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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.
ESTOPPEL.

7.

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.

""

among his neighbors, would have been
willing to do it for. Hall v. Gallup. 279
Nor as to what a 66
competent man
could have been procured to do it for. ib.
Evidence of the value of such service
would not determine the value of the
skilled service of the plaintiff.
ib.

5.

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.
ib.

8.

Such evidence is not irrelevant because
the declarations are equivocal or inex-
plicit.
ib.

9.

Nor because they were made a consider-
able time before the act charged. ib.
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.
ib.
12. And proof that he set that barn on fire
would have gone to show that he set the
others on fire.
ib.
13. A party has a right to take one step at

a time in his proof, without disclosing in
advance the next.
ib.
14. The denial of the proof of any fact
that is relevant is presumably injurious,
in the absence of any finding to the con-
trary.
ib.

15.

Evidence offered before a jury and
ruled out, can not be regarded as having
done the party objecting any harm. State
v. Ward.

429

EVIDENCE.

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

3.

4.

16.

The ground upon which it was sought
to set a will aside was unsoundness of
mind in the testator. In proof of his
sanity the appellees offered in evidence a
series of annual accounts, kept by a
person whom he employed to manage his
property, running from a tine ten years
before the making of the will to that of
his death thirteen years after it was made,
showing in detail all investments and all
receipts and payments, and which were
submitted to the testator's examination.

19. In the circumstances in which the
engine was hired the market value of it
would throw no light upon the question
which of the two prices the defendant
agreed to pay.
ib.

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

1.

An administrator with a will annexed
succeeds to all the ordinary powers of the
executor. Pratt v. Stewart.
339

2.

But if the will expressly constitutes the
executor a trustee for some special pur-
pose, or vests in him a discretionary
power in reference to some matter out-
side of the ordinary powers and duties of
an executor, or charges him with some
duty indicating a special confidence re-
posed in him, the duty imposed or power
conferred does not as a general rule pass
to the administrator.

ib.

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
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

5.

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.
ib.

6.

An appeal from the allowance by a
probate court of B's account as executor
involved two questions 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.
519

7.

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.
574

The court in that case awarded costs
against B to be paid out of the estate.
In a suit on this judgment B claimed a
right of set-off and kept the case in court
for several terms, but finally paid the
demand without a trial. Held that, to
justify charging the estate the expense of
defending the suit, it must be shown by

See FRAUD, 2; FURNITURE, 2; MURDER, 1,
8, 9, 10.

EXECUTORS

AND
TORS.

ADMINISTRA-

3.

But all the provisions of a will should
be executed by the administrator unless a
contrary intention clearly appears.
ib.

4.

A will gave to a legatee one fourth of
certain real estate, and then directed the
executor to sell the real estate and pay
over to the legatee one fourth of the
proceeds. Held not to be the intent to
vest the real estate in the legatee, and
that the power to sell it passed to the
administrator with the will annexed. ib.

sufficient reason for allowing the peti-
tioners to go into a court of equity. ib.

15.

Whether it would be necessary that all
the parties interested should be joined as
plaintiffs in an action at law against the
administrator for damages: Quære. ib.
See PROBATE PROCEEDINGS, 1, 2, 3, 4, 6,
12.

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.

2.

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.

ib.

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.

FLOWAGE ACT.

1.

Petitions under the flowage act are to
be served by citation, in the same way
that bills in equity were served before the
passage of the practice act. McArthur v.
347

Morgan.

Evidence is not admissible against a
petition under the flowage act, that the
petitioners are pecuniarily unable to avail
themselves of the right sought, if it
should be granted.
ib.

3.

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.

580
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.
ib.

3.

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

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.

FOREIGN ATTACHMENT.

1.

A copy of a writ containing a factoriz-
ing process, with the officer's return of
service upon the garnishee, was signed
with the officer's name by his clerk and
left by the officer with the defendant in
service. Held that the signature was of
no validity and the leaving of the copy
of no effect. McGuire v. Church.

248

2.

The writ had been duly served upon
the garnishee. Held that the failure to
leave a properly certified and indorsed
copy with the defendant rendered the
attachment invalid.
ib.

The defendant appeared in court and
pleaded to the merits. Held that, while
this was a waiver of service upon himself
personally, it did not operate to validate
the attachment.
ib.

4.

The continuance of suits of foreign
attachment where the defendant is not in
this state, is governed by Gen. Statutes,
p. 419, sec. 19, and not by the 20th section
of that statute. Potter v. Sanborn. 452

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
ib.
of the state temporarily absent.

FRAUD.

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

4.

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. Hoff-
331

man.

2.

A

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.

2.

FURNITURE.

1.

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.

GRANDJUROR'S COMPLAINT.

grand juror's complaint, upon which a
person accused of crime is bound over to
the Superior Court, in which court a new
information is filed by the state's attor-
ney, is a part of the whole proceeding and
prevents the running of the statute of
limitations against the offence. State v.
Ward.

429

HIGHWAY.

1.

In the case of highways obstructed by
snow in country towns, the custom of
neighbors joining and breaking a path
without expense to the town or any
action of the selectmen, is a long estab-
lished and general prevailing one, and is
satisfactory to the public and reasonable
in itself. Seeley v. Town of Litchfield.
134

In view of this usage there should be
something out of the ordinary course in

such cases to require action by the select-

men.

ib.

3. It is enough in case of such obstruc-
tion if a reasonably safe and convenient
path is kept open any where within the
limits of the highway.
ib.

See HIGHWAY, (LAYING OUT of).

all property thereafter acquired by any
married woman should be held by her to
her sole and separate use.
ib.

4.

The estate of a married woman under
such a will is acquired once for all when
the will becomes operative by the death
of the testator.
ib.
5. Where a husband joins with his wife in
a conveyance of her real estate, it is
enough under the statute (Gen. Statutes,
tit. 18, ch. 6, sec. 10), if he executes the
deed with her, although his name does
not appear in the body of the deed.
58
Pease v. Bridge.

6.

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

son.

HIGHWAY, (LAYING OUT OF).

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.
ib.
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
were paid.
ib.

7.

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.

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.
ib.

8.

And it is not the duty of the wife in
such a case to first seek him and ask for
such an order.
ib.

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
87
execution. Smith v. Staples.

HUSBAND AND WIFE.

INFANT.

1.

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-
baud as to such income were not affected
by the act of 1878, which provides that

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
a case it will be inferred from his mere
acknowledgment of indebtedness that he
intended to make himself liable. ib.

66

INADEQUACY OF PRICE.

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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