to execute an instrument, equity may sus tain an action to compel the surrender of it although no actual money-damage has been sustained. The complaint alleged that by defendant's fraudulent representations plaintiff was induced to purchase a farm of defendant for $18,000; that in fact the farm was not worth more than $12,000; that had the farm been as represented it would have been worth $20,000; that the plaintiff had paid $8,000 and had given a bond and mortgage on which $10,000 was unpaid. This bond was payable in annual instalments of $1,000. It asked that the bond and mortgage be declared void, cancelled, and be given up and for damages and costs. The Court below held that damages had not been sustained, and that it was not certain that they would be sustained, since the defendant left unpaid the purchase price of the farm to an amount greater than the damages claimed. this theory, to wit: This was upon It thus appeared that plaintiff owed defendant upon the purchase $10,000, while his alleged damage was only $8,000. The Court further said that if the allegations of the Held, Error. The allegations of the complaint must be taken to be true in considering the question of the nonsuit. The defendant then had by fraud procured the plaintiff to execute this bond and mortgage. Fraud is a ground of affirmative relief in equity. In the present case the bond is payable in instalments. the transaction before the last inIt will be ten years from the time of stalment will become payable. The proof of the alleged fraud may then have become difficult, and questions may arise as to the statute of limi tations. For these and other reasons we think this a case for affirmative relief. Where a person has by fraud induced another to execute a bond, equity may sustain an action to compel the surrender of the instrument although no actual money-damage has yet been sustained. Judgment reversed and new trial granted, costs to abide event. Opinion by Learned, P.J.; Sawyer, J., concurs. Boardman, J., concurs in result. WILLS. U.S. SUPREME Court. John T. Given et al., ex'rs. et al., applts., v. John Emory Hilton et al. (October, 1877.) A general direction to sell all testator's estate and apply the proceeds indiscriminately to the payment of debts and legacies operates as a conversion out and out. complaint were true, the plaintiff A devise of all the rest and residue of the could defeat a recovery upon the bond to the amount of the damages. The Court nonsuited the plaintiff upon his complaint and opening. R. C. Betts, for applt. estate, not before devised and bequeathed, "such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description not herein other`wise disposed of," embraces all the testator's real and personal property not otherwise disposed of by the previous dispositions of the will. Appeal from the Supreme Court equally divided among the heirs, and of the District of Columbia. Appellant's testator began his will by declaring that, after his debts and funeral charges were paid, he devised and bequeathed the worldly estate with which it had pleased God to entrust him. Next followed a direction that these debts and expenses should be paid as soon after his decease as possible, out of any portion of his estate that might first come into the hands of his executors. Then followed a direction that all his estate, not otherwise devised and bequeathed (all except a single lot of ground devised to a son), should be sold as soon as practicable, and that the proceeds thereof should be divided in a manner and in proportions thereafter described. The directions in relation to the distribution of the proceeds were followed by a residuary legacy to his son, given in the following words: "I give and bequeath unto my kind and affectionate son, Carberry S. Hilton, all the rest and residue of my estate, of which I may die seized or possessed, which is not herein other wise devised and bequeathed, such as moneys, bonds, stocks, judgments, notes, household furniture, and all personal effects of every description and not herein otherwise disposed of, for his sole use and benefit and that of his children." in not decreeing that the whole of the estate (except the lot devised), both real and personal, after the payment of those debts and legacies, passed, under the residuary clause, to Carberry S. Hilton. That no presumption to an intent to die intestate as to any part of his property is allowable, when the words of a testator's will may fairly carry the whole. 1 Watts, 466. The law prefers a construction which will prevent a partial intestacy to one that will permit it, if such a construction may reasonably be given, 53 N. Y., 351; and certainly when, as in this case, the intent to make a complete disposition of all the testator's property is manifest throughout his will, its provisions should be so construed, if they reasonably may be, as to carry into effect his general intent. When a will directs conversion of realty only for certain purposes which are limited, for example, for the payment of particular legacies, and follows the direction by a bequest of the residue of personal estate, the conversion takes place only so far as the proceeds of the sale are needed to pay the legacies prior to the residuary one, and the gift of the personalty will not carry the produce of the sale of the lands in the absence of a contrary intent plainly manifested. The surplus or excess retains Held, That the Supreme Court of the quality of realty, and is transthe District erred in its construction mitted either by a devise of the of the will and in the decree made, so realty, if there be one, or descends far as it was ordered that any portion under the intestate laws; but a genof the residue of the testator's estate, eral direction to sell and apply after the payment of his debts, and the proceeds indiscriminately to of the legacies prior to that given to the payment of debts and legacies the residuary legatee, should be operates as a conversion out and out. Roper on Legacies, 341-2 et seq.; 3 Edwards' Ch., 82; 1 Ves., Sen., 320. hensive language which could have been adopted. The residuary gift, therefore, ought not, in view of the whole will, to be construed as embracing only the remainder, if any, of that which was personalty at the death of the testator. Its scope was larger. It embraced all of the testator's estate, both realty and personalty, not de It is doubtless true that in the construction of wills, as well as statutes, where certain things are enumerated, and a more general description is coupled with the enumeration, that description is commonly understood to cover only things "ejusdem generis" with the particular things men-vised or bequeathed by the preceding tioned. This is because it is presumed the testator had only things of that class in mind. But this rule of construction rests on a mere presumption, easily rebutted by anything that CIVIL shows the larger subject was in fact dispositions of the will. DAMAGE ACT. EVI- GENERAL in the testator's view. In the present N. Y. SUPREME COURT. TERM. THIRD DEPT. who was the sole support of a family, be- A license from the Board of Excise to sell intoxicating liquors is no bar to an action under the Civil Damage Act, but is admissi ble in mitigation of damages. Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury. The action was brought under the Civil Damage Act, Laws of 1873, Chap. 646, to recover the damages sustained by the plaintiff in conse quence of the intoxication of her husband. The plaintiff was the wife of James Quain, and lived with him on a piece of land owned by her, and depended on him for her support. He support- Burke & Kilburn, for respt. Also held, That a license to the defendant, from the town Board of Excise, giving him permission to sell intoxicating liquor, does not bar an action under the Civil Damage act. The only effect of a license is to mitigate damages; for that purpose it is admissible. Judgment affirmed, with costs. ORDER OF ARREST. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. 1877, setting aside an order of arrest granted in the action in March, 1877, with costs. The order setting aside the order of arrest was granted upon the ground that a copy of the 6th Rule was not indorsed. The affidavits and the order were so attached that when the papers were folded the back of one of the affidavits formed the outside of the package, and upon the outside of the original papers was indorsed a direction to the sheriff containing the substance of the 6th Rule, but no such notice or direction was indorsed on the copies served. Chamberlin & Knapp, for applt. Held, Error; that the indorsement was sufficient. Rule 6 does not require by its terms any copy of the indorsement to be served. And as this is a mere technical objection we think the rule is fully satisfied by complying with its terms. In Barker v. Cook, 25 How. Pr. R., 190, approved by the Court of Ap peals, it was held that it was not necessary, in serving copies of papers required to be served, to serve copies of the signature or jurat. It was held by Mr. Justice Henderson in Forward v. French, 52 How., 272, that the said Rule 6 was without authority as being in conflict with Samuel Kapelowich, applt., v. Wil- § 183 of the Code of Procedure, liam Kersburg, respt. Decided January, 1878. An indorsement of a copy of Rule 6 upon the original papers is sufficient; it need not be upon the copies served. Reversing S. C., 4 W. Dig., 303. Appeal from an order of the Onondaga Special Term made in May, which provides that the order of arrest shall direct the sheriff to return the order "to the plaintiff or attorney by whom it shall be subscribed or indorsed." In the new Code of Civil Procedure, § 561, it is provided that the order of arrest shall require the sheriff "to return the order with his proceedings thereunder as prescribed by fire, May 29, 1872. On May 18, 1872, W. entered into an executory contract with one B. for a sale of them to him by a warranty deed on June 18, 1872, and B. paid $500 to the brokers who effected the sale. E. B. Converse, for applt. Thos. B. Hewitt, for respt. Held, That under the circumstances defendant could not claim that the description of the house as a dwelling was a warranty that it was occupied as such; that the insured was not bound to disclose facts in regard to which no inquiry was made; he had a right to suppose that defend Browning, respt., v. The Home Ins. ant in inquiring as to particular facts Co. of Columbus, O., applt. 66 Decided December 21, 1877. The mere description of the premises in the policy as a dwelling house," unaccompanied by further representations, is not a warranty that it is occupied as such. An executory contract of sale of the premises does not transfer the title so as to work a forfeiture of the policy. This was an action upon a policy of insurance on the "two story and attic frame, filled in to peak with brick, dwelling house" of W. No application, survey, plan, or other description of the premises insured was referred to in said policy or produced on the trial, nor was it shown that any further inquiry or representation was made as to the condition, situation or occupancy of the building, save that contained in the policy itself. It was therein provided that if the property be sold or transferred, or any change take place in title or possession, whether by legal or voluntary transfer thereof, said policy should be void. The premises were vacant and unoccupied at the time of such insurance and remained so until destroyed considered all others to be immaterial, or that he assumed to know or waived information as to them, 5 N. Y., 475; that the executory contract to convey the premises to B. did not transfer the title to them, and could only be enforced by B. by a compliance with its conditions, and until the agree ment was consummated there could be no such change of title as would work a forfeiture under the policy. Judgment of General Term, affirming judgment on verdict for plaintiff, affirmed. Opinion by Miller, J. All concur. TITLE. WIDOW. N. Y. COURT OF APPEALS. Knolls, respt., v. Barnhart et al., applts. Decided December 18, 1877. Where a person dies while in possession of land under a contract of sale, leaving a wife and children, the possession of the widow as doweress and guardian in socage of the minor children, is as tenant in common with all the heirs; she cannot buy in the contract or title for her individual benefit. This action was brought to remove |