ence to the new growth. The mortgagees filed a bill and
obtained an injunction against the cutting. The bill did
not pray a foreclosure, the whole money not having be-
come payable. On answer stating the facts as to the bu-
siness and the propriety.of felling the burnt timber, and
offering to give other security for an amount equal to the
value of the burnt wood which the mortgagors proposed
to cut, a reference was ordered to ascertain such value,
with a view of directing such security to be given. Brick
v. Getsinger.
3. Semble. If a large portion in value of pine woodland
mortgaged be burnt over, and it be proper, to save the burnt
wood from rotting and for the permanent benefit of the
estate in reference to the new growth, that the burnt wood
be cut off, the land being worth little without wood on it;
it would be right that the burnt wood so cut should be ap-
plied towards paying the mortgage.
ib.
TITLE. Vide Partition, 3.
TRESPASS. Vide Injunction, 3.
TRUST AND TRUSTEE.
1. A general charge of abuse of trust is not sufficient
ground for the interposition of the court to restrain an
executor or other trustee from further interfering with the
estate. Facts showing such abuse should be made to ap-
pear. What facts not sufficient. Cooper v. Cooper. 9
2. When the legal and equitable estates are united in the
same person, the equitable estate is merged in the legal. ib.
3. A trustee for the use of his children of a tract of land
called the Abbot tract made his will, by which, after giv-
ing particular parts of his real estate to his children re-
spectively, he directs his executors to sell some of his
lands, expressly excepting the Abbot tract from the power
to sell, and then devises all the residue of his estate, real
and personal, to his children. On the death of the tes-
tator, the legal estate in the Abbot tract vested in his
children, the cestuis que trust.
ib.
4. Courts of equity will decree the execution of trusts of
personalty; though they will not in general decree per-
formance of contracts for the sale of personal property.
Kimball v. Morton.
5. Stock in a bank had been transferred to the defendant, to
be by him transferred in different portions, one portion of
which was to be transferred to the complainants. A trans-
fer was decreed.
6. The statute of frauds, requiring declarations of trust to be
in writing, does not extend to trusts of personalty.
ib
7. A. and B. held a mortgage given to them as trustees on
the undivided half of a mill-seat. B. in his own right
held a subsequent mortgage on the same half. On pro-
ceedings for partition between the owners of the mill-seat,
it was ordered to be sold at auction, and was so sold by
the commissioners. The order for sale and the conditions
of sale were silent as to whether the property was to be
sold subject to or free from incumbrance. Held, that pa-
rol proof was admissible to show that B. was present at
the sale, and agreed that the property should be sold free
from incumbrance, and received from the commissioners
the mortgagor's half of the proceeds of the sale, knowing
that the purchaser paid the money understanding that the
property was sold free from incumbrance, and that the
mortgages were to be cancelled. B. applied a part of the
money he received to the payment of his, the junior mort-
gage, in full, and the residue of it towards paying the
mortgage of the trustees, thus leaving a balance due on
that mortgage. The half of the proceeds of sale received
by B. was sufficient to pay the mortgage to the trustees and
part of the mortgage held by B. in his own right. Held,
that the mortgage to the trustees was satisfied. Rogers
v. Rogers.
32
8. A husband bought real estate, and directed the deed there-
for to be made to another in trust for his wife and her
heirs, so that the same should not be subject to his control
or debts, and on the further trust to convey the same to
such person or persons, for such uses, and subject to such
provisions, limitations and agreements as the wife, by
writing under seal or by will should give, limit or appoint.
The trustee and the wife afterwards executed a mortgage
of the lands to secure a debt due from the husband, and
the mortgage was duly acknowledged by the wife. Held,
that the mortgage was good. Robbins v. Abrahams. 465
9. A trustee who from long continued intemperance has be-
come unfit to have the charge of the trust property will
be removed, and a new trustee will be appointed. Bayles
v. Staats.
10. Several executions had been levied by a sheriff on the
lands of "The Hamburgh Company," of which the first
in priority was in favour of E. The same sheriff had in
his hands at the same time an execution issued on a decre
in chancery on the first mortgage, for the sale of the mine
farm of "The Clinton Manufacturing Company," and
also an execution at law against the said Clinton Company,
by virtue of which he had levied on the said Clinton Com-
pany's mine farm. E. held a subsequent mortgage on
this Clinton mine farm. Prior to the sale by the sheriff,
certain creditors of the Hamburgh Company, having no
judgments, together with E. entered into an agreement in
writing among themselves that L., one of them, should,
as their trustee, buy the lands of both Companies as a
means of securing their debts against the Hamburgh Com-
pany, inclnding E.'s judgment and other claims he had or
made against the Company and his mortgage on the Clin-
ton mine farm. There was also an understanding with
P., who held the bulk of the stock of both Companies,
and was carrying on or conducting the business of the
Hamburgh Company, that the said trustee should convey
both properties to him on his payment of the debts of the
said agreeing Hamburgh creditors, and the sums for which
the properties should be struck off to the said trustee.
The properties were sold by the sheriff and bought by the
said L.; the other judgment creditors of the Hamburgh
Company not being present at the sale. The sheriff's
deed to L. was absolute. On a bill filed by the Hamburgh
Company and P., it was held that L. was a trustee for the
Hamburgh Company and its creditors both of the Ham-
burgh property and of the Clinton Company's. Edsall
v. The Hamburgh Manufacturing Company.
658
Vide Practice, 1. Executors and Administrators, 6. Sale, 2, 3.
Injunction, 14. Fraud, 1.
U.
1. A., living in New York, sells to B., also living in New
York, a tract of land in New Jersey, and takes his bond
for part of the consideration money with seven per cent.
interest, and his mortgage on the lands conveyed, to se-
cure the payment of the bond. The mortgage is not usu-
rious. Cotheal v. Blydenburgh
17, 631
2. The exchange of the papers in New Jersey at the proper
record office will not make the mortgage usurious; they
having been executed and acknowledged in New York,
and a sufficient reason for not exchanging them there be-
ing shown.
1. Semble. That a purchaser for full value is entitled to have
an incumbrance removed by the application to that pur-
pose of a sufficient portion of the purchase money. Wash-
er v. Brown.
2 The conditions of sale for the sale of lands and buildings.
provided for the sale of the buildings separately; and one
of the conditions of the sale was as follows: "The build-
ings will be sold, to be removed within thirty days from this
date from the premises." Held, that the purchaser of a
building who also purchased the lot on which it stood was
not bound to remove the building. Plume v. Small.
460, 650
Vide Mortgage, 4, 5, 6. Specific Performance, 7, 8, 9,
Executors and Administrators, 5.
WASTE. Vide Partition, 1, 4.
WATER RIGHTS. Vide Injunction, 7, 8, 11, 18, 19.
WILL.
1. A., by his will, provided that his wife should have her law-
ful right of dower out of his estate; that the executor
should sell and dispose of all his estate, both real and per-
sonal; that his debts be paid; that his brother John have
$500; his brother James $100; and that the rest and re-
sidue of his estate be divided between his two sons. On
bill filed by the widow, stating, among other things, instruc-
tions given by A. to the person who drew the will, so to
draw it as to give her her lawful third of the personal pro-
perty and a use of a third of his lands for life, and demur-
rer to the bill; it was held, that the widow was entitled to
her lawful third of the personal estate.
Adamson v. Ex'r
of Adamson.
2. Semble. That the situation of the estate as to the compar-
ative amounts of realty and personalty may be shown, to
influence the construction of a will.
3. A writing purporting to be executed by P. J. by a mark,
which writing, with the names of all the persons whose
names were subscribed as witnesses and the name of P. J.
were in the hand-writing of one of the persons whose name
was subscribed as a witness, not admitted to probate on
proof that the signature of the person who wrote the will
and signatures was her hand-writing, and that she was
dead. In the matter of a writing purporting to be the
Will of Pamela Jolly.
4. The testator, S. S. O., by his will, gives to his aunt, A.
P. W., $10,000, to be paid to her as soon as practicable
after his decease, or with interest from that time; and
gives several other money legacies. He then makes spe-
cific bequests of furniture and other articles of personal
property; and then says that he wishes his bank stock to
make a part of his dear aunt's legacy, as it will give her
less trouble in collecting. The will then provides thus :-
"Item, After all my just debts are paid and the expense
of fulfilling this my last will and testament, I give and
bequeath all the remainder of my property, both real and
personal, to be equally divided among my four cousins,
(naming them.) Item, I wish that the house I have late-
ly purchased of C. M. Campbell, valued at $4000, to be
part of my dear aunt's legacy, and that in the division of
her portion my Trenton bank stock be calculated at $40
per share and my Easton bank at $30 per share." And
by a codicil to his said will he gave to his said aunt, A.
P. W., in fee simple, a lot of land (describing it) con-
taining fifteen acres, and all the plate in his house, and
some other articles of personal property; and also gave
by the codicil three other money legacies, one of $200,
one of $50, and one of $75. Held, That the lands de-
vised in the residuary clause of the will were not chargea-
ble in aid of the personal estate with the payment of the
legacies; but that, the personal estate being insufficient to
pay the legacies, they must abate. Ex'rs of Olden v.
White.
629
5. D. G., the testator, gave the remainder of his real estate
to his three children, P. the wife of C. W., C. the wife of
W. S., and B. G., in fee simple, to be divided or sold as
two out of the three could agree; and appointed W. S.
and B. G. executors of the will. Held, That the executors
had no power to sell or to divide the real estate. Geroe v.
Winter.
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