صور الصفحة
النشر الإلكتروني

a transcript of the books and proceedings of the treasury department in account with" the purser whose bond is in suit, and the secretary of the treasury has certified, under the seal of the department, to the official character of the auditor, "and that full faith and credit are due to his official attestations." What more need be done to authenticate the transcript under the seal of the department we are at loss to determine. The certificate of the proper auditor is attached and his certificate attested by the secretary of the treasury under the seal of the department. The form of the certificates and the mode of affixing the seal correspond exactly with what appears in Smith v. United States, 5 Pet. 292, where it was held, more than half a century ago, that the seal affixed in this way was sufficient for the purposes of evidence under a statute, of which section 886 is a re-enactment. The transcript is certified by the auditor, and authenticated under the seal of the treasury department affixed by the secretary, its lawful custodian. The judgment is reversed and the cause remanded, with instructions to set aside the verdict and grant a new trial. United States v. Bell. Opinion by Waite, C. J. [Decided April 21, 1884.]

MARRIAGE-TENANCY BY CURTESY - WIFE'S PROP ERTY NOT SUBJECT TO HUSBAND'S DEBTS.-It is the right of a married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage, which shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband. It was the purpose of the statute to abolish this tenancy by the curtesy, or any other interest of the husband, in all her property, and to place her in regard to it in the condition of a feme sole. And it was this same property, and not part of it, no separate interest, or estate in it, which was exempted from liability for his debts. It would be a queer construction of the statute, looking at its manifest purpose, to hold that it meant, though her property shall never come under his control and he shall acquire no interest in it, and it shall never be liable for his debts, the use and possession, the rents and profits of it, may be made liable to his debts as long as he lives. "In the district the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts." We are of opinion that the statute (R. S., Dist. Columbia, § 727) intended to exempt all property, which came to the wife by any other mode than through the husband, from liability to seizure for his debts, without regard to the nature of the interest which the husband may have in it, or the time when it accrued, and that in regard to such debts, created after the passage of the law, no principle of law or morals is violated by the enactment. On the contrary, if we concede, as in the present case, that the husband had acquired a tenancy by the curtesy, in her property, before such enactment, it is eminently wise and just that no other person should afterward acquire such an interest in it as to disturb the joint possession of it, and turn the family resulting from the marriage out, that it may go to pay his debts. The authorities cited by counsel for appellee rather sustain, and certainly do not contradict, this view of the matter. In the case of Rose v. Sanderson, 38 Ill. 247, while the court holds that a statute, very much like the act of Congress relied on here, did not exempt from sale for the husband's debt his life interest in her real estate, which had become vested before the passage of the act, it is apparent, from the record, that the debt for which the writ of

attachment was levied on that interest, existed when the statute of exemption was passed. The case states explicitly that the act went into effect April 24, 1861, and the attachment was levied May 10, 1861, and the husbaud's right, either by the curtesy or for the wife's life, had vested long before. It might therefore have been held to impair the obligation of the plaintiff's contract if the act had been so construed as to exempt that interest from liability to sale for that debt. In the case of Stehman v. Huber, 21 Penn. St. 260, it was simply held that where, on a partition of an estate in in which the wife was a part owner, the husband advanced a considerable sum as owelty in her behalf, he thereby became interested in the property allotted to her and conveyed to her and to him jointly, and that the husband, by executing a conveyance of this interest to a third person, who conveyed it to the wife, could not thereby defeat the existing creditor's right to appropriate that interest to the payment of his debts. In the case of White v. Hildreth, on the other hand, there came before the Supreme Court of Vermont, for construction, a statute in regard to the debts of the husband very like the act of Congress. It enacted that the rents, issues and profits of the real estate of any married woman, and the interest of her husband in her right in any real estate, which belonged to her before marriage, or which she may have acquired by gift, grant, devise or inheritance during coverture, shall during coverture be exempt from attachment or levy of execution for the sole debts of her husband, * * * provided this act shall not affect any attachment or levy of execution already made. Compiled Stat. of Vt. of 1850, p. 403, § 15. In the case mentioned, 32 Vt. 265, the husband had built upon and im proved the land of the wife, after which she rented it to her son, in whose hands the rent was attached by trustee process for the debt of the husband. But the court said: "The legal title to the land, with the supervening improvements and building, is still in the wife. It accrued during coverture. The rent reserved in the lease to her son, is the rent of the land she owns. The statute expressly exempts such rent from the hands of his creditors. This provision of the statute seems to answer what otherwise must have been a well-founded suggestion, viz., that though this money is payable to the wife of the defendant, still it is not the rent of the freehold which the husband held by virtue of the coverture and the birth of issue capable of inheriting, and is in contemplation of law entirely the husband's without invoking the wife as the meritorious cause." Here the court holds distinctly that this statute, which does not profess to abolish the tenancy by the curtesy, is still an answer to an attempt to subject the rents and profits to his debts, because it declares that the property shall be exempt from levy for his debts. Hitz v. Nat. Metropolitan Bank. Opinion by Miller, J. [Decided May 5, 1884.]

[ocr errors]


LACHES GOVERNMENT NOT CHARGEABLE WITHLIMITATION IN EQUITY-AFTER-ACQUIRED TITLESPECIFIC PERFORMANCE.-Time does not run against the United States, and public policy forbids that the negligence of the officers of an immense government like ours should be held to create laches on the part of the government, except probably as to third persons who are strangers to transactions as to which the negligence may occur. In United States v. Kirkpatrick, 9 Wheat. 720, the Supreme Court say: "The general

*19 Fed. Rep.

principle is that laches is not imputable to the government. The utmost vigilance would not save the public from the most serious losses if the doctrine of laches could be applied to its transactions. It would, in effect, work a repeal of all its securities." In United States v. Vanzandt, 11 Wheat. 190, the court say: "The neglect in the one case and the other imputes laches to the officer whose duty it was to perform the acts which the law required; but in a legal point of view, the rights of the government cannot be affected by these laches." "A claim of the United States is not released by the laches of the officer to whom the assertion of that claim was intrusted." Dox v. Postmaster-General, 1 Pet. 325. "Statutes of limitation do not bind the United States unless it is specially nained therein." Lindsey v. Lessee of Miller, 6 Pet. 666; United States v. Hoar, 2 Mason, 311. "The unauthorized act of the officer of the United States (in the matter of a claim for or against it) cannot bind the United States." Filor v. United States, 9 Wall. 49. Equity will not refuse to inforce an obligation merely because of the lapse of time, unless evidence has been lost, or the rights of third parties have become involved, or the personal relations between the parties have been so much altered as to change the essential character of the obligation. See the case of Etting v. Marx, 4 Hughes, 312; 4 Fed. Rep. 633, where the doctrine of limitation in equity is very elaborately discussed as to suits between private individuals. A party agreeing to transfer property which he does not own at the time cannot refuse to perform his contract after acquiring title. One who, by his own fault, is unable to perform a part of his contract, cannot upon that account resist a bill for the specific performance of the rest. To permit such an objection to prevail would be to violate the maxim that no man shall take advantage of his own wrong. See Fry Spec. Perf., § 294, citing Lord Eldon, who in speaking of one who had undertaken to convey a greater interest than he possessed, says: "For the purpose of this jurisdiction, the person contracting under these circumstances is bound by the assertion in his contract, and if the vendee chooses to take as much as he can have, he has a right to that, ** and the court will not hear the objection, by the vendor, that the purchaser cannot have the whole." See also Morss v. Elmendorf, 11 Paige, 287; Hatch v. Cobb, 4 Johns. Ch. 539; Kempshall v. Stone, 5 id. 193; Fray Spec. Perf., §§ 554, 258. Cir. Ct., E. D. Virginia. United States v. City of Alexandria. Opinion by Hughes, J.


PATENT-LICENSE-SALE OF, TO SATISFY JUDGMENT. -A license to use a patented invention may, by a bill in equity, be subjected to sale for the payment of a judgment debt. Cir. Ct., E. D. Pennsylvania, Feb. 11, 1884. Matthews v. Green. Opinion by Butler, J.

TRUST-REVOCATION FAILURE TO EXERCISE. A trust declared by testator during his life-time, with the privilege of revocation, will, if unrecalled, prevail over the title of a residuary legatee. Testator transferred stocks and bonds to L., upon trust to pay him the income while he lived, and after his death to transfer them to others, reserving the power however to revoke this disposition of the property at any time. He died, leaving the trusts unrevoked. Held, that the power of revocation died with him, and that upon his death the trusts became absolute. Cir. Ct., D. Vermont, March 20, 1884. Barlow v. Loomis. Opinion by Wheeler, J.


OF PROOF-A deed of assignment prima facie good may be impeached for circumstances connected with, and conduct of the insolvent at and about the time of the execution of it. In such cases the burden of proof is on the grantor or his beneficiaries under the assign

ment to show the validity of the deed. Dist. Ct., N.
D. Mississippi, W. D., March 3, 1884. Estes v. Spain.
Opinion by Hill, J.

TELEGRAPH COMPANIES-RAILROAD IS POST-ROAD-ACT JULY 24, 1866- ERECTING LINES -EXCLUSIVE RIGHT.-A railroad is, under the statutes of the United States, a post-road, and accordingly the act of Congress of July 24, 1866, giving to all telegraph companies alike the right to construct, maintain, and operate lines along all post-roads of the United States, is paramount over any agreement made by a railroad company securing to a telegraph company the sole use of its line of road for its wires. This was decided by the Supreme Court in Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1. It was not held in that case that a telegraph company could acquire a right of way over a railroad without the consent of the owner of the railroad, or even that the act gave to telegraph companies the power to acquire such a right of way by compulsory proceedings, upon due compensation to the owner; and the contrary was plainly intimated. But the act was considered and expounded as intended, and effectual, to deny to any one telegraph company the power to acquire any such easement in the lands of a railroad for telegraphic facilities as would exclude other companies from obtaining like privileges, and as a declaration by Congress of a policy in the interests of the public and of the government which was reasonable and lawful. Since that decision it has been adjudged in two cases in the Circuit Courts of the United States that a railroad company cannot grant to a telegraph company the exclusive right to establish a line over its right of way. Western Union Tel. Co. v. American Union Tel. Co., 9 Biss. 72; Western Union Tel. Co. v. Burlington & S. R. Co., 11 Fed. Rep. 1. See also Western Union Tel. Co. v. American Union Tel. Co., 65 Ga. 160. Whether an agreement of this kind would not be void as intended to strangle competition, and therefore as being in restraint of trade and obnoxious to public policy, irrespective of the act of Congress, is a question which it is not necessary to discuss; it suffices that such an agreement is void because contrary to the policy declared by Congress. Cir. Ct., S. D. New York, March 28, 1884. Western Union Tel. Co. v. Balt. & O. Tel. Co. Opinion by Wallace, J.

TO ASSIGNOR-VOID.-An assignment for the benefit of
creditors, under the laws of Texas, wherein the as-
signor has expressly reserved an interest to himself, to
the exclusion of his creditors, is null, void, and of no
effect. Lawrence v. Norton, 15 Fed. Rep. 853, fol-
lowed. It seems to us, the following propositions are
well taken, and can be equally supported on principle
and authority. The assignment in favor of creditors,
under the act of 1879, is a contract between the assig-
nor and assignee, which while it may be aided by the
law, must be taken and construed by the terms and
provisions expressly stipulated therein. Donoho v.
Fish, 58 Tex. 167; Keevil v. Donaldson, 20 Kans. 168.
That when an assignment is made, under the third
section of the act of 1879, any stipulation therein
which is intended to hinder and delay non-consenting
creditors must find warrant therefor in the law, or the

assignment as to such creditors is null and void.
Keevil v. Donaldson, supra; Lawrence v. Norton,
supra; Bryan v. Sundberg, 5 Tex. 423. See also Jaffray
v. McGehee, 107 U. S. 361; S. C., 2 Sup. Ct. Rep. 367.
The assignment in this case, which is under the third
section, provided: "And for said purposes the said
Fred. Muller and A. Jacobs are hereby authorized and
directed to take possession at once of the property
above conveyed, and convert the same into cash as
soon and upon the best terms possible for the best in-

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small][ocr errors]

terest of our creditors. "This provision authorizes the assignees, in their discretion, to dispose of the assigned property on credit. See Moir v. Brown, 14 Barb. 39; Schufelt v. Abernethy, 2 Duer, 533; Rapalee v. Stewart, 27 N. Y. 311; Hutchinson v. Lord, 1 Wis. 286; Keep v. Sanderson, 2 id. 31. For other authorities see Bur. Assign., § 222. It is a badge of fraud. Carlton v. Baldwin, 22 Tex. 731; and see Bur. Assign., § 221. Such provision is not authorized by law, the said act of 1879 being silent as to the method of disposing of assigned property. The non-consenting creditors being compelled, under the law, to submit to a forced stay of execution until the consenting creditors are paid in full, it follows that a sale on credit, the same not being authorized by law, hinders and delays such non-consenting creditors beyond the sanction of the law and consequently defrauds him. It is urged that the assignee need not sell on credit, and unless he does the creditors are not hurt. This may be true, but the creditors are not obliged to await the event. The assignment placed it in the power and discretion of the assignee to prolong the execution and closing of the trust for an indefinite period. This was not only unauthorized by law, but was against the policy of the law, for it cannot be denied that the policy of the law is to secure a speedy settlement of the trust and distribution of the assigned property. An assignment in favor of creditors which in effect authorizes the assignee to sell the property conveyed in a method not permitted by the statute, must be void, for contracts and conveyances in contravention of the terms or policy of statute will not be sanctioned. See Jaffray v. McGehee, supra. Cir. Ct., N. D. Texas. Feb., 1884. Opinion by Pardee, C. J.


EXECUTORS AND ADMINISTRATORS-LIABILITY FOR LOSSES. (1) Among the assets which came into the hands of an administrator in 1875 were $6,000 of W. & O. Railroad bonds, worth at the time about $4,200, which were paying a good rate of interest. Two of the legatees repeatedly requested that these bonds should not be sold, they and the administrator thinking the bonds were likely to appreciate in value. The administrator held them until 1877, when by the sudden failure of the railroad they became worthless. Held, the administor is not responsible for the loss. (2) Among the assets was a note of the same railroad company for $4,000, secured by a pledge of $8,000 of its bonds. The administrator demanded payment of this note several times, and was each time assured by the president of the road that it should be paid. The road was then paying its interest regularly. By its failure the sum was also lost. Held, that under the circumstances the administrator should not be held responsible for the loss. Without doubt courts of equity have been accustomed from the time of Lord Hardwicke down to the present moment to look with indulgence upon the acts of trustees and other fiduciaries, and have shown a manifest disinclination to hold them personally responsible for losses occurring in the management of the trust funds whenever it has appeared that the trustee or other fiduciary has acted in good faith, in the exercise of a fair discretion, and in the same manner in which he would probably have acted if the subject had been his own property. Ex parte Belchier, Amb. 219; Knight v. Lord Plymouth, 3 Atk. 480; Powell v. Evans, 5 Ves. 839; Thompson Brown, 4 Johns. Ch. 619; Elliott v. Carter, 9 Gratt. 548. And where there are no circumstances of suspicion, such as the failure to make out an inventory, or to have an appraisement of the estate, nor any evi


dence of mala fides on the part of such fiduciaries, I think, to adopt the language of this court in Elliott v. be "That they should treated Carter, supra, with tenderness, and due caution should be taken not to hold them liable upon slight or uncertain grounds." WatSouthall's Admr v. Taylor, 14 Gratt. 274. kins v. Stewart. Opinion by Horton, J. [Decided Dec. 6, 1883.]

JUDICIAL SALE-JUDGMENT CREDITOR NOT PURCHASER-EQUITIES-RESULTING TRUST-PAROL EVIDENCE.-In Cowardin v. Anderson, 8 Va. L. J. 31, we said: "It is well established by the repeated decisions of this court that a judgment creditor can acquire no better right to his debtor's estate than the latter himself has. The creditor takes the property or applies it to the satisfaction of his lien in subornation to all the equities which exist at the time in favor of third persous, and a court of chancery will limit the lien of the judgment to the actual interest the debtor has. The creditor is in no just sense treated as a purchaser, and has no equity whatever beyond what justly belongs to the debtor. Floyd v. Harding, 28 Gratt. 401; Borst v. Nalle, id. 423; Summers v. Darne, 31 id. 791." It is an established rule in equity that if one person buys an estate with the money of another, and takes the conveyance in his own name, a trust results by presumption of law in favor of him with whose money the purchase was made. And in such cases the trust may be established by parol proof; but to guard against the danger of perjury, and for the security of titles, the proof is required to be clear and distinct. Kane v. O'Conners, 8 Va. L. J. 77; Sugden on Vendors, 443; Bank of U. S. v. Carrington, 7 Leigh, 566; Boyd v. McLean, 1 Johns. Ch. 584; Botsford v. Barr, 2 id. 405; Phelps v. Seely, 22 Gratt. 573; Borst v. Nalle, 28 id. 423; Miller v. Blose, 30 id. 745. And if part only of the purchase money has been advanced the land will be charged pro tanto. Botsford v. Barr, supra; Morey v. Herrick, 18 Peun. St. 129; Kane v. O'Conners, supra. Sinclair v. Sinclair. Opinion by Lewis, J.


ALLUVION-TITLE BY-BOUNDARY--AMBIGUITY IN GRANT.--The increase of land adjacent to the seashore, derived from alluvial deposits, happening so gradually that the increase could not be observed while actually going on, although a visible increase took place from year to year, belongs to the owner of the land bounded upon the sea. Rex v. Lord Yarborough, 3 B. & C. 91; S. C., in H. of L., 5 Biug. 163; County of St. Clair v. Lovingston, 23 Wall. 46. In grants of lands lying along the seashore, the parties act with knowledge of the variety of changes to which all parts of the shore are subject. The grantee, by such a boundary, takes a freehold that shifts with the changes that take place, and is obliged to accept the situation of his boundary by the gradual changes to which the shore is subject. He is subject to loss by the same means that may add to his territory; and as he is without remedy for his loss, so is he entitled to the gain which may arise from alluvial formations, and he will, in such case, hold by the same boundary, including the accumulated soil. Tyler on Bound. 40; Phear on Waters, 12-43; 3 Kent, 435; New Orleans v. United States, 10 Pet. 662--717. A grant of lands with a boundary "along storm-tide mark of the Atlantic ocean," will leave in the grantee that space of the beach which lies between the ordinary high water and the fast land, and is washed over by unusual tides so

*Appearing in 16 Vroom's (45 N. J. Law) Reports.



frequently as to be waste and unprofitable for use; but
the title of the grantee will advance or recede as the
line of storm-tide changes from time to time. The
Camden and Atlantic Land Company, being the owner
of a tract of land bounded on the Atlantic ocean, in
1856 made conveyance to M. of a lot by boundaries ex-
tending to storm-tide mark of the Atlantic ocean,'
and "thence along said storm-tide mark." After 1856,
a large accretion of land occurred in front of the said
lot by alluvial deposits, and the line of ordinary high-defendant's road, was told by the ticket agent to take
TION. A passenger buying a ticket to D. station on
water mark and also the line of storm-tides were by
the accretion carried out a considerable distance
further than they were when the deed was made.
Held, that the title of M. and those who succeeded to
his estate was not restricted to the storm-tide line as
it was in 1856, but that it extended to the line of
storm-tides as that line was carried out by the alluvial
increase. If the words of a grant be ambiguous, the
court will call in aid the acts done under it as a clue to
the intention of the parties. Tyler on Bound. 124;
Adams v. Frothingham, 3 Mass. 362; Stone v. Clark, 1
Metc. 378; Lovejoy v. Lovett, 124 Mass. 270; Living
ston v. Ten Broeck, 16 Johns. 14--23; Dunn v. English,3
Zab. 126; Jackson v. Perrine, 6 Vroom, 137; 1 Greenlf.
Ev., § 293. Camden & Atlantic Land Co. v. Lippincott.
Opinion by Depue, J.

a particular train. She did accordingly. The train
proved to be an express, not allowed by the regula-
tions of the company to stop at D., but she did not
know this until informed of it by the conductor after
the train had started. She told him of the direction
the agent had given her, and insisted on being let off
at D. He took up her ticket, but refused to stop at
D., and took her to the next stopping place beyond. In
an action against the company, held, that the plaintiff
ought to have counted on the negligent misdirection of
to stop, for he could not have done otherwise. Mar-
the ticket agent, and not on the refusal of the conductor
shall v. Railroad Company. Opinion by Hough,

C. J.


An agreement for the sale of goods in the following form: "The party of the first part agrees to sell to the party of the second part all the material used in making barrels, at the actual cost price of the same, now in store. The party of the second part agrees to take and use the same as fast as the sugar-house requires the barrels, and to pay for the same in notes, with interest added, running two mouths from the date of the same, settlements to be made semimonthly." Held to be an executory contract, and not a bargain and sale. The rule that the contract of sale passes the property immediately, before change of possession or payment, so far as the duties and obligations of the vendee are concerned, at least, seems to be well settled. Benj. on Sales, § 318. An agreement for the present sale of specific chattels, without payment or delivery, casts on the buyer the risk of loss. The law fixes the risk where the title resides. Joyce v. Adams, 8 N. Y. 291; Leonard v. Davis, 1 Black. 476; Bessell v. Balcom, 39 N. Y. 275. The sale of all the vendor's material for making barrels then in store was a sufficient specification of the property to appropriate it to the contract. It was not like a sale of a part out of a bulk. And the price to be paid is sufficiently certain, being ascertainable by reference to an existing fact-their cost. The whole agreement however must be construed together, and the latter clause, which provides that the party of the second part is to take and use the material as fast as the sugar-house requires the barrels, and to pay for the same, etc., is an essential qualification of the first part of the contract, which if standing alone, would import an absolute sale. Brock v. O'Donnell. Opinion by Knapp, J.

MUNICIPAL CORPORATION-POWER OF ASSESSMENTBENEFITS.-(1) Unless restrained by express words, the authority to impose special assessments for municipal improvements is a continuing power. 2 Dill. Mun. Corp., $$ 686, 780; Green v. Hotaling, 15 Vroom, 347. (2) A sewer in the city of Hoboken, for which an assessment had been levied, by reason of the uneven sinking of newly-made laud, ceased to conduct sewage toward its outlet, but allowed its contents to flow out upon low lands and become a nuisance. Held, that an assessment for a new sewer to do the work which the old one was intended to do was legal. (3) No person whose lands are not so placed as to permit

of a present connection with the sewer can be assessed
for benefits. State v. Elizabeth, 11 Vroom, 274.
McKevitt v. Hoboken. Opinion by Reed, J.

was borrowed on the credit of a firm and used for the
purposes of the firm, but the individual note of one of

the partners was given for it, and by mistake of the
lender was accepted. Afterward when the mistake
was discovered, the lender demanded and received
from that partner the note of the firm in lieu of his
own note. Held, that this was not the giving of a
partnership note for an individual debt, and that the
latter note was binding on the firm. Distinguishing
Farmers' Bank v. Bayless, 35 Mo. 423. Meader v. Mal-
colm. Opinion by Norton, J.

JUDGMENT-APPEAL-ABATEMENT OF ACTION.-(1) The perfecting of an appeal from the judgment of a justice of the peace divests the judgment of its legal effect, and if the case be one in which the cause of action does not survive, upon the death of the party before the entering of a lawful judgment in the appellate court, the action will abate. Turner v. Northcut, 9 Mo. 252. (2) A prosecution for violation of a city ordinance abates upon the death of the defendant. State v. Perrine, 56 Mo. 602; Kansas City v. Clark, 68 id. 588. Town of Carrallton v. Rhomberg. Opinion by Martin, Comr. (As to first point see ante, p. 57.ED.)



INGS BANK. The earnings of a wife belong to her hus-
band, save in those exceptional cases specified by acts
of Assembly. Such earnings do not therefore belong
to the wife unless the husband has made a gift of them
to her. A widow, carrying on a butchering business
in premises belonging to her late husband, married
again. Husband and wife continued to carry on the
business, in which the husband was not versed. It was

chiefly through her skill, industry and economy that
profits were realized. A portion of those profits were
put aside in a savings fund in the wife's name, but
there was no evidence to show that the husband knew
of the existence of such deposit. Immediately after
the wife's death the husband inquired for the deposit-
book, and declared that the money was or ought to be
his. On the settlement of the account of the wife's

*Appearing in 78 Missouri Reports.

[merged small][ocr errors][ocr errors][ocr errors][merged small][ocr errors][merged small][ocr errors][ocr errors][merged small][ocr errors]

administrator: Held, that the profits of the business all belonged primarily to the husband; that there was no sufficient evidence to show that he had made a gift of them to his wife, and that the husband was entitled to the sum in question accordingly. That the mere possession of money by the wife is not sufficient evidence of her ownership was settled by Parvin v. Capewell, 9 Wr. 89, where it was said: "A mere gift of money to a wife is not a settlement of it as her separate estate, for it may be for safe-keeping and deposit, without any intention to divest the husband's title. And her possession of funds ordinarily implies no more than that she is holding them for her husband." This is settled law, and is peculiarly applicable to this case. There is not a scintilla of proof of any intention of the appellant to make a gift of this money; nothing can be implied from the facts beyond the mere custody thereof on the part of the wife. The cases cited by the learned judge do not sustain his conclusions. Herr's Appeal, 5 W. & S. 494, was a case in which there was strong evidence of a gift, and this court said: "But such gift must be established by clear and convincing proof, not only of the act of donation and delivery, but of her separate custody of it." The same doctrine is held in Tripner v. Abrahams, 11 Wr. 220. In Bachman v. Killinger, 5 P. F. Smith, 414, it was held that the possession by the wife of the husband's moneys, security and property is very slight evidence of the transfer of the ownership, and his possession of her chattels ought to be considered still less evidence of title in him. In Crawford's Appeal, 11 P. F. Smith, 52, the husband informed his wife that he had added $3,000 to her money; he directed his clerk to credit her in his books with the $3,000 as cash received from her, and it was done. He credited her regularly with the interest of that sum in connection with the other sums belonging to her until his death. Held, that this was an executed gift followed by an express trust for his wife, and payable to her from his estate, but that it could not be supported as a debt. In addition it appeared that the husband had that amount of his wife's money in his possession. Here there was a plain intent to make a gift, followed by a positive unequivocal act. But where there is a mere permissive act, such as to allow the wife to be a custodian of his money, I know of no case in which it has been held that a gift can be implied from such act. McDermott's Appeal. Opinion by Paxson, J.

[Decided April 28, 1884.]

WILL CREDITORS — EXEMPTION - INTEREST.-A. died, leaving a wife and son. By his will he devised his real estate to his wife. The real estate was incumbered by a judgment against A. and by debts of A., which upon his death became liens against it. Subsequently the wife died, also indebted. The real estate being sold under order of court for payment of her debts: Held, that the son was entitled to claim the $300 exemption out of the proceeds in priority to the claims of his mother's creditors, but that his father's creditors must be satisfied in full before he could claim such exemption. Interest could not be recovered upon the judgment against A. after the confirmation of the sale in the above case. King's Appeal, 3 Norris, 345; Himes' Appeal, 13 id. 381, distinguished. Wauger's Appeal. Opinion per Curiam. [Decided Feb. 25, 1884.]

WILL-"CHILDREN"-CONSTRUCTION.-When a parent or ancestor, in designating the object of her bounty, speaks of "the children," the more reasonable construction is that children in being, or those likely to be born of an existing marriage, were intended, rather than those who at some remote and indefinite future time might possibly be born of a marriage neither existing nor in contemplation. A testa

trix devised certain real estate to her daughtor A. for life, and at her death to A.'s daughter B. in fee simple; and in case of B.'s death "then to be divided amongst the children." A was enceinte at the time of the will, and testatrix knew it. B. was not married until long after the testatrix's death, and then died before A. Held, upon A.'s death that the expression "the children" in the will must be taken to refer to A.'s children, and not to B.'s, and that the former were therefore entitled to the real estate. The inquiry now is, what was the intent of the testatrix? That intent gathered from the whole will furnishes the cardinal rule of construction. When it is not inconsistent with cstablished rules of law, and manifested with sufficient certainty, it must govern. Middleswarth's Admr. v. Blackmore, 24 P. F. Smith, 414; Schott's Estate, 28 id. 40; Reck's Appeal, id. 432. Facts existing and known to the testatrix at the time she executed the will, furnish strong aid in arriving at her intention. When a parent or ancestor in disposing of property, and in designating the objects of her bounty, speaks of "the children," we think it more reasonable to assume that she intended those in being, or those likely to be born of an existing marriage, rather than those who at some remote and indefinite time in the future might possibly be born of a marriage neither existing not contemplated. As then a fair and reasonable intent can be given to the language of the will by applying it to the children nearer to the testatrix, we cannot so construe it as to disinherit them and carry the property to those more remote, and who we think did not enter into the thought of the testatrix. Webb v. Hitchins. Opinion by Mercur, C. J. [Decided March 17, 1884.]

[merged small][ocr errors]


JUDICIAL SALE-VOID-GETTING TITLE AT QUENT SALE.-A person who is not in possession of real estate, but who claims title thereto under a void tax deed, can become a purchaser at a subsequent tax sale, and claim title by virtue of his purchase. This question was determined adversely to appellant in Mallory v. French, 44 Iowa, 133, which is in accord with Coxe v. Gibson, 27 Penn. St. 165; Bowman v. Corkrill, 6 Kan. 331; and Blackwood v. Van Vleit, 30 Mich. 119. Neal v. Frazier. Opinion by Seevers, J. [Decided April 25, 1884.]

[ocr errors]

COUNTY-CLAIM AGAINST ACCEPTING PART, NO SUIT FOR BALANCE.-Where a claim against a county is presented to the board of supervisors, and they allow a part of it and reject the rest, a claimant accepting the portion allowed, knowing that the rest has been rejected, cannot recover in an action for the portion rejected. Wapello Co, v. Sinnaman, 1 G. Greene, 413. That was a case where a claim was presented against the county, and part of it was allowed and the balance rejected. The court said: "If the plaintiff in this case presented his claim for allowance, and it was in part allowed by the board, and he accepted the amount thus allowed, he should not be permitted to afterward sue for the balance. The acceptance of the part allowed should be considered satisfaction for the whole." It is contended however that a different rule was announced in Fulton v. Monona Co., 47 Iowa, 622. In that case it was not shown that the claimant received the part allowed on the claim with knowledge that the balance had been rejected, and the case is made to him upon this fact. The case is in no manner in conflict with Wapello Co. v. Sinuaman. It is claimed however that the defendant was bound to pay the full amount of the claim, because it had been approved by the board of health, But having held that

« السابقةمتابعة »