Imágenes de páginas

a transcript of the books and proceedings of the treas- attachment was levied on that interest, existed when the ury department in account with " the purser whose statute of exemption was passed. The case states exbond is in suit, and the secretary of the treasury has plicitly that the act went into effect April 24, 1861, and certified, under the seal of the department, to the of- the attachment was levied May 10, 1861, and the husficial character of the auditor, "and that full faith band's right, either by the curtesy or for the wife's and credit are due to his official attestations." What life, had vested long before. It might therefore have more need be done to authenticate the transcript been held to impair the obligation of the plaintiff's under the seal of the department we are at loss to de- contract if the act had been so construed as to exempt termine. The certificate of the proper auditor is at- that interest from liability to sale for that debt. In tached and his certificate attested by the secretary of the case of Stehman v. Huber, 21 Penn. St. 260, it was the treasury under the seal of the department. The simply held that where, on a partition of an estate in form of the certificates and the mode of affixing the in which the wife was a part owner, the husband adseal correspond exactly with what appears in Smith v. vanced a considerable sum as owelty in her behalf, he United States, 5 Pet. 292, where it was held, more than thereby became interested in the property allotted to

half a century ago, that the seal affixed in this way was her and conveyed to her and to him jointly, and that sufficient for the purposes of evidence under a statute, the husband, by executing a conveyance of this interof which section 886 is a re-enactment. The transcript est to a third person, who conveyed it to the wife, is eertified by the auditor, and authenticated under could not thereby defeat the existing creditor's right the seal of the treasury department affixed by the to appropriate that interest to the payment of his secretary, its lawful custodian. The judgment is re- debts. In the case of White v. Hildreth, on the other versed and the cause remanded, with instructions to hand, there came before the Supreme Court of Verset aside the verdict and grant a new trial. United mont, for construction, a statute in regard to the debts States v. Bell. Opinion by Waite, C. J.

of the husband very like the act of Congress. It enacted [Decided April 21, 1884.]

that the rents, issues and profits of the real estate of

any married woman, and the interest of her husband MARRIAGE-TENANOY BY CURTESY – WIFE'S PROP in her right in any real estate, which belonged to her ERTY NOT SUBJECT TO HUSBAND'S DEBTS.-It is the before marriage, or which she may have acquired by right of a married woman to any property, personal or gift, grant, devise or inheritance during coverture, real, belonging to her at the time of marriage, or ac- shall during coverture be exempt from attachment or quired during marriage, which shall be as absolute as | levy of execution for the sole debts of her husband, if she were unmarried, and shall not be subject to the * * * provided this act shall not affect any attachdisposal of her husband. It was the purpose of the ment or levy of execution already made. Compiled statute to abolish this tenancy by the curtesy, or any Stat. of Vt. of 1850, p. 403, $ 15. In the case mentioned, other interest of the husband, in all her property, and 32 Vt. 265, the husband had built upon and imto place her in regard to it in the condition of a feme proved the land of the wife, after which she rented it sole. And it was this same property, and not part of to her son, in whose hands the rent was attached by it, no separate interest, or estate in it, which was ex- trustee process for the debt of the husband. But the empted from liability for his debts. It would be a court said: “The legal title to the land, with the queer construction of the statute, looking at its mani supervening improvements and building, is still in the fest purpose, to hold that it meant, though her prop-wife. It accrued during coverture. The rent reerty shall never come under his control and he shall served in the lease to her son, is the rent of the land acquire no interest in it, and it shall never be liable she owns. The statute expressly exempts such rent for his debts, the use and possession, the rents and from the hands of his creditors. This provision of the profits of it, may be made liable to his debts as long as statute seems to answer what otherwise must have he lives. "In the district the right of any married been a well-founded suggestion, viz., that though this woman to any property, personal or real, belonging to money is payable to the wife of the defendant, still it her at the time of marriage, or acquired during mar- is not the rent of the freehold which the husband held riage in any other way than by gift or conveyance by virtue of the coverture and the birth of issue capafrom her husband, shall be as absolute as if she were ble of inheriting, and is in contemplation of law enunmarried, and shall not be subject to the disposal of tirely the husband's without invoking the wife as the her husband, nor be liable for his debts." We are of meritorious cause.” Here the court holds distinctly opinion that the statute (R. S., Dist. Columbia, $ 727) that this statute, which does not profess to abolish intended to exempt all property, which came to the the tenancy by the curtesy, is still an answer to an atwife by any other mode than through the husband, tempt to subject the rents and profits to his debts, befrom liability to seizure for his debts, without regard cause it declares that the property shall be exempt to the nature of the interest which the husband may from levy for his debts. Hitz v. Nat. Metropolitan have in it, or the time when it accrued, and that in re- Bank. Opinion by Miller, J. gard to such debts, created after the passage of the [Decided May 5, 1884.] law, no principle of law or morals is violated by the enactment. On the contrary, if we concede, as in the present case, that the husband had acquired a tenancy UNITED STATES CIRCUIT AND DISTRICT by the curtesy, in her property, before such enact

COURT ABSTRACT.* ment, it is eminently wise and just that no other person should afterward acquire such an interest in it as

LACHES-GOVERNMENT NOT CHARGEABLE WITHto disturb the joint possession of it, and turn the

LIMITATION IN EQUITY-AFTER-ACQUIRED TITLEfamily resulting from the marriage out, that it may go to pay his debts. The authorities cited by counsel for the United States, and public policy forbids that the

SPECIFIC PERFORMANCE.-Time does not run against appellee rather sustain, and certainly do not contradict, this view of the matter. In the case of Rose v.

negligence of the officers of an immense government

like ours should be held to create laches on the part of Sanderson, 38 Ill. 247, while the court holds that a statute, very much like the act of Congress relied on

the government, except probably as to third persons here, did not exempt from sale for the husband's debt

who are strangers to transactions as to which the neghis life interest in her real estate, which had become

ligence may occur. In United States v. Kirkpatrick, Vested before the passage of the act, it is apparent,

9 Wheat. 720, the Supreme Court say: "The general from the record, that the debt for which the writ of

*19 Fed. Rep.


principle is that laches is not imputable to the govern- ment to show the validity of the deed. Dist. Ct., N. ment. The utmost vigilance would not save the pub- D. Mississippi, W. D., March 3, 1884. Estes v. Spain. lic from the most serious losses if the doctrine of Opinion by Hill, J. laches could be applied to its transactions. It would, TELEGRAPH COMPANIES-RAILROAD IS POST-ROADin effect, work a repeal of all its securities." In United

ACT JULY 24, 1866— ERECTING LINES — EXCLUSIVE States v. Vanzandt, 11 Wheat. 190, the court say:

:-A railroad is, under the statutes of the Uni“The neglect in the one case and the other imputes ted States, a post-road, and accordingly the act of laches to the officer whose duty it was to perform the Congress of July 24, 1866, giving to all telegraph comacts which the law required; but in a legal point of panies alike the right to construct, maintain, and oper. view, the rights of the government cannot be affected

ate lines along all post-roads of the United States, is by these laches.” “A claim of the United States is

paramount over any agreement made by a railroad not released by the laches of the officer to whom the

company securing to a telegraph company the sole use assertion of that claim was intrusted." Dox v. Post

of its line of road for its wires. This was decided by master-General, 1 Pet. 325. “Statutes of limitation

the Supreme Court in Pensacola Tel. Co. v. Western do not bind the United States unless it is specially Union Tel. Co., 96 U. 8. 1. It was not held in that nained therein." Lindsey v. Lessee of Miller, 6 Pet.

case that a telegraph company could acquire a right of 666; United States v. Hoar, 2 Mason, 311. “The un

way over a railroad without the consent of the owner authorized act of the officer of the United States (in of the railroad, or even that the act gave to telegraph the matter of a claim for or against it) cannot bind the companies the power to acquire such a right of way by United States." Filor v. United States, 9 Wall. 49.

compulsory proceedings, upon due compensation to Equity will not refuse to inforce an obligation merely the owner; and the contrary was plainly intimated. because of the lapse of time, unless evidence has been

But the act was considered and expounded as intenlost, or the rights of third parties have become in- ded, and effectual, to deny to any one telegraph comvolved, or the personal relations between the parties pany the power to acquire any such easement in the have been so much altered as to change the essential

lands of a railroad for telegraphic facilities as would character of the obligation. See the case of Etting v.

exclude other companies from obtaining like priviMarx, 4 Hughes, 312; 4 Fed. Rep. 633, where the doc- leges, and as a declaration by Congress of a policy in trine of limitation in equity is very elaborately dis

the interests of the public and of the government cussed as to suits between private individuals. A

which was reasonable and lawful. Since that decision party agreeing to transfer property which he does

it has been adjudged in two cases in the Circuit Courts not own at the time cannot refuse to perform his con- of the United States that a railroad company cannot tract after acquiring title. One who, by his own

grant to a telegraph company the exclusive right to fault, is unable to perform a part of his contract, can

establish a line over its right of way. Western Union not upon that account resist a bill for the specific per- Tel. Co. v. American Union Tel. Co., 9 Biss. 72; Wesformance of the rest. To permit such an objection to

tern Union Tel. Co. v. Burlington & S. R. Co., 11 Fed. prevail would be to violate the maxim that no man

Rep. 1. See also Western Union Tel. Co. v. American shall take advantage of his own wrong. See Fry Union Tel. Co., 65 Ga. 160. Whether an agreement of Spec. Perf., $ 294, citing Lord Eldon, who in speaking this kind would not be void as intended to strangle of one who had undertaken to convey a greater inter competition, and therefore as being in restraint of est than he possessed, says: “For the purpose of this

trade and obnoxious to public policy, irrespective of jurisdiction, the person contracting under these cir

the act of Congress, is a question which it is not necescumstances is bound by the assertion in his contract,

sary to discuss; it suffices that such an agreement is and if the vendee chooses to take as much as he can

void because contrary to the policy declared by Conhave, he has a right to that, * * and the court

gress. Cir. Ct., S. D. New York, March 28, 1884. will not hear the objection, by the vendor, that the

Western Union Tel. Co. v. Balt. & 0. Tel. Co. Opinion purchaser cannot have the whole." See also Morss y.

by Wallace, J. Elmendorf, 11 Paige, 287; Hatch v. Cobb, 4 Johns. Ch. 539; Kempshall v. Stone, 5 id. 193; Fray Spec. Perf., $$ ASSIGNMENT FOR CREDITORS--RESERVING INTEREST 554, 258. Cir. Ct., E. D. Virginia. United States v. TO ASSIGNOR-VOID.-An assignment for the benefit of City of Alexandria. Opinion by Hughes, J.

creditors, under the laws of Texas, wherein the asPATENT-LICENSE-SALE OF, TO SATISFY JUDGMENT.

signor has expressly reserved an interest to himself, to -A license to use a patented invention may, by a bill

the exclusion of his creditors, is null, void, and of no in equity, be subjected to sale for the payment of a

effect. Lawrencev. Norton, 15 Fed. Rep. 853, fo)judgment debt. Cir. Ct., E. D. Pennsylvania, Feb. 11, lowed. It seems to us, the following propositions are 1884. Matthews v. Green. Opinion by Butler, J.

well taken, and can be equally supported on principle

and authority. The assignment in favor of creditors, TRUST-REVOCATION— FAILURE TO EXERCISE.- A under the act of 1879, is a contract between the assigtrust declared by testator during his life-time, with

nor and assignee, which while it may be aided by the the privilege of revocation, will, if unrecalled, prevail law, must be taken and construed by the terms and over the title of a residuary legatee. Testator trans- provisions expressly stipulated therein. Donoho v. ferred stocks and bonds to L., upon trust to pay him

Fish, 58 Tex. 167 ; Keevil v. Donaldson, 20 Kans. 168. the income while he lived, and after his death to trans- That when an assignment is made, under the third fer them to others, reserving the power however to section of the act of 1879, any stipulation therein revoke this disposition of the property at any time. which is intended to hinder and delay non-consenting He died, leaving the trusts unrevoked. Held, that creditors must find warrant therefor in the law, or the the power of revocation died with him, and that upon assignment as to such creditors is null and void. his death the trusts became absolute. Cir. Ct., D.

Keevil v. Donaldson, supra; Lawrencev. Norton, Vermont, March 20, 1884. Barlow v. Loomis. Opinion supra; Bryan v. Sundberg, 5 Tex. 423. See also Jaffray by Wheeler, J.

v. McGehee, 107 U. S. 361; 3. C., 2 Sup..Ct. Rep. 367. ASSIGNMENT FOR CREDITOR-IMPEACHING--BURDEN The assigument in this case, which is under the third OF PROOF.-A deed of assignment prima facie good section, provided : “And for said purposes the said may be impeached for circumstances connected with, Fred. Muller and A. Jacobs are hereby authorized and and conduct of the insolvent at and about the time of directed to take possession at once of the property the execution of it. In such cases the burden of proof above conveyed, and convert the same into cash as is on the grantor or his beneficiaries under the assign- soon and upon the best terms possible for the best in

terest of our creditors. “This provision authorizes the dence of mala fides on the part of such fiduciaries, I assignees, in their discretion, to dispose of the assigned think, to adopt the language of this court in Elliott v. property on credit. See Moir v. Brown, 14 Barb. 39; Carter, supra, “That they should be treated Schufelt v. Abernethy, 2 Duer, 533; Rapalee v. Stew- with tenderness, and due caution should be taken not art, 27 N. Y. 311; Hutchinson v. Lord, 1 Wis. 286; to hold them liable upon slight or uncertain grounds.” Keep y. Sanderson, 2 id. 31. For other authorities Soutball's Admr v. Taylor, 14 Gratt. 274. Watsee Bur. Assign., $ 222. It is a badge of fraud. Carl- kins v. Stewart, Opinion by Horton, J. ton v. Baldwin, 22 Tex. 731; and see Bur. Assign., $ [Decided Dec. 6, 1883.] -221. Such provision is not authorized by law, the said

JUDICIAL SALE-JUDGMENT CREDITOR NOT PURact of 1879 being silent as to the method of disposing

CHASER-EQUITIES-RESULTING TRUST-PAROL EVIof assigned property. The non-consenting creditors being compelled, under the law, to submit to a forced

DFNCE.-In Cowardin v. Anderson, 8 Va. L. J. 31, we stay of execution until the consenting creditors are

said: “It is well established by the repeated decisions paid in full, it follows that a sale on credit, the same

of this court that a judgment creditor can acquire no

better right to his debtor's estate than the latter himnot being authorized by law, hinders and delays such

self has. The creditor takes the property or applies it non-consenting creditors beyond the sanction of the

to the satisfaction of his lien in subornation to all the law and consequently defrauds him. It is urged that the assignee need not sell on credit, an

equities which exist at the time in favor of third per

unless he does the creditors are not hurt. This may be true, but the

sons, and a court of chancery will limit the lien of the creditors are not obliged to await the event. The as

judgment to the actual interest the debtor has. The

creditor is in no just seuse treated as a purchaser, and sigoment placed it in the power and discretion of the

has no equity whatever beyond what justly belongs to assignee to prolong the execution and closing of the trust for an indefinite period. This was not only un

the debtor. Floyd v. Harding, 28 Gratt. 401; Borst v. authorized by law, but was

Nalle, id. 423; Summers v. Darne, 31 id. 791." It is an against the policy

established rule in equity that if one person buys an of the law, for it cannot be denied that the policy of the law is to secure a speedy settlement of the

estate with the money of another, and takes the contrust and distribution of the assigned property. An

veyance in his own name, a trust results by presump

tion of law in favor of him with whose mouey the purassignment in favor of creditors which in effect au

chase was made. And in such cases the trust may be thorizes the assignee to sell the property conveyed in a method not permitted by the statute, must be void,

established by parol proof; but to guard against the for contracts and conveyances in contravention of the

danger of perjury, and for the security of titles, the

proof is required to be clear and distinct. Kane v. terms or policy of statute will not be sanctioned. See

O'Conners, 8 Va. L. J. 77; Sugden on Vendors, 443;
Jaffray v. McGebee, supra. Cir. Ct., N. D. Texas.
Feb., 1884. Opinion by Pardee, C. J.

Bank of U. 8. v. Carrington, î Leigh, 566; Boyd v. Mc-
Lean, 1 Johns. Ch. 584; Botsford v. Barr, 2 id. 405;
Phelps v. Seely, 22 Gratt. 573; Borst v. Nalle, 28 id.

423; Miller v. Blose, 30 id. 745. And if part only of VIRGINIA SUPREME COURT ABSTRACT.

the purchase money has been advanced the laud will

be charged pro tanto. Botsford v. Barr, supra; Morey EXECUTORS AND ADMINISTRATORS-LIABILITY FOR v. Herrick, 18 Penn. St. 129; Kane v. O'Conners, LOSSES.-(1) Among the assets which came into the

supra. Sinclair v. Sinclair. Opinion by Lewis, J. hands of an administrator in 1875 were $6,000 of W. & 0. Railroad bonds, worth at the time about $4,200, which were paying a good rate of interest. Two of the

NEW JERSEY SUPREME COURT ABSTRACT.* legatees repeatedly requested that these bonds should

NOVEMBER TERM, 1883. not be sold, they and the administrator thinking the bonds were likely to appreciate in value. The administrator held them until 1877, when by the sudden fail.

ALLUVION-TITLE BY-BOUNDARY--AMBIGUITY IN ure of the railroad they became worthless. Held,

GRANT.--The increase of land adjacent to the seathe administor is not responsible for the loss. (2)

shore, derived from alluvial deposits, happening so Among the assets was a note of the same railroad com- gradually that the increase could not be observed pany for $4,000, secured by a pledge of $8,000 of its

while actually going on, although a visible increase bonds. The administrator demanded payment of this

took place from year to year, belongs to the owner of note several times, and was each time assured by the

the land bounded upon the sea. Rex v. Lord Yarpresident of the road that it should be paid. The road

borough, 3 B. & C. 91; 8. C., in H. of L., 5 Bing. 163; was then paying its interest regularly. By its failure the County of St. Clair v. Lovingston, 23 Wall. 46. Iv sum was also lost. Held, that under the circumstances

grants of lands lying along the seashore, the parties the administrator should not be held responsible for act with knowledge of the variety of changes to which the loss. Without doubt courts of equity have been

all parts of the shore are subject. The grantee, by accustomed from the time of Lord Hardwicke down

such a boundary, takes a freehold that shifts with the to the present moment to look with indulgence upon

changes that take place, and is obliged to accept the the acts of trustees and other fiduciaries, and have

situation of his boundary by the gradual changes to shown a manifest disinclination to hold them person

which the shore is subject. He is subject to loss by ally responsible for losses occurring in the manage

the same means that may add to his territory; and as ment of the trust funds whenever it has appeared that

he is without remedy for his loss, so is he entitled to the trustee or other fiduciary has acted in good faith,

the gain which may arise from alluvial formations, and in the exercise of a fair discretion, and in the same

he will, in such case, hold by the same boundary, inmanner in which he would probably have acted if the

cluding the accumulated soil. Tyler on Bound. 40; subject had been his own property. Ex parte Belchier,

Phear on Waters, 12-43; 3 Kent, 435; New Orleans v. Amb. 219; Knight v. Lord Plymouth, 3 Atk.

United States, 10 Pet. 662--717. A grant of lands with 480; Powell V. Evans, 5 Ves. 839; Thompson v.

a boundary "along storm-tide mark of the Atlantic Brown, 4 Johng. Ch. 619; Filliott v. Carter, 9 Gratt.

ocean," will leave in the grantee that space of the 548. And where there are no circumstances of suspi

beach which lies between the ordinary high water and cion, such as the failure to make out an inventory, or

the fast land, and is washed over by unusual tides so to have an appraisement of the estate, nor any evi- *Appearing in 16 Vroom's (45 N. J. Law) Reports.

frequently as to be waste and unprofitable for use; but of a present connection with the sewer can be assessed the title of the grantee will advance or recede as the for benefits. State v. Elizabeth, 11 Vroom, 274 line of storm-tide changes from time to time. The McKevitt v. Hoboken. Opinion by Reed, J. Camden and Atlantic Land Company, being the owner of a tract of land bounded on the Atlantic ocean, in 1856 made conveyance to M. of a lot by boundaries ex

MISSOURI SUPREME COURT ABSTRACT.* tending "to storm-tide mark of the Atlantic ocean, and “thence along said storm-tide mark.” After 1856,

NEGLIGENCE-TRAIN NOT STOPPING AT WAY-STAa large acoretion of land occurred in front of the said lot by alluvial deposits, and the line of ordinary high-defendant's road, was told by the ticket agent to take

TION.--A passenger buying a ticket to D. station ou water mark and also the line of storm-tides were by

a particular train. She did accordingly. The train the accretion carried out a considerable distance further than they were when the deed was made. proved to be an express, not allowed by the regulaHeld, that the title of M. and those who succeeded to know this until informed of it by the conductor after

tions of the company to stop at D., but she did not his estate was not restricted to the storm-tide line as the train had started. She told him of the direction it was in 1856, but that it extended to the line of storm-tides as that line was carried out by the alluvial

the agent had given her, and insisted on being let off increase. If the words of a grant be ambiguous, the

at D. He took up her ticket, but refused to stop at

D., and took her to the next stopping place beyoud. In court will call in aid the aots done under it as clue to the intention of the parties. Tyler on Bound. 124; ought to have counted on the negligent misdirection of

an action against the company, held, that the plaintiff Adams v. Frothingham, 3 Mass. 362; Stone v. Clark, 1 Metc. 378; Lovejoy v. Lovett, 124 Mass. 270; Living

the ticket agent, and not on the refusal of the couductor ston v. Ten Broeck, 16 Johus. 14--23; Dunn v. English,3 shall V. Railroad Company. Opiuion by Hough,

to stop, for he could not have done otherwise. MarZab. 126; Jackson v. Perrine, 6 Vroom, 137; 1 Greenlf.

C. J. Ev., $ 293. Camden & Atlantic Land Co. v. Lippincott. Opiuion by Depue, J.


was borrowed on the credit of a firm and used for the CONTRACT-EXECUTORY-NOT BARGAIN AND SALE. — An agreement for the sale of goods in the following purposes of the firm, but the individual note of one of form: “The party of the first part agrees to sell to

the partners was given for it, and by mistake of the the party of the second part all the material used in

lender was accepted. Afterward when the mistake making barrels, at the actual cost price of the same,

was discovered, the lender demanded and received now in store. The party of the second part agrees to

from that partner the vote of the firm in lieu of his take and use the same as fast as the sugar-house re

own note. Held, that this was not the giving of a

partnership note for an individual debt, and that the quires the barrels, and to pay for the same in notes, with interest added, ruuning two mouths from the

latter note was binding on the firm. Distinguishing date of the same, settlements to be made semi

Farmers' Bank v. Bayless, 35 Mo. 428. Meader v. Valmonthly." Held to be an executory contract, and not

colm. Opinion by Norton, J. a bargain and sale. The rule that the contract of sale JUDGMENT-APPEAL-ABATEMENT OF ACTION.-(1) passes the property immediately, before change of The perfecting of an appeal from the judgment of a possession or payment, so far as the duties and obliga- jus:ice of the peace divests the judgmeurt of its legal tions of the vendee are concerned, at least, seems to be effect, and if the case be one in which the cause of acwell settled. Benj. on Sales, $ 318. An agreement for tion does not survire, upon the death of the party the present sale of specific chattels, without payment

before the entering of a lawful judgment in the appelor delivery, casts ou the buyer the risk of loss. The

late court, the action will abate. Turner v. Northlaw fixes the risk where the title resides. Joyce v. cut, 9 Mo. 252. (2) A prosecution for violation of a Adams, 8 N. Y. 291; Leonard v. Davis, 1 Black. 476; city ordinance abates upon the death of the defendant. Bessell v. Balcom, 39 N. Y. 275. The sale of all the State v. Perriue, 56 Mo. 602; Kansas City v. Clark, 68 vendor's material for making barrels then in store

id. 588. Town of Carrallton v. Rhomberg. Opinion by was a sufficient specification of the property to appro- Martin, Comr. (As to first point seo ante, p. 57.priate it to the contract. It was not like a sale of a

ED.) part out of a bulk. And the price to be paid is sufficiently certain, being ascertainable by reference to

PENNSYLVANIA SUPREME COURT an existing fact-their cost. The whole agreement however must be construed together, and the latter

ABSTRACT. clause, which provides that the party of the second part is to take and use the maierial as fast as the


WIFE CARRYING ON sugar-house requires the barrels, and to pay for the BUSINESS-ONE DYING-GIFT-TITLE TO FUND IN SAV same, etc., is an essential qualification of the first part INGS BANK.-The earuings of a wife belong to her busof the contract, which if standing alone, would import band, save in those exceptional cases specified by acts au absolute sale. Brock v. O'Donnell. Opinion by of Assembly. Such earnings do not therefore belong Kuapp, J.

to the wife unless the husband has made a gift of them MUNICIPAL CORPORATION-POWER OF ASSESSMENT

to her. A widow, carrying on a butchering business BENEFITS.-(1) Unless restrained by express words,

in premises belonging to her late husband, married the authority to impose special assessments for muui: again. Husband and wife continued to carry on the cipal improvements is a continuing power. 2 Diu.

business, in which the husband was not versed. It was Mun. Corp. $$ 686, 780; Greenov. Hotaling, 15 chiefly through her skill, industry and ecouomy that Vroom, 347. (2) A sewer in the city of Hoboken, for profits were realized. A portion of those profits were which an assessment had been levied, by reason of the put aside in a savings fund in the wife's name, but

there was no evidence to show that the husband knew uneveu sinking of newly-made laud, ceased to conduct sewage toward its outlet, but allowed its contents to

of the existence of such deposit. Immediately after flow out upou low lands and beoome a nuisance. Held,

the wife's death the husband inquired for the depositthat an assessment for a new sewer to do the work book, and declared that the money was or ought to be which the old one was intended to do was legal. (3) his

. On the settlement of the account of the wife's No person whose lauds are not so placed as to permit

* in 78 Missouri Reports.




trix devised certain real estate to her daughtor A. for life, and at her death to A.'s daughter B. in fee simple; and in case of B.'s death "theu to be divided amongst the children." A was enceinte at the time of the will, and testatrix knew it. B. was not married until long after the testatrix's death, and then died before A. Held, upon A.'s death that the expression " the chil. dren" in the will must be taken to refer to A.'s children, and not to B.'s, and that the former were therefore entitled to the real estate. The inquiry now is, what was the intent of the testatrix? That intent gathered from the whole will furnishes the cardinal rule of construction. When it is not inoonsistent with cstablished rules of law, and manifested with sufficient certainty, it must govern. Middleswarth's Admr. v. Blackmore, 24 P. F. Smith, 414; Schott's Estate, 28 id.

Reck's Appeal, id. 432. Facts existing and known to testatrix at the time she executed the will, furuish strong aid in arriving at her intention. When a parent or ancestor iu disposing of property, and in designating the objects of her bounty, speaks of “the children," we tbink it more reasonable to assume that she intended those in being, or those likely to be born of an existing marriage, rather than those who at some remote and indefinite time in the future might possibly be born of a marriage neither existing not contemplated. As then a fair and reasonable intent can be given to the language of the will by applying it to the children nearer to the testatrix, we cannot so construe it as to disinherit them and carry the property to those more remote, and who we think did not enter into the thought of the testatrix. Webb v. Hitchins. Opinion by Mercur, C. J. [Decided March 17, 1884.)


administrator: Held, that the profits of the business all belonged primarily to the husband; that there was no sufficient evidence to show that he had made a gift of them to his wife, and that the husband was entitled to the sum in question accordingly. That the mere possession of money by the wife is not sufficient evidence of her ownership was settled by Parvin v. Capewell, 9 Wr. 89, where it was said: “A mere gift of money to a wife is not a settlement of it as her separate estate, for it may be for safe-keeping and deposit, without any intention to divest the husband's title. And her possession of funds ordinarily implies no more than that she is holding them for her husband." This is settled law, and is peculiarly applicable to this case. There is not a scintilla of proof of any intention of the appellant to make a gift of this money; nothing can be implied from the facts beyond the mere custody thereof on the part of the wife. The cases cited by the learned judge do not sustain his conclusiong. Herr's Appeal, 5 W. & S. 494, was a case in which there was strong evidence of a gift, and this court said: "But such gift must be established by clear and convincing proof, not only of the act of donation and delivery, but of her separate custody of it.” The same doctrine is held in Tripner v. Abrahams, 11 Wr. 220. In Bachman 5. Killinger, 5 P. F. Smith, 414, it was held that the possession by the wife of the husband's moneys, secarity and property is very slight evidence of the transfer of the ownership, and his possession of her chattels ought to be considered still less evidence of title in him. In Crawford's Appeal, 11 P. F. Smith, 52, the husband informed his wife that he had added $3,000 to her money; he directed his clerk to credit her in his books with the $3,000 as cash received from her, and it was done. He credited her regularly with the interest of that sum in connection with the other sums belonging to her until his death. Held, that this was an executed gift followed by an express trust for his wife, and payable to her from his estate, but that it could not be supported as a debt. In addition it appeared that the husband had that amount of his wife's money in bis possession. Here there was a plain intent to make a gift, followed by a positive unequivocal act. But where there is a mere permissive act, such as to allow the wife to be a custodian of his money, I know of no case in which it has been held that a gift cau be implied from such act. McDermott's Appeal. Opinion by Paxson, J. [Decided April 28, 1884.]

WILL – CREDITORS EXEMPTION INTEREST.-A. died, leaving a wife and son. By bis' will he devised his real estate to his wife. The real estate was inoumbered by a judgment against A. and by debts of A., which upon his death became liens against it. Subsequently the wife died, also indebted. The real estate being sold under order of court for payment of her debts: Held, that the son was entitled to claim the $300 exemption out of the proceeds in priority to the claims of his mother's creditors, but that his father's creditors must be satisfied in full before he could claim suoh exemption. Interest could not be recovered upon the judgment against A. after the confirmation of the sale in the above case. King's Appeal, 3 Norris, 345; Himes' Appeal, 13 id. 381, distinguished. Wauger's Appeal. Opinion per Curiam. [Decided Feb. 25, 1884.) WILL,"CHILDREN -CONSTRUCTION.

1.-When a parent or ancestor, in desiguating the object of her bounty, speaks of “the children,” the more reasonable construction is that children in being, or those likely to be born of an existing marriage, were intended, rather than those who at some remote and indefinite future time might possibly be born of a marriago neither existing nor in contemplation. A testa

JUDICIAL SALE-VOID-GETTING TITLE AT SUBSEQUENT SALE.-A person who is not in possession of real estate, but who claims title thereto under a void tax deed, can become a purchaser at a subsequent tax sale, and claim title by virtue of his purchase. This question was determined adversely to appellant in Mallory v. French, 44 Iowa, 133, which is in accord with Coxe v. Gibson, 27 Penn. St. 165; Bowman v. Corkrill, 6 Kan. 331; and Blackwood v. Van Vleit, 30 Mioh. 119. Neal v. Frazier. Opinion by Seovers, J. [Decided April 25, 1884.)

COUNTY-CLAIM AGAINST - ACCEPTING PART, NO SUIT FOR BALANCE.-Where a claim against a county is presented to the board of supervisors, and they allow a part of it and reject the rest, a claimant accepting the portion allowed, knowing that the rest has been rejected, cannot recover in an actiou for the postion rejected. Wapello Co. v. Sinnaman, 1 G. Greene, 413. That was a case where a claim was preseuted against the county, and part of it was allowed and the balance rejected. The court said: “If the plaintiff in this case presented his claim for allowance, and it was in part allowed by the board, and he accepted the amount thus allowed, he should not be permitted to afterward sue for the balance. The acceptance of the part allowed should be considered satisfaction for the whole." It is contended however that a different rule was announced in Fulton v. Monona Co., 47 Iowa, 622. In that case it was not shown that the claimant received the part allowed on the olaim with knowledge that the balance bad been rejeoted, and the case is made to him upon this fact. The case is in po mauner in conflict with Wapello Co. v. Sinuaman. It is claimed however that the defendant was bound to pay the full amount of the claim, because it had been approved by the board of health. But having held that

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