text:
    Joseph C. Potts v. Alexander H. Arnow and others.
    R., in conveying to A. a vacant lot, of fifty feet, fronting on Hanover street, Trenton» described it in the deed as commencing 225 feet east from the corner of Montgomery street; and A., on the same day, gave a mortgage to R. on the lot by the same description. Afterwards, R. conveyed to C. a vacant lot of fifty feet, fronting on Hanover street, described in the deed as commencing 250 feet east from the corner of Montgomery street; thus oonveying to C. twenty-five feet of the fifty feet he had before conveyed to A. C. afterwards conveyed the western half of the lot described in the deed to him to McK., and McK. built a house on it; A. living in Trenton, and being aware that McK. was building on the said western half, and both supposing that A.’s lot of fifty feet lay west of the twenty-five”feet on which McK. was building. R. owned another vacant lot, of twenty-five feet, commencing 200 feet from the corner of Montgomery street, at the time of his said conveyance to A., and continued to own it at the time of the decision of the cause. A., after R.’s deed to him, gave to L. a mortgage on his lot, by the same description by which it was conveyed to him; which mortgage was assigned to J. O. P., the complainant, who exhibited his bill for foreclosure thereon, making R., the first mortgagee, a defendant. The testimony showed that the mistake was in the deed to A., and that A. intended to buy, and R. intended to convey to A. the two most westerly lots of R., of twenty-five feet each; and R., after the discovery of the mistake, had offered to correct it by conveying to A. his most westerly lot of twenty-five feet. The Chancellor directed that R.’s most westerly lot, commencing 200 feet east of Montgomery ptreet, be sold, and that R. give a deed for it to the purchaser; and that the next lot east of it, of twenty-five feet, be also sold, under the mortgage held by the complainant; and that the proceeds of both lots be applied to pay the mortgages,'in their order.
    . The facts of the case are stated in the opinion delivered by the Chancellor.

      Joseph C. Potts, pro se.

      P. D. Vroom for the defendant McKelway.
   The Chancellor.

On the 22d of November, 1839, Redmond and wife conveyed to Arnow, for $1000, a lot in Trenton, described as beginning on the north side of Hanover street, 225 feet east from the corner of Montgomery street; thence easterly along Hanover street, 50 feet, &c.

On the same day, Arnow gave Redmond a mortgage on the said lot by the,same description, for $425.

On the 14th of December, 1841, Arnow gave to Samuel Loyd a mortgage for $500 on the said lot by the same description. On the 10th of March, 1843, this mortgage was assigned to Joseph C. Potts, the complainant, who has filed a bill of foreclosure thereon.

On the 10th of January, 1840, Redmond and wife conveyed to William G. Cook, for $1,000, a lot in Trenton, beginning on the north side of Hanover street, at a point 250 feet east from the corner of Montgomery street, thence running eastwardly along Hanover street, 50 feet, &c.; thus conveying to Cook 25 feet of the 50 feet which he had before conveyed to Arnow. This deed from Redmond and wife to Cook contained full covenants. Cook conveyed to Grant 50 feet by the same description as in the deed from Redmond and wife to Cook. Grant then conveyed the western half of the said 50 feet; and this western half came, by mesne conveyances, to McKelway; the deed to him bearing date October 23, 1843. The description in the deed to McKelway is as follows: “ all that certain lot in Trenton, (being 250 feet east of Montgomery street,) in width 25 feet, on the northerly side of Hanover street, &c., lying between a lot of Alexander H. Arnow, on the west side thereof, and a lot of William Grant, on the east side thereof; showing that it was still supposed that Arnow’s 50 feet lay west of the 25 feet conveyed to McKelway; for if Arnow’s lot runs 50 east from a point 225 feet east from the corner of Montgomery street, then the deed from Redmond to Cook for 50 feet, commencing at a point 250 (feet east from Montgomery street, would only convey to Cook 25 feet, if the description in the deed to Arnow is to be adhered to.

McKelway built a house on the lot described or supposed to be described in the deed to him; and, on the 12th of July, 1844, gave a mortgage on said lot to Samuel B. How, for $1,100.

On the 25th of January, 1840, Robert F. Stockton, by a deed of release, reciting that Redmond and his wife, by mortgage dated September 15, 1835, had mortgaged, for $11,000, to Stockton, certain lands of which the lands described in the release was a part, released to Redmond all that part of the mortgaged premises commencing on the north side of Hanover street, at a point 50 feet east of the corner of Montgomery street, and running thence easterly, along Hanover street, 250 feet, thence, &c. The release says it was made at Redmond’s request.

This gives 300 feet from the corner of Montgomery street, and this land was no doubt released to that point for the reason, that Redmond had sold to that point. The deed from Redmond to Cook commences 250 feet east of Montgomery street, and runs 50 feet east of that starting point, L e., up to 300 feet east of Montgomery street.

The title to the lot of 25 feet, commencing at a point 200 feet east of Montgomery street, being a part of the premises conveyed by Stockton to Redmond, and mortgaged by Redmond to Stockton, and released by the said deed of release, is still in Redmond ; i. e., the description in the deed from Redmond to Arnow does not cover it; and Redmond has never conveyed it to any other person.

There can be no doubt that Redmond intended to convey to Arnow, and supposed he conveyed to him, the 50 feet west of the 50 feet he conveyed to Cook ,* and the fact that McKelway was permitted to build on the lot he bought shows, that Arnow, who lived in Trenton, supposed he had bought the 50 feet west of the lot on which McKelway built. All the lots were in common, and if there was any difference in the value, the probability is, that the more westerly the lot was situated the more valuable it was, the city lying west of the lots.

The whole difficulty, I have no doubt, has grown out of a misdescription in the deed from Redmond to Arnow. And I see no way of getting through the case satisfactorily but by reforming that deed, or doing something equivalent to it.

I think the Court should direct the 25 feet lot commencing at 200 feet east from Montgomery street to be sold, and that Redmond give a deed for it to the purchaser, and that the next lot east of it, of 25 feet, be also sold, under the mortgage from Arnow, now held by the complainant in this case, and that the proceeds of these two lots be applied to pay the mortgages in their order.

This will make every thing right. To attempt to get through leaving the first error uncorrected will make every thing wrong.

If the pleadings are not in a shape to enable the Court to give relief in the way suggested, there should be a cross bill filed.

Suppose the case to be simply this: By mistake McKelway built a house on Arnow’s lot, McKelway having bought and got a deed for the lot he built on, and Arnow standing by, and both supposing that Arnow’s lot was not the lot built on, but the lot next to it, should Arnow, in equity, have the house 1

Should not McKelway be permitted to take the house off the lot 1 If so, this determines in his favor the question involved. The equity does not depend on the greater or less facility with which the house could be removed.

The question whether the mistake was in the first deed is the same as if the second deed had not been given. The fact that the second deed was for two lots, one of which was covered by a former deed, does not prove that the mistake was in the second deed and not in the first.

I think there is enough in the case to show that the mistake was in the first deed without the testimony of Redmond.

If Arnow had accepted the deed which Redmond prepared and tendered to him, for lots 82 and 33, instead of lots 33 and 34, after the mistake was discovered, all would have been right. He ought to have done so.

All further directions, or the consideration whether any further directions are necessary, may be reserved.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Charles Hoyt v. Calvin Howell.
    K. S. died intestate, leaving a widow and four daughters, three of whom were married^ the complainant being the husband of one; and leaving a farm. The married ¡f daughters, with their husbands and the single daughter, conveyed the farm to J. B. for $6,750, with covenants by the husbands and the single daughter of seizin, and against incumbrances, except a decree of the Orphans’ Court authorizing the administrator of the intestate, the defendant, to sell lands to pay debts, and of warranty. J. B. paid the consideration money for the farm, and the three husbands and the single daughter, each, deposited one-third of their respective shares of said consideration money in the hands of the defendant, in trust to pay the widow the interest thereof during her life, and after her death to repay the same to the persons who so deposited the same, or their legal representatives; and thereupon the widow executed to J. B. a release of her dower in the said farm; and the defendant, being the administrator of the intestate, by writing under seal, acknowledged that, with assets he had received and should receive, all the debts would be satisfied, and ex" onerated the lands so conveyed to J. B. from the operation of the said decree of the Orphans’ Court. Afterwards, the single daughter died, and by her will gave to the wife of the complainant her share of the said moneys deposited as aforesaid, on the death of the widow; and appointed the complainant executor of her will. Afterwards, the wife of the complainant died, and administration of her estate was granted to the complainant. The widow afterwards died. The complainant, in his own right, exhibited his bill against the defendant, for the proportion of the said money deposited with the defendant which belonged to the said single daughter in her litetime, and also for the proportion thereof belonging to the complainant, divided to him during the coverture as husband of his said deceased wife, and deposited by him with ¡the defendant.
    On demurrer, it was held, that the complainant might come into this Court, in his individual right, to recover the money so deposited by him with the defendant. But that he could not sue in his own right for the money so given to his wife by the will of the single daughter, of which he was executor: that for this claim he could sue only as such executor.
    Charles Hoyt exhibited his bill, stating that, in 1832, Ralph Smith died, intestate, seized of the lands described in the bill, leaving a 'widow, Susan P. Smith, and four daughters, to wit, Eleanor P. Lewis, wife of James Lewis, Jr., Adelia Smith, Anna Maria Hoyt, wife of Charles Hoyt, the complainant, and Charlotte S. Bradner, wife of William B. Bradner. The property described in the bill consisted of the homestead farm of the intestate, containing 149 1-2 acres, a lot adjoining it on the east, containing 21 acres, and a lot adjoining it on the west, containing 23 acres.
    That on the 30th of March, 1835, the said James Lewis and Eleanor P., his wife, the complainant, Charles Hoyt, and Anna Maria, his wife, William B. Bradner, and Charlotte S., his wife, and Adelia Smith, for $6,750 to them in hand paid by one Joseph Booth, by a certain indenture &c., bargained, sold and conveyed to the said Booth, his heirs and assigns forever, the said three tracts of land. That in and by said deed the said James Lewis, Jr., Adelia Smith, Charles Hoyt and William B. Bradner covenanted with the said Booth, his heirs, &c., that the said Lewis and wife, Adelia Smith, Hoyt and wife and Bradner and wife were the lawful owners of said lands, the said Eleanor, Adelia, Anna Maria and Charlotte having inherited the same from their father, Ralph Smith, deceased; and the said James, Adelia, Charles and William did thereby covenant to and with the said Booth, his heirs &e., that the said tracts or either of them were not encumbered by any right of dower, save that of said Susan, widow as aforesaid, nor by any judgment or decree of any Court, save a decree of the Orphans’ Court of Morris county, authorizing the administrator of said intestate to sell land to pay debts, nor by any recognizance, limitation or condition whatever ; that the said Eleanor, Adelia, Anna Maria and Charlotte were, up to the timo of said conveyance, seized, &c., in fee; and that the said James, Eleanor, Adelia, Charles, Anna Maria, William and Charlotte had good right to convoy; and that [the said James, Adelia, Charles and William, their heirs &e., would warrant &c.
    That after the execution of the said deed, to wit, on the 30th of March, 1835, the deed was acknowledged &c.
    That the said Susan, widow as aforesaid, in consideration of the yearly value of her dower in the premses being secured to her and paid to her as in the bill after mentioned, did, on the 2d of April, 1835, by deed reciting the consideration of $1 to he to her paid therefor, and written under the deed aforesaid, remise, release and forever quitclaim, unto the said Booth, his heirs &e., all dower and claim of dower in said premises; which deed of release was duly acknowledged and recorded on the same ■day of its date.
    That, on the same 2d of April, Calvin Howell, the defendant, who was then sole administrator of &e. of said Ralph Smith, deceased, did, by his deed, acknowledge and make known to all &c., that, with the assets belonging to the estate of his said intestate then in his- hands, together with what assets he had had, and with what funds he had received and would receive through the hands of the heirs of said intestate, all the debts of said intestate, so far as he had been able to ascertain the same, would be fully satisfied; and he did thereby, so far as in him lay as administrator as aforesaid, exonerate and discharge all the said lands described in said deed to said Booth from the operation of a certain decree of the Orphans’ Court of Morris county, obtained by him for the sale of certain lands of said intestate to pay debts ; which said deed or writing under seal was acknowledged on the day of the date thereof. And that all the ■said three deeds were recorded on the 11th of April 1885.
    That at the time of the delivery of the said deed of conveyance to Booth the whole of the said consideration money of $6,750 was paid by the said Booth, and received by the said Adelia 'Smith and the said James Lewis Jr., William Bradner and the complainant, in right of their respective wives, to be divided ■equally between them, share and share alike; and that two third parts of the share of each, according to said proportion and division, were by the said Adelia Smith, James Lewis, Jr., William B. Bradner and the complainant, appropriated and applied to their own use ; and that they, the said Adelia Smith, James Lewis, Jr., William B. Bradner, and this complainant, in consideration of the release of dower by the said Susan as aforesaid, and in order to secure for her, during her naturnal life, the •yearly value of her said dower, did each deposit one third part of their respective shares of the said purchase money paid by Booth, to wit, $562.50 each, in the hands of said Calvin Howell, upon the trust and confidence that the said Calvin should and would, from time to time, pay to the said Susan the yearly interest thereof, for and during her naturnal life, and after her ■death to repay the same unto them the said persons so depositing the same with him, or their legal representatives; to which arrangement and deposit the said Susan agreed and accepted the said arrangement in lieu of her right of dower, and thereby, on the said 2d of April, 1835, the said Calvin Howell became pos- ' sessed of the one-third of the said consideration money paid as aforesaid by said Booth, in trust to pay the yearly interest thereof to the said Susan during her life, and at her death to divide the same equally between the said persons who deposited the same with him, or their legal representatives.
    That on the 1st of June, 1837, the said Adelia died, having never married, leaving a will which was proved on the 16th of •of June, 1837, by which, among other bequests, she gave to her sister, Anna Maria Hoyt, all her proportion, part or share, (being one-fourth,) of the said monies remaining and being in the hands of Calvin Howell during the natural life of her mother, the said Susan, and appointed Charles Hoyt executor thereof. And that on the 16th of June, 1837, the complainant proved the said will, and received letters testamentary thereon. That afterwards, on the 24th of May, 1839, his wife, j;he said Ann Maria Hoyt died, intestate, and letters of administration of her personal estate were granted to this complainant in 1847.
    That the said Susan, widow as aforesaid, died April 28, 1844, whereby this complainant hath become entitled to demand and have, of and from said Calvin Howell, payment unto him, of the proportion of the said money, which belonged in her lifetime to the said Adelia, and also of the proportion of said money belonging to him, the complainant, to him divided during the coverture, as husband of the said Ann Maria Hoyt, deceased, and deposited by him with the said Calvin Howell, making together $1135, with lawful interest from the death of said Susan.
    The bill prays, that the defendant may be declared and decreed to bo trustee of the said sums of money so deposited with him by the said Adelia Smith and this complainant, derived from the sale of the said lands and premises, for the benefit of the complainant, and that an account may be taken of the said moneys which the complainant, as aforesaid, claims; and that the said Calvin Howell, the defendant, may be decreed to pay to the complainant such amount of principal and interest as shall, on such account, appear to be due, after deducting all just claims and demands of the said Calvin Howell as such trustee; and for such other and further relief &c.
    To this bill a demurrer was filed, assigning the following causes of demurrer:
    1st. That it appears by the bill, that the shares of the proceeds of the sale of the land alleged to have been placed in the hands of the defendant by Adelia Smith and by the complainant, to secure to the widow a sum equal to the value of her dower, and which share of said Adelia was by her devised to the wife of the complainant, is to be considered as real estate, and as •such descends to the heirs of the said wife of the complainant, and not to her husband as administrator of his wife 5 and that the agreement, in said bill stated, that 'the fund alleged to have been placed in the hands of the defendant was, on the death of Said widow, to be paid to Adelia Smith, Charles Hoyt, the complainant, and others, being an agreement in derogation of the C. L., and not in writing, is void.
    2d. That said bill joins distinct and separate matters together, in that the complainant claims the share of Adelia Smith, which cannot accrue to him in any other right than as the executor of her will, and in the same bill claims the share of his wife, which can accrue to him in no other right than as the administrator of his wife, or in some other right than as the executor of Adelia Smith; and in that the complainant, if he joined these two distinct matters because the fund out of which they are to be paid is the same, has omitted to make William B. Bradner and James Lewis, Jr., parties, though they appear by the bill to be equally interested in the said fund.
    3d. That the bill is filed in the individual right of the complainant, while it appears by the bill that he has in that right no interest in the said fund.
    4th. That the complainant appears by the said' bill to have had a full and complete remedy at law. 5th, Thai the bill shows no sufficient matter of equity, &c.

      F. T. Frelinghuysen

    in support of the demurrer. He cited 2 Story’s Eq. Jur. sec. 793; 1 Green's Ch. 30; 1 Bro. Ch. 497; 1 Williams on Executors, 415; Story on Plead, sec. 271, 284.

      C. Parker, contra.
    He cited Cowp. 795, 7; 2 Tenn. Rep. 370; Wille’s Rep. 405; 7 John. Ch. 110, 115; 1 Green’s Ch. 209; 2 Ib. 85; Penn. Rep. 558; 2 Burr. 177; 2 Tenn. Rep. 477; 1 Williams’ Executors, 569; 2 Com. Dig. 209; 2 Conn. Rep. 144, 564; 2 U. S. & Dig. 502; 12 Pick. 173, 5; 14 Ib. 352; 6 John. Rep. 112; 1 East. 432; 8 Mass. Rep. 219; 2 Vern. 302; 10 Simon’s Rep. 254; 7 Ib 564; Story’s Eq. Pl. sec. 271, 278; 1 Myln & Craig, 616 to 626; Mitf. Pl. 181, 2.
   The Chancellor.

The first cause of demurrer assigned is not good. By the sale, the lands were converted into money. The case stated in the bill is, that the husbands received the whole money for the share of their respective wives, and that the husbands deposited with the defendant such portions of the money as, with a like portion deposited with the defendant by Adelia Smith, an unmarried daughter of the intestate, made a sum the interest of which would bo equal to the yearly value of the dower of the widow of the intestate; which interest was to be paid by the defendant to the said widow; and on her death the sums so deposited with, the defendant were to be paid by him to the persons depositing the same.

By this statement the money deposited was the money of the husbands ; and the case is the same as if they had deposited money received by them from any other source.

From this view it follows, that the complainant may sue in his individual right, to recover from the defendant, on the death of the widow, the money deposited by him with the defendant.

This disposes of tho third cause of demurrer also.

1 am also of opinion that the case stated in the bill is a case for relief in this Court. This disposes of the 4th and 5th causes of demurrer assigned.

The 2d cause of demurrer assigned is good.

Adelia Smith died before the widow, leaving a will, by which she gave to her sister Anna Maria Hoyt, the wife of the complainant, all her part, (being one-fourth) of the moneys so deposited with the defendant during the life of her mother, the said widow ,* and appointed Charles Hoyt, the complainant, executor of her will.

After the death of Adelia, and before the death of the widow, Anna Maria Hoyt, the wife of complainant died, intestate, and the complainant took letters of administration of her estate.

The bill is exhibited in the name of Charles Hoyt in his own right for the money in the defendant’s hands given by the will of Adelia to his wife; of which will he is executor: he can sue only as executor. And a claim in his right as executor of Adelia’s will, would be improperly joined in the same bill with a a claim in his own right.

For this cause of demurrer assigned the demurrer is allowed.

Order accordingly.


text:
    Frederick A. Van Dyke v. John W. Stout, James Hoy Jr., and others.
    An act incorporating a Gras Company provided, that the Commissioners therein named should open books for subscription to the stock on three weeks public notice, and continue them open until the stock should be subscribed, or, at their discretion, close the same after they had remained open two days, and again open them on like public notice; the powers of the Commissioners to cease on the appointment of a Board of Directors; the directors, when appointed, to have power to open the books for further subscription, until $50,000 should be subscribed. That, as soon as conveniently might be after $15,000 should be subscribed, the Commissioners should convene the stockholders by like public notice, to choose directors; the stockholders to be allowed one vote for each share held in his or her name fourteen days before the election. Fifteen thousand dollars were subscribed on the loth of December, 1849, and the Commissioners thereupon gave the requisite notice of a meeting of the stockholders on the 24th of January, 1850, for the election of directors. The act gave no authority to the Commissioners to apportion the stock if more was subscribed than the act allowed.

      Held, That shares subscribed on that day could not he voted upon at that election.

      Held, further, That an excess of shares subscribed on that day could not affect the right of one who had subscribed on the 15th of December, 1849, to vote on each share so subscribed by him; and that the Commissioners had no authority to apportion the shares so as to limit that right to any smaller number of shares.
    A person having subscribed, on the 24th of January, 1850, a greater number of shares than remained open for subscription, the Commissioners, by an apportionment made by them, reduced, equally, the number of shares so subscribed, and an equal number of shares subscribed by the complainant on the 15th of December, 1849; and allowed the number of shares so apportioned to him who had subscribed on the 24th of January, 1850, to be voted upon, and refused to permit the complainant to vote on more than the reduced number of shares so apportioned to him. Whereupon the complainant refused to vote at all; and one of the Commissioners, and the person who had subscribed on the 24th of January, 1850, with three others, received the majority of the votes cast, and assumed to act as directors. An injunction restraining them from so acting was allowed; and, on answer and motion to dissolve, was retained.
    The bill, exhibited April 13, 1850, states, that on the 1st of March, 1849, the Legislature of New Jersey passed an act entitled “ An act to incorporate the New Brunswick Gas Light Company;” and that by the said act John W. Stont, George A. Vroom and James Hoy, Jr., were appointed Commissioners for receiving subscriptions for $50,000, to constitute the capital .stock of tbe Company, in shares of $20 each; the said Commissioners, or a majority of them, to open the books for that purpose at such times and in such place or places in New Jersey as they should designate by a public advertisement to be publicly inserted for at least three weeks in a public newspaper printed in. the city of New Brunswick; and should continue the same open until the said capital stock should be subscribed, or, at their discretion, close the'same after they had remained open two days, and again open the same at some other time or times, place or places, giving public notice thereof as aforesaid; the sum of 5 per cent, on each share so subscribed to be paid in specie, or in bills of banks which redeemed their bills in specie, by each subscriber, at the time of subscription, to the said Commissioners ; each subscriber to be entitled to receive a certificate for such stock from the Commissioners; the amount so received by the Commissioners to be paid by them to the directors of said Company, to be appointed as in the said act afterwards directed; the powers of the Commissioners to cease and determine on the appointment of the Board of Directors; the said Board, when appointed, to have power, from time to time, to openfthe books for the further subscription of stock, until $50,000 should be subscribed.
    That it is provided by the said act, that the management of the concerns of the Company should be vested in five directors, to be selected from the stockholders; and that the directors should choose a president from among themselves; and that, as soon as conveniently might be after $15,000 should have been subscribed, the said commissioners should convene the said stockholders by public notice, to be given as aforesaid, to choose the first Board of Directors, who should hold their office until the first Monday in May, 1850; and that all elections should be by ballot of the stockholders or their proxies, allowing one vote for each share which they have held in his, her or their name or names at least fourteen days before the time of voting.
    That the said Commissioners, having given the notice aforesaid, opened, at the house of B. D. Stelle, in New Brunswick, on the (fifteenth) day of December 1849, books of subscription &c.; and that the complainant subscribed for 1250 shares, and paid the 5 per cent, on each share so subscribed by him, and received from the said Commissioners a receipt therefor.
    That the number of shares subscribed at that time, including those subscribed by the complainant, amounted to about 1600; and the said Commissioners thereupon gave notice, according to the said act, of a meeting of the stockholders, at the house of B. D. Stelle, in New Brunswick, on the 24th of January, 1850, for the purpose of choosing directors.
    That, at the time and place so advertised, the Commissioners attended, and opened the books of subscription, and some subscriptions were made, amounting, as the complainant has been, informed and believes, to 350 shares. And the Commissioners had fixed the hour of eleven in the forenoon, in their advertisement, as the hour when the election for directors should take place; and James Hoy, Jr., one of the Commissioners, shortly before the arrival of the said hour, said, in effect, that it was proper or necessary to close the book of subscription by a resolution, and then moved that the book of subscription be closed. That Joseph C. Potts, during this time, was sitting at the table on which the subscription book lay open, and, at or just before the time when said James Hoy, Jr., one of the Commissioners, moved to close the book of subscription, the said Joseph C. Potts subscribed, on said book, 1250 shares; and the complainant then offered to subscribe an additional number of shares; but this was objected to by the Commissioners, on the ground that the time fixed for closing the book had elapsed.
    That the complainant did not perceive or learn that the Commissioners required or received from the said Joseph C. Potts 5 per cent, on each share so subscribed by him.
    That the Commissioners, or one of them for himself and fellows, then declared that, as there was more stock subscribed than the charter called for, it was necessary to apportion the same; and thereupon they proceeded to make such apportionment by deducting from the subscriptions made by the complainant and the said Joseph C. Potts the whole of the excess. That the'complainant objected to the said proceedings of the Commissionersj and refused to receive from them the percentage on the shares so cast aside, as the whole proceeding was, in his judgment, .a violation of the act of incorporation, a disregard of his rights, and contrary to equity and 'good conscience.
    That the Commissioners then presented a list of the subscribers, with the number of shares or votes that each was entitled tó, and, in making such list, the complainant was named as only entitled to Y05 shares or votes, and not to 1250 shares or votes; and the Commissioners thereupon proceeded to the election of directors by the appointment of tellers to count the votes; and the complainant offered to vote'1250 shares or votes,, but was told by the tellers that, agreeably to the list handed to them by the Commissioners, the complainant was entitled to only T05 shares or votes; and. the complainant declined voting that number only, and presented to them a protest in writing, as follows: ££I, Frederick A. Van Dyke, a subscriber (&c.,) having subscribed the number of shares annexed to my name, claim the right and privilege of voting the full number of shares, one vote for each share subscribed by me. I do most respectfully protest against the right and power of the Commissioners to apportion the stock subscribed in the manner in which the same was done, and thereby cut down the number of shares and the number of votes to which I am entitled. If there are more shares, subscribed than the number provided for in the charter, I respectfully state it as my opinion, that an excess beyond the amount must' be entirely rejected, leaving the subscribers the whole number of shares by them subscribed according to the priority of subscription.”
    That the said tellers, on counting the votes, declared that-John Acken, Benjamin D. Stelle, David Bishop, George A. Vroom and Joseph C. Potts were elected directors of the said Company.
    That the said persons so declared directors have issued proposals for building gas works, (setting out the proposals). And the' said directors, as the complainant is informed and charges,, intend to lay out and expend, not only all the money so paid by the complainant and others, but what may he paid by the complainant and others on instalments that may hereafter bo called in on the shares subscribed, in the manner set forth in such proposals, and in the purchase of land and buildings, contrary to tho interest of the original subscribers, and in jeopardy of tho whole capital stock.
    Tho hill charges, that the Commissioners, or some of them, had an understanding with the said Potts, that the subscription book should be closed at 11 o’clock, at which time he was to have possession of the same and subscribe for such a number of shares as would give him a control in the selection of directors.
    Tho bill prays, that tho said directors, so appointed, may bo directed to stay further proceedings until the further order of the Court; that the proceedings of tho Commissioners be so far set aside as to restore the rights of the complainant; that the said election of directors be set aside, and the Commissioners be directed to hold an election for directors, upon the notice required by the charter, and at such election to receive the votes on the shares which were subscribed on the first opening of tbe subscription books, and such additional shares subsequently subscribed as would complete the number of shares contemplated by the act of incorporation, and to reject the excess from the shares subscribed by said Joseph C. Potts oh the closing of the book of subscription; and for such further and other relief &c.
    On the reading of the bill an injunction was allowed, restraining the directors so appointed from making or completing any contract which can or may lead to the expenditure of money, and if any contract has been made, from expending any further money on the same, and from doing any further act or thing which would involve the Company in expense.
    Subpena was prayed against tho said persons so appointed directors, and against the said Commissioners.
    Acken, Bishop, Stolle and Potts, four of tho persons so appointed directors, put in their joint and several answer.

      They admit the act of incorporation as set forth in the bill. That books of subscription were opened by the Commissioners at the time stated in the bill; and that the complainant then •subscribed for 1250 shares of the capital stock, and paid thereon 5 per cent., as required by the charter, and received a receipt for the same.
    They admit that the Commissioners called a meeting of the stockholders for the purpose of electing the first Board of Directors ; and that on that day Joseph C. Potts subscribed for 1250 shares of the stock. That the Commissioners made an apportionment of the stock, and allotted to the complainant and the said Potts 705 shares each; and that, at the election held that day, these defendants and George A. Vroom were elected directors.
    They admit that they have issued proposals for building gas works ; and say that they intend, in case they shall build such works, to expend so much of the money paid by the complainant and the other stockholders on the shares allotted to them, respectively, by the Commissioners, and of such instalments thereon as may be called in for that purpose, as will be required to purchase the necessary land and to erect the works contemplated by the act of incorporation.
    The defendants Acken, Bishop and Stelle say, that they have no knowledge of what took place at the House of said Stelle on the day the election of said directors was held, except as they have hereinbefore admitted.
    They deny all knowledge or information of an understanding between the said Joseph C. Potts and the Commissioners or any or either of them, that the subscription book should be closed at eleven o’clock, at which time the said Potts was to have possession of the same and subscribe for such a number of shares as would give him, the said Potts, the control of the election of directors, or of any other understanding between the Commissioners and the said Potts, or either of them, in relation to his taking any number of said shares, at any time or for any purpose.

      The defendant Potts, answering for himself, says, that he procured the passage of the law to incorporate the said Company, from the Legislature; and very soon thereafter visited New Brunswick, and continued his visits there from time to time, endeavoring, by conference with gentlemen residing in that place, to beget an interest in the subject of lighting that city with gas; that he spent both time and money in producing a movement amongst the inhabitants of that place in favor of the project; and, having at length succeeded in enlisting a number of persons in favor of the plan, the Commissioners proceeded to give the notice required by the charter, and to open the books for the subscription of the capital stock, as set forth in the bill.
    That this defendant was convinced that the success of the project depended very much upon the control and management of the works being in the hands of the capitalists and inhabitants of the said city; and that while he intended, from the first inception of the plan, to take some portion of the said stock as an investment, if any remained unsubscribed after all the residents of the place had made their subscriptions, he had no intention or desire to monopolize the stock, or seek through it to control the Company; and that, in conformity with this view, he did not attend at the opening of the books, nor on any subsequent day while they remained open, seek to subscribe for the stock, until the very last day on which they remained open, and until near the close of the last hour on that day.
    He further says, that soon after Duncan White and the complainant, both residents of Philadelphia, made their subscription for stock, whereby they attempted to monopolize a large majority of the stock and secure the control of the Company in the hands of the complainant, this defendant heard that complaints of dissatisfaction were expressed by nearly all the citizens of New Brunswick who had subscribed, and by several who had intended to subscribe; all supposing that the complainant was associated with a company of contractors to build gas works, and that the object of his largo subscription was, not merely for the purpose of legitimate investment, but for the purpose of obtaining undue control in the letting or contracting for the building of the works. And some of the citizens-of said city who had subscribed declared that they would forfeit what they had paid, but would pay no more ; while some who had intended to subscribe,, but had not, refused to do so. That, to prevent the failure of the project from this cause, he admits that he urged several friends of the project not to- abandon it, but to go forward, take some-stock, and await the result; and that several persons did so. And this defendant denies that -he had any understanding with any person that he should take any number of shares, or that he should take enough to control the Company, or in any way interfere with its control. And he alleges that he did not take enough of the shares to control the Company, nor has he at any time controlled or attempted to control it.
    The defendants Stout, Vroom and Hoy put in their joint and several answer.
    They admit the" act of incorporation, and that therein and thereby they were appointed Commissioners for receiving subscriptions (&c.)
    They admit the opening of the books for subscription, on the 15th of December, 1849, and that the complainant subscribed for 1250 shares, and paid the percentage and received the Commissioners’ receipt for the same.
    The defendants Vroom- and Stout say, that, besides the complainant, other persons, on that day, subscribed for 500 shares of said stock, arid paid 5 per cent on each share subscribed, partly in notes of specie paying banks, and a very considerable part' thereof in checks on such banks; all of which were, on the same day, • deposited as cash to the credit of these defendants, as Commissioners of said Company, in the State Bank at New Brunswick. That on that occasion one Duncan White subscribed for 100 shares of stock; that said White was an entire stranger to these defendants, and appeared to be known only by the complainant. That it was said, that the said White was a gentleman of fortune from Philadelphia, who had come to New Brunswick for the purpose of investing his money in the stock of said Company; all which information these defendants believe came from the complainant.
    That, 1500 shares of said stock having been subscribed, these defendants advertised, according (&c.,) that a meeting of stockholders would he held at Stolle’s hotel, in New Brunswick, on the 24th of January then next, at 11 A. M., to choose the first Board of Directors. That on that day these defendants attended at the place mentioned, about 10 o’clock, A. M., and, in the presence of the persons there assembled, again publicly opened* the books of subscription to the said stock. That thereupon subscriptions were soon after made by several persons, for 640 shares of said stock; on a large proportion of which 5 per cent, was paid to these defendants in checks on specie paying banks, and the residue in bank bills of suck banks.
    That, some timo before tho hour of 11 A. M., James Hoy, Jr., one of these defendants, remarked, that at the hour of 11 the books ought to be closed by a motion for that purpose, or, that it would be proper at that time that a motion should bo made to close tho books. That, some time afterwards, the said Hoy looked at his watch, and, remarking that it was 11 o’clock, moved that the hooks be closed. That these defendants decided that the time had arrived, and unanimously resolved to close the said books. That, a short time before 11 o’clock, but bow long before these defendants cannot accurately state, Joseph C. Potts, who had been sitting at the tabic whereon tho subscription book was lying tho most of the time while the commissioners were together on the said morning, took the said book and made a subscription therein for 1250 shares of said stock, as these defendants afterwards, on examining said book, ascertained. That, soon after said Potts had so subscribed, the complainant, took the book from the table, and, after examining it, requested of these defendants that he might he allowed to make a further subscription to the said stock. That these defendants informed the complainant that they had no power to receive further subscriptions, as the hour fixed in the advertisement for the election of directors had arrived, especially as there was already so much more stock subscribed than called for by tho charter. That tho complainant then asked, as a matter of courtesy to him, that he might he permitted, or have the privilege to subscribe for more stock; and the said Potts stating that, in such case, he should claim the same privilege, these defendants announced their determination not to receive any further subscriptions, and desired the persons present to withdraw from the room while they determined upon the mode of apportioning the said stock.
    That, there being 1090 shares of stock subscribed more than called for by the charter, and the charter making no provision for apportionment in such case, these defendants resolved to reduce rateably all subscriptions over 100 shares thereof, and did, accordingly, reduce rateably the stock so subscribed by the complainant and the said Potts as aforesaid, they being the only persons who had subscribed for more than 100 shares; and they allotted to the complainant and said Potts, each. T05 shares of said stock; and thereupon returned to said Potts 5 per cent, on each share so deducted from his original subscription, and tendered the same amount to the complainant, which he refused to receive.
    That in making the said apportionment of the said stock they acted in good faith, according to the best of their judgment, and for what they believed to be the best interests of the said Company under the circumstances of the case.
    That said Potts, at the time of making his said subscription, did not pay to these defendants 5 per cent, thereon, as required by the charter, but delivered to these defendants his check on one of the Trenton banks for the amount of said 5 per cent., which, together with other checks, and bank bills, that day paid to these defendants, on other stock subscribed for, was, on the same day, deposited in the State Bank at New Brunswick, as cash, to the credit of these defendants as Commissioners as aforesaid.
    That the payment so made by said Potts was made openly and publicly, and the check so given by him was laid upon the table, with other checks and bank bills received by these defendants, open to the inspection of every body; that the complainant might have seen and examined them at his pleasure, and might have had full information thereof upon inquiringof either of these defendants; and these defendants are entirely at a loss to know how the complainant can bo ignorant that said Potts made the payment as aforesaid, as well from the publicity with which the payment was made, as from the fact that the complainant, who took exception to the doings of these defendants, did not charge these defendants with colluding with the said Potts to give him the control of the stock of the said Company.
    That, after these defendants had apportioned the said stock as aforesaid, they appointed tellers or inspectors of the election for directors of said Company, and made out and furnished to them a list of the stockholders thereof, with the number of shares or yotos to which each was entitled; in which the complainant was set down as entitled to 705 shares. That, at the election afterwards held, the persons named in the bill were elected directors. That, at said election, the complainant offered to vote on 1250 shares ; and was told hy the tellers that, according to the list furnished them, he was entitled to 705 votes, and no more. That the complainant thereupon declined voting at all, and presented to the inspectors the protest sot forth in his bill of complaint. That no challenge or objection was made to any vote given at the said election; hut all who voted on that day voted the whole number of shares sot down opposite their names in the before mentioned list without challenge or question from any person.

      These defendants deny that they, or either of them, had any understanding with said Potts that the book of subscription should be closed at 11 o’clock, at which time said Potts was to have possession of the same and subscribe for such a number of shares as would give him a control in the selection of directors of said Company, or that they, or either of them, had any understanding whatever in relation to closing the said hooks at any hour, or in relation to the hooks being put in the possession of said Potts for the purpose of subscribing for any number of shares of said stock. And these defendants admit that they knew several persons intended to subscribe for some shares of said stock during that morning and they supposed that said Potts would be one of the number of 'those who would so subscribe.
    Motion to dissolve the injunction.

      George A. Vroom and P. D. Vroom

    in support of the motion. They cited 4 Paige, 246, 251; 3 Meriv. 173; 1 John. 18, 118; 1 Edw. Ch. 366; Hopk. Ch. 587; Rev. Stat. 146. sec. 7; Saxt. 287.

      J. S. Green contra.
    He cited Hopk. Ch. 593; Saxt. Ch. 379; 2 Green’s Ch. 78.
   The Chancellor.

The charter provides, that the Commissioners, or a majority of them, shall open books for subscription, at such times and places as they should designate by three weeks previous public notice in a newspaper, and continue the - same open until the stock should be subscribed, or, at their discretion, close the same after they have remained open two days, and again open the same at some other time and place, giving public notice thereof as aforesaid; 5 per cent, on each share subscribed to be paid in specie or in bills of banks which redeem their bills in specie, at the time of subscription; the powers of the Commissioners to cease on the appointment of the board of directors; the said board, when appointed, to have power, from time to time, to open the books for further subscription, until the whole stock, §50,000, should be subscribed. That, as soon as conveniently might be after §15,000 should be subscribed, the Commissioners should convene the stockholders, by public notice to be given as aforesaid, to choose the first board of directors ; the stockholders to be allowed one vote for each share which they have held in his or her name at least fourteen days before the time of voting.

The Commissioners opened the books for subscription on the 15th of December, 1849, having given the public notice „ required; and 1600 shares wer'e subscribed on that day; of which number the complainant subscribed 1250.

The Commissioners, thereupon, gave the public notice required by the act of a meeting of the stockholders, to be held on the 24th of January, 1850, at New Brunswick, for the purpose of choosing directors, fixing, in'the notice, the hour of 11 in the forenoon as the time when the election for directors should take place.

On that day, the Commissioners, without having given any second notice of the opening of the books for subscription, opened them for that purpose, at about 10 o’clock, and several subscriptions were made, amounting to 350 shares; and just before the hour of 11, one of the Commissioners said it would be proper to close the subscription book by resolution, and made a motion to that effect; and at or just before the making of this motion, Joseph C. Potts, who was then, and had been for some time, sitting at the table on which the subscription book lay open, subscribed 1250 shares. The complainant then offered to make an additional subscription for shares, but the Commissioners declined permitting him to do so, on the ground that the time fixed for closing the book had elapsed. The Commissioners accepted Potts’s check on a bank in Trenton for the 5 per cent, on each of the 1250 shares so subscribed by him.

Including the subscription so made by Potts, there was more stock subscribed for than the act of incorporation allowed; and the Commissioners made an apportionment of the stock, by deducting from the subscriptions made by the complainant and Potts the whole of the excess over the number of shares allowed by the act; allowing to the complainant and Potts, each, 705 shares and votes. The complainant protested against this proceeding, and claimed to be entitled to 1250 shares, and as many votes in the election for directors. This claim was denied him; and he refused to vote on 705 shares only, and refused to receive back from the Commissioners the percentage he had paid them bn the shares on which they refused to allow him to vote. At the election so held, Potts’s vote on 705 shares of the 1250 so subscribed by him was taken; and one of the Commissioners, and the said Potts, and three others were elected Directors; and the persons so elected have issued proposals for the building of gas works.

No authority is given to the Commissioners hy the charter to make an apportionment of stock, if more than the whole number of shares be subscribed.

It appears to me, that the persons claiming to have been thus elected directors, cannot, consistently with the provisions of the act of incorporation, be recognized as such by this Court; and that they ought not to be permitted to proceed in the construction of the works contemplated by the act, and the expenditure of the money of the stockholders; and that, therefore, the injunction should be retained.

I am of opinion, first, that the book for subscriptions for stock cannot be considered to have remained open for subscription from December 15, 1849, to January 24, 1850. More than $15,000 had been subscribed on the day first mentioned, the day fixed by the public notice for opening the books; and the Commissioners, thereupon, gave the required public notice of a meeting of the stockholders for the choice of directors. The obvious meaning of the act, I think, is, that if, on $15,000 being subscribed, the Commissioners give notice of a meeting of the stockholders for the election of directors, it is a notice to those who had become stockholders, by thus subscribing the $15,000 or more, that the election for directors is to be made by them *, and the stock subscription book must, it appears to me, be considered as closed on the giving of that notice. If this be so, then the books were improperly opened for subscription on the 24th of January, 1850; for no public notice had been given that the books would be open for subscription on that day.

But, secondly, if the books for subscription could be considered as properly open for subscription on the 24th of January, 1850, it is ,clear that the Commissioners could not lawfullyreceive votes for directors on shares subscribed that day; the act expressly declaring, that the stockholder must have held his shares fourteen days previous to the election to enable him to vote on them.

Again, I am of opinion, that, if shares subscribed on that day could be voted upon, yet, that an excess of shares subscribed that day, beyond the number of shares remaining open for sub-scrip tion .by the terms of the charter, could not affect the right of the complainant to vote on each and every share so previously subscribed by him; and that the Commissioners had no authority to make any apportionment of shares which would limit the complainant’s right to vote to any smaller number of shares. If shares subscribed that day could be voted upon at all, the plain course of the Commissioners was, to have reduced the shares and votes of Mr. Potts to the number remaining open for subscription, by the terms of the act, when he made his subscription.

I think the nature of the wrong done to the complainant such as to call for the interposition of the Court, to restrain the persons who were declared directors because they received a majority of the votes cast, at an election for directors conducted on the principles adopted by the Commissioners in this ease, from proceeding with the works contemplated by the act.

Motion denied.


text:
    Thomas Page and John R. Slack, Administrators &c. of Ebenezer Tucker, deceased, v. Charles Carrol Tucker, St. George Tucker, and others.
    A. died intestate, leaving a large personal estate, and leaving several children, and several grandchildren, the children of deceased sons and daughters. One of the deceased sons had, in his lifetime, gone to Paris for his health, where he resided some years; during which time the intestate sent him funds, at different times, in amounts of $500 and $1,000, which, together with an item of interest of $120, paid by him during the son’s absence abroad, on a note given by the son, on which the intestate was security, were charged-to the son on the intestate’s book of accounts; and it was shown in testimony thhfc the intestate declared, that the amount so charged to the son was charged to him as part of the son’s share of his estate.

      Held, that the amount so charged should be taken into the account in fixing the distributive shares, and considered, in the distribution, as part of the share of the children of the said son; he having died before the death of the intestate.
    The hill, filed July 10,1848, states, that Ebenezer Tucker, deceased, died possessed of a very considerable personal estate, and seized and possessed of a very considerable real estate, situate in Burlington county. That he died September 5, 1845, leaving five children and seven grand-children, two of said grand-cbildren being the children of Reuben D. Tucker, a deceased son of said Ebenezer Tucker, deceased; two other of said grand-children being the children of Aaron B. Tucker, another deceased son of said Ebenezer Tucker, deceased ; and the three other grand-children being the children of Susan R. Bispham, wife of Joseph Bispham, a deceased daughter of said Ebenezer Tucker, deceased, his only next of kin.
    That, on the 28d September; 1845, the complainants obtained letters of administration on the personal estate of said intestate, and possessed themselves &c., to a large amount, and much more than sufficient to pay his debts.
    That, having given two months notice &c., they exhibited their account of their administration to the Surrogate of Burlington, who, having first audited &c., reported the same to the Orphans’ Court of said county, in the term of February, 184T; and, no exceptions being made to said report, the said Court allowed the said account; by which account, (which was not a final, but only partial account, exhibiting the administration of the estate so far as it had come to their hands,) it appears, that there was at that time in their hands, to be distributed to the next of kin, $46,071 14.
    That the said Reuben D. Tucker, Aaron B. Tucker, and Susan R. Bispham, children of said Ebenezer Tucker, deceased, died in the lifetime of their father, leaving children as aforesaid.
    That the said grand-children are all minors and non-residents of this State; and that no letters of guardianship have been granted of their persons or estates, in this State.
    That, among the assets of said intestate to be administered, and which arc not included in the account before mentioned, is a book of accounts against the said Aaron B. Tucker, one of the children of said intestate, consisting, (among others,) of the following items:
    1831, Sept. 16. To check, B. U. States, $480 “ “ “ Specie, - - • $20 $500
    1833, July 15. To one bill of exchange on Messsrs. Hottingein & Co., Paris, for 2650 frs., from B. U. S., dated July 5, equal to - - $500
    “ Oct. 7. To one draft on Hottingein & Co., for 2650 frs., equal to - - - ■ $500
    1834, June 21. To one bill of exchange from the B. XJ. States, dated 17th May last, on Hottingein & Co., for 5333 33-100 frs., equal one thousand dollars, - $1,000
    1836, July 30. To cash paid Geo. W. Tucker, five years interest on your note to him for $400. I was security. - $120
    “ March 24. To one bill of exchange from the B. U. S., on Hottengein & Co., Paris, dated March 17, for 2637 50-100 frs., - - $500,
    as appears by the book account of said intestate, entered in his own hand-writing.

      That the complainants are informed and believe, that the said •several sums were paid by the intestate to his son Aaron B. Tucker, in his life-time, by way of advancement ; or, by some arrangement or understanding between said father and son it was agreed and understood that the same should be considered as an advancement and as part of the portion to which said son would be entitled out of any surplus &c. for distribution.
    That when the said several debts were contracted or advances made by the intestate to the said Aaron, the intestate was a resident of New Jersey, and so continued until his death; and that the said Aaron was not at that time a resident of New Jersey, or at any time afterwards ; and that said Aaron afterwards died, intestate, out of New Jersey, about eighteen months before the intestate Ebenezer died.
    That the complainants have paid and distributed to all of said next of kin, except the said children of Aaron B. Tucker, their respective shares of said $46,071 14; and are desirous to distribute to the said children of Aaron B. Tucker their share thereof; but, inasmuch as they claim an equal eighth part of the same, without accounting for the said sum of $4,136 94, either as’a debt due from their father to the intestate, or as an advancement made by the intestate to their father, in his life-time, and as the other children, &c., have forbidden the complainants to made such distribution as is claimed by said children of the said Aaron, they desire the protection of the decree of this Court.
    The bill prays that the parties may interplead; and that the complainants may be directed how to pay, &c.
    The answer of St. George Tucker, one of said children of said Aaron, an infant, by his guardian, says, that he does not admit that said book account or claim, if any there be, can be considered as an advancement; but, so far as he has knowledge of the said claim and of the circumstances attending it, he denies that the said several sums mentioned in the said account or claim, or any of them, were paid by the intestate, or received by said Aaron, as an advancement, or that it was agreed, considered or understood &c. (as stated in bill.) That this defendant has understood and believes, that a large portion of said account, if any there be, is for money furnished by the intestate to his said son Aaron while the said Aaron was in Europe, whither he had gone for the benefit of his health, and where he remained for several years; and the sums furnished at the times &c. were bestowed for the procurement of necessary apparel &c., and to enable his said son to live respectably &c.; and he submits, that such sums cannot be considered as advancements. That they were merely gratuities or gifts evincing the benevolence of the parent to a child who was suffering from ill health in a foreign land; that they were temporary in their character, and not intended as a portion or advancement.
    That, if the complainants insist that such account is evidence of a debt from &c., this defendant insists that such indebtedness of said Aaron, his father, cannot be set off against this defendant’s share of &c., or deducted out of the same'.
    That his father returned from Europe in 1837, and died in 1839, more than six years before the death of said Ebenezer Tucker, who died in 1845. That said Aaron, after his return from Europe, was insolvent and unable to pay his debts, and afterwards obtained a discharge as an insolvent debtor, in the State of Pennsylvania, where he then resided. That the said Aaron, some time afterwards, died, without being possessed of any property, as he understood and believes, and insolvent.
    That, if the complainants seek to charge this defendant with the amount claimed as a debt due from his father, the said Aaron, to the said estate, and to charge him as one of the heirs or next of kin or children of the said Aaron, then, he insists, that such claim is barred by the statute of limitations, as more than six years had elapsed since the cause of action accrued against the said Aaron, before the commencement of this suit; and he prays he may have the benefit of the said statute as if he had pleaded the same in bar.
    He admits that, during- the several years mentioned in the account set up by the complainants, the said Ebenezer Tucker was a resident of New Jersey, and so continued until his death; and that said Aaron was not during said period a resident of New Jersey, but then and afterwards resided out of New Jersey until his death, which occurred before the death of said-EbenezerTucker.
    Charles Carrol Tucker, the other child of the said Aaron, put-in an answer to the same effect.
    The answer of the other distributees insists as represented in the bill.

      John Willet

    testifies, that, about January 1,1834, he went to see Ebenezer Tucker, deceased, to pay him money. The said Ebenezer said he was pleased to see him come to pay money at that time, for he was about making up $1,000 to send to France to his son Aaron, who was in Paris at that time with his family,, and had written tó him for money. Witness asked if Aaron was-not wealthy, and expressed surprise that Aaron should send to said Ebenezer for money. Ebenezer Tucker said, Aaron was in limited circumstances, so much so that he had frequently called on him, said Ebenezer Tucker, for assistance prior to that; timé, and that he had advanced money to him several times before'that. He said he had charged against Aaron, on his book,, what he had let him have, and that it was to come out of Aaron’s sharb of his estate. . He said, “ if Aaron has it in my life-time he cannot expect to have it after I am gone i he can’t have it but once; it makes little difference to me whether he has it now or after my death ; if he can enjoy it now, he might as well have-it.” Witness heard him speak on the same subject more than-once before to the same purport.

      Wm. S. IAppincott

    proves the entries in the book of EbenezerTucker of the items stated in the bill against Aaron to be in the-hand-writing of Ebenezer Tucker. Witness says, he frequently heard Ebenezer Tucker speak of advancing money to his son Aaron. He said he had advanced him money, and that he had charged it in his book, and that he considered and intended it as-a part of Aaron’s share of his estate. Witness heard him speak on the subject a number of times. Thinks Aaron returned from France in 1837. While Aaron was in France, witness frequently heard Ebenezer Tucker speak of raising money to send him. At these times he said he intended the money should go as a part of Aaron’s share of his estate.

      Isaiah Adams

    testifies, that ho was a tenant under Ebenezer' Tucker for 15 or 16 years, and is familiar with his hand-writing. That all the items in the account set forth in the bill, as found in the books of Ebenezer Tucker, are in the hand-writing of Ebenezer Tucker. He has frequently heard Ebenezer Tucker speak of raising money to send his son Aaron in France. He said his son was there in big company, and it would not do to let him starve. He said the physicians had told his son he must go to France; that if he remained in this country he must die ; and that a change of climate might restore his health. He said that Aaron had no means of his own, and that he must send him money. He said that if Aaron outlived him he would be entitled to a share of his estate, and that he might as well have a part of it for the purpose of regaining his health, for if Aaron died before him, the money would do him no good, and he might as well have it now as after he, Ebenezer Tucker, was gone; and that if he had it now, he could not expect to have it at another time, Witness had heard him speak on this subject a great-many times.

      William Allen’s

    testimony is to the same effect.

      A. Brooming,
    for the complainants, cited Rev. Stat. 355, sec. 13 ; Toller on Ex’ors, 374 ; 5 Roll’s Rep. 218; 2 P. W’ms, 560 ; 1 Halst. Ch. 99; Rev. Stat. 94, sec. 8 ; 6 Hoist. Rep. 354; 3 Green’s Rep. 171; Penn. Rep. 1010; 16 Conn. Rep. 383.

      P. D. Vroom

    for the defendants the children of Aaron B. Tucker, cited Swinb. on Wills, 238, 4; 4 Pick. Rep. 21; 3 Burr. 390; 1 Watts & Serg. 390.
   The Chancellor.

The amount advanced to Aaron must be ■taken into tbe account in fixing the distributive shares, and considered, in the distribution, as part of the share of his children.

Order accordingly.


author: The Chancellor

text:
    Remer v. Shaw.
    A demurrer to a foreclosure bill having been overruled, and an order made that the defendant answer in forty days. A decree pro con. having been taken, on default of answer, the defendant, without notice, took an order giving him leave to put in answer, without informing the Court of the nature of the answer he intended to put in. An answer was put in setting up usury. On motion, it was ordered, that the defendant strike out so much of the answer as set up usury, or introduce in the answer an offer to pay the principal sum with legal interest.
    To a bill for foreclosure, the defendant had filed a demurrer, which was overruled, and the defendant was ordered to answer in forty days. The answer not being filed in forty days, a decree pro con. was taken against the defendant, no answer being yet in. A few days after, an order was taken on the part of the defendant, without notice, giving the defendant leave to answer; the Court not being informed of the nature of the answer intended to he put in. An answer was filed setting up usury.
    A motion was made that so much of the answer as sets up usury be stricken out.

      F. T. Frelinghuysen and W. Halsted in support of the motion.
    They cited 6 Hill, 223; 1 Paige, 429; Rev. Stat. 908, sec. 17, 910, sec. 26; 1 Sim. & Stuart, 469; 2 Chitty’s Eq. Dig. 864; 2 Daniel’s Ch. Pr. 57.

      J. P. Bradley, contra,
    cited 1 Paige, 40.
   The Chancellor

ordered, that the defendant strike out so much of the answer as sets up usury, or introduce in the answer an offer to pay the principal sum with legal interest. Re-examinéd in chief. I don’t think Mr. Campbell had paid any attention to that stock, I don’t suppose he had. It has neve5-' paid' any dividend, to the best of my knowledge. I think the first intimation I had that he had given his proxies, was what he said to me that day. I never saw the Ryersons use his proxy. I bought that stock from Mr. Zabriskie, Mr. Campbell’s Administrator, one or two years after the interview with Mr. Camp■bell. Mr. Zabriskie, I think, took time to consider before he sold tome.