 16, 25; NATIONAL
BANKS, 5; TRUSTS, 3, 6; WILLS, 21.
1. A baptist minister obtained subscriptions
to a paper to build a church, in which it was
stated that such church when not in use by
the Baptists might be used by the Univer-
salists and other denominations. He bought
land in his own name and built the church
with this money. He afterwards deeded
the church to D. and W., describing them
as trustees of a church. There was no
such church incorporated or otherwise. In
1880 the defendants, who claim to be trus-
tees of the Baptists and to control this
church, excluded plaintiff and others, who
are Universalists. Held, That no action
would lie against defendants to enforce the
agreement as to the use of the church.
That if the subscription paper could be
deemed a declaration of trust it was not a
valid trust; that the doctrine of charitable
uses did not apply, as this did not come
within any exception saved by the R. S.-
Follett v. Badeau et al., 25.
2. A railroad company deposited with certain
bankers a large sum of money in trust for
the purpose solely of paying certain cou-
pons maturing shortly after such deposit,
and the receipt accepted by the company
expressed that the money so deposited
should not be subject to the control of the
company otherwise than for payment of
such coupons. Held, That an irrevocable
trust was thereby created for the uses men-
tioned in the receipt, and the company had
no remaining interest in the fund subject to
attachment.-The Rogers Loco, & M. Works
v. Kelly et al., 184.
3. One who holds, as trustee, the legal title to
lands, subject to a mortgage, cannot, indi-
vidually, acquire an interest therein by
taking an assignment of the bid of the pur-
chaser on foreclosure sale under said mort-
gage and a deed from the referee. Until
the sale to the original purchaser is con-
summated by payment and delivery of the
deed the disability of the trustee to take
title individually is absolute.-Toole v. Me
Kiernan, 220.
4. Where a clause in a deed of trust seems to
indicate an invalid intention on the part of
the grantor, and a later clause so modifies
the former as to make the intention valid
without repugnance, a construction which
will give effect to every part of the deed is
preferable to one which will avoid the en-
tire instrument.-Reeves et al. v. Burnham
et al., 242.
5. A., by an instrument in writing, agreed to
place in the hands or keeping of B. a sum
of money, the interest of which B. was to
pay C. during her life; B., however, was to
have the right to use the money as he
chose; in case B. died or could not con-
tinue to act as trustee, some other person
was to be substituted, by consent of the
parties, or, if they could not agree, by the
County Judge, and the hope was expressed
that all services in the matter might be
rendered as a gratuity. B. accepted the
trust in writing. Held, That a trust was
created: and, in an action by C., held that a discharge in bankruptcy was no defence to B. Fagan v. Gurney, 468.
6. One J., by his will, directed his executors to invest the residue of his estate and apply the income to the support of his three youngest children until they came of age, and then to pay to each the interest of each one's third, and that after the death of any two of them the principal should be divided between the survivor and the childen of the deceased children, and the executors were ! authorized to sell the real estate for this purpose. The executors having died or resigned, plaintiff and one H. were appointed trustees and contracted to sell the real estate to defendant. Held, That the power created by the will was a general power in trust, imperative, and subject to the same provisions as to substitution of new trustees as are applicable to express trusts, and that plaintiff and H. were lawfully substituted as trustees and had power to convey.-Farrar v. McCue, 556.
See ATTORNEYS, 1; EXECUTORS, &C., 2, 15, 16, 26, 27; PARTNERSHIP, 1; WILLS, 7, 14, 22.
1. Where a party avails himself of a favor granted to him by the decision of the judge, and gives an undertaking in accordance with such decision, neither he nor his sureties can object to the validity of such undertaking. Candee v. Wilcox et al., 245.
2. An order, entered upon consent, setting aside an order of arrest granted upon facts extrinsic to the cause of action, is a final determination, within the purport of the usual undertaking on arrest, that the plaintiff was not entitled to said order of arrest.-Schuy ler v. Englert et al., 571.
3. Where the defendant has stipulated, upon an order of arrest being so vacated, that he will not bring an action for false imprisonment or malicious prosecution," he cannot thereafter sue upon the undertaking.-Id. See ATTACHMENT, 6; FORCIBLE ENTRY, 2; SURETYSHIP, 3, 8, 9.
1. No suit can be brought against the United States without the consent of Congress, but the United States may sue its debtor in any court of law having jurisdiction of the subject matter.-Johnston v. Stimmel et al., 470. See INTERPLEADER, 1.
1. A valid claim is not invalidated by being embraced in an usurious security, and upon
the cancellation of an usurious mortgage security at the instance of the mortgagor the valid claim embraced therein will be revived.- Underhill v. Clennan et al., 1.
2. Where a second mortgage by the same mortgagor contains no reference to the first mortgage the second mortgagee may set up usury in the first mortgage.-The Union Dime Savings Inst. v. Sanford et al., 5.
3. On foreclosure of a mortgage on property owned and occupied by S., one W. bid in the property, and, at the request of S., assigned his bid to C., who received the referee's deed; C. then executed two mortgages for the purpose, as claimed, of enabling S. to procure a loan with which to pay off the prior mortgage. He afterwards conveyed to S., subject to the two mortgages. Held, That, by such provision in the deed, S. was precluded from attacking the mortgages on the ground of usury.—Id. 4. One J., desiring an extension of time on certain notes given by him, went to Michigan and made application therefor to the holder, who required a new note at 10 per cent. with indorser, to which J. agreed. Thereafter J. gave to an agent of the holder, at Buffalo, the notes in suit, with interest at 7 per cent., and paid the balance of interest in cash. Held, That the contract was made in Michigan and was governed by the laws of that State, and that being valid in that State it was enforceable here.-The Western Transportation Co. v. Kelderhouse, 35.
5. The statute of New York regulating the rate of interest is merely a penal law and has no extra territorial force.-Id.
6. The usurious contract must not only be set up in the answer, and its terms and the particular facts relied upon to bring it within the statute specified, but they must be proved substantially as alleged.-Id.
7. While the defence of usury is valid, and when made out must be sustained, the presumption of the law is against the taking of usury; and it will not be regarded as conclusively shown by repeated payments of interest at a usurious rate. In re accounting of Consalus, 92.
8. In an action to foreclose a mortgage it appeared that it was given to secure the payment of certain notes; that at maturity plaintiff's intestate demanded interest thereon at 10 per cent., claiming it to be due on the notes, and the same was paid, and thereafter interest was paid at that rate. Held, Sufficient to show that the original securities were given under an arrangement that they should draw that rate of interest, and that the defense of usury was sustained.--Smith v. Hathorn et al., 103.
9. Defendant procured a loan from plaintiff through P., to whom he agreed to pay $300
for procuring it. P., after consultation
with plaintiff, demanded $350, which was
paid. Plaintiff testified that he received no
part thereof, and P. that he paid none of it
to plaintiff; that he did not know where
the check corresponding to a missing check-
stub was, and that he did not remember
that any money was paid to plaintiff about
the time of the loan. It was proved that
about a month after the loan plaintiff de-
posited a check made by P. for $145, and
thereupon plaintiff and P. testified that it
was given for a loan to P. Held, That the
facts and circumstances surrounding the
loan authorized the finding of usury.-Du-
senbury v. Seeley, 210.
10. Defendant executed a bond and mortgage
to M. without consideration, and put it in
his hands, without any instructions or re-
strictions, to raise money for defendant.
M. sold it to plaintiff for less than its face,
stating that it was a valid security in M.'s
hands and in the assignment covenanting
that the whole amount was due. Plaintiff
had no knowledge that M. was acting for
defendant. Held, That by M.'s representa-
tions defendant was estopped from setting
up the usurious inception.-Platt et al. v.
Newcomb et al., 431.
11. In a suit brought upon usurious notes an
agreement was entered into by which de-
fendant allowed judgment for the full
amount of the notes to be entered, and
gave a bond and mortgage therefor for the
purpose of avoiding the taint of usury in
the original loan. Held, That the judg-
ment was a mere device to evade the stat-
ute, and had no more force than a con-
fession of judgment to secure a usurious
loan. Moses v. McDivitt, 504.
1. The collection of a charge in excess of
statutory wharfage rates will not justify the
imposition of the penalty of treble the
amount collected by the owner of a private
bulkhead and the upland lying between the
bulkhead and the street for permission to
enter and unload at the bulkhead.-Mur-
phy v. Voorhis, 230.
See CONTRACT, 18; EXECUTORS, &c., 19, 24;
PARTIES, 1.
1. The rule that in transactions between an at-
torney and client the attorney is bound to
establish affirmatively that it was made by
the client with full knowledge of all material
facts known to the attorney, and was free
from all fraud on his part and misconcep-
tion on the part of the client, and that a
reasonable use was made by the attorney of
the confidence reposed in him, applies where
the attorney takes a benefit by way of a
money legacy under a will prepared by him.
-Post et al. v. Mason et al., 7.
2. So far as it affects the disposition of per-
sonal property, the probate of a will be-
comes conclusive after one year, and equity
has no jurisdiction in a collateral action to
set it aside in the absence of fraud in re-
spect to such probate.-Id.
3. A will left to one W. the income of $2,000
during life, with power of disposition upon
her death. By the codicil, in lieu of this
provision, the executors were directed to
pay to W., during her lifetime, the divi-
dends arising on $2,000 of certain stock,
and it was provided that W. could, on her
death, dispose of said stock as she saw fit.
Held, That the executors had no power to
dispose of said stock without W.'s consent;
that the title to the stock was vested in W.,
and she could dispose of it, from her death,
by will or by transfer during her lifetime.—
The Trust & Deposit Co. v. Price et al.,
130.
4. One of the executors caused the stock set
apart for W. to be transferred to defendant
P., in part payment of an individual in-
debtedness. He was thereafter removed by
proceedings brought by the co-executor, and
plaintiff was appointed receiver pendente lite.
Held, That an action for conversion could
not be maintained; that the proper remedy
was by a suit in equity to set aside the un-
lawful transfer and restore the title of the
stock to its original condition, and if it be-
came necessary to convert the shares into
money by compelling defendants to pay
their value W. would be a necessary party.
-Id.
5. When the words of a will in the first in-
stance indicate a disposition to give the en-
tire interest, use and benefit of the estate
absolutely to the donee, it will not be re-
stricted or cut down to any less estate by
subsequent or ambiguous words inferential
in their intent.-Clarke v. Leupp, 206.
6. An action by an executor for the construc-
tion of a will can only be brought where he
is invested by the will with a trust in refer-
ence to the subject-matter in the devise.-
Dill v. Wisner, 209.
7. A testatrix, by will, devised all her real
estate to certain persons and charged it with
payment of debts, legacies, &c. The will
contained no words of trust or power of
sale or authority to the executors to distrib-
ute the money realized. Held, That the
devise did not create a trust in the execu-
tors which authorized them to bring an
action for construction, and that the refusal
by the devisees to accept imposed no trust
on the executors. On such refusal the land
descended to the heir at law, charged with
the payment of debts and legacies..-Id.
8. Testator, after devising one-half of the rest,
residue and remainder of his estate to his wife
absolutely in lieu of dower, and the other
half to her for life, with unrestricted power
of sale, bequeathed the sum of $2,000 to one
W., to be paid to him on his arriving at the
age of twenty-one years, and in case of his
death before that age it was bequeathed to
the two brothers and sister of testator, to be
divided equally between them. W. died
under the age of twenty-one years. Held,
That the legacy was not payable to the sis-
ter and brothers of testator until after the
death of the widow.-Steinle v. Oechsler,
228.
9. No obliteration can be effective as to part
of a will unless it altogether revokes and
destroys the whole will.-Lovell v. Quitman
et al., 260.
10. Defendant's testator directed in his will
that support be given to plaintiff during her
natural life, to be paid out of the whole
property according to the exceptions above
named. The defendants were executors
and the residuary legatees. Held, That the
whole estate left by the testator was charged
with an annuity for plaintiff's support in.
definite as to the nominal amount, but lim-
ited only by her reasonable needs, and that
plaintiff is to be paid a sum and not clothed
or fed by defendant; that it is the duty of
the court to determine the amount intended
to be bequeathed; that as defendants ac-
cepted and held the estate devised to them
they became personally liable for the pay.
ment of the annuity, and that no demand
was necessary as preliminary to a right
of action to enforce such liability.-John-
son v. Cornwall et al., 267.
11. Testator devised certain premises upon the
death of his wife to C. and S., and on their
death to their issue then surviving. By
another clause he created a trust, including
all his estate not otherwise disposed of, for
the management thereof and payment of
rents, etc., to his wife, and upon her death
to transfer all his property not otherwise
disposed of to the appointees of his wife.
C. and S. died without issue. Held, That
the estates devised to them were contingent
remainders in fee, and not an absolute dis-
position of the whole estate of testator in
the land; that there was left in testator a
contingent reversion in fee, expectant on the
termination of the life estates and failure of
issue; this upon the deaths of C. and S. was
changed to an absolute fee which descended
to the appointees of the wife.-Floyd v.
Carou, 300.
12. A general residuary devise carries every
real interest, whether known or unknown,
immediate or remote, unless it is manifestly
excluded.-Id.
13. Testator by his will gave his daughter
$16,000, to be paid her upon arriving at the
age of twenty-one, or upon her marriage be-
fore she became of age with the consent of
her mother and his two executors; but if she
married against the consent of the execu-
tors and her mother, then she should receive
$5,000 instead of $16,000. The legacy
was payable out of the testator's personal
estate so far as it would go, and then was
chargeable upon the real estate. The tes-
tator's wife was to have the tuition, custody
and control of his children during their
minority so long as she remains un-
married and takes proper care of them,"
but in case of her death or marriage dur-
ing the single life or non-age of any of his
children he directed his executors to imme-
diately take charge of his children as their
guardians during their minority. The tes-
tator's wife remarried in 1871. The daugh-
ter in February, 1878, being then about
eighteen, married with the consent of the
sole acting executor, but without the con-
sent of her mother. She died in May, 1879,
leaving no issue. Held, That the con-
dition was subsequent and not precedent;
that the marriage of the daughter was
a breach of the condition, the consent
of both mother and executors being re-
quired, and the remarriage of the mother
did not dispense with the necessity of her
consent to the marriage; that the condition
being one designed to prevent a hasty or
imprudent marriage, and not one in general
restraint of marriage, is by the common
law lawful and valid; and that as there is
no personal estate to pay the legacy, and it
can only be paid by a sale of the land on
which it was charged, the daughter is only
entitled to $5,000.-Hogan v. Curtin, 307.
14. Testator by his will directed his executors
to convert his estate into money, invest it,
and pay one-third of the income to his wife
and two-thirds to his children, equally, and
at the death of his wife her one-third to be
divided equally between the children; that
if either of the children died without issue
before the wife his share should revert to
the estate, and if any should die leaving is-
sue after the wife's death, his share should
go to such issue or its next of kin, and also
authorized the executors in a certain event
to pay to his sons the principal of their
shares. Held, That there was no undue
suspension of the power of alienation:
that the will is to be construed as if it
created a separate trust for each child and
its issue; that the trust did not terminate on
the death of the wife; that the direction as
to the division of the income and payment
of principal is equivalent to a bequest of
the income to the children for life with the
principal to their issue, and that in case of
a child dying without issue after the death
of the wife, his share would go to testator's
next of kin.- Wells et al. v. Wells et al., 347.
15. The attestation clause of a will made 15
after born within twenty years after his
death and before the final settlement of his
estate, a certain sum of money to be paid
upon their arriving at full age, or, if grand-
daughters, on their being sooner married.
Held, A valid bequest; that the legacy
vested in each grandchild immediately on
its birth; that the child of a son, if born
after his decease, is regarded as living at
the time of his death, and that there was
therefore no illegal suspension of absolute
ownership.-Id.
18. Testator also left a sum of money in trust
to executors for the benefit of an insane
daughter, the principal to go to her in case
she regained her reason before the final set-
tlement; otherwise to be part of the general
fund for distribution. She died without
having regained her reason. Held, That the
principal fell into the residue undisposed of
by the will.-Id.
years before it was presented for probate 19. In the construction of wills the first inquiry
contained a statement of all that the statute
requires to show a proper execution and pub-
lication. No evidence was given to show
that it did not state the facts truly. The wit-
nesses remembered that it was executed, and
that they signed the attestation clause and
testified that they must have read it, as they
would not have signed it without reading it
or unless the matters therein stated had oc-
curred. One of them added that he then
recollected that he read it, or that it was read
to him. Held, That this evidence was com-
petent, as it was the best obtainable, and
was sufficient to sustain the will.-In re
probate of will of Pepoon, 355.
16. Testator by his will directed that a certain
sum should be kept invested until the
youngest grandchild then born, or there-
after born, before final distribution, should
arrive at full age, with certain discretionary
power to the executors to apply the in-
terest thereon to certain specific purposes,
and five years after his death to divide one-
third of said sum between his children.
When the youngest grandchild born, or
that might within twenty years be born,
should arrive at full age, or if a grand-
daughter, on being sooner married, the ex-
ecutors were to divide the remainder of
said sum half to the children and grand-
children in esse at the time of testator's
death, and half to all the grandchildren
living at the time of distribution. Held,
That the latter clause was invalid; that its
failure did not necessarily draw with it the
bequest to the children and grandchildren
in esse at testator's death; but that as the
bequests depended wholly on the direction
for future distribution, there was no pres-
ent gift to the legatecs, and therefore in-
testacy resulted as to whole of the special
fund.-Smith v. Edwards el al., 434.
17. Testator bequeathed to each and every
grandchild, if any, which might be there-
is as to the intention of the testator. This
is to be gathered from the whole instru-
ment, and to be given effect as far as pos-
sible.-Pratt v. Richardson et al., 476.
20. Plaintiff's testator devised certain land to
plaintiff and G. R. P., "their heirs and
assigns, to be equally divided between
them," &c. He also devised to G. R. P. a
certain house and one-half of a barn and
corn-crib, the other half being devised to
plaintiff, with the proviso that, in case
G. R. P. should die without heirs, the
whole should belong to plaintiff. Held,
That G. R. P. took and could convey an
absolute fee to the property included in the
first devise, and that the word " whole "
only referred to the barn and corn-crib.—
Id.
21. Testator bequeathed a certain sum to each
of two granddaughters, to be delivered on
their severally becoming twenty-one by his
executrix "or those administering my said
estate," and the interest until such time to
be used by said executrix for their support
and maintenance and that of their mother.
The executrix having died and administra-
tors with the will annexed having been ap-
pointed, application was made for the ap-
pointment of a trustee to carry out said
provision of the will. Held, That the
administrators are the persons intended by
testator to carry out said provision in case
of the death of the executrix and that there
was no necessity for the appointment of a
trustee. In re petition of Baker, 488.
22. Testator by his will devised his real estate
to J. for life and directed his executors, on
the death of J., without issue, to sell his
real estate and distribute the proceeds
among testator's next of kin as personal
estate according to the statute of distribu-
tion of the State. Held, That the authority
given to the executors was a valid, general
power in trust and was imperative; that
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