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have availed himself of his legal remedy among his neighbors, would have been
since the court under the act can render willing to do it for. Hall v. Gallup. 279
in the same suit either a legal or equitable 3. Nor as to what a competent man
judgment, as the case may require. Kelly could have been procured to do it for. ib.
v. Wiard.

443 4. Evidence of the value of such service
2. The doors of a court of equity are not would not determine the value of the

absolutely closed against the entrance of skilled service of the plaintiff. ib.
parties interested in an estate in settle- 6. A statement of what a person would
ment in the probate court, but there must have done certain work for is not equiva-
be some emergency, like a threatened lent to a statement of the value of the
misappropriation of assets by an insolvent work. He might, for reasons of his own,
administrator with an insufficient bond, have been willing to do it for less than
to warrant the interference of the court its value.

to protect the estate, Butler v. Sisson. 6. In a civil action for the burning at

581 different times of several barns of the

plaintiff, the right of action as to certain

of which was outlawed, held that evi-

dence was admissible of a threat of the
A testator made a will, giving sundry pecu-

defendant to burn “that barn” of the
niary legacies to relatives who were his

plaintiff, although no barn was specified.
heirs at law. A few months later he gave

Mead v. Husted.

to each of the legatees the amount of the 7. Evidence of any declaration of the
legacy, and took from each a receipt for

defendant showing malice towards the
the same in full of all his rights under plaintiff would be admissible. ib.
the will, with an agreement by which each 8. Such evidence is not irrelevant because
bound himself and his heirs not to take the declarations are equivocal or inex-
any proceedings to set aside any will that plicit.

he shonld leave. One of these legatees 9. Nor because they were made a consider-
died before the testator, leaving a son,

able time before the act charged. ib.
who after the death of the testator took an 10. And held that evidence was admissible
appeal from the probate of his will. Held

that the defendant was seen in the
that he was not estopped from taking the neighborhood of one of the barns while
appeal by the agreement of his mother. it was burning, although that barn was

Billings's Appeal from Probate. 456 one as to which the right of action was


11. The proving of the defendant's pres-

ence at that time was one step in the

proof of his having set the barn on fire.
1. In a suit against a city for damages for

negligence in not providing sufficient 12. And proof that he set that barn on fire
culverts under streets that crossed a would have gone to show that he set the
brook, which it was alleged had been others on fire.

taken for a sewer and into which sewers 13. A party has a right to take one step at
were discharged, by reason of which the a time in his proof, without disclosing in
water was set back and injured the advance the next.

property of the plaintiff, it was held that 14. The denial of the proof of any fact
a judgment obtained by another owner that is relevant is presumably injurious,
on the same stream for an injury to his in the absence of any finding to the con-
property about the same time and from trary.

the same cause and involving the same 15. Evidence offered before a jury and
question as to the appropriation of the ruled out, can not be regarded as having
stream for a sewer and as to the duty of done the party objecting any harm. State
the city to maintain the culverts, was not v. Ward.

admissible in evidence against the city. 16. The ground upon which it was sought
Burdick v. City of Norwich.

225 to set a will aside was unsoundness of
2. The plaintiff, who had had forty years mind in the testator. In proof of his

experience in taking care of the sick and sanity the appellees offered in evidence a
for twenty years had made nursing her series of annual accounts, kept by a
business, was employed to take care of a person whom he employed to manage his
person diseased with a cancer. After his property, running from a tiine ten years
death sbe sued his executor for compen- before the making of the will to that of
sation. Held that the defendant could his death thirteen years after it was inade,
not introduce evidence as to what a per- showing in detail all investments and all
son of considerable experience in taking receipts and payments, and which were
care of the sick in his own family and submitted to the testator's examination.

These accounts the counsel for the appel- 19. In the circumstances in which the
lees proposed to read to the jury, for the engine was hired the market value of it
purpose of showing the minute and intel- would throw no light upon the question
ligent attention which the testator gave which of the two prices the defendant
to his affairs. The counsel for the appel- agreed to pay.

lant offered to admit that the accounts

were correct, and the court ordered that

8, 9, 10.
they be laid in unread, for the jury to
examine if they desired, except so far as

the counsel desired to call their attention

to any particular item or items. Held to
be error, since the object of the appellees 1. An administrator with a will anneged
could not be effected without laying the succeeds to all the ordinary powers of the
accounts before the jury in all their executor. Pratt v. Stewart.

details and connection, and the question 2. But if the will expressly constitutes the
was not at all whether the items were cor- executor a trustee for some special pur.

rect. Billings's Appeal from Probate. 456 pose, or vests in him a discretionary
17. The particular unsoundness of mind power in reference to some matter out-

that was claimed was that of a belief on side of the ordinary powers and duties of
the part of the testator in communica- an executor, or charges him with some
tions from spirits in the other world, and duty indicating a special confidence re-
that he had been directed by them as to posed in him, the duty imposed or power
the disposition of his property. By his conferred does not as a general rule pass
will he gave about half his property to to the administrator.

the town of S, where he lived, for a fund 3. But all the provisions of a will should
to be named after him, half the interest be executed by the administrator unless a
of which was to be used for the poor of contrary intention clearly appears. ib.
the town who were not town paupers, and 4. A will gave to a legatee one fourth of
the other half to be paid over to a society certain real estate, and then directed the
of spiritualists in the town, with a pro- executor to sell the real estate and pay
vision that if the town did not accept the over to the legatee one fourth of the
legacy the whole should go to the spirit- proceeds. Held not to be the intent to
ualist society. Held-1. That evidence vest the real estate in the legatee, and
was not admissible on the part of the that the power to sell it passed to the
contestants of the will that the spiritu- administrator with the will annexed. ib.
alist society bad become reduced to a 5. The sale of property, whether for the
very few persons and did not keep up its purpose of paying debts and charges, or
meetings. So long as the society was not of carrying into effect the provisions of a
extinct its feeble condition or insignifi- will, is a matter which pertains to ordi-
cance was no ground for impeaching the nary administration.

will. 2. That evidence was not admissible 6. An appeal from the allowance by a
on the part of the contestants that the probate court of B's account as executor
town of s had voted to refuse to accept

involved two questions in which he had a
the legacy. The action of the town could personal interest, one of which was deci-
not have any bearing on the validity of ded by the appellate court in his favor
the will.

ib. and one against him, and a third question
18. The defendant hired of the plaintiffs

in which he had no interest. On the
a portable steam engine for grinding

settlement of his final account he charged
apples. He had a large quantity of

the estate for his services and expenses
apples on hand, and, his own machinery in defending against the appeal. Held
failing, it was necessary for him to pro- that he was not entitled to an allowance
cure such an engine immediately to save of the whole amount, but that it should
them. In a suit for the use of the engine be apportioned between the executor and
the parties were at issue only as to the

the estate with reference to the separate
price agreed to be paid, the plaintiff

matters involved and the decision upon
claiming it to be $25 for two weeks and

them. Clement's Appeal from Probate.
$2 a day so long as it was kept beyond

that time, and the defendant that it was 7. The court in that case awarded costs
to be $25 for the whole use without against B to be paid out of the estate.
reference to time. Held that evidence In a suit on this judgment B claimed a
offered by the defendant of the market right of set-off and kept the case in court
value of the engine was not admissible for for several terms, but finally paid the
the purpose of showing the probability

demand without a trial. Held that, to
that the contract was as he claimed it to

justify charging the estate the expense of
be. Alling v. Cook.


defending the suit, it must be shown by

the executor that it was defended in the sufficient reason for allowing the peti-
interest and for the benefit of the estate; tioners to go into a court of equity, ib.
and that it was not enough that counsel 15. Whether it would be necessary that all
had advised him that he had a good the parties interested should be joined as
defence and that he had not acted in bad plaintiffs in an action at law against the

ib. administrator for damages: Quære. ib.
8. B was sued in the Superior Court as

See PROBATE PROCEEDINGS, 1, 2, 3, 4, 6,
trustee and defended, among other

grounds, on that of being liable, if at
all, as executor, and that the probate

court alone had original jurisdiction.
The court, after a long hearing and find- 1. . Petitions under the flowage act are to
ing of facts, sustained this defence as to be served by citation, in the same way
the greater part of the estate. Held that that bills in equity were served before the
B might properly be allowed from the

passage of the practice act. McArthur v.
estate a proportionate share of the ex- Morgan.

penses of the defence.

ib. 2. Evidence is , not admissible against a
9. B paid himself from the funds in his petition under the flowage act, that the

hands as executor a debt which he petitioners are pecuniarily unable to avail
claimed to be due him from the estate. themselves of the right sought, if it
This claim was afterwards disallowed on should be granted.

appeal. Held that while the matter was 3. It is no objection to such a petition,
in litigation B was chargeable with simple that the petitioners hold a perpetual
interest on the amount and afterwards license, upon the payment of an annual
with compound interest.

ib. rent and under certain limitations, to
10. During the period the legal rate of flow the land of one of the respondents,

interest was raised from six to seven per and that, by the granting of the petition,
cent. by a statute soon after repealed. they would acquire the right, for com-
Held that during the time the statute was pensation prepaid, to impose upon the
in force B was chargeable with seven per land a permanent easement, free from
cent. interest.

the limitations of the license.

11. The trust fund in B's hands for the 4. Where one of the respondents, eight

use of H during life was payable at his years before the hearing upon such a
death to his children, with whatever was petition, purchased a mill-site, now sought
left of the income. Held that they were to be flowed, on which he then intended
entitled to it at once and that B was to build a mill, but towards which he had
chargeable with interest upon it from the done nothing, it was held to be a question
death of H.

ib. of fact for the committee whether that
12. An administrator refused, upon the intent still existed or had been aban-
application of parties interested in the doned.

estate, to bring suit for certain stocks to

which they claimed that the estate was
entuled. Held that a court of equity 1. A copy of a writ containing a factoriz-
wound not entertain a bill brought by ing process, with the officer's return of
them in their own names to compel the service «upon the garnishee, was signed
transfer of the stocks to the administra- with the officer's name by his clerk and
tor Butler v. Sisson.

580 left by the officer with the defendant in
13. The whole power and duty of taking service. Held that the signature was of

possession of the assets of an estate and no validity and the leaving of the copy
of recovering them by suig if necessary, of no effect. McGuire v. Church. 248
is committed by the law to the executor 2. The writ had been duly served upon
or administrator, and where he neglects the garnishee. Held that the failure to
his duty the law furnishes ample remedy leave a properly certified and indorsed
to parties interested in a suit on bis bond, copy with the defendant rendered the
or in proceedings in the probate court for attachment invalid.

his removal, or for the disallowance of 3. The defendant appeared in court and
his probate account.

ib. pleaded to the merits. Held that, while
14. In the present case the administrator this was a waiver of service upon himself

was a corporation empowered to take personally, it did not operate to validate
administration of estates and excused the attachment.

from giving bond; while the parties who 4. The continuance of suits of foreign
would have the right to sue for a devasta- attachment where the defendant is not in
vit had conflicting interests and a part this state, is governed by Gen. Statutes,
would not join with the present peti- p. 419, sec. 19, and not by the 20th section
tioners in such a suit. Held not to be a of that statute Potter v. Sanborn. 452


gage debt.


5. The expression “if the defendant is not FRAUDULENT CONVEYANCE.
in this state,

," in the 19th section, was
intended to apply to a defendant residing See INSOLVENCY, (ASSIGNMENT IN), 1;
out of the state, and not to an inhabitant INSOLVENT DEBTOR, 1, 2, 4, 5; MORT-
of the state temporarily absent. ib.

GAGE, 4.

1. Sundry facts considered and held insuf- The petitioner sold the respondent certain
ficient to warrant the court in holding, as

oyster grounds which the respondent
matter of law, that a grantee of a fraud-

mortgaged back. On a bill for the fore-
ulent purchaser was chargeable with

closure of the mortgage the respondent
notice of the fraud. Pease v. Bridge. 68

set up fraudulent representations in the
2. No contract, sealed or unsealed, is suffi-

sale, as to the quantity of ground planted
cient of itself, unaided by other facts, to

and as to the quality of the oysters. It

was found that the respondent did not
cover and protect fraud; and rules of
evidence which exclude parol proof when

rely on the representations alone, but
offered to affect written instruments, will

required a written guarantee that they
generally give way and allow the fraud to

were true. The court assessed damages

in his favor upon the guarantee and
be proved. Feltz v. Walker.

3. A court of equity does not undertake

applied them in reduction of the mort-

Held that the respondent
to compel obedience to the highest re-

could not also avail himself of the fraud
quirements of honesty and moralty in
the transactions of men. Hemingway v.

as affecting the title. Elphick y. Hoff-


4. Where parties do not stand in a confi-

dential relation a court of equity will
not, in the absence of actual fraud, set 1. The defendant contracted to purchase
aside a sale for inadequacy of price. ib.

of the plaintiff all the furniture in a
5. The respondent had formerly for many

certain hotel used by him in the business
years been in the service of A as a laborer,

of inn-keeping. Held that a piano that
being chiefly employed in taking care of

had been kept by the plaintiff in the
oyster beds kept by him, and being much

parlor of the hotel for the use of its
trusted by him. Seven years after he had

guests came within the contract. Cross-
left the service, and while very friendly

man v. Baldwin.

relations continued between him and A 2. And held that the plaintiff upon the
and his family, A had become broken
down in mind and unable to manage bis

trial might properly introduce the testi-

mony of hotel keepers, that a piano was
affairs, and his wife, an intelligent and

in their opinion a proper article of hotel
capable woman, was in charge of them.


She, thinking it best to sell the oyster
grounds, applied to the respondent, who

advised the sale and sold a part for her.
She afterwards said to bim that she A grandjuror's complaint, upon which a
wished to sell the rest, and he offered to person accused of crime is bound over to
buy them. She said he might have them the Superior Court, in which court a new
if he would pay as much as any one else. information is filed by the state's attor.
The next day she called upon him and

ney, is a part of the whole proceeding and
asked what he would give for them. He

prevents the running of the statute of
replied $200. After a moment's hesita- limitations against the offence. Siate v.
tion she said she would take it. He Ward.

paid the inoney and she at once had a
conveyance to him executed by her hus-

band. When he made the offer he knew
that the grounds were worth $500, and 1. In the case of highways obstructed by
could be readily sold for that sum. She snow in country towns, the custom of
believed him honest, and a friend, and neighbors joining and breaking a path
that he would offer what he thought a without expense to the town or any
fair price; and he knew that she would action of the selectmen, is a long estab-
consider any price that he should offer as lished and general prevailing one, and is
in his opinion a fair one. Held that the satisfactory to the public and reasonable
sale ought not to be set aside by a court in itself. "Seeley v. Town of Litchfield.
of equity, either on the ground of fraud

in a contidential relation or on that of 2. In view of this usage there should be
inadequacy of price,

ib. something out of the ordinary course in



such cases to require action by the select- all property thereafter acquired by any

ib. married woman should be held by her to
3. It is enough in case of such obstruc- her sole and separate use.

tion if a reasonably safe and convenient 4. The estate of a married woman under
path is kept open any where within the such a will is acquired once for all when
limits of the highway.

ib. the will becomes operative by the death
of the testator.


5. Where a husband joins with his wife in

a conveyance of her real estate, it is

enough under the statute (Gen. Statutes,
1. Where during a hearing before a com-

tit. 18, ch. 6, sec. 10), if he executes the
mittee in a highway case one of the com-

deed with her, although his name does
mittee was entertained over night by one

not appear in the body of the deed.
of the selectmen of the defendant town,

Pease v. Bridge.

and the counsel for the petitioners knew 6. A husband who knowingly permits his
of the fact, but went on with the hearing

wife to be without necessary supplies and
the next day and through the trial with-

without money or credit to procure them,
out making objection, it was held that it

authorizes her to procure them from any
was too late to make the objection after

person who is willing to furnish them on
an adverse report of the committee.

the husband's credit. Pierpont v. Wil.
Williams v. Town of Stonington. 229

2. It is necessary to the sufficiency of a

7. And the right of any person to supply
remonstrance on such a ground that it

her wants on the husband's credit is not
contain an allegation that the party re-

affected by notice, general or special,
monstrating had no knowledge of the

given by him that he should pay for no
fact until after the trial.


supplies that were not furnished on his
3. There is no impropriety in a commit-

written order.

tee's stating to both parties at the close 8. And it is not the duty of the wife in
of the hearing that they should not

such a case to first seek him and ask for
deliver their report to the party in whose

such an order.

favor it should be made until their fees
were paid.

4. Nor in the counsel for either party. Since 1810, when the law requiring an


stating that if the report was in favor of
his clients he would at once pay their

imprisoned debtor to support himself


was repealed, it has been the duty of the

creditor to provide for his maintenance,

and the expense thus incurred can be

recovered by the creditor as costs on the
1. Where property is bequeathed to a

execution. Smith v. Staples.

married woman it is necessary, in order
to exclude the marital rights of the hus-

band, that an intention on the part of the See FRAUD, 4, 5.
testator to vest in her a separate estate
should appear so clearly as to be beyond

the reach of reasonable doubt. Vail v.

52 1. The contract of an infant for the pay-
2. It is not necessary that the words "sole ment of money, not for necessaries, can

and separate estate” should be used for not, as a general rule, be ratified by a
that purpose; but in the absence of words

mere acknowledgment of indebtedness
of equivalent import, or provisions that after he becomes of age. There must be
exclude the marital rights of the husband, an express promise to pay. Catlin v.
or give the wife powers concerning the Haddox.

property inconsistent with the disabilities 2. The exception to the rule is, where the
of coverture, the rights of the husband infant received the consideration for
will attach.

ib. which his promise was given, and afier
3. Where a fund was given to trustees who he becomes of age, still has it in his

were to pay to a married woman “the possession or under his control. In such
rents, dividends and income thereof, à case it will be inferred from his mere
annually,” it was held that the income acknowledgment of indebtedness that he
as it became payable was not to be re- intended to make himself liable.
garded as estate newly acquired, and that 3. In a suit on a note given by an infant,
therefore the marital rights of the hus- brought after he has become of age, it
baud as to such income were not affected will not be presumed that the note was
by the act of 1878, which provides that given for necessaries, nor that the con-


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