Executors and Administrators-Continued.

were entitled to a commission of five per cent. on its value.
Stein v. Huesmann,

405

6. When an executor and trustee, charged with the care and renting
of real estate, is shown to have received, for his personal use,
gifts in money from those employed by him to make repairs, and
from tenants, a decree merely requiring him to account to the
estate for moneys so received, does not impose an adequate pen-
alty for such misconduct. Upon such proof in ordinary cases the
trustee should be deprived of commissions; but when the cir-
cumstances show that his services have been such that the depri-
vation of all commissions would impose too heavy a penalty for
the offence, the court will, in consideration thereof, deprive him
only of so much as will serve to mark the court's disapproba-
tion of his conduct, and to be a warning to others. Jacobus v.
Munn,
622

See APPEAL, 3; CONTRACTS, 2; FRAUDULENT CONVEYANCES, 4;
JURISDICTION, 4; PARTNERSHIP, 2, 3; TRUSTS, 2, 3.

Certain machines, which were entirely finished before they were
brought to and set up in a factory, and required no particular
adaptation for use therein, nor any alteration in the factory itself,
and which could be removed therefrom without injury to them-
selves or to the building, were, as between the mortgagee and
a subsequent judgment creditor of the mortgagor, held not to be
covered by a mortgage of lands, including the factory and also
"the steam engines, boilers, shafting, belting, gearing and all
other machinery appertaining to said premises, now upon said
premises or that shall hereafter be placed or erected thereon.” .
Penn Mutual Life Ins. Co. v. Semple,

See APPEAL, 2.

Fraud.

A legatee alleged that by means of false representations made to her,
she had been induced to withdraw her caveat to the probate of
the will, which was thereupon admitted to probate.-Held, that,
as her bill showed that the representations had been made to her
by persons not interested in the estate, and that no person inter-
ested therein was chargeable with them, it should be dismissed.
Kinney v. Emery,

See CORPORATIONS, 5; MORTGAGES, 10, 11; PLEADING, 1, 5; SET-
TING ASIDE SALES.

Fraudulent Conveyances.

1. A son, knowing his father's financial embarrassments, and taking

575

101

Fraudulent Conveyances--Continued.

a conveyance of the title for all his father's real estate, only
giving back therefor a mortgage, without a bond, for $2,047.62
and a check for $200, the father at the same time surrendering a
note against the son for $200, cannot hold the real estate against
the creditors of his father. First Nat. Bank v. Cummins,
2. The son was indebted to his father on a bond and mortgage for
$2,500, given for part of the purchase-money of a lot of land.
This mortgage the father surrendered to the son for cancellation
for certain alleged accounts which the son claimed he held
against his father, the greater portion of which, if they existed
in the form of accounts at all, were prior to the execution of the
mortgage.-Held, fraudulent. Id.,

3. After these events, the wife of the debtor conveyed her interest in
dower in the farm to her son and took from the son a mortgage
on the farm for $1,000, the alleged price of the dower, which
sum, in consideration of her age, if her husband had been dead,
was more than twice its value.-- Held, fraudulent. Id.,

4. A judgment creditor of a decedent, whose estate is insolvent, and
whose administrator refused to bring suit, filed a creditor's bill
to set aside, as fraudulent, certain mortgages given by the dece-
dent to his son-in-law, which were foreclosed after decedent's
death, and the premises bought at the sheriff's sale under the
foreclosure by the son-in-law, the defendant. On demurrer to
the bill-Held, (1) that the administrator is not a necessary
party, and (2) that the bill sets forth grounds for equitable re-
lief. Munn v. Marsh,

5. On January 11th, 1879, Mrs. Totten, without her husband joining
in the deed, because the parties supposed and were advised that
it was unnecessary, conveyed a farm belonging to her to Mr. and
Mrs. Allen, for $3,200, subject to a mortgage of $5,000. Of the
consideration, $200 were paid in cash by Mr. Allen, and $3,000
in his three notes of $1,000 each, payable to Mrs. Totten. These
notes were shortly afterwards endorsed by her to complainant
for a prior indebtedness. The complainant, when they were un-
paid, brought suit on them in a court in New York, and Allen
then proposed that the complainant should accept a deed for the
farm in payment of the claim on the notes, which he did. On
January 12th, 1879, the defendant issued an attachment against
Mr. and Mrs. Totten, who were non-residents, and thereunder
seized and sold the farm.-Held, that whether there was fraud or
not in the conveyance from Mrs. Totten to the Allens, the com-
plainant was not affected thereby and his title, founded on the
equitable one of the Allens under Mrs. Totten's deed to them,
would prevail against the defendant's title under the sheriff's
sales on his attachment. Canda v. Powers,

See PLEADING, 4; TRUSTS, 2.

191

191

191

410

412

G.

Gaming.

Contracts for speculations in stocks upon margins, when the broker
and the customer do not contemplate or intend that the stock
purchased or sold shall become or be treated as the stock of the
customer, but the real transaction is a mere dealing in the differ-
ences between prices--that is, in the payment of future profits or
losses, as the event may be-are contracts of wager, dependent on
a chance or casualty. Such contracts, if made in this state, are
unlawful, and securities given therefor are void by force of the
provisions of "the act to prevent gaming." Rev. p. 458. Flagg
v. Baldwin,

Guardian and Ward.

1. Judgment was obtained against a guardian and his sureties for
breaches of all the four conditions in his bond. On a reference
to have the damages assessed against the sureties-Held, that
the sureties could not object because the master assessed damages
under one of the conditions as to which they claimed they were
exonerated by the action of the new guardian, because, if that
were a defence, it should have been raised in the action at law;
and that they could not claim allowance for taxes on the ward's
land paid by the guardian, because such taxes, if paid by the
guardian, ought to have been charged by him in his account,
and further, that the ward could not object, on account of the
guardian's misconduct, to the master's allowance of commissions
to the guardian, which had been fixed by the orphans court,
because the action of the orphans court could not be questioned
in that collateral way. Dean's Case,

2. The penalty of a guardian's bond was $2,700. After judgment
against him and his sureties thereon, and a reference to have
the damages assessed, the guardian's expense of maintaining the
wards was not allowed. The application was by one of the sure-
ties. It does not appear that the guardian, who was the father
of the wards, was not able to support them, and it does appear
that he received and had the benefit of their wages meanwhile,
and that he never made any charge against them for support.
The damages, however, cannot exceed the penalty of the bond.
Wilson's Case,

3. A guardian who had taken his ward to live with him before the
guardianship, agreed with her father, when he took her, that he
would support her at his own cost and as his own child. The
ward appears to have rendered whatever service she could in
the family, and the guardian did not charge her for board in his
books or in his first account.-Held, that he could not be allowed
for her board, washing &c. Snover v. Prall,

219

201

205-

207

Guardian and Ward - Continued.

4. A guardian has no power to bind either the person or the estate
of his ward by contract. Reading v. Wilson,

5. A guardian may be authorized, by a court of competent jurisdic-
tion, to make a contract for his ward, but, in such case, he does
not exercise a power belonging to his office, but an extraordi-
nary power granted to him for a special purpose. Id.,

6. The annual accounts of a guardian which have been audited and
ordered to be recorded, are to be taken, on his final accounting,
as prima facie correct, as well in respect to his disbursements as
his receipts. Actual notice on citation to the ward is not neces-
sary before filing such annual accounts. The surrogate's fees for
auditing and stating them may be allowed. Davis v. Combs,

Husband and Wife.

H.

Where a marriage settlement authorizes and empowers the trustee to
sell and invest and re-invest the trust property at the direction of
the wife, and to pay over the income to her, with a provision
that if she survives her husband the trustee is to reconvey the
property to her, and it contains no revocation clause, she cannot,
during her husband's lifetime, require of the trustee the payment
of the proceeds of the sale of the trust property, Buchanan v.
Paterson,

See CONFLICT OF LAWS, 4, 5; DIVORCE EVIDENCE. 5.

446

446

473

70

I.

Infants.

1. A suitor who seeks relief against an infant defendant, must prove
his whole case. An infant is incapable of making a binding
admission. Shultz v. Sanders,

2. An infant may make a valid contract for necessaries, but he is only
invested with such capacity when in a state of need. Reading v.
Wilson,

See GUARDIAN AND WARD; JUDICIAL SALES, 5.

Injunctions.

1. The complainant claims the franklinite ore in certain land known
as the northerly half of Mine Hill, under deeds made, one in
1848 and the other about a year afterwards. The defendant
Trotter also claims that ore as lessee of a person who claims
under a deed of the same grantor made in 1848. The complain-
ant's deeds do not include the land in question in the descrip-
tion, though it says it was intended that the description should
embrace those premises, and the bill is filed for rectification of

154

446

Injunctions-Continued.

the description so as to include the premises in dispute. The
complainant, and those under whom it claims, had possession of
the land from 1848 up to September, 1882, when Trotter took
possession and fenced it out. In 1881 he recovered damages
against the complainant's grantor in a federal court, in trespass,
for taking franklinite from the property, and shortly afterward
the complainant's grantor filed a bill in a federal court for recti-
fication of the description, and applied for an injunction to
restrain Trotter from mining the franklinite, which was denied.
On motion for injunction in this suit to restrain Trotter from
mining-Held, that an injunction should be allowed to preserve
the property in question pendente lite. Also, that the complain-
ant was not disentitled to relief by laches in applying for the
reformation of the description, notwithstanding the error was
known as early as 1853, since its right was not questioned until
Trotter obtained his lease, which was in 1879. New Jersey Zinc
and Iron Co. v. Trotter,

2. Complainants and their father have had possession of certain unen-
closed wood and timber-land ever since 1820. Defendants (who
are pecuniarily irresponsible), under an adverse claim of title, are
selling off of the premises the wood and timber, which con-
stitute their chief value.-Held, that complainants are entitled
to an injunction restraining the removal of the wood and timber,
but not an injunction to prevent defendants trying an ejectment
for the premises, begun after this suit had been brought, this
suit not being brought under the act to quiet title. Piper v.
Piper,

3. Mandatory injunctions are rarely granted before final hearing, and
are, as a general rule, strictly confined to cases where the remedy
at law is plainly inadequate. Lord v. Carbon Iron Co.,
See APPEAL, 2; CORPORATIONS, 1; COSTS, 2; DEDICATION; EASE-
MENTS, 2; MINES, 2; MORTGAGES, 6.

Insurance.

The by-laws of an unincorporated mutual insurance association pro-
vided that in case a member had, for failure to pay an assess-
ment promptly, been dropped from the association by the secre-
tary, the board of directors should have power to re-instate him
on his presenting to them a reasonable excuse for such failure
and paying the sum in arrear. A member being delinquent
appeared before them and offered a sufficient reason for his delin-
quency, and the board refused to re-instate him, because they
alleged that his health was then precarious. He died very soon
afterwards.-Held, that this court might, after his death, examine
into and determine the adequacy of the reason so offered, and, in
a proper case, compel the association to pay the amount of in-

3

81

452