have availed himself of his legal remedy since the court under the act can render in the same suit either a legal or equitable judgment, as the case may require. Kelly v. Wiard.
443 2. The doors of a court of equity are not absolutely closed against the entrance of parties interested in an estate in settle- ment in the probate court, but there must be some emergency, like a threatened misappropriation of assets by an insolvent administrator with an insufficient bond, to warrant the interference of the court to protect the estate. Butler v. Sisson. 581
See DEED, (REFORMATION OF), 1, 2.
A testator made a will, giving sundry pecu- niary legacies to relatives who were his heirs at law. A few months later he gave to each of the legatees the amount of the legacy, and took from each a receipt for the same in full of all his rights under the will, with an agreement by which each bound himself and his heirs not to take any proceedings to set aside any will that he should leave. One of these legatees died before the testator, leaving a son, who after the death of the testator took an appeal from the probate of his will. Held that he was not estopped from taking the appeal by the agreement of his mother. Billings's Appeal from Probate. 456 See CONSERVATOR, 2; MORTGAGE, 1, 4.
1. In a suit against a city for damages for negligence in not providing sufficient culverts under streets that crossed a brook, which it was alleged had been taken for a sewer and into which sewers were discharged, by reason of which the water was set back and injured the property of the plaintiff, it was held that a judgment obtained by another owner on the same stream for an injury to his property about the same time and from the same cause and involving the same question as to the appropriation of the stream for a sewer and as to the duty of the city to maintain the culverts, was not admissible in evidence against the city. Burdick v. City of Norwich. 225 2. The plaintiff, who had had forty years experience in taking care of the sick and for twenty years had made nursing her business, was employed to take care of a person diseased with a cancer. After his death she sued his executor for compen- sation. Held that the defendant could not introduce evidence as to what a per- son of considerable experience in taking care of the sick in his own family and
among his neighbors, would have been willing to do it for. Hall v. Gallup. 279 3. Nor as to what a "competent man' could have been procured to do it for. ib. 4. Evidence of the value of such service Iwould not determine the value of the skilled service of the plaintiff. ib.
A statement of what a person would have done certain work for is not equiva- lent to a statement of the value of the work. He might, for reasons of his own, have been willing to do it for less than its value.
ib. 6. In a civil action for the burning at 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 defendant to burn "that barn" of the plaintiff, although no barn was specified. Mead v. Husted. 336
Evidence of any declaration of the defendant showing malice towards the plaintiff would be admissible.
8. Such evidence is not irrelevant because the declarations are equivocal or inex- plicit.
9. Nor because they were made a consider- able time before the act charged. 10. And held that evidence was admissible that the defendant was seen in the neighborhood of one of the barns while it was burning, although that barn was one as to which the right of action was outlawed. ib. 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.
These accounts the counsel for the appel- lees proposed to read to the jury, for the purpose of showing the minute and intel- ligent attention which the testator gave to his affairs. The counsel for the appel- lant offered to admit that the accounts were correct, and the court ordered that 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 could not be effected without laying the accounts before the jury in all their details and connection, and the question was not at all whether the items were cor- rect. Billings's Appeal from Probate. 456 17. The particular unsoundness of mind that was claimed was that of a belief on the part of the testator in communica- tions from spirits in the other world, and that he had been directed by them as to the disposition of his property. By his I will he gave about half his property to the town of S, where he lived, for a fund to be named after him, half the interest of which was to be used for the poor of the town who were not town paupers, and the other half to be paid over to a society of spiritualists in the town, with a pro- vision that if the town did not accept the legacy the whole should go to the spirit- ualist society. Held-1. That evidence was not admissible on the part of the contestants of the will that the spiritu- alist society had become reduced to a very few persons and did not keep up its meetings. So long as the society was not extinct its feeble condition or insignifi- cance was no ground for impeaching the will. 2. That evidence was not admissible on the part of the contestants that the town of S had voted to refuse to accept the legacy. The action of the town could not have any bearing on the validity of the will. ib. 18. The defendant hired of the plaintiffs a portable steam engine for grinding apples. He had a large quantity of apples on hand, and, his own machinery failing, it was necessary for him to pro- cure such an engine immediately to save them. In a suit for the use of the engine the parties were at issue only as to the price agreed to be paid, the plaintiff claiming it to be $25 for two weeks and $2 a day so long as it was kept beyond that time, and the defendant that it was to be $25 for the whole use without reference to time. Held that evidence offered by the defendant of the market value of the engine was not admissible for the purpose of showing the probability that the contract was as he claimed it to be. Alling v. Cook.
The sale of property, whether for the purpose of paying debts and charges, or of carrying into effect the provisions of a will, is a matter which pertains to ordi- nary administration.
An appeal from the allowance by a probate court of B's account as executor involved two questions in which he had a personal interest, one of which was deci- ded by the appellate court in his favor and one against him, and a third question in which he had no interest. On the settlement of his final account he charged the estate for his services and expenses in defending against the appeal. Held that he was not entitled to an allowance of the whole amount, but that it should be apportioned between the executor and the estate with reference to the separate matters involved and the decision upon them. Clement's Appeal from Probate.
the executor that it was defended in the interest and for the benefit of the estate; and that it was not enough that counsel had advised him that he had a good defence and that he had not acted in bad faith. ib. 8. B was sued in the Superior Court as 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- ing of facts, sustained this defence as to the greater part of the estate. Held that B might properly be allowed from the estate a proportionate share of the ex- penses of the defence.
ib. 9. B paid himself from the funds in his hands as executor a debt which he claimed to be due him from the estate. This claim was afterwards disallowed on appeal. Held that while the matter was in litigation B was chargeable with simple interest on the amount and afterwards with compound interest. 10. During the period the legal rate of interest was raised from six to seven per cent. by a statute soon after repealed. Held that during the time the statute was in force B was chargeable with seven per cent. interest.
11. The trust fund in B's hands for the
use of H during life was payable at his death to his children, with whatever was left of the income. Held that they were entitled to it at once and that B was chargeable with interest upon it from the death of H.
ib. 12. An administrator refused, upon the application of parties interested in the estate, to bring suit for certain stocks to which they claimed that the estate was entitled. Held that a court of equity would not entertain a bill brought by them in their own names to compel the transfer of the stocks to the administra- tor. Butler v. Sisson. 13. The whole power af duty of taking possession of the assets of an estate and of recovering them by suit if necessary, is committed by the law to the executor or administrator, and where he neglects his duty the law furnishes ample remedy to parties interested in a suit on his bond, or in proceedings in the probate court for his removal, or for the disallowance of his probate account.
14. In the present case the administrator was a corporation empowered to take administration of estates and excused from giving bond; while the parties who would have the right to sue for a devasta- vit had conflicting interests and a part would not join with the present peti- tioners in such a suit. Held not to be a VOL. XLIX-78
It is no objection to such a petition, that the petitioners hold a perpetual license, upon the payment of an annual rent and under certain limitations, to flow the land of one of the respondents, and that, by the granting of the petition, they would acquire the right, for com- pensation prepaid, to impose upon the land a permanent easement, free from the limitations of the license. ib.
4. Where one of the respondents, eight years before the hearing upon such a petition, purchased a mill-site, now sought to be flowed, on which he then intended to build a mill, but towards which he had done nothing, it was held to be a question of fact for the committee whether that intent still existed or had been aban- doned. ib.
5. The expression "if the defendant is not in this state," in the 19th section, was intended to apply to a defendant residing out of the state, and not to an inhabitant of the state temporarily absent. ib.
1. Sundry facts considered and held insuf- ficient to warrant the court in holding, as matter of law, that a grantee of a fraud- ulent purchaser was chargeable with notice of the fraud. Pease v. Bridge. 58 2. No contract, sealed or unsealed, is suffi- cient of itself, unaided by other facts, to cover and protect fraud; and rules of evidence which exclude parol proof when offered to affect written instruments, will generally give way and allow the fraud to be proved. Feltz v. Walker. 94 3. A court of equity does not undertake to compel obedience to the highest re- quirements of honesty and moralty in the transactions of men. Hemingway v. Coleman. 390
Where parties do not stand in a confi- dential relation a court of equity will not, in the absence of actual fraud, set aside a sale for inadequacy of price. ib. 5. The respondent had formerly for many years been in the service of A as a laborer, being chiefly employed in taking care of oyster beds kept by him, and being much trusted by him. Seven years after he had left the service, and while very friendly relations continued between him and A and his family, A had become broken down in mind and unable to manage his affairs, and his wife, an intelligent and 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 him that she wished to sell the rest, and he offered to buy them. She said he might have them if he would pay as much as any one else. The next day she called upon him and asked what he would give for them. He replied $200. After a moment's hesita- tion she said she would take it. He paid the money 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 could be readily sold for that sum. She believed him honest, and a friend, and that he would offer what he thought a fair price; and he knew that she would consider any price that he should offer as in his opinion a fair one. Held that the sale ought not to be set aside by a court of equity, either on the ground of fraud in a confidential relation or on that of inadequacy of price. ib.
FRAUDULENT CONVEYANCE.
See INSOLVENCY, (ASSIGNMENT IN), 1; INSOLVENT DEBTOR, 1, 2, 4, 5; MORT- GAGE, 4.
FRAUDULENT REPRESENTATIONS. The petitioner sold the respondent certain oyster grounds which the respondent mortgaged back. On a bill for the fore- closure of the mortgage the respondent set up fraudulent representations in the sale, as to the quantity of ground planted and as to the quality of the oysters. It was found that the respondent did not rely on the representations alone, but required a written guarantee that they were true. The court assessed damages in his favor upon the guarantee and applied them in reduction of the mort- gage debt. Held that the respondent could not also avail himself of the fraud as affecting the title. Elphick v. Hof- 331
The defendant contracted to purchase of the plaintiff all the furniture in a certain hotel used by him in the business of inn-keeping. Held that a piano that had been kept by the plaintiff in the parlor of the hotel for the use of its guests came within the contract. Cross- man v. Baldwin. 490
And held that the plaintiff upon the trial might properly introduce the testi- mony of hotel keepers, that a piano was in their opinion a proper article of hotel furniture. ib.
1. Where during a hearing before a com- mittee in a highway case one of the com- mittee was entertained over night by one of the selectmen of the defendant town, and the counsel for the petitioners knew of the fact, but went on with the hearing the next day and through the trial with- out making objection, it was held that it was too late to make the objection after an adverse report of the committee. Williams v. Town of Stonington. 229 2. It is necessary to the sufficiency of a remonstrance on such a ground that it contain an allegation that the party re- monstrating had no knowledge of the fact until after the trial. 3. There is no impropriety in a commit- tee's stating to both parties at the close of the hearing that they should not deliver their report to the party in whose favor it should be made until their fees ib. were paid. 4. Nor in the counsel for either party stating that if the report was in favor of his clients he would at once pay their fees. ib.
A husband who knowingly permits his wife to be without necessary supplies and without money or credit to procure them, authorizes her to procure them from any person who is willing to furnish them on the husband's credit. Pierpont v. Wil- 450 7. And the right of any person to supply her wants on the husband's credit is not affected by notice, general or special, given by him that he should pay for no supplies that were not furnished on his written order.
And it is not the duty of the wife in such a case to first seek him and ask for ib. such an order.
IMPRISONED DEBTOR. Since 1810, when the law requiring an 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 execution. 87 Smith v. Staples.
1. Where property is bequeathed to a 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. Vail.
52 2. It is not necessary that the words "sole and separate estate" should be used for that purpose; but in the absence of words of equivalent import, or provisions that exclude the marital rights of the husband, or give the wife powers concerning the property inconsistent with the disabilities of coverture, the rights of the husband will attach.
ib. 3. Where a fund was given to trustees who were to pay to a married woman "the rents, dividends and income thereof, annually," it was held that the income as it became payable was not to be re- garded as estate newly acquired, and that therefore the marital rights of the hus- band as to such income were not affected by the act of 1878, which provides that
1. The contract of an infant for the pay- ment of money, not for necessaries, can not, as a general rule, be ratified by a mere acknowledgment of indebtedness after he becomes of age. There must be an express promise to pay. Catlin v. Haddox. 492 2. The exception to the rule is, where the infant received the consideration for which his promise was given, and after he becomes of age, still has it in his possession or under his control. In such à case it will be inferred from his mere acknowledgment of indebtedness that he intended to make himself liable. 3. In a suit on a note given by an infant, brought after he has become of age, it will not be presumed that the note was given for necessaries, nor that the con-
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