tract arrangement of having Hampton ash pit | cleaned by outsiders for the contents of same, and hereafter do the work ourselves, same as at other points, and dispose of the cinders the same as we did formerly. This will put a stop to any jealousy or ill feeling on the part of the lime men who are not individually benefited by the present arrangement." The defendant denies that the arrangement was for any specified period, but insists that it was a mere privilege, determinable at the will of the company. The proof is that the agreement was made as the complainant alleges. Mr. Abbott, by whom it was made on behalf of the company, says not only that the arrangement was to continue for a year, but that he had authority from Mr. Stearns to make it for such period, and neither more nor less. The contract having been broken by the Receiver, without fault on the part of the complainant, and not only without his consent but against his protest, the complainant is entitled to damages. It appears that the coals and cinders were worth to him, not only for use in lime burning, in view of which use of them he made the contract, but also for sale, $3 a ton; and the average amount which he got daily was 44 tons and the cost was $2 a day. There will be a decree in his favor, for damages to the amount of $1,794, with lawful interest from the first of May, 1879. 3. 4. 5. title to the whole of the property, on The deed itself is evidence of an agree- (Decided April 13, 1887.) It is urged on behalf of the defendant that BILL for relief. On final hearing on plead the contract was an improvident one and that therefore this court should not sanction it by giving damages for the breach of it on the part of the Receiver. But it was not broken on that account; and it seems to have been regarded as desirable, except for the reason that being held by a lime burner it created jealousy and ill feeling on the part of other neighboring lime burners. The complainant was bound by the contract, and might have been compelled to pay damages for breach of it on his part. On the other hand he should be protected in his interest in it. It was not, to say the least of it, so uneconomical an arrangement for the railroad company that he could be held to have had notice that it was one which the court probably would not sanction. Kunigunda GEBEL v. Caroline WEISS et al. ings and proofs. Decree for complainant. The case is stated in the opinion. Mr. Carl Lentz, for complainant. Mr. F. E. Blackwell of New York, for defendants. Runyon, Chancellor, delivered the following opinion: The complainant was married to Peter Weiss on the 11th of February, 1872. They lived together until October 9, 1881, when he died. John Zipfel, by deed dated February 27, 1875, conveyed to them in fee a lot of land in Newark. The conveyance was made to "Peter Weiss and Kunigunda, his wife" and the consideration was $2,040--of which sum $440 was paid in cash on the delivery of the deed; and for the rest, $1,600, a mortgage was given by them to Zipfel, payable in five years from date (the date of the deed) with interest. The mortgage was canceled January 2, 1878, although it was not due until February 27, 1880. The complainant had three children by Weiss, two of whom are still living. After Weiss' death she learned that when he married 1. Where a woman paid her money for her he had a wife, the defendant (Caroline land and for the repairs and improve- Weiss), living. She brings this suit against the ments put on it after the purchase, and latter and her two children, to get a decree asaccepted a conveyance thereof to suring to her the title to the whole of the prop herself and another, as her husband, erty, on the ground that the property was paid in the belief that she was the lawful wife for entirely with her own money, and that the of such other, and that in case she should fact that Weiss' name was inserted in the deed survive him the property would be as one of the grantees was due solely to his wholly hers, those who claim under fraud in marrying her and inducing her to behim have no better claim to the prop-lieve that he was her lawful husband. She erty than he had. 2. Where she learns after his death that when he married her he had a wife living, she can maintain a suit against the latter and her children to obtain a decree assuring to complainant the swears that the whole of the purchase money of the property was paid with her money. When asked why the title was taken in the names of both herself and Weiss, as her husband, she answers that the scrivener told her that after Weiss' death the property would be hers. The scrivener supposed that the deed | fend in forma pauperis. No costs will be was to husband and wife, as grantees, when in awarded. fact no lawful marital relation existed between her and Weiss. But she and the scrivener both thought that it did. The complainant swears that she paid the greater part of the consideration with money which she received from her father; and she is corroborated in that statement by the testimony of her sister and brother-in-law. She swears that of the cash ($440) paid on the delivery of the deed, she drew $410 from the savings bank in which it was deposited in her own name, and in this she is corroborated by the books of the bank. When he married her (in 1872) Weiss had no money. He appears to have been working at his trade for small weekly wages (he was a workman in a tailor's shop) up to February, 1873; and although he carried on the business of manufacturing clothing in the house upon the property in question, yet he was too ill to conduct business for four years before his death, that is, from 1877; so that he carried on that business there for only about two years. It does not appear that he paid any part of the purchase money of the property with the proceeds of that business, and it does not seem probable that he did so. After he became ill she herself conducted the business. She not only paid her money for the property, but also for the repairs and improvements which were put upon it after the purchase; and she did it all in the belief that she was the lawful wife of Weiss; and she accepted the conveyance made to him and her as husband and wife, because she believed that that relation in fact existed between them, and that in case she should survive him the property would be wholly hers. Those who claim under him have no better claim to the property than he would have. The law of evidence prevents her from testifying to his statements or to his transactions with her in reference to the matter, and so far she is under disadvantage. She is competent to prove the fact that she bought the property, and that she paid for it, and for the improvements and repairs, with her own money, and that Weiss neither paid for them nor paid anything on ac count of them. The transaction in question in this suit is the purchase of property by her; and the necessity of seeking relief arises from his fraud in marrying her. Through his deceit and only through his deceit his name was inserted in the deed as one of the grantees; and indeed it may be added that but for his fraud she would not have invested her money in the property at all. It was to get a home for him and her and their children that, in the belief that she was his lawful wife, she bought the property. It may be added that the deed itself is evidence of an agreement between the parties that the conveyance was to be so drawn that she should be sole owner of the property in case she should survive him. And she now asks that under the circumstances, that agreement may be effectuated in equity. Obviously, Weiss would not have been permitted to retain the interest in the property which he obtained by his gross fraud upon her. Neither can the defendants be permitted to hold it. There will be a decree in favor of the complainant. The defendants were admitted to de Georgiana B. TERRY v. William H. SMITH, Admr., et al. 1. Where the will gave to the complainant and W., another daughter of the testatrix, each the interest of one sixth of the entire estate for life, with remainder to the complainant's daughter, and after giving certain legacies, gave the residue of the estate, real and personal, to the executor in trust for the execution of my will," to pay debts, etc., and then to pay over to another daughter, S., the rents, issues and profits of the balance of the residue and at her death to hand over such balance to S's two daughters, held, that the shares of complainant and W. are not subject to the trust created for the residue. ceased, and an account of the rents and profits | to Mrs. Smith's daughters are to be paid out thereof coming to her, and an account of the personal estate of her mother and a decree that her share thereof be invested for her benefit. She claims, under the will of her mother, a life interest in one sixth of the whole estate. By the will the testratrix, after directing payment of her debts and funeral expenses by her executor and trustee named, gave and bequeathed to her daughter, Frances M. G. Wilson, "the interest of the one equal undivided one sixth part or portion" of her whole estate during Mrs. Wilson's natural life, and directed that upon the death of Mrs. Wilson "the said interest and principal thereof " be paid absolutely to Georgiana Sweet, a granddaughter of the testatrix. She then gave and bequeathed to her daughter, the complainant, "the interest of the one equal undivided one sixth interest, part or portion" of the whole estate during the complainant's natural life, and directed that on the death of the complainant "the said interest as well as principal thereof" be paid absolutely to the before mentioned Georgiana Sweet. of the residue in exoneration of those shares. The complainant and Mrs. Wilson are each entitled to an undivided one sixth of all the testator's estate real and personal, without any deduction for the payment of debts or for the payment of the pecuniary legacies. The trust of the residue did not devolve upon the administrator with the will annexed. Brush v. Young, 4 Dutch. 237; Lanning v. Sisters of St. Francis, 8 Stew. Eq. 392. The complainant is entitled to have her share set off to her for her use. If good reason be shown for so doing, a mixed trust estate is partible in equity. Wetmore v. Zabriskie, 2 Stew. Eq. 62. It is manifest from the language of the bequest that the testatrix contemplated a conversion of the share into money and the investment thereof for the benefit of the complainant for life. The gift to her is of the "interest of the equal undivided one sixth part or portion" of the estate and the will directs that after her death the "said interest and principal thereof" be "paid " to Georgiana Sweet. and devises the property, after Mrs. Smith's death, to Mrs. Smith's daughters. She next gave a legacy of $1,000 to her sis- And so, too, the gift to Mrs. Wilson is of the ter, Mrs. Hendrickson (which, however, she "interest of the one equal undivided sixth intersubsequently revoked by a codicil), and $5,000 est, part or portion" of the estate for life, with a absolutely to her granddaughter, Bessie Belle direction that upon her death the "interest as Bateman, daughter of her daughter Nellie J. well as the principal thereof" be "paid" to Smith, on her attaining the age of twenty-one | Georgiana Sweet. The testatrix indeed gives years, and $2,000 absolutely to Harriet L. no express power of sale of the real estate, and Smith, another daughter of Mrs. Smith, upon in the gift of the residue to Mrs. Smith appears her attaining her majority; and she then gave not to have contemplated the sale of the real and devised all the balance and residue of all estate therein, for she gives to her the rents, her property, both real and personal, of what-issues and profits for life, and gives, bequeaths ever nature or kind, and wheresoever situated, to James A. Bradley, her executor, "in trust for the execution of her will," and gave to her daughter Mrs. Smith, all the rents, issues and profits of all her estate, both real and personal, so to be held in trust, and directed the executor to pay over to her those rents, issues and profits, quarterly, for and during her natural life; and upon her death gave, bequeathed and devised all the remainder and residue of her estate, both real and personal, to Mrs. Smith's two daughters, before mentioned, absolutely. The value of the personal property was, it is said, about $700, that of the real estate about $42,000, and the debts amounted to about $14,200. The gift to the complainant is of the clear one sixth of the estate, real and personal. The scheme of the will is to give to her and Mrs. Wilson, each, one sixth of the entire estate for life, with remainder to the complainant's daughter; to give to Mrs. Smith's two daughters $7,000 and then to give the residue of the estate to the executor to pay debts and funeral and testamentary expenses, and then to pay over to Mrs. Smith, quarterly, the rents, issues and profits of the balance of the residue, and at her death to hand over such balance to Mrs. Smith's two daughters. The shares of the complainant' and Mrs. Wilson are not subject to the trust created for the residue. The words "for the execution of my will are employed in the will to qualify the trust; but they are superfluous and do not extend it over the shares of the complainant and her sister Mrs. Wilson. The debts and the pecuniary legacies of $5,000 and $2,000 The difference between the provision for the complainant and Mrs. Wilson and the provision for Mrs. Smith is very marked. The testatrix appoints no trustee of the shares of the complainant and Mrs. Wilson, but she evidently meant to create a trust as to those shares. In such case, where such a trust is created and no trustee is appointed, the trust would devolve upon the executor. But the executor has renounced and refuses to act and the administrator has no authority to execute the trust. Under such circumstances this court would appoint a trustee. If the real estate can be partitioned, without prejudice to the interests of the owners, the share of the complainant may be set off and she may enjoy it as tenant for life. By the will the testatrix declares that her reason for bequeathing a larger share of her estate to Mrs. Smith than to the complainant and Mrs. Wilson, was not want of affection for the latter, but because they were "amply provided for in this world's goods;" whereas, Mrs. Smith was poor and had no property of her own whatever; and that her reason for giving more of her estate to Mrs. Smith's two daughters than to her other granddaughter, Georgiana Sweet, was that they were poor and had no property whatever, while Georgiana Sweet had ample means, and property in her own right. It is urged on behalf of Mrs. Smith and her daughters that, under the construction which is above put upon the will, the testatrix's intention to give to Mrs. Smith more than she gave to the complainant and Mrs. Wilson, will be frustrated. But this consideration cannot control in the construction of the will, inas-BILL much as the language and terms of the instrument are not doubtful. The fact that the tes tatrix's plan of division of her property fails to effectuate her purpose in this respect, will not justify the court in disregarding the plain provisions of the will. If her design is defeated, it is because she overvalued her property, or because it has fallen in value or because she contracted debts or met with losses after the making of the will. Where the testator's language and the provisions of the will are plain the court must be guided by them. RUSLING v. RUSLING'S Exrs. 1. When the trustee is the husband of the cestui que trust, nothing short of clear and satisfactory proof will establish that the obligation of the former to the latter has been discharged or forgiven. 2. The Statute of Limitations is not a bar to trusts of such a character; nor is it a bar to the obligation of a bailee of money to hold or invest, where there is no stipulation as to the length of time he should hold it, and there has been no demand. 3. Where a husband in his will recognized a claim of his wife against him, for money loaned, and there is no certain proof that it was ever satisfied or extinguished, it will be presumed to be still outstanding. 4. A legacy will generally be presumed to be in satisfaction of a demand against the testator. Circumstances may arise or facts may appear on the face of the will showing a different intention. The intention of the testator is to govern. A devise of land is not to be taken in satisfaction of a debt. 5. If a testator declares that all his debts and legacies shall be paid, it will overcome the presumption that he intended the legacy to be in satisfaction of a debt due from him. The presumption is also overcome if the amount of the legacy be less than the debt, or if the debt be unliquidated, or if the legacy be not given to the creditor but to a third person. 6. When the testator does not provide that his just debts and legacies shall be paid, but that his just debts shall be paid if any he has, and the legacy given is in excess of the amount of the debt and interest due his wife, and he directs that the bequests in favor of his wife shall be in lieu of dower or any other claim against his estate, held, that he thereby intended to discharge and satisfy his indebtedness to his wife. 2 N. J. C. R., V. VII. (Filed March 31, 1887.) ILL to recover of executors a sum of money alleged to have been loaned to testator. Dismissal of bill advised. The case is stated in the opinion. Messrs. Isaac R.Wilson, and C. A. Skillman, for complainant. Messrs. J. F. Rusling, and B. Gummere, for defendants. Bird, V. C., delivered the following opinion: Mrs. Rusling, the complainant, is the widow of Gershom Rusling, who died in 1881, leaving a last will, in which the defendants were named as executors. Mrs. Rusling brings this suit to recover $1,000, and the interest thereon, which $1,000 she alleges she gave to her husband in May, 1863, to invest for her. I will set forth the principal facts: The testator married Mrs. Rusling in 1861. About the first of May, 1863, Mrs. Rusling reshe gave to her husband to invest for her and ceived $1,000 as her own separate estate; this to pay to her the interest. I think he paid her the interest for the first year after he accepted the trust, which was thereby created. December 5, 1863, before the expiration of the first year after he received the $1,000, Mr. Rusling made his will. In this will he directed that all his debts should be paid; gave to his wife $120 yearly, so long as she remained his widow; gave her also the sum of $1,000 in cash, using this language: "The same being the amount of certain moneys which I received from her of her separate estate after my marriage with her, and which said sum I direct to be paid to her by my executors within one year from the time of my death, with interest thereon from the time of my death. And I further direct that all the household goods and furniture, silverware, and personal property of every description, which she had of her own separate property at and after her marriage with me, be given to and taken by her as her own property. September 23, 1865, Mr. Rusling made and published another will, differing in the particulars above named in no material respect, except that he made the $120, $180. It is a fact that some of the children of Mr. pleased with Mrs. Rusling's presence in the Rusling by a former wife were greatly dishousehold, without sharing any of the burdens thereof out of her separate estate. From time to time they expressed their displeasure to her, but when does not appear to any degree of certainty. It is insisted that in view of this dissatisfaction Mrs. Rusling gave this $1,000 to her husband and thereby, to that extent, contributed to the daily recurring wants. It will not be amiss to note that if she made any such donation, and Mr. Rusling so regarded it, it must have been after September 23, 1865, the date of the last will named; for it will be seen that in that will he directed the $1,000 to be paid to her, with interest. January 8, 1873, Mr. Rusling executed another will, directing all his just debts to be paid; giving to his wife $2,000 with interest from the time of his death, to be paid to her in one year thereafter; directing his executors to pay to her annually from the time of his death a sum equal to the interest of $3,000 and to invest a sum sufficient for that purpose; making the same direction as in the former wills, with respect to her personal property; and declaring the said gifts to be in lieu of her right of dower; after which he made disposition of all the balance of his estate. October 4, 1873, Mr. Rusling executed another will in all material respects, so far as it affected Mrs. Rusling, like the one last referred to, except instead of giving her the interest of $3,000 he gave her the interest of $4,000; and directed that such gifts be in lieu of "her right of dower or any other claim that she might have against my (his) estate." During the year in which these last two wills were made Mrs. Rusling built herself a cottage at Ocean Grove, and for that purpose borrowed about $900 of her husband, which shortly thereafter she paid back to him. This was done without any claim on her part of the $1,000 which she gave to him to invest in 1863 and without any accounting between them therefor. December 10, 1874, Mr. Rusling made another will directing his just debts to be paid, saying: "If any I have;" giving to Mrs. Rusling the $2,000 as in the two former wills last mentioned, and the interest of $4,000 during her natural life, if she should so long remain his widow; making the same directions as to her personal property, and declaring that such gifts should be in lieu of dower or any other claim against his estate and disposing of all the balance of his estate. about the same time Mrs. Rusling told her that she had given Mr. Rusling $1,000 and that he had never given her a cent of interest. In 1876 or 1877 Mrs. Rusling told another witness that she had given her husband $1,000 in 1863 "to pacify him and his children;" saying "there existed a little unpleasantness in the family;" "they had an idea that she ought to have brought something into the family as his other wives had done, and that in order to pacify them she gave him this $1,000." While it is true that Mrs. Rusling either denies making these statements or says she does not remember them, all rules applicable in such cases require me to regard these alleged statements as established facts, the decided preponderance of testimony being against her. From these facts the first question is, What relation was Mr. Rusling in, to Mrs. Rusling, with respect to her separate estate, at any time during their married lives? One of his wills shows that he accepted from her the $1,000 and, by the same will, gave it back to her with interest from the time of his death. This will bears date December 5, 1863, about six months after he received the money. This clause wasretained in the next will dated September 23, 1865. These unmistakable declarations, with the other undisputed facts, establish the relation of principal and agent or, what I think more nearly expresses the truth, of cestui que· trust and trustee. But it may be said that the gift of $1,000 in 1865, with interest from the death of the testator, will not satisfy the demands of a trust of $1,000 created two years or more before. Truly not; but it does not fail, any the less, toestablish the relation of the parties. And speaking with reference to this natural and logical criticism, I remark that the will is to be read as a whole; and so reading it, it is seen that while the $1,000 stands as before, the annuity, which in the first will was $120, is in the second increased to $180. The last will in the series, and which was admitted to probate, is dated January 4, 1875, after which time Mr. Rusling lived about six years. In this will be directed "that all of my just debts, if any I have," should be paid. He gave to his wife $2,000 and directed that it should be paid to her with interest from his death in one year thereafter; gave to her the interest of $4,000 to be paid to her annually during her life, if she so long remained his I conclude, therefore, that the relation of widow; directing that all her goods, silver- cestui que trust and trustee was established. ware, and personal property of every descrip- The next question is, Was the obligation creattion, should be taken by her as her own separed by that relation discharged by the trustee in ate property; and adding: "And it is my will his lifetime, except as provided in his last will? and I do hereby direct that the said bequests in Or if not discharged by him, was it released by favor of my said wife shall be in lieu and in Mrs. Rusling? bar of her right of dower, or any other claim that she might have against my estate." About the time of making these last wills, and before, Mr. Rusling said that his wife had brought him $1,000 and that he had invested it for her, that he had paid her one year's interest and that he wanted her to have it after his death. After the making of these wills, and after Mr. Rusling had said that he had this $1,000 from his wife, she said that she had given Mr. Rusling $1,000; and when the witness to whom she made the statement was asked if she gave any reason for so doing, she said Mrs. Rusling replied that it was "to have peace in the family;" that "she had unpleasant times with them "because she didn't bring anything in the family, and she gave him $1,000 to make peace, and afterwards she said there was peace; they were satisfied." One witness says that Mrs. Rusling told this to her frequently. Another witness says that It is important to observe that the trustee was the husband of the cestui que trust. This being the case nothing short of clear and satisfactory proof will convince the court that the obligation has either been discharged or forgiven. I feel it my duty to say that ordinary expressions, importing a gift, or satisfaction, or discharge, provoked or called forth by dissatisfied members of the household, are wholly insufficient to justify the court in pronouncing judgment in favor of the trustee. The fact that about ten years after the advance of $1,000 to Mr. Rusling, Mrs. Rusling borrowed of him about $900 to use in building herself a cottage, and soon thereafter paid it back to him, is in the law of much more significance. Ordinarily, under such circumstances, the creditor would require the debtor to account for the money already due, with interest, rather than become himself the debtor by borrowing. But, as stated above, it cannot be forgotten that Mrs. Rusling was the wife; and |