text:
    The Delaware, Lackawanna and Western Railroad Company v. Henry W. Breckenridge et al.
    In a suit by a railroad to compel removal of pipes laid across tbe road, under the soil, for transportation of oil, and to prevent laying of other pipes, a preliminary injunction restraining use of the pipes was modified by an order limiting the protection of complainant to access to the crossing, for purposes of operating its road and protecting its roadbed, final decree being deferred till determination by action at law of the title to the soil under the road. — Held, that application for continuation of the original injunction pending appeal from the order would not be granted, as no material injury could come from the use of the pipes before final hearing.
    On decree and motion for stay pending appeal.

      Mr. George Biller (for Mr. J. Franklin Fort), for the motion.

      Mr. Henry S. Harris and Mr. Joseph Roseberry, contra.

   Emery, V. C.

This is an application for a stay of proceedings pending appeal by complainant, from an injunction decree, and for a continuance of the ad interim stay which was granted ex parte on filing the bill, and which was discharged by the injunction decree made on the hearing. This injunction order or decree is more limited in its scope than the ad interim stay, and the difference between them is, as complainant claims, vital to its claim for relief made in the bill and on appeal.

The defendant pipe line company, previous to the filing of the bill, had laid two pipes for the transportation of oil under the soil of the roadway of an undergrade crossing made by complainant or its lessors in the construction of its railroad, and the pipes extended across the entire right of wáy on lands of the complainant. Complainant claims title to the soil under the

roadway by virtue of a deed from one Stewart, the original owner of the lands through which the railroad was built. The pipe line company claims title to the soil under the roadway, and also claims the right to lay pipes therein by virtue of deeds from Stewart’s subsequent grantees and devisees. Upon filing the bill, an ad interim, restraining order was advised by Vice-Chancellor Reed, which restrained, among other things, the use of the pipes by the defendants for the transportation of oil or any other purpose until the hearing of the order to show cause and until the further order of the court.” Upon the order to show cause coming on to be heard before me, the cause was, by consent of counsel, set down for final hearing at a future day, without any formal disposition of the order to show cause and without ordering any preliminary injunction, the ad interim stay order being allowed to continue meantime and as originally granted, without further order in relation thereto except a modification advised by Vice-Chancellor Reed on defendants’ application. Practically, the restraining order, as modified, served the purpose of a preliminary injunction pending final hearing. It was not merely an ad interim stay pending the hearing of the order to show cause, but being expressly made to continue “ until the further order of the court,” it must, for present purposes, be treated as a preliminary injunction. In Phillips v. Pullen, 18 Stew. Eq. 157, a restraining order was held to be an'injunction under the statute. On the hearing, instead of making a final decree in the cause, I advised that the cause be held pending the trial of the title to the soil under the roadway by action at law, and directed that an injunction issue in the meantime, but limited to the protection of the complainant in its access to the crossing, for the purpose of operating its road and protecting its roadbed, which access the defendants had forcibly prevented. I also advised that the original ad interim stay or order be discharged. The complainant has appealed from the whole injunction order advised by me on the hearing, and the application is now made under the one hundred and forty-ninth rule of the court for a continuance of the original ad interim stay as to the use of the pipes pending appeal, or until the next term of the court of errors and appeals. This rule provides that

an appeal from an interlocutory decree or order shall not stay proceedings in the cause without an order of this court or of the court of appeals for that purpose first had, which order shall be granted upon such terms as the court making it may impose,”

and is substantially rule 61 of the rules promulgated in 1822 by Chancellor Williamson the elder. 4 Griff. L. R. 1331.

So far as the present application is to be disposed of by the practice of this court under this rule up to the present time, it is clear that it must be denied. The precise point was involved in the case decided by Chancellor Runyon. Central Railroad Co. v. Standard Oil Co., 6 Stew. Rq. 372 (1881). In this case an ex parte ad interim stay had been granted, restraining a pipe . line company, pending the hearing on a rule to show cause, from the use of the pipes laid across a bridge over the roadway of the complainant. On the hearing of the order to show cause, the preliminary injunction being denied, an appeal was taken by the complainant and an application was made for a continuance of the ad interim stay pending appeal. The application was denied upon grounds which were stated at length, and one of the grounds stated covered the main point involved in the present application, viz., the prevention of the use of the pipes pending appeal. It was there urged, as here, in support of the application, that the oil company had usurped the property of the complainant, and that to permit it to do so was an irreparable injury. The opinion of the late chancellor upon this contention was that it was a question whether the usurpation had in fact taken place, and that no material injury would come from the use of the pipes before final hearing. See opinion pp. 375, 376.

Complainant’s counsel here insist, in addition, that this use of the pipes for transportation of oil would be a continuous trespass on its lands for the sake of profit, and on that account complainant would suffer an irreparable injury from such use for which no adequate remedy exists at law; - but the inadequacy of the legal remedy is at least a doubtful question, and it may be settled otherwise in the legal action. Since the argument of'this cause the court of appeal, in a late English case ( Whitwham v. Westminster &c. Co., 2 Ch. 538 (1896), have extended the rule of damages in the way leave ” eases referred to in my opinion in this cause to another class of trespasses on lands for the sake of profit, and give as damages to the owner the value of the lands for the use thereof to the trespasser. Pending final decision on this question, the stay pending appeal must therefore be denied upon the principles settled by Chancellor Runyon in the above case. Counsel for the complainant urge, however, that the recent decision of the court of errors and appeals in Pennsylvania Railroad Co. v. National Docks &c. Co., 35 Atl. Rep. 433 (September, 1896), has established a different rule and entitles the complainant to an order of this court continuing the ad interim or preliminary stay pending appeal. In this case it was held that by the mere act of filing the notice of appeal, the final decree rendered in the cause lost all its force pending an appeal, and that an appellant could not fall into contempt by resisting the execution of the decree pending appeal. The final decree here appealed from was an injunction decree, restraining the defendant from opposing the complainant in making a causeway or tunnel under the defendant’s car-yard, and requiring the defendant to assist this construction by removing certain of its trains in the car-yard. The court was of opinion that if this decree were carried out pending appeal, it would deprive the appellate court of the ability to render anything more than a merely nominal decree on appeal in favor of the appellant. In support of the present application counsel for the complainant relies upon the express declaration in the opinion filed in the cause as to the effect of an appeal from an injunction decree. The language is as follows: It is likewise the opinion of this court that an appeal in all cases will have that effect given to it which shall be necessary to preserve the subject to which the appellate procedure relates in such a condition as will enable this court to render an efficacious decree in the premises, and that for this purpose an injunction decree will be suspended or continued, or a previous injunction revived, by the act of filing an appeal, whenever such construction shall be necessary for the end just stated.”

The complainant claims that inasmuch as the appellate procedure on its part relates to the transportation of oil through the pipes, which it claims to be an irreparable injury, for which no adequate remedy at law exists, and against which it seeks a decree on appeal, no efficacious decree in the premises can be rendered for it on appeal unless the ad interim injunction order is revived. It asks, therefore, that this court give it by order the protection to which it .claims to be entitled by the appeal, and that the court revive the preliminary order or injunction pending appeal. The defendants, on the other hand, contend that the rule laid down in the above opinion does not go so far as to require in all cases the preservation of the status quo pending an appeal which involves the status, but merely requires the preservation of property, the rights in which are the subject of decree and of appeal, to the end that a decree on appeal in favor of the appellant may be made efficacious. "Without deciding upon the construction of the rule laid down in the opinion, it seems to me that even if the complainant’s construction be the correct one, a stay by this court to carry out this construction should not now be granted for several reasons — first, the precise point now involved is the effect of the appeal upon an injunction previously granted and which has been discharged or modified by the decree appealed from, and so far as relates to this point, I am not clear that the opinion is not obiter, if tested by the usual rules applicable to decisions, because this point does not seem to have been necessarily involved in the decision of the case. The decision, as I understand it, establishes the rule that an appeal from an injunction decree ipso facto stays proceedings upon the decree appealed from to a certain extent and for a certain purpose, and it applied this rule to the case in hand, which was that of a decree granting an injunction, and settled the effect of an appeal from such decree. But the question as to the effect of this rule, when applied to decrees discharging or modifying injunctions, seems to be a different one and to present special and different considerations, which should be made the subject of direct adjudication when the point is distinctly involved.

Under the New York practice previous to 1846, the rule was established by the courts that an appeal acted, ipso facto, as a stay upon the points appealed from, and that an order to proceed was necessary, yet the courts held that this rule did not have the effect of reviving an injunction discharged by the decree appealed from. , ■

In Hoyt v. Gelston, 13 Johns. 139 (1816), a preliminary injunction stayed a suit at law. It was dissolved on motion, and an appeal entered at once from this order dissolving. The party originally enjoined proceeded with the suit at law, and on motion to set aside the verdict, on the ground that the appeal continued the stay, the supreme court says (at p. 140): To give such an effect to an appeal from an order dissolving an injunction, would be very mischievous in practice and serve as a great engine of delay. We must consider the case as if no injunction had ever issued.”

In Wood v. Dwight, 7 Johns. Ch. 295 (1823), an injunction which enjoined an execution at law was dissolved by order, and, on appeal from the order, an application was made by defendant for leave to proceed with his action. It was held that the appeal did not, ipso facto, revive the injunction, and Chancellor Kent says: “ It is impossible that a process that is duly discharged and functus officio can be revived by the mere act of the party. How could this court undertake to enforce the process and punish contempts of it in the very face of the order dissolving it? When a process is once discharged and dead, it is gone forever, and it can never be revived but by a new exercise of judicial power. It is sufficient to declare that the defendant is entitled to pursue his remedy at law equally as if no injunction had issued. No special leave to proceed is requisite.”

In Doughty v. Somerville &c. Railroad Co., 3 Halst. Ch. 633, relied on in the opinion in the National Doalcs Case, the appeal was from an order dissolving an injunction, and Chief-Justice Green, delivering the opinion of the court, cites the above New York.cases apparently as authorities upon the point now considered, and seems to agree with them, that even where, by virtue of the practice of the courts, the appeal is of itself a stay of proceedings, on appeal from a decree refusing an injunction, the appeal will not, ipso facto, have the effect of continuing the injunction which has been dissolved.

On the other hand, Mr. Justice Randolph, in delivering the opinion of the minority of the court in Doughty v. Somerville &c. Railroad Co., supra (at p. 632), is of the opinion that on an appeal from an order dissolving an injunction where there is a rule for stay of proceedings, this has the effect of reviving or modifying the injunction until the appeal can be heard, and that until the hearing on appeal the case stands as though the order had not been made. As was said by Chancellor Kent in Green v. Winter, 1 Johns. Ch. 77, in reference to rules relating to stays pending appeal, there are difficulties in the operation of any general rule either way, and in view of what seems to me a fair doubt whether the decision in the National Doelcs Case should be taken to cover the point now involved, the order for stay now applied for should not be made. If this view as to the scope of the decision is erroneous, and the rule as declared applies to this case, still the order for stay should not be granted, because, in the second place, if the complainant’s construction be right, the appeal itself, under the decision, is effective to give the appellant all the protection to which he is entitled pending appeal, and this protection cannot be affected by the refusal of this court to stay. And, on the other hand, a stay in this cause to the extent claimed by complainant, exceeds, as I have above shown, the limits which this court has usually fixed, and complainant should, therefore, be left to the protection, of the appeal alone. In the third.place, the stay should not be ordered, even if the complainant’s construction of the opinion in the National Dochs Case be correct, for another reason which seems to me important as affecting the whole question of the stay of proceedings pending appeal from injunction decrees. The appellate jurisdiction on appeal, as has. been well settled (Barton v. Long, 18 Stew. Eq. 160; Phillips v. Pullen, supra), begins with the filing of the notice of appeal in the court of chancery. Erom this time the appellate court has cognizance of the appeal with the power (subject to legitimate statutory control) to regulate the entire appellate procedure, including the regulation of the stay of proceedings in this court, during the pendency of appeal. It is, in matter of practice, important, if not essential, that if the court of chancery has the right, in the first instance, to make an order granting or refusing a stay, this order should not be itself subject to an appeal, as indicated by Chief-Justice Green in Doughty v. Somerville Railroad Co., 3 Halst. Ch. 633, and Lord Eldon in Huguenin v. Baseley, 15 Ves. 179, 182. No difficulty from such appeals from stay orders has heretofore arisen, perhaps for the reason that the rules of the court of chancery regulating stays on appeal, being the only formal regulations of any kind upon the subject made by either the appellate or subordinate court, have been hitherto considered as providing for a complete system of procedure relating to stays on appeal, pending application to the appellate court itself. As to stays on interlocutory decrees which are not injunction decrees, the opinion of the court of errors and appeals in Barton v. Long, supra, expressly confirms the rules as continued in force by its assent. In this case the right of the chancellor to proceed with the cause pending an appeal from such decree was challenged, and the status of the rules in reference to such decrees was considered, and on these subjects the following language was used in the opinion of the court:

“The power of the chancellor to proceed to a final decree during the pendency of an appeal from an interlocutory decree was challenged on the argument. That such right exists, however, is plain. The rules of chancery provide for and regulate such procedure, and those rules and the practice under them have been tacitly recognized and assented to from a very remote period by this court. It would seem that it would be competent for this court to put this procedure under its own regulation, but this has not been done, and this court has acquiesced in the methods established by the chancellor, and which, while they are permitted to remain in force, must be deemed unobjectionable. But it is clear that the party who proceeds with the cause in the court of chancery before the decision of the appeal from the interlocutory order will incur the hazard necessarily incident to such a step, for if the interlocutory order be reversed and the error thus rectified' shall .have deprived the appellant of a right which would have benefited him on the final hearing, it is obvious that the final decree, under such circumstances, could not stand.” This case differs from the National Nodes Case, it will be perceived, in that -.the proceeding pending appeal did not, in the opinion of the court, deprive the court of the power to render an efficacious decree on appeal.

But, since the decision in the National Nodes Case, it would seem to be clear that, as to interlocutory injunction decrees, the rules cannot be considered as adopted by the appellate’ court, and that a stay of an injunction decree pending appeal by the chancellor, under the rules of the court of chancery, can no longer be considered an order from which there is no appeal, for the reason that, in these cases, the appellate court declines to recognize the rules as existing regulations in a course of appellate procedure. The rules, therefore, and orders granted under them, on such decrees, would seem to have the same status as any other orders of the court of chancery, and to be appealable under the same limitations as other orders. Until, therefore, regulations relating to procedure in the original cause pending appeal are made, either by statute or by the appellate court, and the limit of the right of the court of chancery, if there be any such right, to act on them, as well as the effect of its order, is defined, it seems to me that an appeal would lie from an order granting or refusing a stay on injunction decrees which would stay that action. Green v. Winter, 1 Johns. Ch. 77, 80. This practice would introduce such an element of confusion in the whole practice relating to injunctions, that the court which may deal with that writ in the first instance, pending the regulation of the subject of stays, either by statute or the appellate court, should not grant any orders or stays pending appeal unless they are absolutely necessary for the preservation of property pending appeal, or the prevention of irreparable injury by a change of the status quo, and unless, in addition, there is or may be, in any particular case, a fair question whether the mere filing of the appeal does, under the rule laid down in the National Nodes Case, secure this protection. In the intérest of justice, .the question of protection should not, in such cases, be subject to doubt, and whether the order of the subordinate court, in such case, would be effective if appealed from, must be left for the final adjudication of the appellate court. No such case exists here, and, for the reasons stated, the application is therefore denied, but without costs.


source: Caselaw Access Project

author: Emery, V. C.

license: Public Domain

text:
    Hal Allaire v. Rebecca Ketcham et al.
    1. Under act of 1870 (Gen. Slat. p. 8486), which provides for a bill to quiet title “when any person is in peaceable possession of lands, * * * claiming to own the same” &o., both actual and peaceable possession are, on complainant’s part, jurisdictional facts, and if denied by defendant, must be settled as the preliminary question.
    2. On a bill to quiet title, it appeared that about 1856 complainant’s predecessor in title cut hoop poles from the tract in controversy up to the line claimed, his men working for three months; that in 1871 stakes were placed on the line and trees marked, and that since that time complainant had stopped any trespassing on the land; that he stopped a sale of the land by defendants in 1884; that no wood had been cut therefrom for over twenty years till 1894, when persons working under some or one of the defendants began cutting and were immediately enjoined under the pending bill. — Held,, that complainant was the actual possessor of the premises.
    3. Peaceable possession need be shown against defendant only.
    4. Possession of complainant is peaceable, within said act, where defendant, setting up a claim of title, has not interfered with complainant’s possession by an act which is suable at law, and suit upon which will or may involve the title of defendant.
    5. Where acts of trespass, committed under the direction of some or one of the defendants, have been enjoined under such a bill, and the only answering defendant does not allege that she is responsible for the trespass, and may be sued for it, and the bill is taken pro eonfesso against the other defendants, there appears no such interference with complainant’s “peaceable possession” as would oust the jurisdiction under the act.

      6. On the issue of the true location of a boundary line, a return from the board of proprietors, wherein the disputed line is located by reference to certain boundary lines of other tracts, which are proved to be well established and recognized, must prevail over a map on file in the surveyor’s office, showing a different location of the disputed boundary.
    7. In a bill to quiet title, where the origin of the record title under which defendant claims is not shown, the title devised must depend, in the first instance, upon possession, and this must be shown.
    On bill to quiet title, answer, replication and proofs.

      Mr. Halsted H. Wainwright, for the complainant.

      Mr. Robert Allen, Jr., and Mr. James Steen, for the defendants Rebecca Fielder and William Fielder.
   Emery, V. C.

This is a bill to quiet title under the act of 1870. Rev. p. 1189; Gen. Stat. p. 3486. The land in question is unenclosed woodland, situate in Wall township, Monmouth county, and the bill, in addition to the usual allegations, contained an allegation that the defendants or some or one of them were cutting the timber on the lands, and that those of the defendants who were cutting the timber, or causing it to be cut, were nonresidents of the state and irresponsible. Upon filing the bill a preliminary injunction was issued, restraining the cutting of timber or removal of any which had been cut, pending the hearing. The bill alleged peaceable possession of the premises and has been taken as confessed against all of the defendants except Rebecca Fielder and her husband, William Fielder.

A preliminary question of some difficulty has been raised. The statute confers the right to file a bill in equity to quiet title “ when any person is in peaceable possession of lands in this state, * * * claiming to own the same” &c. Actual possession and peaceable possession are, on complainant’s part, as has been settled, jurisdictional facts, and if denied, as has been done by the answer in this case, must be settled as the preliminary question. Sheppard v. Nixon, 16 Stew. Eq. 627 (Errors and Appeals, 1887); Yard v. Ocean Beach Asso., 4 Dick. Ch. Rep. 306; Beale v. Blake, 18 Stew. Eq. 668, 669 (Vice- Chancellor Pitney).

As to actual possession, the lands here in question are unenclosed woodlands, and the proofs of actual possession in relation to such lands are to be such as are required by the character and situation of the lands. On the complainant’s part it is proved that about 1856 complainant’s predecessor in title, James P. Allaire, cut hoop poles from the whole tract up to the line claimed, his men working for three months, and that in 1871 stakes were placed on the line and trees marked, and'that since that time the complainant has stopped the trespassing by cutting wood on the lands by any person, so far as it has been brought to his knowledge by the persons whom he has employed to take charge of his lands. Other assertions of claim were made, not extending, however, to acts upon the land itself, such as stopping sale of the land by defendants in 1884. Except in these instances no wood has been cut from the lands in dispute for over twenty years and up to November, 1894, when persons working under some or one of the defendants named in the bill began cutting and were immediately enjoined under this bill.. So far as possession is required by the statute, I think the proofs ; show that the complainant was the actual possessor of the premises in dispute, and that this possession has been proved by acts of ownership such as were required by the nature and situation of the property. Has the possession been “peaceable” under the statute ? If by peaceable is meant quiet and peaceable as to every trespasser, whether claiming title or not, then the possession cannot be said to have been altogether peaceable, for the trespassers whom complainant ordered off disturbed this peaceable possession. But I think the true construction of the statute is that the possession must be peaceable as against the defendant. And further, it seems to me that in determining whether the possession as to the defendant is peaceable, the test must be whether the defendant setting up a claim of title has interfered with complainant’s possession by an act which is suable at law, and suit upon which will or may involve the title of the defendant. This is the test applied by the courts to .the term “ peaceable ” as connected with the acquiring of easements by continued and peaceable possession for twenty years. Lehigh Valley Railroad Co. v. McFarlan, 14. Vr. 605 (Errors and Appeals, 1881), see opinion of Mr. Justice Depue p. 631.

The situation here in reference to the meaning of the word “peaceable,” in this statute, is analogous to that of the “peaceable” user in case of easements, and this construction carries out the object of the statute. And if the answering defendant, Mrs. Fielder, had admitted the cutting, or that it was done by her direction or under her order, as it now seems to me, the present bill must have been held simply as an injunction bill, restraining trespass pending trial of the title at law. But Mrs. Fielder does not, either in her answer or evidence, as I read it, admit that the cutting in 1894, west of the disputed line, was done by her direction. The affidavits to the bill show that it was done by the direction of another defendant, Rebecca Ketcham, who lives out of the state, and against whom the bill has been taken pro confesso. Mrs. Ketcham’s servants were enjoined from further cutting for her upon filing the bill, and have since desisted. If this cutting was not done by defendant Fielder’s orders or under her direction, then she is not suable for the trespass, and, so far as Mrs. Fielder, the answering defendant, is concerned, this cutting did not interfere with the peaceable possession of complainant. On the contrary, if the complainant, on being advised of the cutting under Mrs. Ketcham’s order, procured an injunction under this, which was acquiesced in by Mrs. Ketcham, then the immediate procuring of this injunction may be taken as proof of another assertion of right of ownership by complainant against Mrs. Fielder. Unless Mrs. Fielder is liable to be sued for this act of trespass, and thus involve her title, I see no interruption of the peaceable possession of complainant. The burden of proving that she is responsible for the cutting and may be sued for it devolved upon Mrs. Fielder, and in order to oust the jurisdiction under the act, this must appear affirmatively. I conclude, therefore, that as the case appears, I have jurisdiction.

Upon the hearing, it appears that the principal dispute between the parties is the location of the easterly line of a lot of woodland, which was devised by one Benjamin Jackson to his son, Benjamin Jackson, by will dated November 7th, 1806. By this will the testator devised to Benjamin Jackson, the son, in fee, “ twenty acres woodland that I took up adjoining Painters Rhoad.” This twenty acres of woodland was the westerly portion of a tract of land containing thirty-eight and nineteen-hundredths acres, which had been conveyed by Thomas Parker to the testator, Benjamin Jackson, by deed dated January 24th, 1804, and this tract of thirty-eight and nineteen-hundredths acres had been taken up by Parker by a return from the board of proprietors, dated July 10th, 1802. By his will, Benjamin Jackson devised to his daughter, Rebecca Harris, for her natural life, eighteen acres off this tract he took up.

The defendant Rebecca Fielder claims title to or interest in the eighteen acres thus devised to Rebecca Harris for life, and in reference to her title, one dispute is as to the location of the boundary between the twenty acres of woodland and the eighteen acres. The complainant claims that the boundary between these two portions of the original thirty-eight and nineteen-hundredths-acre tract is the line now visible on the ground from the north end of the property, over a large portion of the property, this line having woodland on one side and cleared land on the other, and being continued by marked trees to the southern boundary of the tract. The defendant claims that the true boundary is located ten chains westerly of this line now dividing the woodland and cleared land. Upon the whole evidence, I am satisfied that the complainant’s contention as to the boundary is correct. Speaking generally as to the evidence, the complainant establishes the line by two classes of evidence — first, by the reference in the return for the thirty-eight and nineteen-hundredths acres, to certain boundary lines of other tracts, which are proved to be well-established and recognized boundary lines, and which cannot be satisfied except by the location as claimed by complainant. This location, however, is at variance with the map of the thirty-eight and nineteen-hundredths on file in the surveyor’s office, attached to the original survey, and which shows that the whole of the tract lies on the west side of a public road shown on the map; and this location, if true, would throw the whole tract ten chains further to the west, thus making the eighteen acres include the lands in dispute.- But this location would ignore the beginning point, which is also indicated on the map, and which is the only fixed monument referred to in the return. No reference to the wood is made in the return. The map is not referred to in the return, nor can it properly be used to correct its boundaries expressly given. So far as the boundaries are to be fixed by the record, the return must prevail over the map under these circumstances, and the location of the entire thirty-eight and nineteen-hundredths-acre tract, west of the road, cannot be made.

In the second place, I think the complainant has established that the line, as now existing, has for thirty years and more previous to filing the bill been practically recognized by the owners on each side of the line between the woodland and the cleared land as the limit of their respective lands. Defendant claims that about 1870 or 1871, her husband, by her direction, cut several cords of wood from the lands in dispute, but the evidence does not show satisfactorily that the wood then cut was taken west of the line claimed by complainant. The line at the southern portion of it and below the cleared land has woods upon both sides of it, being indicated in this portion by marked trees. The evidence as to the cutting of wood and to the previous cultivation of the land by defendant’s father before the present growth of wood, seems to locate the cutting and cultivation east of the line and on lands not claimed by complainant. The assertion of ownership made by defendant by reason of giving permission to gather ice from an ice-pond on the southern portion of the premises, like similar assertions made by the complainant, are of little or no weight in the present case, for the reason that the ice-pond extends across the disputed line, and even if complainant correctly locates the line, the permission of both was necessary, and seems in fact to have been obtained.

The complainant also contends that the defendant has not shown title to the lands west of the alleged boundary line. The defendant claims that her record title goes back to Benjamin Jackson’s will, but her record title, as proved, does not extend back so far. Rebecca Harris, the daughter of Benjamin Jackson, and to whom the eighteen acres were devised, was the first wife of George Harris. After her decease, George Harris married Martha Stratton, and Rebecca Fielder was a daughter of the second wife. Rebecca Fielder’s record title, as proved, begins with a deed dated March 4th, 1834, from one Safety Lay-ton, who describes himself as assignee of William Harris, and conveys to George Harris (by metes and bounds) a tract of land set off and allotted to him as his part of the land belonging to his mother, who was deceased. Whether William Harris was a son of Rebecca Harris does not appear by the evidence, and even taking the devise of the eighteen acres to have been to Rebecca Harris in fee, the origin of William Harris’ record title is not shown, and title derived from him, therefore, must depend, in the first instance, upon possession, which has not been shown. Upon both of these grounds, therefore, I conclude that the defendant Fielder has not shown any title to the lands lying west of the line indicated, and which are portions of the lands mentioned in the bill.

A decree will be advised under the statute to that effect, and, if necessary, the particular description of the lands to which adjudication extends may be inserted in the decrée. Defendant was entitled, perhaps, to have the description made more definite in the bill, but having proceeded to hearing without application for that purpose the court may, by the decree under the statute, specify the portion of the lands described generally in the bill to which the rights of the parties are settled. Form of decree to be settled on notice.


text:
    Caroline C. Pratt v. David A. Boody et al.
    1. Where, pending an action involving accounts between defendants and complainant’s testator, complainant brings a bill to enjoin such action and for a discovery and accounting as to the same transactions, and the discovery is fully obtained by defendants’ sworn answer to complainant’s bill, such bill will be considered as merely ancillary to complainant’s defence in the action at law, and an injunction will not be granted.
    2. The statutory action (Rev. p. 476; Gen. Stat.p. 1679) to enforce a joint liability against the heirs and devisees of a testator being a purely legal remedy, equity will not enjoin its prosecution or interfere with it except for the purpose of granting a discovery or other merely ancillary relief.
    3. A bill to enjoin an action brought under Rem. p. 4-76 (Gen. Stat. p. 1679) to enforce a joint liability of the heirs and devisees of a testator for a claim on an account against testator, may be sustained in so far as it seeks to compel a delivery and return of securities deposited by testator with defendants, since such relief is purely equitable and could not have been given in the action at law on the account.
    4. In a suit to restrain prosecution of an action at law on an account against complainant’s testator, defendants set up by cross-bill a claim against complainant as executrix and sole legatee of the testator on the same account.— Held, that they were entitled to relief on the cross-bill, though complainant’s right to an injunction was denied on the ground that the law court could settle the account, and defendants, in their answer, had denied jurisdiction of the court to entertain complainant’s bill for an injunction.
    5. Equity has jurisdiction of a claim against the executrix and sole legatee for settlement of an account against the testator, since the statutory method of enforcing the liability of the legatee by means of a suit on the refunding bond would be inadequate, on the ground that the bond, if given in such case, would have been made by the legatee payable to herself as executrix.
    6. Purchases and sales of stocks on a stock exchange, made by defendants as brokers for complainant’s testator, did not form a gaming transaction if the stocks were actually bought and delivered and there was not a mere dealing in differences between prices or speculations on the rise and fall of the market.
    7. Evidence that statements of the purchase and sale of stocks by defendants, who were testator’s brokers, were reported to testator as soon as made, and that .monthly statements were submitted to him, showing the state of the accounts, and that he had previously examined such accounts and made no objection thereto, does not sufficiently show an account stated which can be enforced as such between defendants and his executrix.
    8. The burden of proving that transactions relating to the purchase and sale of stocks, which are in form transactions between the customer as principal and the broker as agent, are wagering contracts, rests on the party asserting their illegality.
    Heard on bill and answers, cross-bill and answer, and replications and proofs taken orally.
    This case is heard on bill, cross-bill and answers, and the issues as presented on the record involve a number of questions relating to equitable relief, some arising on the bill and others on the cross-bill. One issue, and a fundamental issue, on both the bill and cross-bill, is whether a balance of account claimed by the defendants, Boody, McLellan & Company, to be due to them on their transactions as brokers for Charles E. Pratt, deceased, in his lifetime, is a valid claim, or whether it is illegal and invalid, because it is based, either wholly or in part, upon gambling or wagering transactions in stocks. The other issues arise collaterally out of this main question. Charles E. Pratt died about January 22d, 1891, testate, and by his will, his wife, the complainant, was the legatee and devisee of all his estate, real and personal, and the sole executrix of the will, which she duly proved. Charles E. Pratt also left heirs-at-law surviving him, and on August 30th, 1893, the defendants commenced an action at law in the supreme court against the complainant, as devisee, and against the heirs-at-law of Charles E. Pratt, to recover against them jointly the balance of account claimed to be then due ($52,533.88, with interest from August 1st, 1893), and to the declaration in this suit the complainant filed separate pleas, including a plea of payment with notice of a set-off of a claim for $13,618.71, with interest from September 1st, 1893, alleged to be due to complainant from the defendants as a balance on their own account with her individually.
    After this suit was commenced, the defendants brought another suit in the supreme court against the complainant alone, in which suit the complainant also filed pleas of general issue and payment, with notice of set-off for the above claim of $13,618.71. The defendants are willing to discontinue this latter suit, alleging that it was commenced by mistake, but the complainant refuses to consent to its discontinuance.
    The complainant also, on August 29th, 1893, one day before the commencement of the joint action in the New Jersey supreme court, by defendants, against her as devisee and the heirs-at-law of C. E. Pratt, herself commenced an action against the defendants in the court of common pleas of the city of New York, to recover from the defendants the above balance ($13,618.71) alleged to be due her. ,
    These three actions at law being all pending, the complainant, on December 9th, 1893, filed her bill in this cause (amended on December 28th, 1893) for a discovery under oath of the transactions of defendants with Charles E. Pratt in his lifetime, for the taking of an account in equity instead of at law, and also to compel the return to complainant of certain securities which were delivered to defendants by Charles E. Pratt in his lifetime, and which they still hold. The bill alleges that these securities were assigned and given by Charles E. Pratt to the defendants without consideration and as margins to secure and pay losses accrued or to accrue and become due to the firm from Pratt in speculation in fluctuations in the price of stocks, bonds and other securities which the firm might purchase or sell on account of Pratt, and it prays that any of the assignments or securities for this purpose may be decreed to be illegal and void, and the bonds, mortgages and other securities reassigned and delivered to complainant. The basis of the claim to transfer the jurisdiction over the account from a court of law, where it was pending, to the court of equity, was placed in the bill upon the complication and extent of the accounts, the necessity for discovery, as to credits to be made, and other information. Upon filing the bill an interlocutory injunction was issued restraining the defendants from proceeding in the action at law commenced by them against the complainant as devisee, and from commencing any other action or proceeding at law against her as devisee concerning the account. The defendants answer the bill under oath, giving the discovery asked, annexing a copy of the account to the answer, being the same account served as a bill of particulars in the suit at law, and disclosing the securities which they hold or claim to hold as collateral for the account. They deny that these securities were delivered, as alleged in the bill, to secure ■defendants in Pratt’s speculation through them in the fluctuations in the prices of stocks &c., and they say, under oath, that no agreement or arrangement, either express or implied, was made by them with Pratt whereby they were to buy and sell stocks for him for the purpose of speculating in the fluctuations in prices, but that each sale or purchase was made on Pratt’s express order, and the purchases or sales ordered were actually made, and when purchases were made the certificates held by them subject to Pratt’s order and either delivered to him or afterwards sold, as ordered. They claim, therefore, to hold the securities in their hands as collateral to secure the account. They further deny the jurisdiction of the court of equity to take the account, alleging that no reason exists why it cannot be taken at law. By cross-bill, however, which is annexed to the answer, the defendants seek to recover this balance of account by decree of this court, and ask the following relief, based on their account:
    Complainant, as the sole legatee and devisee of Charles E. Pratt, has taken possession of all his estate, real and personal, and holds all his estate to her own use, except so much as has been paid out by her for the debts of decedent. Defendants allege that they filed their claim with complainant as executrix, duly verified; that complainant has never filed any inventory or rendered any account of the estate, and they ask a discovery of assets, with a decree against' her as legatee and devisee, to the extent of assets received for the balance now due on the account.
    They admit, also, that a'balance is due from them to complainant upon her individual account, but they allege that this balance so due ($13,618.71) is, by virtue of an agreement made with them, held as security for the balance due on the Charles E. Pratt account and should be credited thereon, and they ask an injunction against the prosecution of this claim by complainant, either by set-off in the New Jersey suits or by the action in New York. On this cross-bill a restraining order to this effect was granted, and, together with the restraining order issued on the amended bill, has been continued pending final hearing. Defendants also claim in their cross-bill that complainant should account to. them for the proceeds of a certain mortgage for $5,000 on Arizona property, which they also held as part of the collateral for Charles E. Pratt’s account, and which was delivered, after his death, to complainant’s agent, upon his agreement to collect the amount and deliver to them, but which he collected, and they charge that, in violation of the agreement, he delivered the proceeds of collection to complainant. The complainant, answering the cross-bill, admits the delivery of this security to her son, but alleges that it was delivered because it was of no value to defendant in its then condition, and denies it was delivered for the purpose of raising money on it for the benefit of defendants.

      Mr. Benjamin A. Vail, for the complainant.

      Mr. Willard P. Voorhees and Mr. Alan H. Strong, for the defendants.
   Emery, V. C.

The discovery sought by complainant’s bill has been obtained by the answer, under oath, to which no exception has been taken, and as the bill, to this extent, must be treated as purely in aid of the complainant’s defence in the action at law against her, that action must now be allowed to proceed unless the relief which the complainant claims entitles her to a continuance of the injunction against the further prosecution of that suit, Henwood v. Jarvis, 12 C. E. Gr. 247, 250 (Chancellor Runyon, 1876), and cases cited. The right to further enjoin the suit at law is based upon the claim that the extent and complications of the accounts require them to be taken in equity instead of at law. Now that the discovery has been granted, and the status of the accounts has been shown by the evidence, I am of the opinion that the accounts may be as well taken at law as in equity, and that nothing in the character of the accounts is sufficient to divest the court of the jurisdiction it has acquired over them. And there are two reasons why, in this particular case, the jurisdiction of this court, so far as the action at law is concerned, should be strictly confined to ancillary relief. 'In the first place, this action at law is an action to enforce a joint liability of the devisee and heirs-at-law which is imposed by statute. Rev. p. 476; Gen. Stat. p. 1676. This is a legal liability purely, not an equitable one, and a court of equity has no right to inquire into or enforce the' liability of devisees under this statute. Meeker v. New Jersey Insurance Co., 8 Vr. 282, 299; Mutual Insurance Co. v. Hopper, 16 Stew. Eq. 387; affirmed, 17 Stew. Eq. 604; Holley v. Weedon, 1 Vern. 400; Edwards v. McClave, 10 Dick. Ch. Rep. 151.

And if the court of equity has no right'to enforce the liability under the statute, it has no right to interfere with the action, except in aid of the prosecution or defence, by discovery or other ancillary relief. Again, the vital question raised in relation to the account, is its illegality as based on .a gaming or wagering contract, and this is a question of fact peculiarly appropriate in this case for the decision of a jury, and either party has the right to the judgment of that tribunal and of the law court upon the questions involved. So far as a permanent injunction against defendant’s suit at law, against her as devisee, is concerned, the relief to complainant must be denied. But the complainant’s bill is also filed to compel the delivery and return of securities deposited to secure the account, and as this is a purely equitable relief, beyond the power of a court ,pf law to administer, the complainant has the right to call upon this court for an adjudication as to the validity of this claim upon the facts here presented.

And the defendants also, upon the case presented in their cross-bill, and notwithstanding the denials of jurisdiction in their answer to complainant’s bill to enjoin the suit at law, have the right to call upon a court of equity to establish their claim against the decedent’s estate, in order that they may obtain a decree against the complainant, as the sole legatee of the personal estate, to satisfy the claim out of these assets. This is the general rule as to the liability of legatees. 3 Wms. Ex., *1313, *1314. This liability of legatees is an equitable liability, independent of statute, and is not a legal liability except to the extent provided by statute under our Orphans Court act, section 67. And the complainant being sole legatee, who, as appears by her bill, has taken possession of all the assets of the estate as her own, after paying the claims presented to her as executrix, the statutory method of enforcing the liability of a legatee by means of a suit on refunding bond (which would be her own bond payable to herself as executrix) does not seem to be applicable. In this suit, therefore, as well on the cross-bill against complainant as legatee, as upon the bill of complainant to deliver the securities, this court has the right and is obliged to decide upon the question of the legality of the claim. This question is one altogether of fact, and must, so far as this case is concerned, be decided upon the proofs here presented. The decedent, Charles E. Pratt, commenced dealing with the defendants as brokers, in the city of New York, in April, 1888, and these dealings continued until his death, January 20th, 1891, the defendants’ firm in the meantime, and on January 1st, 1889, being changed by the withdrawal of one member. These dealings consisted mainly, but not entirely, of the purchase and sale of stocks, bonds &e. on the New York stock exchange, and the proofs show that these purchases and sales were made on Pratt’s orders, and that the purchases and sales were actually made by the brokers who held the stocks &c. purchased as security for the account. The balance due from Pratt results from the transactions which include these purchases and sales, together with defendants’ charges for commission and interest. In form, the relation between Pratt and the brokers was that of principal and agent, but in reference to stock transactions of this character the rule is settled in our state that the inquiry is whether the real transaction between the broker and his customer is a mere dealing in the differences between prices, and in which the broker is really a principal and not an agent.

This was the rule settled in Flagg v. Baldwin, 11 Stew. Eq. 219 (Errors and Appeals, 1884), and the court in this case having found, as matter of fact upon the evidence in the cause (see p. 281), that the contracts were mere wagers, and that it was never contemplated, intended or agreed by either the customer or the brokers that the stocks purchased or sold were to become or be treated as the stocks of the customer, they held that the real contract was one merely to receive and pay differences. The transactions were, therefore, held to be invalid, as mere wagering contracts within the meaning of our statutes against gaming, and were held to be contrary to the public policy settled by these laws. And it was further decided that this policy was to be enforced, in a case where our courts were called upon to enforce, in this state, securities given by the customer upon the illegal transaction, although the illegal transactions occurred in another state. The dealings in the present case arose altogether in New York, and on the assumption that a complainant, filing a bill to compel the return of personal securities, voluntarily delivered in an illegal transaction in another state, and whose case, therefore, is not based on our statutes against gaming in this state, has the same equitable status as a defendant resisting the enforcement of the illegal contract, the question is whether the transactions in this case were illegal under the rule laid down in Flagg v. Baldwin. Each case under this rule must depend upon the intention of both parties, that of the broker as well as of the customer, to be deduced from the evidence produced in each case, but, as I understand the application of the rule, the burden of showing that transactions relating to the purchase and sale of stocks, which are, in form, transactions between the customer as principal and the broker as agent, are in reality wagering contracts in which the broker is really a principal, must rest upon the party asserting the illegality. Applying these rules to the whole evidence in the case, my conclusion is that the complainant has failed to show that the transactions were a mere dealing in differences, and that upon the whole evidence, including the answers of defendants, which were called for under oath, the defendants have established by a preponderarme of evidence that, so far at least as they were concerned, the transactions were intended to be real and legitimate purchases and sales as agents for Pratt. Apart from the transactions themselves, the only direct evidence as to the nature of the dealings between Pratt and his broker is that furnished by the answers of the defendants which were put in under oath. These answers deny that there was any agreement for the purchase and sale of stocks or bonds, for the purpose of speculation in the fluctuation in prices. In this vital point the case differs from Flagg v. Baldwin, where such agreement was affirmatively proved and was held to be clearly made out.

The main reliance of the complainant in this case to make out the illegal character of the transaction is the account itself. It began in April, 1888, and up to February 1st, 1889, shows dealings, purchases and sales to the amount of nearly $500,000, and up to this latter date, the account itself, as explained in the evidence, shows the actual delivery to Pratt of a very large proportion of stocks and bonds purchased for him by defendants upon his orders. On February 1st, 1889, the balance due from Pratt to the defendants, as appears by the account, was $120,739.94, and the defendants, to secure this balance, held stocks and bonds to the par value of $168,000, the market value not being proved. From this date up to the time of Pratt’s death, the purchases amounted to $2,400,000, and the proportion of deliveries of stock to Pratt was not larger than five per cent. The account between February 1st, 1889, and January 20th, 1891, also includes the sale of some of the securities held on February 1st, 1889, to secure the balance then due, the validity of which balance cannot, on the mere face of the accounts, be well disputed. I do not understand complainant’s counsel to insist that, up to this date (February 1st, 1889), the account itself justifies the inference that it was an illegal or wagering account. The real question of fact is, what inference as to the legality of the transactions is to be drawn from the subsequent state of the accounts. During February, 1889, the purchases amounted to over $200,000 and the actual deliveries to $47,000. From this time until January 1st, 1890, the purchases were over $1,500,000, without any deliveries except $556, in July, 1889. From January 1st, 1890, to Pratt’s death, in January, 1891, the purchases were over $650,000, while the actual deliveries to Pratt, during this period, amounted to $57,337, or nearly ten per cent. Complainant insisted that the small proportion of deliveries is sufficient to justify the conclusion that both parties intended the account to be a mere settling of differences, without any deliveries. But this inference does not seem to me to be justified. The account on its face would justify an inference that after February, 1889, Pratt changed his method of purchases and sales by making more frequent and numerous turns in the market, and that he was speculating through defendants, but it is not sufficient to show that actual deliveries 'were excluded by-agreement. Pratt still required and received deliveries from time to time, to a not inconsiderable amount, and so long as these deliveries continued to be made to the extent admitted, there is no clear basis for any inference that it was understood between the parties that the account was a mere speculation in differences. These deliveries are not explained by complainant as they should be, on her theory that there was an actual wagering contract, which provided for no delivery, and their importance in deciding as to the validity of the whole account, which included them, as well as others, must, as it seems to me, be very great.

These deliveries, unexplained by complainant, corroborate the defendants’ claim that the wffiole account, from the beginning, is based upon the legitimate dealings between them and the deceased, as his agent, and were not intended to be mere speculations in differences. The letters of the defendants to Mr. Pratt, of January 17th and January 19th, 1890, relied on by complainant, undoubtedly show that, at that time, Pratt was speculating in the fluctuations of prices in the specially-named stocks, through defendants, but they are not sufficient, in my judgment, to show that it was understood between Pratt and the defendants that, even as to these particular transactions, actual deliveries were excluded by reason of anything in these letters in case the transaction could not be closed out as directed. Much less can these letters be sufficient to invalidate the whole series oí transactions between the brokers and their customer. Upon the whole evidence presented in this case, I conclude, therefore, that the account of the defendants is not shown to be based upon an illegal wagering transaction or agreement, and that the defendants are entitled to recover the balance due on the account from the complainant, as legatee of Charles E. Pratt, to the extent to which the personal estate came to her as legatee, and has not been duly applied to the payment of debts. An account will be necessary to ascertain, in -the first place, the balance due to defendants, and, in the second place, to ascertain the amount of the personal estate of deceased with which complainant is chargeable for the payment of this balance. No account can be taken of the real estate devised, for the reason above stated, the complainant being, as far as appears, simply devisee, and her liability as such is purely legal and cannot be enforced in equity. The defendants’ counsel claimed that the account as presented must be taken as a settled and stated account, but, even admitting that the pleadings allow it to be so treated, the evidence relied on to establish this is not sufficient for this purpose. It consists mainly of evidence that statements of each transaction were reported to Mr. Pratt by the brokers as soon as made; that monthly statements were submitted to him, showing the state of the accounts or balances at the time, and that Mr. Pratt, in his lifetime, frequently examined the accounts, or was familiar with them, and that he made no objection to them. This may be sufficient to establish such an admission by deceased of the correctness of the accounts as will make them prima fade correct and impose on complainant the burden of showing the incorrectness of any item objected to, but this evidence is not sufficient to establish an account stated which is to be enforced between the present parties. Defendants, at the hearings, objected to inquiries by complainant in reference to particular items of the account, and this inquiry being then suspended on their objection, it must be left open to the complainant on the accounting, to show the particulars in which the account is incorrect.

This decree for account, in favor of defendants and against complainant as legatee, to enforce an equitable liability on her part as such legatee, must, however, be made upon equitable terms and conditions.

The defendants have in their hands collateral securities for the account, and inasmuch as the complainant as legatee is bound for the payment of debts of deceased only after the exhaustion or application of these securities, the account to be taken therefore will include a statement of these. As to the proceeds of the Arizona mortgage for $5,000, which the defendants held originally as collateral security, the complainant must be charged with this in taking the account. Upon the evidence relating to this, I reach the conclusion that this security was delivered to complainant’s agent for the purpose of converting into money to be credited to the account, and it must therefore be accounted for.

In relation to the claim of the defendants to hold the balance admitted to be due from them to complainant on individual account as security for the payment of the balance due them on the Charles E. Pratt account, I overruled or struck out, at the hearing, the evidence upon which the defendants relied to prove an agreement made by Charles E. Pratt to this effect on opening with them the complainant’s account. Upon further consideration I see no reason to change this ruling, and relief upon the defendants’ cross-bill, so far as it seeks to enjoin the complainant’s suit or set-off at law by reason of the alleged agreement, must be denied. There may be a question, however, whether, independent of any agreement and treating the account of complainant as an independent account recoverable at law, the same should not in this suit, upon proper terms as to security &c., be equitably set off against the balance found which may be due to defendants, on the accounting, from complainant as legatee of Challes E. Pratt. This question was not touched on at the hearing, and before settling decree I desire to hear counsel on this point. The suit against complainant as devisee being allowed to proceed, she would of course be entitled to the benefit of her set-off pleaded in that suit; but the set-off may not be available in that suit, and on the other hand, the defendants here may not be able to recover in their other New Jersey suit at law or to set off in the New York suit at law the equitable claim against complainant as legatee of Charles E. Pratt. Substantially, the case seems to be one where there is a liquidated legal claim on one side and an equitable claim on the other, which is the subject of accounting, and in view of my conclusion to allow the suit at law against complainant as devisee to proceed, and at the same time to allow an accounting against complainant as legatee to be taken in this court, counsel should be heard on the question whether this court should exercise any equitable control over the complainant’s prosecution of her claim at law pending the accounting, and if so, upon what terms.


author: Reed, V. C.

text:
    Edward L. Molineaux v. Charles T. Raynolds et al.
    1. Where a defendant in partition dies after the trial and argument of the cause, a decree may he entered nunc pro tunc, and any conflicting claims to the share of the deceased defendant in the proceeds of the property may be settled on a petition for distribution, or the claimants may be brought in by a petition to revive, and their rights may be set up by answers to the bill and determined before decree.
    2. Under the provisions of the statute of wills (Ren. p. 1248), by which a will operates on real as well as personal estate acquired by the testator after its execution, a devise which lapses by the death of the devisee before that of the testator follows the common-law rule as to lapsed legacies, and passes under the residuary clause of the will, unless a contrary intention is manifested on its face.
    3. Under the general rule that a residuary clause in a will carries the entire residuary estate, unless manifestly limited to a particular part, the fact that a will first disposed of the testator’s interest in the property of a partnership, and gave his wife all the residue of his property, does not exclude the wife from taking a lapsed devise of a part of the partnership property.

      Messrs. A. Q. Keasbey & Sons, for the complainant.

      Messrs. Copeland & Luee, for Edward H., William W. and Adelaide A. Eaynolds.

      Mr. Henry M. Kehoe, for Mary S. and Mattie C Eaynolds.
   Reed, V. C.

The original defendants in this suit were Thomas B. Hidden and Charles T. Eaynolds. Since the closing of the testimony in the case Charles T. Eaynolds has died, and a petition to revive the suit has been filed, and an order to revive made on June 27th last.

The petition to revive the suit set out the names of the persons to whom any .interest in the property of the deceased defendant had passed. Some of these defendants have filed answers, apparently not to the bill, in the suit, but to the petition to revive, setting out their respective claims in regard to the extent of their interest in the said property. These claims are in one regard conflicting, and it is desired that they shall be settled before final decree for the sale and distribution of the property shall be made. The answers should have been to the bill. But as in partition proceedings, the defendants are required to set out their own interests, and can between each other contest conflicting claims, the answers can be considered as regularly filed for that purpose.

I may remark also that if the argument of the case can be said to have occurred at the conclusion of the taking of the testimony, then as the death of Mr. Eaynolds occurred thereafter, a decree in the case can be made nune pro time, for the rule is that, when the suit abates by the death of a party after argument, such a decree may be pronounced. Davis v. Davis, 9 Ves. 461; Campbell v. Mesier, 4 Johns. Ch. 432. The rights of a claimant of Eaynolds’ share in the proceedings of the sale would then have to be settled upon petition to distribute Eaynolds’ share.

The argument, however, was by briefs, which I think were not completed and delivered until after the death of Raynolds. However, as this practice is optional it will be as well to have the rights of the parties settled now, and, as I have remarked, the record can be regarded as presenting the points of difference between the several claimants to Raynolds’ share.

Charles T. Raynolds died, leaving a will by which he left of this property thirty-six hundredths to his son Edward H., thirty-two hundredths to his son Charles T., and thirty-two hundredths to Edward H., as trustee for his son "William W. His son Charles T. died before his father, and the question is whether his share passed to Mrs. Adelaide Raynolds under the residuary clause of the will, or whether it was undisposed of by the will, and so passed to the two sons as heirs-at-law of their father.

The two sons, in their own right, make no claim to any interest in their deceased brother’s share, but the wives of the two sons claim an inchoate right of dower in the same, grounded upon what they claim to be the legal estate of their respective husbands as heirs-at-law. Mary S. is the wife of Edward H., and Mattie C. is the wife of William W. Raynolds. At common law, whenever a devise lapsed by the death of the devisee, before the death of the testator, the property passed to the heirs-at-law, while lapsed legacies, instead of passing to the next of kin, fell in the residuum, and so passed, under a will, to the residuary legatees. This distinction between the course taken, under the same condition of affairs, by lapsed devises and lapsed legacies, seems to have sprung from the fact that no real estate acquired by the testator, after the execution of his will, passed under the residuary clause, while such a clause included all personal property owned by the testator at the time of his death not otherwise given, no matter when acquired.

How, by our statute of wills, these instruments become operative upon real property acquired after, as well as before, the date of the execution of the will. Rev. p. 1248. By this act devises and legacies are put upon the same footing, and it would seem that inasmuch as the residuary clause carries all the personalty left undisposed of by other parts of the will, the same should naturally be its effect in regard to realty. Similar statutes in other states have been judicially declared to extinguish all difference between lapsed legacies and lapsed devises, in this particular, and that both pass into the residuum in default of a contrary intention manifested on the face of the will.

This is the law of this state. In Executors of Shreve v. Shreve, 2 Stock. 385, Chancellor Williamson suggests the query whether "the statute did not abolish the distinction between real and personal property in the particular mentioned; and in Smith v. Curtis, 5 Dutch. 345, it was expressly held by the supreme court that the rule upon which the distinction between lapsed legacies and lapsed devises had arisen should not be kept up, as the reason upon which the rule rested had been removed. It was held, in that case, that a lapsed devise passed into the residuum.

Under the doctrine laid down in this case, the share of Charles T. passed to Mrs. Adelaide Raynolds under the residuary clause of the will.

Nor is there anything in the will itself which excludes this lapsed devise from becoming a part of the residuum. The argument that a contrary intention is manifested on the face of the will, is grounded upon the fact that the will disposes in the first place of the entire interest of the testator in the partnership assets of the firm of C. T. Raynolds & Company, and that it then gives all the residue of the testator’s property to his wife. From this it is contended that an intention was manifested not to include any portion of the partnership assets in the residue.

This contention, in my judgment, is untenable. The residuary clause is general, and the rule is that such a provision carries everything, unless the gift of the residue is manifestly limited to a particular portion of the estate. Floyd v. Carow, 88 N. Y. 560; Lamb v. Lamb, 131 N. Y. 227.

Mr. Justice Dalrimple, speaking for the court of errors, in the case of Tindall’s Executors v. Tindall, 9 C. E. Gr. 512, said: “ The rule applicable to the question to be solved, as stated in the text-books as well as in many adjudged cases, is that the residuary legatee is entitled as well to a residue caused by a lapsed legacy, or an invalid or illegal disposition, as to what remains after payment of debts and legacies. The only exception to tlie rule is, that where the words used, show an intention on the part of the testator to exclude from the operation of the residuary clause certain portions of the estate, such intention, as gathered from the whole will, must not be defeated. Or the rule, embracing the exception, as stated in some of the books, is that the residuary legatee must be a legatee of the residue generally and not partially so only.”

The justice further illustrates the rule by citing, with approval, the remarks of Vice-Chancellor "Wood in the case of Bernard v. Minshull, Johns. (Eng. Ch.) 276, 299: “All you have to consider is whether the property is excepted in order to take it away under all circumstances and for all purposes from the person to whom the rest of the property is given, or whether it is excepted merely for the purpose of giving it to some one else. If the latter and the gift to somebody else fails, the donees of all except this property are entitled to take the whole.”

Now, in this case, it is perceived that the lapsed devise is excepted merely for the purpose of giving it to the deceased child. Under the rule announced by Vice-Chancellor Wood the donee of all except this property is entitled to take the whole.

Among the other cases cited in Tindall’s Executors v. Tindall, supra, is that of Roberts v. Cooke, 16 Ves. 451, in which it was held that a general disposition of personal estate not therein before specifically disposed of comprehended specific legacies lapsed, the word “specifically” being held to mean “particularly.”

. Quite as strong, in the same direction, is the case of King v. Woodhull, 3 Edw. Ch. 79, 84, and Shanley v. Baker, 4 Ves. 732.

My conclusion is, that the share of Charles T. Raynolds fell into the residue and was devised to Adelaide A. Raynolds.


text:
    Howard M. Cooper, guardian of Christopher A. Bergen, a lunatic, v. Susan Wallace et al.
    1. The guardian of a lunatic may ask the court for instructions concerning the scope of his power to deal with the estate; or in ease the power clearly exists, but is discretionary, as to the wisdom of exercising it in a particular method.
    2. The guardian of a lunatic is a mere curator, without title in his ward’s property, and, aside from power to make necessary repairs and improvements, can exercise no control over the estate, unless authorized by statute.
    3. Equity has no power to order the guardian of a lunatic, on a bill by the guardian, to which his ward is not a party, to transfer real estate which the lunatic held in trust, to the beneficiaries or their nominees.
    On final hearing.
    This bill is filed by Howard M. Cooper, the guardian of Christopher A. Bergen, to obtain the instruction of the court respecting his duties as trustee, and for other relief. The bill sets out a decree under date of September 18th, 1895, made upon a commission of lunacy, declaring Christopher A. Bergen a lunatic, and the subsequent appointment by the orphans court of Camden county of the complainant as guardian. It then sets out that Christopher A. Bergen, at the time of the making of the decree, was the administrator of the estate of one John Wallace, and that there was in the hands of the administrator of the estate of Wallace the sum of $1,930, which, under the will of Wallace, was to be held for the widow of Wallace, viz., Susan Wallace, for life, and after her death was to be paid to the children of John Wallace, in equal shares.
    It then sets out that the said Christopher A. Bergen was, with one Joseph J. Read, a joint administrator and trustee of one George V. Voles, and that of the estate of said Voles there was in the hands of the said Christopher A. Bergen the sum of $17,002.10.
    The bill charges that so far as can be ascertained, a property known as No. 584 Clinton street, Camden, standing in the name of the said Christopher A. Bergen, belongs to the estate of said Voles; that there was, and is, in the hands of Joseph J. Read the sum of $13,620.76; and that the balance of the property of the estate of Voles is invested in property in Bridgeboro, Burlington county, in the name of George V. Voles.
    The bill then states that the said Christopher A. Bergen was the guardian of his two children, George J. and Martin V. Bergen, and that there was in his hands, as guardian for said children, the sum of $787.34.
    The bill then sets out a list of properties standing in the name of Christopher A. Bergen.
    The bill then sets out the amount of personalty belonging to Christopher A. Bergen, within the knowledge of the complainant.
    The bill then sets out some real estate which, it is alleged, belong to the firm of Bergen & Bergen, but the legal title to which stand in the name of Christopher A. Bergen.
    The bill then sets out certain properties, which, it is alleged, belongs to the firm of Bergen & Bergen, of which Christopher A. Bergen was one, but which stands in the name of Martin V. Bergen, the other partner.
    Among the lots of land standing in the name of Christopher A. Bergen which, it is stated, belong to the firm of Bergen & Bergen, is one in Gloucester city, Camden county, which, it is alleged, was conveyed to Christopher A. Bergen by its owner, Jacob Koehler, to secure to the firm of Bergen & Bergen the amount charged by them for services in their profession rendered, and for money advanced by them, to Koehler, with a trust imposed upon Bergen & Bergen to reconvey the said property to Koehler upon payment of said amount; that there is due the sum of $72.47, with interest, upon the payment of which sum Koehler is entitled to a reconveyance.
    The bill then states that three properties — No. 528 West street, Nos. 337, 339 and No. 334 Pine street — were conveyed to Christopher A. Bergen to secure the firm of Bergen & Bergen, for moneys paid by them in behalf of the estate of one Valentine Noll; that by an agreement dated September 22d, 1887, entered into between Christopher A. Bergen and Margaretta Noll, the widow of Valentine, who is now dead, and who had a life estate under the will of her husband, and also by the beneficiaries, Charles Noll, Christina Subers, Clara A. Ogden and John Noll, it was agreed that No. 528 West street was to be held in fee by Christopher A. Bergen, in full payment for all advances upon that property and on the other two properties, and a deed was so made that Christopher A. Bergen was to hold the other two properties subject only to future advances as trustee.
    The bill states that lots Nos. 26 and 40, on the T. H. Dudley plan in Atlantic City, Christopher A. Bergen, by his verbal agreement, agreed to sell to George M. Fisher for the sum of $6,850, and such other moneys as the said Bergen should thereafter expend thereon, and interest, and that Fisher is in possession of the said property under said agreement. The prayers of the bill are that trustees may be appointed in the place of Christopher A. Bergen for the Wallace and the Voles estates; that an accounting may be had of the amount due from Christopher A. Bergen to the Wallace estate and to the children of the lunatic; that the guardian may be directed as to the manner he may raise money to pay the said cestuis que trust or what property he may transfer to said trust estates, and that he may be decreed to convey the same; that if it should be decreed that Fisher is entitled to purchase the property in Atlantic City, that he may be decreed to pay for the same, and the guardian may be decreed to convey the same to Fisher; that the guardian, upon the payment by Koehler of the amount due from him to the firm of Bergen & Bergen’, may be decreed to convey the Gloucester city property to him, and with the same prayer respecting the Roth property.

      Mr. Howard M. Cooper, for the complainant.

      Mr. J. E. P. Abbott, for George M. Fisher.

      Mr. Philip Scovel, for the estate of John Wallace.

      Mr. Martin L. Haines, for Moles & Scilley.
   Reed, V. C.

This bill is filed by the guardian of a lunatic in his own name. The guardian puts his right to stand as complainant upon the ground that he is a trustee; that the duties which devolve upon him in dealing with the property of his ward are perplexing; that he therefore has the right to ask this court to instruct him concerning the course he shall pursue in adjusting the complication in which the estate of the non compos is involved.

It is entirely settled that where the duty of a trustee is a matter of doubt, it is his right to ask and receive the aid and direction of a court of equity in the execution of his trust. Kearney v. Macomb, 1 C. E. Gr. 189. Although the guardian of a lunatic has no title to the property of his ward, either in trust or otherwise, yet as the care-taker of the estate of the non compos there may clearly occur occasions when the direction of a court of equity may be properly invoked concerning the line of conduct which the guardian should follow in his efforts to preserve the estate. Besides those duties which inhere in the nature of his authority over the property of the lunatic, there are other duties which, by statute, he can perform only by direction of the orphans court which appointed him or by order of the court of chanceryi It may be conceded, then, that a guardian can ask the court of chancery for instructions concerning the scope of his power to deal with the estate in his hands; or in case the existence of the power is clear, but discretionary, that he can seek instruction as to the wisdom of exercising it in a particular method. Conceding to the guardian this right, let us turn to the bill in the present suit to ascertain the scope of the aid sought.

A glance at the bill is sufficient to disclose that while it asks for instructions in a general way, its most important purpose is to procure decrees by which the legal title of the lunatic to certain real estate may be transferred to other parties, in whom it is alleged an equitable right to such property resides.

It is entirely clear that so far as the bill is one for instruction, the court can only declare what is the extent of the guardian’s power over this property; or granting his power, can only declare whether there is such a condition of affairs as would justify its exercise. Unless power is found to inhere in the guardian by virtue of his appointment, either with or without statutory authorization, no declaration of this court can confer it.

It is to be kept in mind that to this bill the lunatic himself is not a party. No decree, therefore, in such a suit, purporting to transfer the lunatic’s interest in any of this property, or which ordered the non compos to make such transfer, would possess the least force against the lunatic himself.

The court must therefore content itself with the declaration of the scope of the guardian’s power to deal with the lunatic’s property in respect of the purposes sought to be accomplished by this bill.

The power which inhered in the committee of a lunatic under the English jurisprudence was confined within very narrow bounds. The committee was the mere bailiff or curator of the lunatic’s property, appointed by the chancellor for the crown, for the purpose of preserving the estate of the non compos.

To conserve the purpose of preserving such estate, he could use any moneys in his hands for the purpose of repairing buildings belonging to the lunatic. He could cut timber upon the real estate and use it for the same purpose. He could, with the consent of the chancellor, cut timber, particularly decaying timber, to pay a debt of the lunatic, which was admittedly due. 1 Coll. Lun. %71p.

The power of the committee, in England, to sell the land of his ward, even for the payment of debts, by direction of the chancellor, did not exist until conferred in 1803, by the statute. J¡B Geo. III. ch. 75 § A

The power to make leases of the lunatic’s land was conferred by the same statute. The power to renew leases for lives or for years, under the direction of the chancellor, was conferred by another statute — that of 11 Geo. III. ch. £0-. The power to surrender leases in order to obtain renewals was conferred by still another statute — that of £9 Geo. II. ch. £1. The power of the committee to raise money to pay the lunatic’s debt by mortgaging the lunatic’s property was conferred by statute. 1 Coll. Lun. £86.

Then there are other English statutes, which, if existing here, would be sufficient to confer power upon the guardian to meet the exigencies of the present case. Thus, by the statute 4 Geo. II. ch. 10 the non compos, or committee in his name, under authority of the chancellor, might convey property of which he was trustee, to the persons beneficially entitled to it, or as they might direct.

So, by statutory direction (4 Geo. II. ch. 10), the committee might be ordered to convey property of which the non compos was seized or possessed as mortgagee, to the persons entitled to redemption, or' as they shall direct, upon payment of what is due upon the mortgage.

So, by statutory direction (43 Geo. III. ch. 75 § 1), the committee might, under the direction of the chancellor, fulfill a contract entered into by the non compos.

In practice, these powers were exercised upon petition presented to the chancellor by the persons beneficially entitled, praying for such conveyance, assignment or surrender.

All the powers which, by a succession of statutes, had been conferred upon the committee or upon the chancellor, as well as some additional powers, were united in the English Consolidated Lunacy act of 1890. 7 Chit. Eng. Slat, tit. “Lunatic.”

It is therefore perceived that, aside from the authority which was from time to time granted by parliament, the power of the committee without, or even with, the consent of the chancellor, was of the simplest kind, being merely such as were essential to the temporary preservation or improvement of the lunatic’s estate. Even for that purpose, the right to sell any of the real property of the ward did not exist.

Now, as pointed out in the case of Van Horn v. Hann, 10 Vr. 207, the guardian of a lunatic in this state is, like the committee, a mere curator, without title in the property of the lunatic. As such curator, he possesses the power to repair and improve, such power being confined within the lines already indicated as limiting the authority of the committee in England. The right to exercise any control over the property of the ward beyond this must be found in some legislative grant.

In turning to our statutes, to ascertain the extent to which legislation has conferred such power, it will be found that it comes far short of the power given by the English statutes. By the act of 1888 (Gen. Stat. p. 1703 § 31), power is conferred upon the orphans court or upon the chancellor to order the guardian to sell the real estate of a lunatic if he is indebted to any person, or if any person has advanced money or purchased necessaries, or rendered services for his care or maintenance or for the preservation of his estate, beyond the ability of the lunatic to pay the same out of his personal estate, or, in case the personal estate, with the profits of the real estate, shall be insufficient to support the lunatic.

By the act of 1885 (Gen. Stat. p. 1701 § 26), the chancellor may order the sale of any real estate of a lunatic, whenever he thinks that the interest of the lunatic will be substantially promoted thereby.

By the act of 1885 (Gen. Stat. p. 1701 § 25), the chancellor may order the sale of partnership property, real as well as personal, whenever one of the partners becomes a lunatic.

These statutes, so far as I have discovered, contain the whole of the authority which has been conferred upon the guardian, or, speaking more accurately, embrace the extent of the power of the chancellor to order the guardian to sell the property of a ward. It is perceived that, by force of these statutes, the guardian, by direction of the chancellor, may execute conveyances which will pass a title to the real estate of a lunatic; but it is also perceived that these conveyances are confined to an out and out sale of such lands for the purposes mentioned in the act.

In regard to the execution of any conveyance of the land held by a lunatic as mortgagee, to complete the mortgagor’s right to redeem, or of a conveyance of such property held by a lunatic in trust, for the purpose of executing the trust and putting the title in the beneficiaries, there is nothing in our legislation similar to the English statutes. There is no power whatever in the guardian to transfer the title of the real estate, which, this bill claims, equitably belongs to the Moles; nor is there power to execute conveyance to Koehler, to Noll, or to Fisher, in case the money for the payment of which these properties are held as security, is tendered. Neither title nor power resides in the guardian without statutory aid; nor can such title or power be judicially conferred upon him. The legal title is in the lunatic, and can be divested only by a suit to which the lunatic is a party. Upon a bill filed by the committee, in the name of the lunatic, to foreclose the equity of redemption in the several properties alleged to be held by the lunatic as equitable mortgagee, an effective decree could be made. So, by a bill against the lunatic filed by one of those equitable mortgagees to redeem, a decree could be made against the lunatic, which, by force of the statute, would operate as a conveyance.

But in this suit, to which the lunatic is not a party, the court is utterly powerless to make any decree which can affect the primary purpose of the bill, which is to disentangle the snarl arising from the existence of the trust relations of the lunatic to the parties just mentioned, and can only declare that the guardian himself possesses no power to act.

Aside from the prayers for relief in regard to the Voles estate, the Koehler, the Noll, and the Fisher properties, the bill prays that new trustees may be appointed in the place of Christopher A. Bergen, who was trustee of the Voles estate and joint trustee with Joseph J. Read of the John Wallace estate. Without determining the propriety of making such appointments under this bill, I will decline to do so now, because at present the inability of the guardian to make any conveyance to such trustee, renders such appointment unnecessary.

. Regarding the bill as one for instruction, there is no footing of fact upon which the court can base an instruction. The guardian does not ask to sell any particular piece of property, therefore it is impossible for the court to advise what shall or shall not be sold.

I regret that the statute law of this state, in respect of a lunatic’s estate, is not as broad as the English legislation, under which the management of this estate would be quite easy.


author: Stevens, V. C.

text:
    George M. Rusling v. Calvin E. Brodhead et al.
    A firm agreed to give B., for a valuable consideration, a fourth interest in the profits which it might make in a certain contract for work, B. to furnish necessary capital for such work up to a certain sum, pro rata with the firm. After performance thereof, one of the partners, a non-resident, died, and thereafter full payment for the work was made to the survivors. — Held, that B. could maintain a suit against the survivors alone, for an account of the profits, and a payment to him of a fourth part thereof, as R. did not, by his agreement, become a member of the firm, and the presence of the representatives of deceased was not indispensable to the ascertainment of the merits, or to prevent injustice to them, no representatives being appointed within the state, and foreign representatives not being subject-to suit in their representative capacity outside of the state in which they were appointed.

      Mr. James P. Northrop and Mr. R. Floyd Clark (of the New York bar), for the complainant.

      Mr. Richard V. Lindabury, for the demurrants.
   Stevens, V. C.

It appears by the bill that, in June, 1894, Calvin E. Brodhead, Robert P. Brodhead and Daniel C. Hickey were copartners- in business, and that as such they made the following agreement with complainant:

“For and in consideration of the sum of one dollar ($1) in hand received, the receipt of which is hereby acknowledged, we, Brodhead & Hickey, hereby agree to and do hereby sell and assign to Geo. M. Busling, his heirs or assigns, a one-fourth interest in any and all of the net profits which may arise for the doing of the work under any contract which we may or shall obtain and accept from the Hudson Biver Eailroad and Terminal Company, or their successors or assigns, for the building of a tunnel through Bergen Hill, near Edgewater, New Jersey, and any other work pertaining or belonging thereto.
“And the said Geo. M. Busling hereby agrees to furnish his proportion of the capital necessary for carrying on the said work, up to the sum of four thousand dollars ($4,000) for said proportion, pro rata with Brodhead & Hickey, as may be required.
“ Executed this 23d day of June, 1892, in duplicate.
“Bbodhead & Hickey.
“G. M. Busling.”

After this agreement was made, Brodhead & Hickey obtained the contract to which it related, and had completely performed it on or about July 1st, 1894. On July 12th, 1894, Hickey, one of the partners, died. He was, at the time of his death, a citizen of and resident in the State of New York. The bill alleges that no personal representatives of his estate- have been appointed “ within the jurisdiction of this court.” It also alleges that on September 15th, 1894, “ Brodhead & Hickey, as copartners, received * * * full payment for all work done under the contract.”

The complainant prays, as against the surviving members of the firm, an account of profits and a decree for payment to him of one-fourth part of them. Both of the surviving partners demur, on the ground that the personal representatives of Daniel C. Hickey ought to be made parties.

As the foreign representatives of Hickey’s estate are not liable to be sued in their representative capacity in the courts of this state (Durie v. Blauvelt, 20 Vr. 114), the complainant has not called upon them to answer, and has not prayed process against them. The question is whether they are, notwithstanding the complainant’s inability to bring them into court, so indispensably necessary to the prosecution of the suit that no decree can be made against the surviving partners alone.

The agreement of June 23d,-1892, is somewhat peculiar.. It does not create an ordinary partnership between the parties, although it contains some of the elements of a partnership. It is not an agreement between A, B and C to share profits and bear losses, but an agreement by the firm of A & B, on the one hand, to give to C, on the other, for a certain consideration, one-fourth of the profits which that firm may make in a specified venture.

It does not provide that A shall become, even temporarily, a partner of this firm or of any new firm to be created pro hao vice. Its language is, in substance, this:

“ We, the firm of Brodliead & Hickey, do sell and assign to Geo. M. Bus-ling a fourth interest in the net profits which may arise from the doing of any work under any contract which we [the firm of Brodhead & Hickey] shall obtain” &c.

There are these things to be noted in the agreement: It was intended — first, that the contract which the parties hoped to secure should be taken by the firm of Brodhead & Hickey alone; second, that Rusling should not have any right of control over or management of the firm’s affairs, and third, that Rusling should furnish capital up to $4,000, pro rata, not with the individual members of the firm, but with the firm itself. The paper is signed only in the firm name.

The agreement is not unlike that which was before the court in Hargrave v. Conroy, 4 C. E. Gr. 281, and in Walker v. Hirsch, 27 Ch. Div. 460, cases in which it was held that no true partnership existed between the parties. Now, if the complainant was not a member of the firm of Brodhead & Hickey but one merely who by reason of his agreement had some claim upon it, even though that claim was of such a character that an account was necessary, there would seem to be no substantial objection to allowing him to proceed against the surviving partners just as any other claimant might do'. According to a perfectly well-settled rule, on the death of a partner the surviving members are the proper persons to get in and pay its debts. 2 Lind. Part. *591; They alone sue and are sued in a eourt of law; they alone represent the partnership; they are presumably more familiar with its affairs than anyone else. If they can protect the interests of the firm in a court of law, why can they not in a court of equity? It is, no doubt, true that in equity the representatives of. a deceased partner are ordinarily deemed necessary parties, but the question here is whether they are, in cases situated as this is situated, so indispensably necessary that the case must fail if they be not present. I do not think they are. It is well settled that persons out of the jurisdiction need not be made parties unless their presence is indispensable to the ascertainment of the merits of the case, or unless their interests will be prejudiced by the decree. Story Eq. Pl, § 81; Pan. Ch. Pr. (6th ed.) *150. Judge Story thus states the rule in regard to partners:

“If one of the partners be resident in a foreign country so that he cannot be brought before the court, and the fact is so charged in the bill, the court will ordinarily proceed to make a decree against the partners who are within the jurisdiction, with this qualification, however; that it can be done without manifest injustice to the absent partner.”

Tested by this rule, the personal representatives of Hickey may be dispensed with. Their presence is not necessary to the ascertainment of the merits of the case; they had nothing to do with the making or performance of the contract, and, so far as appears, they were entire strangers to it. The surviving partners are fully capable of protecting the firm interests, and no injustice will be done to the estate of the deceased partner, because on a settlement of the affairs of Brodhead & Hickey either in court or out of it, the representatives of the Hickey estate, not having been parties to this suit and not being bound by the decree, will be at liberty to question any account the surviving partners may present to them and have it corrected if it should appear to be erroneous, just as they would be able to question any other act of the surviving partners done in the execution of their trust.

On the other hand, the refusal of the court to proceed would amount to a denial of justice. The complainant and one of the defendants reside here, and the work under the contract was performed here. To allow the demurrer would be to declare that although the surviving partners have in hand the profits of the contract and are legally accountable for them to the complainant, yet that because certain other persons, who know nothing about the matter and who cannot be brought into court, are not present, the complainant is remediless. None of the cases cited by complainant go to this length. They are cases in which it was held either that the presence of those interested, but not made parties, was indispensably necessary to the ascertainment of the merits, or cases, like that of Shields v. Barrow, 17 How. (U. S.) 130, in which manifest injustice would have been done to absent parties by a decree directly affecting their rights.

The demurrer should be overruled.