author: The Ordinary.

text:
    Elise Strassheim Arnault v. Helene Arnault.
    1. The existence of influence which arises from unlawful or immoral relations, operating on a testator when his will is made, does not raise a presumption against the instrument, but will be regarded as a significant fact, which calls for a close and suspicious scrutiny.
    2. The law permits a man to leave all his property, which he may, by will, dispose of, to his mistress, and to ignore his wife, if he does so with free, sound and disposing mind, pursuant to the formalities which the law prescribes. .

      On appeal from a decree of the Hudson county orphans court, which denies probate to a paper purporting to be the last will of Pierre Arnault, deceased.

      Mr. Joseph S. Parry, with whom was Mr. Emile Schultze, Jr. (of the New York bar), for the appellant.

      Mr. Robert L. Lawrence for the respondent.
   The Ordinary.

Pierre Arnault, who had been a successful wine merchant in the city of New York, died at his residence in Jersey City, on the 30th day of December, 1891, leaving him surviving, as the legitimate claimants upon his bounty, a widow and two children by a former wife, from which former wife, according to the testimony of his widow, he was divorced one child, a daughter, Clothide by name, who is now married and a resident in Switzerland, and the other, a son, named Isaac, who died after his father, leaving a widow; and also those to whom the disputed paper gives his estate — Elise Strassheim, who lived with him as his wife for the last eleven years of his life, and her daughter by him, Adele, now about thirteen years of age.

The estate he left consisted of some household furniture and his wine business in the city of New York, valued together, as counsel agreed at the argument, at five or six thousand dollars.

The will names Elise Strassheim as “Elise Strassheim Arnault,” styles her as Arnault’s wife and bequeaths and devises to her all his property save $5,000, which she is directed to hold in trust and pay with interest, at five per cent, per annum, to the child, Adele, when she shall reach the age of twenty-one years.

The proofs afford little insight to the life of Mr. Arnault prior to his marriage with the respondent.

It appears that he had a former wife, the mother of his children, Clothide and Isaac, from whom he had separated, and that the two children resided with him in New York when he first met the respondent.

In 1870 he advertised for a governess to take charge of these children, and the respondent, who was then a widow with a son, applied for and secured the position at a monthly compensation. He informed her that he had been divorced from his wife, and, after she had been in his employ some four or five months, engaged to marry her when the divorce from his wife, which she says was not satisfactory to her, should be perfected. Finally she was satisfied that the divorce was had, and the proposed marriage was solemnized. This was in the year 1870. In 1874 the respondent employed Elise Strassheim as a domestic servant, to whom, shortly thereafter, Mr. Arnault commenced to pay marked attention. He at the same time changed his conduct towards the respondent from tender consideration to a peevish fault-finding, followed later by a course of abuse and physical brutality. Within a few months the respondent, incensed by the attentions to Elise, dismissed the latter from her employment. Thereafter, according to the testimony of the respondent, Mr. Arnault and Elise sought the society of each ■other, and Arnault continued to ill-treat the respondent until late in the year 1878, when he attempted to procure a divorce from her, alleging as the ground that she ill-treated him. In this suit he was defeated in July, 1879, but during the same month, in consideration of an undertaking upon his part to pay the respondent $8 weekly, he secured from her an agreement to their separation. In the meanwhile, Elise had gone to Europe. She returned in 1880, and was sought out by Mr. Arnault or his daughter, and installed as the housekeeper of his residence. While she acted in this capacity, he commenced an intimacy with her which resulted in her pregnancy. The impropriety of her longer remaining in the house with his daughter, led him to establish her in apartments in another part of New York city, where he and she lived together as Mr. and Mrs. Strassheim. They continued in this way until 1882, when the daughter married and went away, and then Elise, with her child, Adele, who had been born, returned to his residence, where Elise lived with him as his wife and became known as Mrs. Arnault. Later they moved to Jersey City, where the same relations were maintained and they continued together until he died. Thus they lived as man and wife for eleven years. During all that time, the respondent, knowing his relations with Elise, without,, so far as appears, seeking a reconciliation of her marital relations,, accepted the weekly sum he agreed to pay her.

The probate of the will is resisted, upon the ground that it is-the product of undue influence exerted by Elise Strassheim.

In support of this contention some evidence has been offered to show that, years before the will was executed, Arnault was-subject to nervous and epileptic fits, and had suffered three sun-strokes, which so affected him that he became nervous, irritable and erratic. This evidence is vague, and far from satisfactory. But whatever its character may be, it is effectually overcome by the evidence upon the part of the respondent, which establishes beyond question that, although Arnault was of excitable temperament, he possessed a clear and strong mind, capable of the-successful management of an extensive business until a short tíme before his death. The latter evidence comes from Arnault’slawyer, his family physician, his employes and business cotemporaries with whom he continually dealt, and abundantly proves-that he was not either mentally or physically an apt subject for that control which must exist to destroy free agency and constrain the person whose act is brought in question to do that which is against his will and what he would not have done if left to himself, or, in other words, an apt subject for undue-influence.

It can scarcely be doubted, after an examination of this case,, that Mr. Arnault sincerely loved Elise Strassheim, or that that love had its influence over him. His voluntary life with the-woman for eleven years exhibits the potency of that influence. I do not doubt that his love for her and her child produced the will in question, but I fail to find any proof that Elise exerted' her influence directly in the procuration of the will. On the contrary, the evidence is, as hereafter appears, that the will was-not directly or indirectly her act, but exclusively his own.

Every will is the product of some influence. The influence which arises from legitimate family and social relations comes-without suspicion or taint of illegality, and there can be no presumption that it is unlawfully exercised merely from the fact that it appears that, when the will was made, the testator -was surrounded by it, and it operated upon his mind to induce the testamentary disposition. It is only when such influence is shown to have been unduly exerted over' the subject of will-making, so as to constrain the testator to do that which he would not have done if left to himself, that the law condemns it. Nor does the influence which arises from unlawful or immoral relations raise a presumption against the validity of the will, but as the law abhors immorality, when the influence which produces a will arises from an immoral relation, its existence, standing as a significant fact, will be closely and suspiciously scrutinized by the courts. Particularly is the necessity for such scrutiny emphasized when the will prefers the influence of a mistress, usually predicated upon sensual charms and meretricious arts, to the just and honorable influence of a lawful wife, attributable to purity, virtue and affection. However, the law allows a man to leave all the property he may dispose of by will to his mistress, and to ignore his wife, if he does so with free, sound and disposing mind, pursuant to the formalities which the law prescribes. McClure v. McClure, 86 Tenn. 173; Kessinger v. Kessinger, 37 Ind. 341; Munroe v. Barclay, 17 Ohio 302, 316; Matter of Mendorf, 110 N. Y. 450; Dean v. Negley, 41 Pa. St. 312; Rudy v. Ulrich, 69 Pa. St. 177; Main v. Rider, 84 Pa, St. 225.

It is a modifying circumstance in the relation existing between Arnault and Elise Strassheim, which is to be regarded in a suspicious scrutiny of this case, that their life together, at least when the will was made, partook more of the connubial than the meretricious character. She was introduced by him as his wife, and in her conduct assumed the part of a virtuous and affectionate wife. He recognized her child as his, and permitted it to call him “ papa.” That the family relation existed with her and her child is well demonstrated by the language of his announcement of his will to her — “Mamma, here is a piece of paper for you.”

The will was executed in the office of Theodore Connolly, a member of the New York bar in excellent standing, upon the day on which it bears date, after its subject had apparently been carefully considered by Mr. Arnault, at two or three interviews respecting it, with Mr. Connolly. He did not tell Mr. Connolly about his relations with Elise. He instructed that, in the will, she should be styled “ my wife, Elise Strassheim Arnault,” and, upon Mr. Connolly’s suggestion that the word “wife” alone would be sufficient to identify her, he replied, I know why I want it in that way, and you put it as I want it.” Mr. Connolly had then known him as a client nine or ten months, and, deeming him to be of sound and clear mind, obeyed him without further suggestion.

Elise Strassheim testifies that she did not know anything about the will until after it was executed, and Mr. Arnault brought it home and gave it to her, with the remark already quoted, “ Mamma, here is a piece of paper for you.” She says' that then she looked at it sufficiently to see that it was endorsed as his will, and threw it upon the table, saying that she did not want it, her meaning being that she preferred to have him live than to die and leave a will in her favor. She says that he then took it up and put it in his safe among other papers, where, after his death, she found it. She says, also, that he had repeatedly before then told her that he had no one to look out for but Adele and herself.

Under the circumstances of the case, this will does not appear to me to be one which should be charactewcd as wholly inofficious or unnatural. It is clear that the testator had no affection for the respondent. He tried to rid himself of her by divorce, and, failing in that, procured from her an agreement that she would stay away from him as long as he paid her a weekly sum,, and he punctiliously paid her that sum and kept her away, until he died. His daughter had married and gone to Europe to live. His son had grown to manhood. His estate was small. In this situation he bestowed the bulk of it upon the bastard child whom he loved, and who, through his act, must bear reproach as long as she lives, and gave the small remainder to her who> had sacrificed her virtue to him, and for him had submitted her reputation for morality to an indelible stain.

As I have said, I do not find any evidence to establish the exertion of undue influence in the production of this will. On the contrary, the evidence makes it clear that the instrument was the product of Mr. Arnault’s spontaneous act. Observing the formalities which the law prescribed, possessing capacity and acting freely, he had the legal right to make it. Smith v. Smith, 3 Dick. Ch. Rep. 566, 590.

The decree of the orphans court will be reversed.


source: Caselaw Access Project

author: The Vice-Ordinary.

license: Public Domain

text:
    In the matter of the estate of Stafford R. W. Heath, deceased.
    1. In actual practice, to audit an account is to see that the accountant is charged with everything with which he is justly chargeable, and that nothing is placed on the credit side of the account for which he is not justly entitled to credit, and then, after the debit and credit are thus made up, to ascertain, the balance remaining in his hands.
    2. Simply transferring the balance shown by a prior to a subsequent account, is not an auditing of the sum transferred.
    3. In computing the amount of an estate, for the purpose of fixing the fees-of a surrogate, under the statute of 1890 (P. L. of 1890 p. 250), for auditing1 and reporting an account, the balance transferred from a prior account should, be excluded
    On application to fix and settle fees of register.

      Mr. John R. Emery, for the executors.

      Mr. William Y. Johnson, for the register.
   The Vice-Ordinary.

The question to be decided in this case arises under a statute passed in 1890 and another passed in 1891. By the first it is enacted, in substance, that the fees of surrogates for auditing and reporting accounts, shall, on estates exceeding $50,000, be at the rate of one-tenth of one per cent.; provided, however, that such further fees may be allowed in any case as the court shall think reasonable. P. L. of 1890 p. 250. The second provides that the register of the prerogative court, for all official services, shall be entitled to charge and receive the same fees as are now allowed by law to the surrogates of the several counties of this state for like services. P. L. of 1891 p. 571. The will of Stafford R. W. Heath, deceased, was proved before the ordinary, and his executors have, in consequence, had their accounts audited by the register of the prerogative court and allowed and confirmed by the ordinary. Their first account was filed in March, 1890. The amount of the estate, as shown by that account, exceeded $688,000, and the account also showed that, after crediting the executors with all proper allowances, there remained a balance in their hands slightly in excess of $297,000. Since then four other accounts have been allowed and confirmed — one in December, 1890; another in December, 1891; another in January, 1893, and the last in April, 1894. The balance of over $297,000, shown by the first account, has been carried into each of the subsequent accounts. This balance, when added to the moneys received subsequent to the filing of the first account, made the executors chargeable, when they exhibited their last account, in April, 1894, with a sum a little in excess of $368,000. This $368,000, less $43,594.54, is a mere aggregation of the balances shown by the four previous accounts.

Now, on this state of facts, it is claimed, on behalf of the register, that he is entitled, under the statutes above referred to, for auditing and reporting the last account, the one-tenth of one per cent, on $368,000, or the sum of $368; while the executors insist that the balance carried from the preceding account .into the last account constituted no part of the estate accounted for by the last account, but represented that part of the estate which had been accounted for in the previous accounts; that such balance had been ascertained by the auditing of the previous accounts, and that the register did not, and could not, when he came to deal with the last account, do any work in the way of auditing that part of the estate, but that all he did respecting it was simply to add it to the debit side of the last account, so that that account should show, not only what the executors had received and paid out since their last previous accounting, but also the total amount of the estate remaining in their hands.

The rule regulating payment, prescribed by the statute of 1890, is a purely arbitrary exaction. It is not compensation according to the value of the work, but the one-tenth of one per cent, must be allowed whether the work occupies ten days or ten minutes, and whether the work is fairly worth the sum which must be allowed or only an infinitesimal part of it. For auditing and reporting the account of an estate of $500,000, consisting of twenty items or less, the surrogate is entitled to $500, though the actual value of the skill and labor bestowed is worth less than $5. It is obvious that the effect of a statute which imposes burdens in this arbitrary manner, and without the slightest regard to benefit, should not be enlarged by construction. As the legislature cannot compel one citizen to give his property to another, it would seem logically to follow that it is not within its power to ordain that the estates of decedents shall be required to pay a particular class of public officers $50 for a service which is not reasonably worth $1. To earn the fees given by the statute, a surrogate must both audit and report. The words of the statute are “ for auditing and reporting.” Nothing is given for merely reporting, but- to be entitled to the fees allowed it must appear that the surrogate has not only reported the account but also audited it. To audit an account is to examine and digest it, or examine and verify it, or examine and adjust it. In actual practice, to audit an account is to see that the accountant is charged with everything with which he is justly chargeable, and that nothing is placed on the credit side of the account for which he is not justly entitled to credit, and then, after the debit and credit are thus made up, to ascertain the balance remaining in his hands.

Adopting either of these definitions as a correct exposition of what is meant by the word “auditing” in the statute under consideration, it would seem to be perfectly clear that the register did not, and could not, audit that part of the last account which is made up of the balances shown to be in the hands of the executors by their previous accounts. The work of auditing in respect to that part of the estate has been previously and finally done, and the balances ascertained by such auditing were, by the-decrees of allowances and.confirmation, conclusively settled and adjudged against the executors. Such adjudications constitute judgments which, so long as they remain in force, must be treated as absolute verities. And it is also true that those parts of the testator’s estate which are embraced in and covered by the accounts which have already been allowed and confirmed, must, be considered, except in an appropriate proceeding founded on fraud or mistake, as finally and conclusively settled. The accounts respecting them have been finally audited, and the accuracy, honesty and fairness of the accounts established by the judgments of a competent court. So long as those judgments-stand, neither the accounts nor any item in them can be audited by anybody. The accounts must be treated and considered everywhere as finally and conclusively settled. If simply transferring the balance shown by a first account to a second should be held to be auditing of that part of the estate represented by such balance, this result would follow, that part of a testator’s, estate represented by the balances thus transferred, instead of being required to pay fees for auditing once, might be required to pay them twenty times or more. For example, in this case the balance carried from the first account to the second was over $297,000, the same sum constituted a part, and much the larger part, of each subsequent balance, so that if merely transferring these balances constituted an auditing of that part of the estate, then this part of the estate has been audited five times- and the fees payable thereon would amount to nearly $1,500. No argument is required to prove that there is nothing whatever, either in the language or purpose of the statute of 1890, giving the slightest support to a construction of it which would lead to a result so unjust and oppressive.

The register is 'entitled to fees for auditing and reporting the accounts filed in December, 1891; January, 1893, and April, 1894, but the amount of his fees must be calculated on the amount of the estate charged for the first time against the executors in each of these accounts. That amount appears to be $153,450. The fees of the register must, therefore, be reduced from $368 to $153.


author: Beasley, C. J.

text:
    John Kean, Jr., et al., appellants, v. The Union Water Company, respondent.
    1. A court of equity lias no jurisdiction, in a direct proceeding for tliat purpose, to determine whether an election of the directors of a private corporation has been legally held, and whether certain persons claiming to be and acting as such, are such.
    2. The case of Owen v. Whitakei•, 5 O. E. Or. 122, approved and followed.
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Union Water Co. v. Kean, 7 Dick. Ch. Rep. 111.

      Mr. Richard V. Lindaburv, Mr. Frank Bergen and Mr. Frederic W. Stevens, for the appellants.

      Mr. Abraham V. Schenck, for the respondent.
   The opinion of the court was delivered by

Beasley, C. J.

On the part of the appellants, who were the defendants in the ■court of chancery, it is insisted on this appeal that the subject of the suit is not within the cognizance of a court of equity. In the process of deciding the case, a jurisdictional objection of this nature must of necessity have precedence.

Looking at the bill before us in its general aspects, it presents to our view neither more nor less than a controversy between two rival sets of directors of the corporate defendant, each claiming to be its legal representative, having as such the right to ■exercise the functions appertaining to their office. This is the ■sole ground on which jurisdiction over the case in hand can be ■claimed, for there are no other facts stated in the bill which even tend to strengthen, in this particular, the complainant’s position. Indeed, such additional facts as are there exhibited must be ■deemed rather to impair than to add force to the contention that this contest is susceptible of equitable cognizance. The averments are to this effect: The complainant alleges that many years ago the commissioners named in its charter organized it in due form, and that subsequently certain persons were chosen directors, who still continue to be such ; that a number of years ■after such organization, as the appellants contend, these same commissioners convened and received subscriptions for stock, and that the persons so subscribing elected the appellants to be directors. They also deny the legality of the election of the directors who are represented in the suit by the corporate body. The status of these parties is this: Each contends that the election of directors relied upon by his opponent is invalid for the want of a legal organization of the corporate body at the time of choosing, respectively, such officers. No one who examines the case with the least care, can have any doubt upon this subject. There is no ground nor hint of any circumstances laying a further jurisdictional foundation.

If, therefore, the court of chancery had rightful cognizance of the controversy before us, it was because that court has the power to arbitrate' between rival claimants to corporate office.

A jurisdiction resting on this single basis was asserted and exercised in the present case in the inferior court, and the inquiry now arises, can that course of law be vindicated?

It does not seem possible to doubt that this conclusion just stated stands opposed to everything that had preceded it in the shape of judicial decision and judicial declaration. The rule, as decided and expressed, was that a court of equity could not inquire into the legality of an existing corporation, except when such inquiry arose collaterally in a case within its cognizance, and that a dispute touching the election of directors did not, per se, constitute such a case. This doctrine is not only explicitly stated, but is just as explicitly enforced by decree, in the case of Owen v. Whitaker, 5 C. E. Gr. 122. The nature of the controversy in that instance was not merely similar but was in all respects identical with that now present on this appeal, so that if the present decision should be affirmed by this court as an inevitable concomitant, the reported decision would be repudiated as a precedent.

The facts to which the adjudication now referred to applied have been carefully collected and stated in the elaborate and very lucid brief of the counsel of the appellants, and may be thus summarized, viz.: By the act incorporating the Sussex County Railroad Company, sixteen persons were nominated as incorporators and commissioners. The capital stock of the company was fixed at $175,000. The commissioners gave notice, opened books and received subscriptions in an amount exceeding $175,000, and thereupon apportioned the stock among all the subscribers. A controversy arose as to the right to make such apportionment. The persons who subscribed for the first $175,000 of stock claimed that they were entitled to the full amount of their respective subscriptions, and that all the subscriptions made in excess of such amount were void. The two classes of stockholders thereupon elected two boards of directors, and a bill was filed by one class of stockholders and directors against the other class of stockholders and directors to ascertain which party were the true stockholders and directors.

It will be observed from this statement that the issue was,, whether a court of equity was the appropriate tribunal to adjudge of the legality of these two several elections, and that is precisely what has been done in the present case. Nor is there a particle of doubt with respect to what Chancellor Zabriskie, who decided the case, considered the issue before him, nor with respect to the rule that was applied in disposing of such issue. He thus, certainly in very plain terms, states the problem he is called upon to solve. He says : “ The first question in the cause is, whether the court has jurisdiction to determine whether an election of the directors of a private corporation has been legally held, and whether certain persons claiming to be and acting as directors are such.” And in deciding this question he declares, emphatically: “This court has no jurisdiction to determine the validity of this election or the right of the directors elected to hold and exercise the office of directors, and therefore can grant no relief that is merely incident to that power, such as to restrain the directors from acting as such.”

It has not been observed how it can be reasonably denied that this decision is as applicable to the facts now before this court as it was to the facts which led to it. As we think, the two cases are not to be differentiated by the existence of immaterial distinctions with respect to mere forms of procedure. The circumstances that, in the reported case, unlike the present proceedings, the corporation was not the complainant, and some of the prayers of the bill are variant from those in the bill before us, are obviously insignificant disagreements, for they neither did nor could affect the judgment. In the reported case the chancellor declared that he had no jurisdiction to determine whether an election of a private corporation has been legally held, and that he had no power to restrain the defendants from acting as such; and in the present case, his ho”or the vice-chancellor has adjudged that he has the capacity to entertain such a controversy, and accordingly has restrained the defendants from exercising their alleged office.

It does not seem possible to avoid the conclusion that, in the present inquiry, the decision in Owen v. Whitaker is, with the utmost exactness, directly in point, and as it is the expression of the opinion of a very great and experienced jurist, and has existed and has been approved of for over twenty years, it cannot be hastily pushed aside, for all that can be done, in the presence of such a precedent, is to follow it, or, after full consideration and on the most stable grounds, to reverse it.

In deciding the case of Owen v. Whitaker, it is held that the statute laws of this state provide an ample remedy for the injury complained of, and the forty-fourth section to the Corporation act {Rev. p. 184) was particularly referred to. That provision is in these words, viz.:

“It shall be the duty of the supreme court, upon the application of any person or persons, or a body corporate, who may be aggrieved by or may complain of any election or any proceeding, act or matter, in or touching the same, reasonable notice having been given to the adverse party or to those who are to be affected thereby, of such intended application, to proceed forthwith and in a summary way to hear the affidavits, proofs and allegations of the parties, or otherwise inquire into the matter or causes of complaint, and thereupon establish the election so complained of or to order a new election, or make such order and give such relief in the premises as right and justice may appear to said supreme court to require; provided, that said supreme court may, if the case shall appear to require it, either order an issue or issues to be made up in such manner and form as the supreme court may direct in order to try the respective rights of the parties who may claim the same to the office or offices or franchise in question, or may give leave to exhibit, or direct the attorney-general to exhibit, one or more information or informations in the nature of a quo warranto in the premises.”

The chancellor, in denying the jurisdiction of his court to determine the validity of an election of directors of a private corporation, describes this act as a “ summary and efficient proceeding,” created for the very purpose of determining the dispute before him, and he cites the ease of Mickles v. Rochester City Bank, 11 Paige 124, in which Chancellor Walworth, passing on the same jurisdictional question, as well as the efficacy of an identical New York statute, says: “The question as to the validity of the election of G, W. and S., as trustees, does not appear to be a proper subject of equitable cognizance. The legislature has provided a summary remedy by an application to the supreme court to set aside the election of these directors of it as illegal. That court, therefore, is the proper tribunal to set aside the election if it has not been in conformity to law.”

In the subsequent case of Johnston et al. v. Jones et al., Chancellor Zabriskie reiterates, with emphasis, the doctrine declared by him in Owen v. Whitaker, and discriminates between the cases in which the jurisdictional foundation is laid simply in the averment of a disputed election, as in the instance we are now considering, and that other class in which such question comes in collaterally in the determination of matters over which equity has direct cognizance. The distinction is indisputable, and is recognized in every authority that has been noticed, and is nowhere more plainly declared that in the cases just cited. After repudiating, in express terms, the theory that a court of equity, in a direct procedure for that purpose, can inquire into the question of the right to an office, or as to the regularity of a corporate election, the very able chancellor then proceeds to set out the ground on which he vindicates his right to take charge of the controversy. He says : “ That the defendant obtained an office claimed by him in a corporation by an election procured to be held by him by fraud, by breach of trust and a positive 'agreement, by concealment and treachery, confers on a court of equity jurisdiction to inquire into the validity of such an election, for the purpose of restraining the acts of the defendant and other persons claiming office by such election. That equity had jurisdiction of the question of the legality of one of these elections, where such question arises incidentally to the decision of fraud, a breach of trust will be denied by no one versed in the law; and this is what this particular case enunciates, but how such a doctrine has any tendency to support the hypothesis in which the present decree has been rendered is not apparent.”

This view of the law on this subject, thus expressed by Chancellor Zabriskie, has received the weighty approval of the late Vice-Chancellor Van Fleet. In the case of Mechanics’ National Bank of Newark v. Burnet Mfg. Co., 6 Stew. Eq. 238, this very distinguished jurist says: “A court of equity has no jurisdiction to pass upon the validity of the election of the officers of a private corporation and pronounce judgment of •amotion against them. Owen v. Whitaker, 6 C. E. Gr. 122. But where the question of the right or power of an officer to represent or bind a corporation arises incidentally in the course of a suit, of which this court may properly take cognizance, and it becomes necessary to look into the legality of his election and the validity of his title, in order properly to determine the rights •of the parties, this court will pass upon his title and capacity, as it would upon any other question of law or fact necessarily •arising in the due determination of an action. Johnston v. Jones, 8 C. E. Gr. 216.”

In the opinion of this court the jurisdictional rule is properly •and accurately delineated in the decisions there referred to. The question of the right to corporate office or franchise is purely a legal one. It seems to have always been so regarded. It is many years since the subject was examined by Chancellor Kent, who, in the leading case of Attorney-General v. The Utica Insurance Co., 2 Johns. Ch. 371, said that “The charge of the usurpation of a franchise has so frequently occurred, and the remedy by injunction is so convenient and summary that the jurisdiction of this court would have been placed beyond all possibility of doubt, and have been distinctly announced by a series of precedents if any such general jurisdiction existed. But I have searched in vain for this authentic evidence of such a power. The precedents are all in the king’s bench, and Kyd cites nearly an hundred instances, within the last century, of informations filed in the king’s bench to call in question the exercise of a franchise.”

It does not appear that the principle thus authoritatively declared in this series of decisions and in influential dicta has ever been rejected or challenged, except in the case now under review, and, it may be, in that of Van Dyke v. Stout, 4 Halst. Ch. 344. This latter decision was properly treated by Chancellor Zabriskie, in Owen v. Whitaker, as of no account. It was decided,, with respect to the facts, on an incidental motion, and the chancellor, in determining the matter, does not appear to have had the faintest suspicion that he was treading on jurisdictional ground that, to say the least of it, was unstable. It is probable- ‘ that it was considered to be a case of fraud. As an authority on the point now being considered, the case is worthless.

In conclusion, it is sufficient to say that the entire weight of authority is, in our opinion, opposed to the theory on which the-decree appealed from was based. And, indeed, if there were no ■ precedents relating to the subject, our conclusions, on general principles, would have been adverse to the jurisdiction exercised in the present instance. The controversy is exclusively a legal' one; it has no trace of anything to put it within the cognizance ■ of an equitable tribunal, and the remedy at law is more complete ■ than any other. The futility of a proceeding in equity is perfectly manifest. The present decree does not vacate the offices-in question ; it ties the hands of the defendants, but leaves them in their offices; and if the decision had been in their, favor a decree to that effect would have been as useless as so much blank paper; it would have left the dispute between these two sets of directors absolutely untouched, for in that litigation the determination of the court in this proceeding would not have been legitimate evidence, for the class of directors who have pushed to the front the corporation as the dominus litis are not parties to the present bill.

In contrast to a legal course so uncertain and ineffectual, if' we turn to the provision of the statute above referred to, it will be observed that, in our entire system of law, no remedy exists-that is more simple and complete.

In short, we regard the rule of law applicable to the juncture-before us as settled by an unbroken series of decisions, and it is obviously so regarded by the text-writers. It is thus-enunciated by Spelling, in his late work on Private Corporations, §896:

“A court of equity will not entertain jurisdiction of a suit the purpose of which is merely to test the legality of the election of directors or to remove-¡an officer of a corporation who is in actual possession. Yet where the question .arises incidentally and collaterally in a suit rightly filed for another purpose, ■the court will decide it.”

Taylor also states the rule in the same way. Tayl. Priv. Corp. § 881.

These texts are warranted by a number of authorities and in the notes.

Let the decree appealed from be reversed and the bill dis■missed.

For reversal — The Chief-Justice, Garrison, Magie,, Reed, Van Syckel, Brown, Sims, Smith — 8.

For affirmance — Dixon, Bogert, Krueger — 3.


text:
    Malvina Lawson and Mary L. Birckhead, appellants, v. William C. Nicholson et al., respondents.
    1. The mere possession of a bond and mortgage by a person not the obligee 'will not warrant the payment thereof to such possessor.
    2. A scrivener, under a special authority for that purpose, received payment of interest on a bond and mortgage; afterwards, the obligee delivered the 'bond and mortgage, with other papers, wrapped up in paper, which was tied •and sealed, to the scrivener for safe keeping; the scrivener surreptitiously ‘broke open the bundle of papers and abstracted therefrom the bond and mort,gage, and received payment of the principal due thereon, and then absconded. —Held, that such payment was invalid.
    On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in Lawson v. Carson, 5 Piole. Ch. Pep. 870.

      Messrs. Bergen & Bergen and Mr. John B. Uhle (of the .Philadelphia bar), for the appellants.

      Mr. Peter L. Voorhees, for the respondents.
   The opinion of the court was delivered by'

Beasley, C. J.

The essential facts of this case may be thus summarized :

On December 22d, 1858, Samuel A. Cook and John A. Cook,, having fallen in debt to Mary L. Lawson, who is now Mary L. Birckhead, one of the appellants, in the sum of $3,000, delivered to her their bond of that date, running for a year, the interest being payable semi-annually. ■ The bond was secured by a mortgage on property in the county of Camden. These instruments-were drawn by one Charles Leslie, a scrivener, resident in Philadelphia. Immediately upon their execution they were delivered to Miss Malvina Lawson, who retained them in her own possession until they were put in the custody of the above-mentioned Charles Leslie, at the time and in the manner hereafter stated..

On December 12th, 1866, the title to the mortgaged premises-became duly vested, by conveyance, in one Mary Carson, who, on December 14th, 1872, transferred, under the laws of this-state, for the benefit of her creditors, among other property, the said premises, to Isaac Carson, her assignee. About three-months after — that is, on March 20th, 1873 — Carson, theassignee, sold and conveyed the mortgaged lands to one Nicholson, for the sum of $4,545.96, the assignee undertaking-to clear off the existing mortgage of $3,000. ’With this view, and finding this latter bond and mortgage in the possession of the scrivener, Leslie, he paid the money secured by them tollina, the scrivener, and had the encumbrance canceled on the-record.

Shortly after this transaction the scrivener absconded with the money, so that the question whether the payment and cancellation of the appellant’s mortgage were legal is of essential importance, and is the only point sub judice.

It is obvious that in this inquiry the problem to be solved is, was Leslie, the scrivener, the agent of the appellant in the affair-in question ?

It is not, and cannot be, pretendéd that he was such in point of fact; the evidence is undisputed that Miss Lawson, now Mrs. Birckhead, the appellant, never had the intention, and never did, by expression, confer such authority upon him. If the agency claimed existed it must have been by imputation of law from the circumstances incident to the transaction. It is a case ever regulated, and regulated wholly, by the doctrine of estoppel, for the question always in such investigations is, has the obligee acted in such a way as to lead the obligor, or his representative, reasonably to the conclusion that the alleged agent had the right to receive payment of the obligation. It is deemed that it is at all times to be regarded as a fact, to be ascertained by a construction of the given circumstances, and not, as seems to be indicated in some of the authorities, as a thing to be regulated, in some instances, by legal definitions. It is a matter of fact to be interpreted by such rules as are applied in other cases of the same class.

The inquiry then is, was the assignee, Carson, justified in concluding, from the facts before him, that Leslie, the scrivener, was the agent of the mortgagee, with ’authority to receive payment of the moneys secured ?

In looking through the facts in proof, but a single circumstance has been observed having a tendency to render reasonable, in any degree whatever, an affirmative reply to this interrogatory. That fact is, that at the time of the satisfaction of the bond and mortgage Carson found them in the hands of the scrivener. This was the sole circumstance that could, in the slightest manner, have affected his conduct. As to the incident that these securities had been originally, many years before, drawn by the scrivener, it is not anywhere intimated that the respondent had any knowledge of the subject. These documents, as has been stated, were, as soon as they had been executed, taken, by the mortgagee into his possession; and there was no ground for'any supposition that they had ever been under the control of the scrivener until the occasion on which he had produced them for payment. It is true that both Miss Carson and her trustee had paid interest on the bond, but such payments had been made, not by reason of the bond or its accompanying mortgage being in charge of the scrivener, but in pursuance of an express direction to that effect. The appellant authorized Miss Carson and her assignee to pay the interest on these securities, and such an authorization repels, in its very tenor, the supposition that the principal moneys could be passed to the agent so designated.

In conformity to the agency thus limited, the interest on the $3,000 was, as it grew due, paid to the scrivener in the first place by Miss Carson and subsequently by her assignee, but on such occasions neither the bond nor mortgage was produced, nor did either of these persons have any ground to suppose that such securities were in charge or under the control of the agent receiving such interest.

It follows, therefore, as Carson, the assignee, at the time he attempted to take up the bond and mortgage in question, had no knowledge that those instruments had been drawn by the scrivener to whom he made payment, and that he had paid interest under a special authority so to do, that the only basis of his conduct was the fact that he found the securities in the possession of the person with whom he dealt. That a person in possession of a bond is thereby shown to have the right to receive the moneys it calls for, is a doctrine that has neither decision nor dictum for its sanction. If such a doctrine prevailed, it would deprive investments in such securities of much of their supposed safety. Such, fortunately, is not the law. Therefore, in the present case, if these securities had been confided to this man Leslie in such form that, without any misconduct on his part, it would have been in his power to manifest his possession of them, such unconditioned fact would have offered not the least ground for the inference of an agency to cancel them on the receipt of the moneys due. The present decree could not stand in the presence of such a showing as this. Much less can it be supported when the important fact is added that the securities were not entrusted to Leslie with the right to exhibit them in the way supposed. They came to him in this wise: He having offered to put all the valuable papers of the appellant in his fire-proof, accordingly they were put up by her '“at her own house in a bundle, covered with strong, grey paper, tied with strings crossed and recrossed, and sealed with sealing wax. It was a large bundle, more than two feet square.” It was by breaking into this bundle and by criminally abstracting the securities in question that Leslie got them into his hands. Under these circumstances the moneys were paid upon them by Carson without a question.

For this court to validate such a payment would be to establish a rule in view of which it would not be prudent for a man to make any person the custodian of his documents of this kind, or to permit them to pass out of his own sight.

Let the decree be reversed, and a new one entered reviving • and reinstating said bond and mortgage.

For reversal — The Chief-Justice, Dixon, Garrison, Lippincott, Magie, Van Syckel, Bogert, Brown, Krueger, Sims, Smith — 11.

For affirmance — Reed—1.


author: Van Syckel, J.

text:
    Anthony R. Kuser et al., appellants, v. John Wright, receiver of the Ott & Brewer Company, respondent.
    1. The Ott & Brewer Company was incorporated under the laws of this ■state, with three directors. Our statute provides that, to transact business, there must be at least three directors elected, and that when a director ceases to be a stockholder he shall also cease to be a director. Bell, one of the directors, made an assignment for the benefit of creditors, after which the other two directors executed chattel mortgages to three of the appellants, who loaned money to the corporation at the same time, and took the mortgages without notice that Bell had ceased to be a stockholder. — Held that, as to third parties, dealing in good faith with the company, without notice of any infirmity in the title of Bell as a director, he must be regarded as a director defacto,
      and thus the company had, when the security was given, three directors as. required by law.
    2. The fact that no notice was given to Bell of the meeting of directors, at which the mortgage was authorized to be executed, does not affect its validity. That is a subject into which the mortgagee was not bound to examine.
    3. The receiver of an insolvent corporation cannot successfully assail a mortgage given by the corporation because it was executed for an antecedent debt..
    On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Wright v. First National Bank, 7' Diek. Ch. Rep. 392.

      Mr. Garret D. W. Vroom, Mr. Edwin Robert Walker and Mr.. Chauney H. Beasley, for the appellants.

      Mr. James Buehanan, for the respondent.
   The opinion of the court was delivered by

Van Syckel, J.

The Ott & Brewer Company was organized under the laws-of this state, with three directors, viz., Brewer, Tucker and Bell.

In June, 1891, Bell made an assignment for the benefit of creditors, and soon after that left the state.

In November, 1891, the Ott & Brewer Company, by the two-directors, Brewer and Tucker, executed a mortgage on its real estate and certain goods and chattels, to the First National Bank of Trenton, to secure a pre-existing indebtedness. This mortgage was recorded as a real estate mortgage, but was not sworn-to or recorded as a chattel mortgage.

In August, 1892, the said company, by the same two directors, executed three several chattel mortgages to Anthony R. Kuser, John L. Kuser and Albert Brewer respectively, to secure to each of them the sum of $5,000, at that time loaned by them-to the said company.

In May, 1893, a bill was filed in the court of chancery, alleging that the said The Ott & Brewer Company was insolvent,, and thereupon John Wright was appointed receiver of the said', company.

The receiver exhibited his bill to set aside all these mortgages.

The alleged infirmity, chiefly relied upon, is that two directors had no power to establish a lien upon the property of the corporation.

Our act concerning corporations, section 16, provides:

That the business of every such corporation shall be managed and conducted by the directors thereof, who shall respectively be shareholders, therein.”

Section 17 provides:

The directors shall not be less than three in number, and they shall be' chosen annually by the stockholders at such time and place as shall be provided by the by-laws of the company, and shall hold their office for one year,, and until others are chosen and qualified in their stead.” ' ■

Section 20 provides that

“when any vacancy occurs among the directors, or secretary or treasurer, bydeatli, resignation, removal or otherwise, it shall be filled for the remainder-of the year in such manner as may be provided for by the by-laws of the saidi company.”

Section 47 provides that

“it shall not be lawful for any person to be elected a director of any body-corporate in this state issuing stock unless that person shall be, at the time of his election, a bona fide holder of some of the stock thereof.”

Section 48 provides that

“ when any person, a director of any body corporate, shall cease to be a Jo?:® fide holder of some of the stock thereof, he shall cease thereupon to be ar director thereof.”

The point made against these mortgagees is that under our statute there must be at least three directors to manage the corporate business; that by the assignment made by Bell for the-benefit of his creditors he ceased to be a stockholder, and by force of the statute ceased at the same time to be a director of the company, thereby leaving the corporation without a board! of directors legally qualified to conduct its affairs.

That such a result justly or legally flows from these premises •cannot be conceded. It is apparent that dealing with these corporate bodies would be in the highest degree hazardous and unsafe if the public, without notice in fact, is chargeable in law with knowledge of a latent infirmity in the title of every director ■of the company. A doctrine so destructive to the security of •commercial transactions, now so largely conducted by corporate action, has no support in the law. The receiver stands for the corporation, and cannot impeach any act which the corporation itself could not successfully assail.

Bell’s original title to the office of director was good; it is not •denied that he was legally elected. The corporation held him •out to the public as one of its duly-authorized agents by failing to declare his office vacant and electing his successor.'

In Doremus v. The Dutch Reformed Church, 2 Gr. Ch. 349, Chancellor Vroom said “ that where the original title of an officer is sufficient, though good cause of amotion be shown, ■even in a case where the charter declares that for such cause of .amotion the officer shall vacate his office, the office is not determined until there be an amotion.”

He also said “that where persons are officers defacto they are ■in colore officii, and their acts will be valid until they are lawfully ousted, and more especially as they respect third persons they are binding on the corporation.”

The authorities are cited in the opinion.

This rule has never been departed from in this state.

Vice-Chancellor Van Fleet, in Mechanics’ Bank v. Burnet Company, 5 Stew. Eq. 236, adopted it. He there declares “ that if the officers selected are ineligible or are elected irregularly or illegally, but are allowed by the proprietors of the corporation to take control of its property, and to exercise its functions and powers, they become officers de facto, and as such may act for land bind the corporation. An officer defacto is one who has the /reputation of being the officer he assumes to be, and yet is not a /•good officer in point of law.

“ From a very early time it has been held that the acts of de Jacto officers are binding upon the corporation until they are

lawfully ousted, especially so far as their acts create rights in* favor of third persons.”

That such is the current of authority will appear by reference to the books. Mining Company v. Bank, 104 U. S. 192; Beach Corp. §§ 233, 234; Ang. & A. Corp. § 287.

In San Jose Savings Bank v. Sierra Lumber Company, 63 Cal. 179, a director who had ceased to be a stockholder, no-judgment of ouster having been pronounced against them, was-held to be a director de facto, and his acts valid as to third* persons.

Mr. Taylor, in his book on Private Corporations, §§ 187,188',. after stating the rule as formulated in the cases above cited,, says that

“It is submitted that this statement of the rule does not give sufficient prominence to the principle of estoppel, on which the rule depends; a principle which, in its application to the responsibility of corporations for the acts of defacto officers, may be stated thus: If a body of men, acting as a corporation, permits certain persons to act openly as corporate officers, or if it is permitted by the directors, assuming them to have had the power to appoint the officer in question, the corporation will not, to the detriment of persons who, in good faith, have acted on the assurance that the persons acting as* officers were the officers they assumed to be, be permitted to impeach the-validity of their acts and contracts on the ground that such persons were not legally corporate officers.”

Bottomley’s Case, L. R. 16 Ch. Div. 681, is not in conflict. In that case the contest was between the company and its own stockholders. Five directors were necessary to conduct the business.. After one became disqualified by insolvency, the other four took proceedings by which they attempted to enforce a forfeiture against some of their stockholders. ■

Sir George Jesse!, master of the rolls, held that the shareholders were entitled to have the business of the company conducted according to the articles of the association in relation to that proceeding. As between stockholders and the company, that was the correct rule.

In In re County Life Assurance Company, L. R. 5 Ch. App. Cas. 288, a policy signed by three defacto directors of the company was enforced in favor of the party insured.

Lord-Justice Giffard observed, iu delivering his judgment, that he did not hesitate to say that the business of companies could not be carried on if this was not held to be the law.

As to the public, Bell was clearly a director defacto, and the corporation was represented in the affair before us by three •directors, as required by the statute.

This court has adjudged that, as in favor of creditors and third persons dealing with a corporation in good faith, the regularity and validity of its organization, effected under color of its charter, cannot be impeached, and the acts of its officers, who are officers de facto under color of an election, are binding on the corporation. Hackensack Water Co. v. De Kay, 9 Stew. Eq. 548.

A majority of the directors of a corporation, in the absence •of any statutory regulation, is a quorum, and such majority, when convened, can do any act within the power of directors. Wells v. Rahway Rubber Co., 4 C. E. Gr. 402.

Under these cases, the fact that no notice of the meeting of directors, at which the mortgages were authorized, was given to Bell cannot affect the validity of these securities. That is a subject into which those who are dealing with a corporation are not bound to inquire. That duty falls on the company alone .when it holds out its officers as its accredited agents. Nothing like an approach to safety could exist in transactions with corporate bodies if such an obligation was laid upon third parties contracting with them. After the most careful inquiry, the question would still be open to controversy.

The assignment by Bell for the benefit of creditors was not constructive notice to the appellants that he had ceased to become a shareholder. Actual notice must be shown, and that was not proven.

Those only are chargeable with constructive notice of the assignment who seek to establish a title to his individual property.

The company is estopped from denying the authority of one who is, de facto, a director, and in that capacity authorized to represent it.

The fact that the mortgage to the bank was executed to secure an antecedent debt does not impair its standing as between the ■corporation and its creditor. It was taken in good faith, and it was as much the duty of the company to pay the debt as though it had been contracted at the date of the mortgage. Knowles Loom Works v. Vacher et al., Supreme Court, February Term, 1895.

So far as the mortgage to the bank is a lien upon personal property, it must be postponed to the chattel mortgages, because the bank failed to record it as a chattel mortgage. The decree below should be reversed, with costs in this court and in the •court below, and the securities of the appellants established in accordance with the views herein expressed.

For reversal — The Chief-Justice, Garrison, Lippincott, Magie, Reed, Van Syckel, Bogert, Brown, Krueger, ■Sims, Smith — 11.

For affirmance — Dixon—1.


author: Dixon, J.

text:
    Daniel H. Dunham, administrator cum testamento annexo of Nancy W. Halsted, appellant, v. Albert R. Marsh, respondent.
    ' Any person appearing to be interested in the disposition of the property of a decedent, may file exceptions to the account of the executor or administrator ■of the deceased.
    On appeal from an order of the ordinary, affirming an order of the Hudson orphans court, refusing to strike out exceptions, whose opinion is reported in Dunham v. Marsh, 7 Dick. Ch. JRep. %56.

      Mr. John A. Miller, for the appellant.

      Mr. James E. Howell, for the respondent.
   The opinion of the court was delivered by

Dixon, J.

The appellant having presented his final account to the-Hudson orphans court, the respondent, as next of kin of the testatrix, filed exceptions to it. Thereupon the appellant moved to strike out the exceptions, on the ground that the next of kin was not “interested in the settlement of the account.” Rev. p. 775 § 105 tit. “Orphans Court Act.”

On examining the will and codicils of the testatrix, there appears to be at least a fair question whether she did not die intestate as to part of her property. If she did, her next of kin will be entitled to that portion.

This question ought not to be decided upon a motion to strike out exceptions to the account. One object of such exceptions is-to secure a correct ascertainment of the amount of property remaining for distribution among those who may ultimately be-found entitled to it, and therefore eveiy person who can present a claim worth considering upon the final distribution is interested in the settlement of the account, and should be permitted to compel a full and accurate accounting. Wms. Ex. pp. 975, W57; 7 Am. & Eng. Enaycl. L. 1$1 note.

This exceptant certainly had such a claim, and therefore the court rightly maintained his standing as a litigant.

The order under review should be affirmed.

For affirmance — The Chief-Justice, Depue, Dixon, Garrison, Gummere, Lippincott, Magie, Reed, Yan Syokel,. Bogert, Brown, Sims — 11.

For reversal — None.


text:
    Woodbridge Strong & Sons v. Ezra F. Mundy
    1. In order to justify the exercise of the summary jurisdiction which a court possesses over the attorneys or solicitors practicing before it, their conduct must be dishonest, oppressive or clearly illegal.
    2. The statute regulating fees (Rev. p. 399) does not control the charges which attorneys, solicitors and counsel may make against their clients, nor do sections 79 and 113 of the Chancery act. Rev. p. 125 $ 1274-

    3. Attorneys and solicitors may lawfully charge their clients reasonable fees for services rendered, without an express contract for a specific sum.
    On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in Mundy v. Sohaniz, 7 Diok. Ch. Hep. 7^.

      Mr. Alan II. Strong, for the appellants.

      Mr. Charles II. Voorhis, for the respondent.
   The opinion of the court was delivered by

Dixon, J.

In August, 1893, one of the executors of Benajah Mundy employed Wood bridge Strong & Sons, solicitors in chancery, to foreclose a mortgage upon lands in Middlesex county. The solicitors made the requisite searches, instituted the suit and carried it on to completion, resulting in a sale of the premises to a second mortgagee, for $2,306.41. This amount being paid' to the solicitors, they retained the taxed costs and the further sum of $150, which they claimed as a collection fee and for their services in the matter not embraced in the taxed- costs. Thereupon, another of the executors filed a petition in the suit, praying that the chancellor would order the solicitors to pay over to him said sum of $150, on the ground that they had no right to more than the taxed costs. Such an order having been made, the solicitors appeal to this court.

Attorneys and solicitors are officers of the court, and there is no doubt of the authority of the court to proceed summarily against them for their misconduct. But the behavior which will justify the exercise of this summary jurisdiction must be ■ such as is dishonest or oppressive or clearly illegal. If it appear that there exists between a lawyer and his client a fair dispute, which can be decided only on the settlement of doubtful questions of fact or law, the court should not exercise its summary power, but should leave the parties to their ordinary remedies. Balsbaugh v. Frazer, 19 Pa. St. 95; In re Kennedy, 120 Pa. St. 497; In re Paschal, 10 Wall. 483; Burns v. Allen, 15 R. I. 32; Drapers’ Co. v. Davis, 2 Atk. 295; In re Blake, 3 El. & E. 34.

In the present case, nothing dishonest or oppressive is suggested, but the petition is based upon the idea that the charge is clearly illegal, because the statute regulating fees, together with sections 79 and 113 of the Chancery act, limits the charges which a solicitor may make against his client in a foreclosure suit, or, at least, no greater charge can be made without an express contract for a specific sum.

As to the statute regulating fees, we think the better opinion is that, with respect to attorneys, solicitors and counsel, who are at liberty to decline an employment to render the services there specified, it merely fixes the costs which can be taxed between party and party. Adams v. Stevens, 26 Wend. 451; Foster v. Jack, 4 Watts 334; In re Paschal, 10 Wall. 483. If this view had not prevailed in New Jersey, the various cases in . which our courts have held that solicitors, attorneys and coun- , selors might recover, by suit against their clients, greater compensation than the fee-bill awards, must have been otherwise decided, for the statute prohibits even the reception, for the services therein mentioned, of more than the fees thereto respectively aimexed. Rev. p. 339 § 2. I think it is within the experience of every member of the bar, that it has not been deemed ..illegal to receive from clients, for such services, fees in excess of those prescribed by the statute.

The distinction between costs taxable between party and party, and those taxable or allowable between attorney and ■client, is referred to in every text-book on English practice. The former are called costs de incremento, or costs of increase, .and had their origin in the statute of Gloucester (6 Edw. I.), while the office of attorney did not come into legal existence •until a later date, under the statute of Westminster II. (13 Edw. I.) The taxation of charges I y attorneys against their clients was regulated in England by several acts, the latest of which, •before our Revolution, was 2 Geo. II. c. 23 § 23.

The same distinction appears, I think, in our Practice act, sections 8, 9 and 10 dealing with costs of increase — those accruing on any suit, a bill of which must be filed with the clerk before execution issues — and section 12, which borrows its language from 2 Geo. II. c. 23 § 23, requiring an attorney or solicitor to serve a taxed bill of his fees, charges and disbursements upon his client before he can maintain a suit for the same. The “fees, charges and disbursements,” in section 12, cannot be limited to the “costs” mentioned in the previous sections.

Section 79 of the Chancery act was evidently not intended to control charges between solicitor and client, for it expressly provides for taxation only “in favor of-any party” to the action. It is, moreover, confined to the expenses incurred for searching the title of the mortgaged premises, and hence does not apply to other services.

Nor does section 113 of the Chancery act affect the case before us, for it merely enables the chancellor to allow for counsel such fee as he may deem just, “ instead of the retaining fee now allowed to counsel by statute.” As the retaining fee allowed by statute did not determine the charge which a counselor might make against his client, this fee allowed by the chancellor ■instead of the statutory fee cannot have that effect.

We find no statute which controls the matter.

With regard to the necessity of an express contract for at specific sum, that applies only to counsel fees for advocacy. Schomp v. Schenck, 11 Vr. 198; Hopper v. Ludlam, 12 Vr. 182; Woodruff v. Zabriskie, 19 Vr. 610. The claim of an attorney or solicitor is to be determined by its reasonableness, which in> English practice might always be settled by taxation, at the instance of either party on notice to the other (Anderson v. May, 2 B. & P. 237; 1 Arch. Prac. 104), and with us must be so settled, under section 12 of the Practice act, in case a suit is necessary for its recovery, but in other cases is left without statutory regulation.

We must therefore consider whether the charge made by the. appellants was so unreasonable as to be clearly illegal.

It is admitted that in the progress of the foreclosure they rendered various services for which the statutory fee-bill makes, no allowance, so that if this bill were treated as a standard of reasonableness so far as it goes, some further compensation would be legitimate. It is also proved that during a quarter of a century there has been in vogue, among the lawyers in New Brunswick (where the appellants and the executor who employed them reside), a schedule of fees, which would, if assented to by the client, clearly support the charge made. Whether thatr schedule was assented to, is a matter for inference only as the-evidence now stands. But neither in the petition nor by testimony, nor on the argument, did the petitioner set up that the-charge was exorbitant in amount, his sole contention being that no charge could legally be made.

Under these circumstances, we think the case is not one calling for the interposition of the summary power of the court.

Let the order appealed from be reversed, and the petition be-dismissed.

For reversal — The Chief-Justice, Dixon, Garrison, Lippincott, Mag-ie, Reed, Van Syckel, Bogert, Brown, Krueger, Sims, Smith — 12.

For affirmance — None.


author: The Chancellor.

text:
    Henry Van Giesen, surviving executor of the will of Henry White, deceased, v. Charlotte Goodman White et al.
    By his will H. gave the use of his estate to his wife for life, and added: “ I give and devise all the residue of my estate, after the decease 'of my said wife, and the payment of her debts and funeral expenses, to my son William’,. * * * or in case of his decease, before he shall come into possession of the game, then to his children lawfully begotten in wedlock, if any swrvive him. it * * In case of the death of fny said son William, leaving no children or other lineal descendants to inherit the said property, then I do hereby authorize and direct my executors to sell” &c., and pay the proceeds to a society for the poor &o. William survived the testator but died before the testator’s widow, leaving a lawful child, W. H., who, surviving his father five years, also died before the testator’s widow. — Held, that at the death of William the residue of the estate vested in W. Id. in fee.
    On bill for instruction to executor, answers and proofs.
    'William White died in 1866, seized of real estate situate in the city of Paterson. The portions of his will which are pertinent to the questions now presented are in this language:

      “Second. It is my will and I do direct that my beloved wife, Maria, shall use, occupy, possess and enjoy all the residue of my estate both real and personal whatsoever and wheresoever during her natural life.

      “Third. I give and devise all the residue of my estate, after the decease of my said wife and the payment of her debts and funeral expenses, to my son William now residing at Manchester in England, or in case of his death before he shall come into possession of the same, then to his children lawfully begotten in wedlock, if any survive him.

      “Fourth. I do hereby request and direct my executors, herein named, as soon as may be after the decease of my said wife, to notify my son aforesaid or his legal representatives of the same, giving him or them as particular account as practicable of the nature and amount of property remaining.

      “Fifth. In case of the death of my said son leaving child or children, minors, it is my will that the said property remain under the control of my executors until all such children shall arrive at twenty-one years of age, said executors to keep the same and the income thereof safely and productively invested for the benefit of said children share and share alike when they become of age.

      “Sixth. In case of the death of my said son, William, leaving no children of other lineal descendants to inherit the said property, then I do hereby authorize and direct my executors, after the decease of my wife, to sell to the best advantage all my real estate and to execute good and sufficient conveyances for the same and to pay over the proceeds thereof together with all the residue of my personal property then remaining in their hands to the trustees of the Eirst Presbyterian Society of Paterson to be by said trustees invested as a permanent fund for the relief of the poor of said Society and the interest of which shall be annually paid by said trustees to the Minister and Elders of said Society and by said Minister and Elders distributed in food, fuel and clothing at their discretion among the poor of said Society.”
    The testator’s widow died shortly before this suit was commenced. Her debts and funeral, expenses have been paid from the personal estate o’f her husband, and that estate is exhausted.

      The testator’s son, William, died in May, 1868, leaving him .surviving one child, William Henry White, who was a son “lawfully begotten in wedlock.” That son died in 1873, unmarried and intestate, but leaving him surviving his mother and some -collateral kindred, who are his heirs-at-law.
    The complainant brings this suit in order that he may know whether the duty of selling the testator’s real estate, in accordance with the direction of the sixth paragraph of the will, now devolves upon him.
    All known heirs-at-law of William White and William Henry White, including the mother of the latter, Charlotte Goodman White, and also the unknown heirs-at-law of William Henry White and, as well, the trustees of the First Presbyterian Society of Paterson, are made parties defendant.

      Mr. William Pennington, for the complainant.

      Mr. John W. Griggs and Mr. William Nelson, for the trustees ■of the First Presbyterian Society &c.

      Mr. John 8. Barhaloio, for Charlotte Goodman White and 'Thomas White Taylor.
   The Chancellor.

The trustees of the First Presbyterian Society of Paterson insist that the complainant shall sell the real estate of which Henry White died seized, under the requirement of the sixth paragraph of his will, and, on the other hand, the defendants, Charlotte Goodman White and Thomas White Taylor, claim that, under the will, William Henry White, of whom they are heirs-at-law, took the real estate in fee. In view of these conflicting claims, and the duties imposed upon the complainant by the will, I think he was justified in bringing this suit.

In order that he may be properly instructed, it will be neces.sary to examine and construe portions of the will of Henry, White.

j It is not questioned that the testator gave his widow-a life-estate in his realty. The remainder, given to his son, was contingent upon the failure of the son to come into possession. If that contingency should happen, his children, born in lawful wedlock, if they should survive him, were to take. William, died before the testator’s widow, and therefore did not come into the possession of the property. His son, William Henry White, survived him some five years, but also died before he came into-possession of the property. It is not insisted that the requisite-to his father’s taking, namely, living till he should come into possession, is, by any implication, engrafted upon the deyise to-William Henry. It is admitted that the contrary is the settled doctrine in this state. Acken v. Osborn, 18 Stew. Eq. 377; S. C. on appeal, 1 Dick. Ch. Rep. 607; Crane v. Bolles, 4 Dick. Ch. Rep. 373.

The trustees of the First Presbyterian Society rest their claim upon the insistment that it was the intention of the testator to limit the devolution of title in his property to his direct heirs,, and, in the case of the failure of such heirs, to have it sold for the benefit of the society. The argument is that such intention is. sufficiently manifested by the testator’s express limitation of the remainder to William’s children “ lawfully begotten in wed-.lock,” and by the condition upon which the society is to take, which is the death of William, leaving no children or other-lineal descendants to inherit the said property.” The insistment can derive little support from the first of these clauses taken by itself, for the manifest purpose of that clause was to limit the-devolution of title to legitimate children of the testator’s son and exclude‘illegitimate children, not for the benefit of lineal descendants, but impliedly to prefer lawful kindred, even though collateral. The more serious consideration is presented by the-second clause, especially when it is taken in connection with the clause just commented upon. It manifests a preference for the Presbyterian society over collateral kindred. If William should die leaving no children — impliedly children of the character previously referred to, “ begotten in lawful wedlock,” or other lineal descendants, the issue of children — the property •shall go to the society. I think that the desire to limit the devolution to lineal descendants, thus exhibited, is clear. But testamentary intent is the purpose to render effective the testator’s preference or desire and consists of something more than the mere desire. The testator’s preference of the Presbyterian society over his collateral kindred, though apparent, is not alone sufficient to give direction to the property. It must be supported by the appearance of a - purpose that the preference shall have effect. Does such purpose appear ? The testator provided •■that if William should die before coming into possession, his’ lawful children should take in his stead, and,if he should! die -without leaving such children, or the issue of deceased children, before coming into possession, the property, at the expiration of the life estate, should be sold by the executors for the benefit •of the society. However strong his desire may have been to prefer the church to collateral. kindred, he did not attempt to provide for the execution of that desire beyond the. time when Tiis son should die prior to his coming into possession. He meant that if his son should come into possession he would take a fee even though immediately thereafter he should die without lawful issue, and, if the son should die before coming into possession, that the son’s lawful children should, at the son’s death, take the fee whatever future events might be. But if, at the time of the son’s death, there should be no children of the son or their issue, then the right of the society would attach subject to the life estate. Each contemplated contingency was to hinge upon -the death of William and relate to that time. Ho attempt was made ■ to control the estate after that, event. The testamentary purpose, with reference to the,estate, then ceased. • •. ,‘

The real estate belongs, to the heirs-at-law of Williám Henry White, and the complainant has no further duty to perform with reference to it. - • • • - ■ • . .

By the fourth paragraph of the will,- the testator imposed upon his,executors.the duty of notifying his son, or “the legal representatives ” of the son,' of the death.'of the. testator’s wjdow^ At the widow’s death the son was' dead, and, ifi turn, his son was dead, and the perfpmance of the prescribeckduty.pf potification involved the ascertainment of the heirs-at-law of the grandson, they being “the representatives” so far as real estate is concerned. Under instructions from this court the executor performed that duty and necessarily expended in his inquiries,, in this country and in England, $242.10. The notice was' given through actual and constructive service of process in this suit.. The bill asks that the disbursement thus made may be charged upon the real estate, there being no personalty. It is properly so chargeable, and the prayer in this respect will be granted. The parties to the suit will be allowed their costs, to be paid out of the real estate.


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    Anna R. Ashton et al. v. George Wilkinson et al., executors of the will of John P. Wakeman, deceased.
    1. Interest upon a legacy commences to run when payment of the legacy isdemandable.
    2. When no time is fixed in the will for the payment of a legacy, it is demandable one year after the death of the testator.
    3. If a legacy be payable after the happening of a contingency, it is demandable when the contingency happens, after a year from the testator’s death.
    4. W., by his will, directed that his wife should have power, by her will, to-appoint the distribution of a certain sum from his estate. The wife survived W. three years, and then died, leaving a will by which she appointed the-distribution of the sum provided by his will. — Held that, the will of W. not having fixed a time for the payment of the sum, the payment was demandableby the wife’s appointees immediately after the probate of her will.
    In partition. On application for the payment of interest on-legacies charged upon the land.

      Mr. George Holmes, with whom was Mr. Joseph A. Flannery (of New York), for the legatees.

      Mr. Ribhard Wayne Parker, for the éxecutors.
   The Chancellor.

John P. "Wakeman died in December, 1891. In his will, admitted to probate in the same month, after directing the payment of his debts and funeral expenses, appointing executors and giving them power to sell his real estate, and giving the income of the entire estate to his wife for her life, he conferred this authority upon his wife:

“ I hereby also authorize my said wife to convey by will in such manner and for such purpose as she may deem best the sum of fifty thousand dollars of my estate, which sum of fifty thousand dollars is in lieu of dower.”

Then he disposed of the residue of his estate to others.

These provisions he declared to be in lieu of dower.

Then he proceeded:

"Fifth. The amount which my said will authorized my wife to convey by her will is hereby reduced from fifty thousand dollars to thirty thousand dollars.”

Then he gave and bequeathed eleven legacies, aggregating $13,000, to be paid “ without interest, within one year after the decease of my wife,” and made disposition of the residue of his estate to a number of persons named, share and share alike.

Mrs. Wakeman died on the 3d of April, 1894. By,her will, admitted to probate in the same month, she exercised the power given to her to appoint distributees of $30,000 of her husband’s estate, dividing the fund into several portions.

She never had possession of the $30,000, and expressly styled Jier appointments of it as out of her husband’s estate.

The appointees now claim that they are entitled to be1 paid interest upon the sums .appointed to them respectively, from the date of the perfected appointment, that is, the probate of Mrs. Wakeman’s will.

In behalf of the takers of the residue of the estate of Mr. Wakeman, it is argued that the intent of Mr. Wakeman that all legacies out of his estate paid within, a year from the death of his wife should b.e paid without interest, is manifested in his will. Their reliance is upon the provision for the payment of the eleven legacies within a year from his wife’s death, without interest, the argument being that such provision indicates a purpose to give his executors time to realize from the investments made to serve his wife’s life estate before any distribution.

I think the provision demonstrates that the testator took into .consideration the. ability of his estate to presently, upon the probate of his wife’s will, meet the demands he had created against it, and, in order to relieve it, postponed the payment of the eleven legacies, and, by implication, the distribution of the residue. But I cannot infer from this provision that he postponed the demands which the exercise of the power conferred’ upon his wife would occasion. The very fact of his expressly defining a postponement, after consideration of the convenience of his estate, appears to exclude any but the clearest implication of other postponement, for we should assume that when he dealt with the subject of postponement he went as far as he intended to go. Indeed, for aught that appears to the contrary,, it may have been his intention to so provide that all demands should not come upon the executors at once. He may have thought that they could quickly realize from assets and pay the $30,000 .to be given by his wife, and then, within the year, provide for the $13,000 he gave in pecuniary legacies, and later, after .accounting, distribute the residue. '

The general rule is that interest commences to run when the legacy is demandable. Executors have a year after their testator’s death to ascertain and. collect the assets and make payment Of general legacies, for the payment, of which n.o time is fixed in the will. After that year the legacy is demandable, andj 'according to the general rule, interest then commences to run. Wms. Ex. 1424; 2 Redf. Wills 466. If the legacy.be payable after the happening of a contingency, such as the death of a tenant for life, it is demandable when the contingency happens after a year from the testator’s, death, Laundy v. Williams, 2 P. Wms. 481; Bonham v. Bonham, 11 Stew. Eq. 419 ; Miller v. Philip, 5 Paige 573.

In the application' of these rules to the present case, my. attention has been arrested by the decision in Tatham v. Drummond, 2 Hemm, & M. 262, where there was a fund held by trustees under a marriage settlement, subject to' thé wife’s power of appointment; by will upon, the happening'of a certain contingency, in which it was held that the rule that interest -did not"fun .upon legacies until the expiration of one year from the death of the testatrix, applied to the legacies she appointed out of the trust fund. It is suggested that the $30,000, over which Mrs. "Wake-man had the power of appointment, was situated similarly to this trust fund, and that, as in Tatham v. Drummond, a year from the death of the wife was allowed to the trustees, so here a year should be allowed to the executors of Mr. Wakeman from the death of Mrs. Wakeman.

I think that case is distinguishable from this in the fact that there the question was as to the application of the rule that a year should be allowed for the payment, while here the question really is, not as to the application of that rule, but whether there shall be an addition .to it in the allowance of a second year.

There the trust fund, in substance, stood1 as the wife’s own property, the trust being the means by which it was held foi her; and the court considered that the existence of. the trust should not defeat the application of. the rule that one year is allowed for the payment of legacies, although. the reason supporting the rule might not apply in its full vigor. ■ .

In the present case, the will of Mr. Wakeman contemplated a fund of $30,000, which was to yield income during'the wife’s life and be ready against the uncertainty aft the time .of her death and the contingency of her appointing its payment. Because, as strong reason for granting a year after the wife’s death, as existed in Tatham v. Drummond, to justify the application of-thq riile that year is to be allowed, appeals, It is urged another year should be given in this case. Mr. Wakeman-s executors have already had the benefit of the rule applied in Tatham v. Drummond. More than a year has elapsed since his death, and all that time they have been facing the present emergency. Shall they be allowed a second year? As has been seen, it is not the rule to allow a second year where the legacy is payable upon the happening of a contingency. I do not find either authority or sufficient reason to justify such an allowance.

The appointees should receive interest upon the sums appointed to them respectively, from the date of the probate of Mrs. Wakeman’s will to the dates of the payments of those several sums.


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    H. Heyward Isham v. Louis F. Therasson et al.
    1. W., the holder of a mortgage np.on the lands of T., delivered to T. a writen memorandum as follows': “I agree with you to assign your * * * mortgage *' * * to any party you may desire, in consideration of receiving from you or them the sum of $250. * * * I do this in consideration of the taxes, assessments and charges you have already paid and now due on the property.”
    2. The administrator of W. repeatedly called upon T. to pay the $250 and take an assignment of the mortgage. T. expressed a willingness to do so, but failed to produce the money.' After T. had had ample opportunity to pay the money and take the assignment, the administrator assigned the mortgage to I., who brought suit to foreclose it. Thereupon T. tendered I. $250 and demanded. an assignment of the mortgage. — Held, that the memorandum, regarded as a promise to assign, was not supported by valuable consideration, and that, regarded as an offer to assign, it was so conditioned that the only binding acceptance of the offer was the payment or tender of the $250, and that,, as the offer was voluntary, it could be withdrawn at any time before acceptance as .aforesaid.
    On bill to foreclose mortgage, answer, replication and proofs.

      On the 2d day of April, 1855, Louis F. Therasson, who is a lawyer in the city of New York, in order to secure the payment of part of the purchase-money for certain lands in the city of Elizabeth, which'Job Winans then conveyed to him, delivered to Winans his bond for $1,275, payable in two years, secured by a mortgage on the lands conveyed. Job Winans died in August, 1872, leaving a will by which, among other things, he bequeathed the Therasson bond and mortgage to his son, Job-M. Winans.
    The taxes upon the mortgaged premises were paid to October,. 1875. Thereafter, neither taxes, assessments nor interest were-paid. On the 13th of October, 1891, Job M. Winans delivered to Therasson the following memorandum in writing:
    “New York, October 13,1891.

      “ L. F. Therasson,

      “Dear Sir:—
    “ I agree -with, you to assign your bond and mortgage for §1,275 and int. due-&c., given by you to the late Job Winans and now held by me, to any party you may desire, in consideration of receiving from you or them the sum of §250. I will execute such an assignment of said bond and mortgage as you may desire for the amount due and interest. I do this in consideration of the-taxes, assessments and charges you have already paid and now due on the-property.
    “ Yours &c.,
    “Job M. Winans.”
    With this memorandum, the bond and mortgage were confided to Therasson, so that he might the more readily negotiate-their sale, he agreeing to return them upon demand.
    Job M. Winans died intestate on the 4th day of November,. 1891, and in the same month, letters of administration of his estate were issued to his son, Job Irving Winans. On the-24th of the same month, the administrator, not knowing of his father’s memorandum, offered the bond and mortgage to Therasson for $200. This offer, as the answer states, was left open for a time, to enable Therasson to examine the title of the administrator to make an assignment of the bond and mortgage. Therasson, however, failed to act in the matter, and in January,. 1892, the administrator, by a messenger, demanded the return. •of the bond and mortgage. Therasson refused to. deliver; it up, A few days later, the-administrator made personal demand for the papers and was put off. Still later, he again called on Therasson, who promised that, on Monday, the 10th of . February, he would take the assignment and pay the $200. When the 10th of February arrived, Therasson failed to meet the administrator, as arranged, and the next day, by letter, excused his failure to appear by an allegation of illness, expressing his belief that he would have some one take the assignment on the following Monday. To'this latter,'the administrator replied that he had made arrangements for the transfer of the mortgage to other parties. . . '
    On the 15th of February, 1892, Therasson first apprised the administrator of the existence of the memorandum of Job M, Winaus, and notified him that he had a party ready to take the assignment and pay the $250 contemplated in that memorandum, and asked that he be notified when the assignment would be ready. The administrator asked to see the memorandum, and, after some delay, was allowed to take a copy of it. Upon being satisfied that it was his father’s promise, he declared that he' “ would have to ” carry it out, and later, on March 9th, he wrote to Therasson that he would attend at Therasson’s office on the 14th of that month, at an hour named, to make the assignment, and notified Therasson that the matter must then be consummated or'he would be obliged to make arrangements, with other parties. ■ To this communication Therasson replied on the 12th of March, pleading engagements for the 14th, and prom-; ising that, during the following week, he would examine the ■administrator’s title and arrange with the administrator’s lawyer to close the matter. After waiting until the 22d. of March, without hearing from Therasson, the administrator assigned. the' mortgage to the complainant. ■ - .;.■• '• ■
    The defence to the complainant’s .suit to foreclose is, .that the-■complainant bought the mortgage with notice of the memorandum •of August 13th, 1891, 'and that Therasson has tendered‘.him* ■$250, and the form of an assignment of the mortgage ,to,L,¡ Francis Therasson, Jr., and • demanded 'that; he take the.. Ino'ney;'. and execute and-deliver an assignment in'performance of th& agreement contained in that memorandum.

      Mr. Patrick TI. Gilhooly, for the complainant.

      Mr. William D. Tyndall, for the defendants.
   The Chancellor.

The questions presented by the defence are — -first, whether, regarding the memorandum of October 13th, 1891, as a promise-to assign, it is supported by valuable consideration so as to be binding; and second, whether, regarding it as a mere voluntary offer to assign, it was so accepted as to be binding.

The memorandum purports to have been made in consideration of previous payments; by Mr. Therasson, of taxes c. charged on the mortgaged premises, and of the fact that at the-making of the memorandum, there existed unpaid taxes encumbering the property. To constitute a valuable consideration, which will render a promise enforceable, the promisor must thereby acquire some benefit or advantage, and the promisee, or some one for him, must, in consequence of the promise, surrender some-right or suffer loss or disadvantage. Conover v. Stillwell, 5 Vr. 54. A mere promise to relinquish part of a debt, or, which is-the same thing, to take part in discharge, or for an assignment, of the whole, is nudum pactum and without legal obligation. Day v. Gardner, 15 Stew. Eq. 199, 201; Tulane v. Clifton, 2 Dick. Ch. Rep. 351; S. C. on appeal, 3 Dick. Ch. Rep. 310.

Mr, Winans did not reap any benefit or advantage from his-promise, nor did Mr. Therasson • suffer any disadvantage or loss-because of it. Mr. Therasson did not pay .the taxes and assessments in reliance upon the promise, nor did he suffer taxation because of it. The reference in the memorandum to Mr. Therasson’s payment of taxes and assessments, as the consideration for his promise to assign upon being paid $250, was not reference to a valuable legal consideration, but merely to matter of sympathetic inducement, as though the promisee had said—

“You have been burdened with the payment of taxes and assessments and the mortgaged lands are yet charged with taxes and assessments which have not been paid; therefore, when you pay me 5250,1 will assign my mortgage to you or to another whom you may procure to take it,”

The promise thus made was clearly voluntary and incapable of enforcement, prior to the payment or tender of the $250. Regarding the memorandum in the light of an offer to assign -the mortgage, it is noticed that it is conditioned upon the receipt of $250. Its language, divesting it of superfluous words, is: “ I agree * * * to assign * * * in consideration of receiving * * * the sum of $250.” The only effective .acceptance of such an offer was the payment or tender of the -$250. Prior to that payment, or the legal tender of the payment — which itself would furnish valuable consideration, Cutting v. Dana, 10 C. E. Gr. 265 — the whole matter rested in mere voluntary promise or offer, which was revokable at the pleasure of the promisor or his legal representatives. Houghwout v. Boisaubin, 3 C. E. Gr. 315.

It is clear that, after affording Mr. Therasson ample opportunity to avail himself of the offer by a proper acceptance, the .administrator of Mr. Winans withdrew it.

Upon this consideration, I conclude that the complainant is •entitled to a decree.

It appears that the successive holders of the mortgage have, at times, been in possession of the mortgaged premises upon an .agreement that the value of their possession should be credited upon accruing interest, therefore it should be referred to a master to take an account upon the amount due upon the mortgage, ■allowing credit for the value of such possession.