No exceptions were

"5. It is wholly untrue that this respondent made any promise or interfered in any way for the purpose of screening the petitioner from punishment, or to mitigate his sentence for the crime of which he had been convicted. Respondent is informed and believes it to be true that the petitioner absconded after his conviction, and remained in concealment out of the jurisdiction of the court for a long time, to evade the punishment of his crime. Respondent had nothing to do with inducing him to return, and would not have interfered by any recommendation as to his sentence.

"6. It could do the petitioner no good to open or set aside the decree in equity, inasmuch as the instrument being already dead, no proceeding could be had upon it.

7. The petitioner was represented in the equity suit by able counsel, who faithfully attended to his interests throughout. The case was heard and decided by an able auditor, upon overwhelming evidence; and it contained nothing to which counsel could have filed exceptions."

Subsequently the court entered this decree: "Now, March 1, 1886, the testimony taken by the defendant in support of the above stated rule being mostly inadmissible and altogether unsatisfactory to establish that any injustice has been done him; and, it being admitted that the executor of the last will and testament has fully accounted for and distributed the estate of Eliza Acuff upon the faith of said decree and in accordance with said will, the petition of the said Alfred S. Acuff is refused and the rule thereupon granted is discharged, at the costs of the petitioner."

The assignments of error specified this decree and the decree of December 8, 1883.

The appellant here was utterly ignorant of this decree in equity. He thought that the case was abandoned, or dropped. If the appellee had petitioned the court in the usual way, to open the judgment, an issue would have been awarded and a trial had, with the right to appeal by the party aggrieved, under the Act of April 4, 1877.

The proceedings in this case were not according to the common law or common practice, in law or equity.

A question of fact in a civil court is carried over to the criminal court, a conviction procured, a sentence of ten days pronounced which had to be fulfilled before it could be reversed or reviewed in the supreme court; and then this conviction with the evidence in the criminal court is carried back to a master in the civil court, as proof upon which the court of common pleas strikes off a $6,000 judg

ment!

If the witnesses who testified in the former criminal case were dead at the trial of the civil case, their testimony taken when all parties were in full life would be admissible perhaps under the authorities; and documentary evidence in a former trial, as a warrant or survey, is admissible; Bratton v. Mitchell, 3 Pa. 49; but there is no authority for reading to a master, in a subsequent hearing in an equity suit, the testimony of living witnesses in a prior criminal prosecution.

Forney v. Hallagher, 11 S. & R. 203; Stiles v. Bradford, 4 Rawle, 394.

The Act of March 28, 1814, providing that depositions to be read in a former cause, may he read in a later cause between the same parties upon the same subject, does not apply to this case, or to testimony in a criminal case.

Messrs. H. B. Dickinson and George N. Corson, for appellant:

Rule 78 prescribes that the decree of the court shall recite that "This cause came on to be heard at this term and was argued by counsel; and thereupon it is ordered, adjudged and decreed as follows:" then follows the decree, which "shall be drawn by the solicitor of the party in whose favor it is, who shall, unless otherwise herein provided, serve a copy thereof on the solicitor of the adverse party, with notice of the time, which shall not be less than three days thereafter, when the same shall be submitted to court." 79. It nowhere ap806

the discretion of the court; but when the decree has been executed, parties who have acted on the faith of such decree shall not be prejudiced by such decree being reversed or varied."

Per Curiam:

The appeal from the first decree was not taken in time to authorize as to review it under the statute. The refusal of the court to open the decree rests in the sound discretion of the court, and the record shows no fact which will permit an appeal to lie. Appeal quashed.

NEW JERSEY.

COURT OF CHANCERY.

Alfred J. CLAYPOOL et al., Exrs.,

v.

Joseph NORCROSS et al.

A clause in a will was as follows: "The residue of my estate to be kept in reserve for further consideration in the way of charitable purposes in a liberal way, not to any particular creed or sect of religion." Held, that the intention of the testatrix was to give the residue of her estate to the executors named in the will, in trust for such charitable purposes as they may think proper.

B

(Decided April 28, 1887.)

trix's direction is that they shall dispose of the residue for charitable purposes. But, placing implicit reliance on their discretion, she leaves them the sole judges of the particular objects of her bounty, suggesting, however, that the gifts to be made by them be liberal, and be restricted to no particular creed or sect of religion. In construing this clause some help may be derived from the use of the word "residue." Johnson v. Poulson, 5 Stew. Eq. 390.

The residue of testatrix's estate is what remains after the legacies, debts and charges have been abstracted. It has not yet been precisely ascertained. It is this sum when ascertained that is to be kept in reserve for further consideration in the way of charitable purposes.

Will this residuary clause admit of the construction thus put upon it? If so, it must prevail. It is apparent that she never intended the residue of her estate to fall to her next of

The case is stated in the opinion.

Mr. Mark R. Sooy, for complainants: The next of kin insist that the testatrix died intestate in respect to the residue on the following grounds: 1, that there is no gift of the residue; 2, that if there is, it is void for uncertainty.

The intent of the testatrix must govern, if it can be effectuated without violating the principles of law.

Den, McMurtrie, v. McMurtrie, 3 J. S. Green, 287: Den, Nelson, v. Combs, 3 Harr. (N. J.) 28; Hesketh v. Murphy, 9 Stew. Eq. 304; Wisner v. Barnet, 4 Wash. C. C. 631, 637; Denise v. Denise, 10 Stew. Eq. 163, 169.

That the testatrix intended to give the residue of her estate to charitable purposes seems to be clear. That intention can be gathered from the language she has used. Her words are: "The residue of my estate to be kept in reserve for further consideration in the way of charitable purposes." ." This is equivalent to a direction to her executors to keep in trust for charitable purposes the residue of her estate. She does not say that the residue is kept in reserve; but it is to be kept. Here is more than a statement. It is a direction, a direction to her executors. The executor is a trustee of the estate of the testator. Such a direction is equivalent to a bequest of the residue of testatrix's estate for the purpose mentioned.

"A will speaks only from the death of the testatrix.

Inhabitants of Phillipsburgh v. Bruch, 10 Stew. Eq. 485; Thornal v. Force, 2 Stew. Eq.

220.

Construing this will, as speaking from the death of testatrix, and we have her saying The residue of my estate to be kept in reserve." By whom? Not by herself, for she was dead, but by her executors. The direction is to them. They are to keep the residue in reserve for their consideration in the way of charitable purposes. This construction is favored by the words immediately following "in a liberal way, not to any particular creed or sect of religion."

These expressions are but suggestions for the guidance of the trustees in the distribution of moneys given to them by this clause. Testa

I consideration; but in what way? Not in the way of benefiting her next of kin, but in the way of charitable purposes. By necessary implication therefore she intended to disinherit her next of kin. The court will not adopt, therefore, any construction that will let in the heirs or next of kin, if another construction consistent with her intention to promote charitable objects be possible.

Van Duyne v. Van Duyne, 1 McCart. 398; Jarm. Wills, p. 643; Hesketh v. Murphy, 9 Stew. Eq. 309; Perry, Trusts, § 709.

Doubts should be so construed as to prevent intestacy.

Yauger v. Yauger, 10 Stew. Eq. 216; 1 McCart. 124.

Is the bequest void for uncertainty? Courts are slow to hold a charitable bequest void for uncertainty. Where it is possible to give a meaning they will do it, that the will of the testator may be operative. "It has become a settled and I think a reasonable rule of law, that a devise is never to be construed void for uncertainty but from necessity. If there is a possibility of reducing it to a certainty, the devise is good."

Den, Emans, v. Emans, 2 Pennington (N. J.) 970.

"It is only when a reasonable construction and the discovery of the intent of the testator are utterly hopeless that all effect should be denied to the will."

Den v. Crawford, 3 Halst. Law, 118.

"It must be an extreme case in which the court will decree the will void for uncertainty." Den, McMurtrie,v. McMurtrie, 3 J. S. Green, 276.

"In order to avoid a will for uncertainty, it must be incapable of any clear meaning. Stewart v Stewart, 4 Stew. Eq. 398, 405. "The court will not hold a devise or bequest to be void for uncertainty, unless it is wholly unable to discover the testator's meaning."

Cleveland v. Carson, 10 Stew. Eq. 377, 380. If an uncertainty exist at all (supposing there was an intention on the part of the testatrix to give something by this clause) it must be an uncertainty in respect either to the subject of the bequest, or to the persons intended to take under it as trustees, or to the objects or beneficiaries of the trust.

1. There is no uncertainty in the subject. It | is the residue of the testatrix's estate. That is capable of being precisely ascertained.

2. There is no uncertainty in the persons who are to take as trustees. They are the executors. The direction to keep the residue in reserve is given to them. They are named in a subsequent clause of the will. They are trustees by implication.

Van Duyne v. Van Duyne, 1 McCart. 402; Dorr v. Wainwright, 13 Pick. 328; Pettingill v. Pettingill, 60 Maine, 411, 423; Nutter v. Vickery, 64 Maine, 490, 494.

There is no uncertainty in the objects or beneficiaries of the trust. True, the will does not specifically name the persons or institutions that are to receive this charity. It leaves the beneficiaries to be chosen and named by the executors, the persons appointed to distribute the charity.

Perry, Trusts, §§ 709, 732; De Camp v. Dobbins, 2 Stew. Eq. 36; Brown v. Pancoast, 7 Stew. Eq. 321; Hesketh v. Murphy, 8 Stew. Eq. 23.

The direction given to the executors to hold this residue in reserve for charitable purposes, carries with it by implication the power to select the particular beneficiaries.

Hesketh v. Murphy, 9 Stew. Eq. 304. Mr. C. E. Hendrickson, with Mr. B. Gummere, for defendants:

The testatrix does not make any bequest or disposition of her residuary estate, but expressly reserves the disposition of it for further consideration.

Her exact words are: "The residue of my estate to be kept in reserve for further consideration," etc.

It is a general rule in the construction of wills that the language used shall receive its ordinary interpretation, except where some other is necessarily or clearly indicated.

1 Redf. Wills, par. 16, p. 431.

The ordinary meaning or definition of keep is "to cause to remain in a given position, as within one's grasp or control;" "to maintain hold upon," and of the word "reserve," "the act of reserving or keeping back" or "that which is reserved or kept back," and of the word "consideration" "the act of considering;" "continuous and careful thought;" "contemplation;" "deliberation."

And with these definitions in mind, and in the absence of other expressions of the testatrix, indicating a clear meaning to the contrary, we must infer that the testatrix meant, as to the balance of her estate undisposed of by the legacies previously given in said will, that she was not then prepared to make a disposition of it, that it should be reserved or kept back in her own control until she had further considered and deliberated upon the objects and method of such disposition.

A fair construction of the language it seems to me indicates that this clause of the will speaks from the date of the will and not from the death of the testator. If so, then the clause must be so read.

Thornal v. Force, 2 Stew. Eq. 220; 1 Redf. Wills, 425; Jarm. Rule 4.

This view is further strengthened and fortified by the words "further," "to be kept in reserve for further consideration," etc.

This imports that the disposition of the residue had been under consideration by some one, and by whom else could it have been so under consideration than by the testatrix who alone had the power to consider upon and determine what disposition she should make of her property?

This word "further" indicates clearly that the testatrix is speaking at the date of the will and not at her death; it could not apply to anyone else, for no one else had considered it; and she could not further consider after she was dead-the word applies and makes sense in the construction we contend for: that she reserved the residue for her further consideration.

The words "further consideration" thereby clearly point to the testatrix as the one by whom the residue was "to be kept in reserve for further consideration in the way of charitable purposes," etc. They show that she had been considering the propriety of a bequest of the residue of her estate to some object or trust of a charitable nature, not based upon any test of religious creed or sect, but that she had not yet settled the matter in her mind.

Again; in the phrase "in the way of charitable purposes" the words "in the way of" import rather an act of the mind of the testatrix considering the matter of a bequest in the way of or in the discretion of charitable purposes, rather than having fixed upon charitable purposes as the settled object of a bequest.

The vagueness and uncertainty of the words of the clause when claimed to support a bequest are in strange contrast to the certainty and definiteness of the testatrix in all her other bequests, but are in entire harmony with the insistment of the defendants that said clause imports an undefined and unsettled purpose to devote the residue of the estate to charity and a reservation of the disposition of said residue for further consideration.

1 Redf. Wills, § 3, p. 421: § 12, p. 430; Rule 17, note 1, p. 428; Hall v. Warren, 9 H. L. Cas. 420; S. C. 7 Jur. N. S. 1089.

Runyon, Chancellor, delivered the following opinion:

Rachel N. Murphy, deceased, by her will, among other bequests, gave to the "Little Sisters of the Poor" and the "Working Girls' Home" (both institutions located in Philadelphia) $500 each and she then provided as follows: "The residue of my estate to be kept in reserve for further consideration in the way of charitable purposes in a liberal way, not to any particular creed or sect of religion," and she appointed the complainants executors. The question presented is whether the gift of the residue is a valid charitable bequest.

That the language of the clause was not used to signify an intention upon the part of the testatrix to withhold the residue for future disposition by herself, or in other words that she did not mean to express an intention not to dispose of it by the will is clear from the consideration of the language of the clause. Had she intended so to withhold it, why should she have designated the manner in which the residue was to be disposed of: "in a liberal way, not to any particular creed or sect of religion"?

It would also seem from the initial clause of the will: "I, Rachel N. Murphy, herewith

she

take my final leave of the world," that she did not contemplate any further testamentary or other disposition of any part of her property. By the words "to be kept in reserve' meant "to be held in trust;" and by the residuary clause she intended to give the residue to the executors in trust to be disposed of by them for such charitable purposes as they might in their discretion see fit to apply it to; she, at the time, expressing a wish that they should act therein with a liberal spirit so far as religious tenets were concerned, and that they, therefore, should not in the distribution confine their gifts to any particular religious sect or to those who professed belief in any particular religious creed.

It is to be observed that the direction is that the residue is "to be" kept (not is kept) in reserve, etc. That is equivalent to and is intended as a direction to keep the residue in reserve. It is not to be supposed that if the testatrix had intended merely to express an intention to withhold the residue for further disposition, she would have considered it necessary to speak with any particularity as to her design in reference to it. It would have been enough to say that it was withheld for further consideration and disposition. But the language is that it is to be reserved for further consideration "in the way of charitable purposes in a liberal way, and not to any particular creed or sect of religion."

This language is clearly a direction as to the disposition to be made by those charged with the duty of disposing of the residue. It seems to me quite clear that the testatrix intended by the clause under consideration to dispose of the residue, and that in the language she has used she must be regarded as speaking at the time of her death and not at the time of making her will. Courts deal liberally in the construction of bequests for charity, and in some cases sustain such bequests, where if they were to an individual they would not be sustained. The testatrix intended to give the residue to the executors. Although they are not named in the clause, the gift is to them by implication; and it is in trust for such charitable purposes as they may think proper.

reptitiously or of fraud on her part, and it appears that it was done with the knowledge of the other partner.

BILL

(Decided April 28, 1887.)

for an account. On final hearing upon pleadings and proofs. Dismissed as to Mrs. Hibbins.

The case is stated in the opinion.

Mr. James W. Field, for complainant. Messrs. G. P. Kingsley and E. M. Colie, for defendants.

Runyon, Chancellor, delivered the following opinion:

Sharp and Hibbins were partners in business in Orange in this State. The copartnership began in 1872 and was dissolved by mutual consent in 1877. Sharp brings this suit against Hibbins and his wife, to obtain from the former an account of the partnership affairs and assets which at the dissolution of the copartnership were left in his hands, and to charge the real estate of Mrs. Hibbins with moneys which (according to the allegations of the bill) were taken by Hibbins from the funds of the firm and expended upon that property in paying interest upon a mortgage thereon and in improving the property with buildings, etc.

That the complainant is entitled to the account which he seeks there can be no question. The proof is that Sharp and Hibbins were copartners from August 1, 1872, to January 20, 1877; that at the dissolution of the copartnership all the assets were, as before stated, left in the hands of Hibbins, upon an agreement on his part with Sharp that he would settle the affairs of the concern. He has acted under that agreement, has disposed of the property, collected the debts due to the firm and has, as he alleges, paid debts due from it, but he has never accounted with Sharp in the matter. It is urged on his behalf that he should not be required to account, because it appears by his testimony that he has paid out much more for the firm in the payment of its debts than he has received from the assets.

Sharp is entitled to an accounting notwithstanding this claim. The court will not in such a case as this take the account at the hearing; the only material evidence on this part of the case is that which bears upon the question whether the complainant is entitled to an account or not. Gresley, Eq. Ev. 240: Hudson v. Trenton Locomotive etc. Co. 1 C. E. Green, 475.

The claim to a lien upon the separate property of Mrs. Hibbins is not established. There is no proof that the property was not hers bona fide. Nor is there any proof of fraud on her part. If her husband expended money drawn by him from the firm's funds, in improvements upon her land and in the payment of interest upon the mortgage upon the property, there is no proof that it was done surreptitiously; but on the contrary it would appear that it was done with the knowledge of the complainant. The expenditure for the green houses built on her land appears to have been made in 1873; and the payments of interest upon the mortgage were made half yearly from November 25, 1872, down to April 10, 1876.

The money drawn for those purposes was drawn by Hibbins upon his own account from

the firm's bank account. It is true they were not charged to him, but the reason was that neither the complainant nor Hibbins kept any account of the moneys drawn by them for their own account, except the checks themselves by which they were drawn. There is neither charge nor evidence of fraud in these matters. The complainant is entitled to no lien upon Mrs. Hibbins' property. As to her the bill should be dismissed, with costs.

Samuel LIPPINCOTT, Exr., of Ann H.

Pancoast,

v.

account as incidental to the right of an injunction to stay the commission of further waste, and that only in order to prevent a multiplicity of suits. Grierson v. Eyre, 9 Ves. 341, 346; Watson v. Hunter, 5 Johns. Ch. 169; 1 Add. Torts, 319.

Nor can I conceive of any principle upon which this complainant can stand in this court for the recovery of these moneys. If he is entitled to them, he can recover them by an action at law for money had and received, or for the trespass in cutting, or trover in converting. Rev. p. 396, § 5.

1. This court has jurisdiction to compel an account for waste done only as incidental to relief by injunction to stay the commission of further waste, and that only to prevent a multiplicity of suits.

1.

BILL

ILL to recover value of trees cut by tenant by the curtesy. Dismissed.

The case is stated in the opinion.

Mr. W. T. Hilliard, for complainant.
Mr. E. S. Fogg, for defendants.

Bird, V. C., filed the following opinion: This bill is filed by the executor of Ann H. Pancoast, deceased, to recover the value of trees cut by her husband David C. Pancoast, who continued in possession as tenant by the curtesy of her lands after her death. The defendants, against whom the suit is instituted, are the executors of the tenant for life.

It is claimed that this suit may be maintained in this court, for the waste committed, on the ground of equitable conversion, and upon the

Co.,

LONG DOCK CO. et al.*

A mortgage upon after acquired property attaches to such property, subject to existing equitable liens thereon, although it is prior to them in point of time.

Where a mortgage is given by a part owner of land during proceedings in partition to which he is a party, and at the sale in such proceedings the land is purchased by and conveyed to trustees for the beneficial owners of the property, held, that the legal title of the mortgagor was extinguished and the mortgage attached, but in equity only, to the equitable interest of the mortgagor in the property, and that when on the division thereof, such part owner obtained title to the part allotted to him, such mortgage cannot be maintained beyond the extent of the mortgagor's interest in the property, and that a lien for purchase money of such part owing by him was paramount to the mortgage.

3. When the master's report follows the direction of the decree, an exception to it will be overruled.

(Decided April 30, 1887.)

one of the grandsons of David C. Pancoast, by whose will he has but $100 bequeathed him, while by the will of Ann H. Pancoast he has an equal interest with the other legatees.

Neither of these alleged grounds brings the case within the jurisdiction of this court. I have examined a number of authorities, and none of them goes so far as to sustain the complainant's insistment.

In Ware v. Ware, 2 Halst. Ch. 117, the doctrine, which is expressed in all the other authorities, is that an account for waste done is only incidental to relief by injunction against further waste. 1 White & T. Lead. Cas. Eq. part 2, p. 1024; Jesus College v. Bloom, 3 Atk. 262; Winship v. Pitts, 3 Paige, 259; Story, Eq. នួន 515, 518.

From these and other cases it appears that this court only has jurisdiction to compel an

port. Overruled.

The case is stated in the opinion.

Messrs. Cortlandt & Wayne Parker, for the exceptions.

Messrs. J. R. Vredenburgh, and J. D. Bedle, contra.

Runyon, Chancellor, delivered the following opinion:

By the decree in this cause it was decreed (11 Stew. Eq. 142) that the Long Dock Company should bear its proportion (with interest) of a certain payment of $500,000 made by the complainants to extinguish the outstanding title of the State in certain lands assigned and conveyed to the New Jersey Railroad & Transportation Company, under a certain agreement

*See United New Jersey R. R. & Canal Co. v. Long Dock Co. 4 Cent. Rep. 56,