« السابقةمتابعة »
a transcript of the books and proceedings of the treas- attachment was levied on that interest,existed when the ury department in account with” the purser whose statute of exemption was passed. The case states exbond is in suit, and the secretary of the treasury has plicitly that the act went into effect April 24, 1861, and certified, under the seal of the department, to the of- the attachment was levied May 10, 1861, and the hus. ficial character of the auditor, "and that full faith baud's right, either by the curtesy or for the wife's and credit are due to his official attestations.” What | life, had vested long before. It might therefore have more need be done to authenticate the transcript been held to impair the obligation of the plaintiff's under the seal of the department we are at loss to de- contract if the act had been so construed as to exempt termine. The certificate of the proper auditor is at- that interest from liability to sale for that debt. In tached and his certificate attested by the secretary of the case of Stehman y. Huber, 21 Penn. St. 260, it was the treasury under the seal of the department. The simply held that where, on a partition of an estate in form of the certificates and the mode of affixing the in which the wife was a part owner, the husband adseal correspond exactly with what appears in Smith v. vanced a considerable sum as owelty in ber behalf, he United States, 5 Pet. 292, where it was held, more than thereby became interested in the property allotted to half a century ago, that the seal affixed in this way was her and conveyed to her and to him jointly, and that sufficient for the purposes of evidence under a statute, the husband, by executing a conveyance of this interof which section 886 is a re-enactment. The transcript est to a third person, who conveyed it to the wife, is certified by the auditor, and authenticated under could not thereby defeat the existing creditor's right the seal of the treasury department affixed by the to appropriate that interest to the payment of his secretary, its lawful custodian. The judgment is re- debts. In the case of White v. Hildreth, on the other versed and the cause remanded, with instructions to hand, there came before the Supreme Court of Verset aside the verdict and grant a new trial. United mont, for construction, a statute in regard to the debts States v. Bell. Opinion by Waite, C. J.
of the husband very like the act of Congress. It enacted [Decided April 21, 1881.]
that the rents, issues and profits of the real estate of
any married woman, and the interest of her husband MARRIAGE-TENANCY BY CURTESY WIFE'S PROP in her right in any real estate, which belonged to her ERTY NOT SUBJECT TO HUSBAND'S DEBTS. - It is the before marriage, or which she may have acquired by right of a married woman to any property, personal or gift, grant, devise or inheritance during coverture, real, belonging to her at the time of marriage, or ac- shall during coverture be exempt from attachment or quired during marriage, which shall be as absolute as levy of execution for the sole debts of her husband, if she were unmarried, and shall not be subject to the * * provided this act shall not affect any attachdisposal of her husband. It was the purpose of the ment or levy of execution already made. Compiled statute to abolish this tenancy by the curtesy, or any Stat. of Vt. of 1830, p. 403, $ 15. In the case mentioned, other interest of the husband, in all her property, and 32 Vt. 265, the husband had built upon and imto place her in regard to it in the condition of a feme proved the land of the wife, after which she rented it sole. And it was this same property, and not part of to her son, in whose hands the rent was attached by it, no separate interest, or estate in it, which was ex- trustee process for the debt of the husband. But the empted from liability for his debts. It would be a court said: “The legal title to the land, with the queer construction of the statute, looking at its mani- supervening improvements and building, is still in the sest purpose, to hold that it meant, though her prop- wife. It accrued during coverture. The rent reerty shall never come under his control and he shall served in the lease to her son, is the rent of the land acquire no interest in it, and it shall never be liable she owns. The statute expressly exempts such rent for his debts, the use and possession, the rents and from the hands of his creditors. This provision of the profits of it, may be made liable to his debts as long as statute seems to answer what otherwise must have he lives. “In the district the right of any married beeu a well-founded suggestion, viz., that though this woman to any property, personal or real, belonging to money is payable to the wife of the defendant, still it her at the time of marriage, or acquired during mar- is not the rent of the freehold which the husband held riage in any other way than by gift or conveyance by virtue of the coverture and the birth of issue capafrom her husband, shall be as absolute as if she were ble of inheriting, and is in contemplation of law enunmarried, and shall not be subject to the disposal of tirely the husband's without invoking the wife as the her husband, nor be liable for his debts." We are of meritorious cause. Here the court holds distinctly opinion that the statute (R. S., Dist. Columbia, $ 727) that this statute, which does not profess to abolish intended to exempt all property, which came to the the tenancy by the curtesy, is still an answer to an atwife by any other mode than through the husband, tempt to subject the rents and profits to his debts, befrom liability to seizure for his debts, without regard cause it declares that the property shall be exempt to the nature the interest which the husband may from levy for his debts. Hitz v. Nat. Metropolitan have in it, or the tiine when it accrued, and that in re- Bank. Opinion by Miller, J. gard to such debts, created after the passage of the [Decided May 5, 1884.] 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 UNITED STATES CIRCUIT AND DISTRICT by the curtesy, in her property, before such enact
COURT ABSTRACT.* ment, it is eminently wise and just that no other perBon should afterward acquire such an interest in it as
LACHES-GOVERNMENT NOT CHARGEABLE WITH to disturb the joint possession of it, and turn the
LIMITATION IN EQUITY--AFTER-ACQUIRED TITLEfamily resulting from the marriage out, that it may go
SPECIFIC PERFORMANCE.-Time does not run against to pay his debts. The authorities cited by counsel for
the United States, and public policy forbids that the appellee rather sustain, and certainly do not contra.
negligence of the officers of an immense government dict, this view of the matter. In the case of Rose v.
like ours should be held to create laches on the part of Sanderson, 38 Ill. 247, while the court holds that a
the government, except probably as to third persons statute, very much like the act of Congress relied on
who are strangers to transactions as to which the nega here, did not exempt from sale for the husband's debt
ligence may occur. In United States v. Kirkpatrick, his life interest in her real estate, wbich had become
9 Wheat. 720, the Supreme Court say: “The general vested before the passage of the act, it is apparent, from the record, that the debt for which the writ of
*19 Fed. Rep.
principle is that laches is not imputable to the govern- ment to show the validity of the deed. Dist. Ct., N.
TELEGRAPH COMPANIES-RAILROAD IS POST-ROAD-in effect, work a repeal of all its securities." In United
ACT JULY 24, 1866- ERECTING LINES — EXCLUSIVE States v. Vanzandt, 11 Wheat. 190, the court say:
RIGHT.-- A railroad is, under the statutes of the Uni“The neglect in the one case and the other imputes | ted States, a post-road, and accordingly the act of laches to the officer whose duty it was to perform the Congress of July 24, 1866, giving to all telegraph comacts which the law required; but in a legal point of panies alike the right to construct, maintain, and operview, the rights of the government cannot be affected
ate lines along all post-roads of the United States, is by these laches.” “A claim of the United States is
paramount over any agreement made by a railroad not released by the laches of the officer to whom the company securing to a telegraph company the sole use assertion of that claim was intrusted." Dox v. Post
of its line of road for its wires. This was decided by master-General, 1 Pet. 325, “Statutes of limitation
the Supreme Court in Pensacola Tel, Co. v. Western do not bind the United States unless it is specially Union Tel. Co., 96 U. S. 1. It was not held in that nained therein.” Lindsey v. Lessee of Miller, 6 Pet.
case that a telegraph company could acquire a right of 666; United States v. Hoar, 2 Mason, 311. “The un
way over a railroad without the consent of the owner authorized act of the officer of the United States (in of the railroad, or even that the act gave to telegraph the matter of a claim for or against it) cannot bind the
companies the power to acquire such a right of way by United States." Filor v. United States, 9 Wall. 49.
compulsory proceedings, upon due compensation to Equity will not refuse to inforce an obligation merely
the owner; and the contrary was plainly intimated. because of the lapse of time, unless evidence has been
But the act was considered and expounded as intenlost, or the rights of third parties have become in- ded, and effectual, to deny to any one telegraph comvolved, or the personal relations between the parties
pany the power to acquire any such easement in the have been so much altered as to change the essential lands of a railroad for telegraphic facilities as would character of the obligation. See the case of Etting p.
exclude other companies from obtaining like priviMarx, 4 Hughes, 312; 4 Fed. Rep. 633, where the doc
leges, and as a declaration by Congress of a policy in trine of limitation in equity is very elaborately dis
the interests of the public and of the government cussed as to suits between private individuals. A
which was reasonable and lawful. Since that decision party agreeing to transfer property which he does
it has been adjudged in two cases in the Circuit Courts not own at the time cannot refuse to perform his con
of the United States that a railroad company cannot tract after acquiring title. Que who, by his own
grant to a telegraph company the exclusive right to fault, is unable to perform a part of his contract, can
establish a line over its right of way. Western Union not upon that account resist a bill for the specific per
Tel. Co. v. American Union Tel, Co., 9 Biss. 72; Wesformance of the rest. To permit such an objection to
tern Union Tel. Co. v. Burlington & S. R. Co., 11 Fed. prevail would be to violate the maxim that no man
Rep. 1. See also Western Union Tel. Co. v. American shall take advantage of his own wrong. See Fry
Union Tel. Co., 65 Ga. 160. Whether an agreement of Spec. Perf., $ 294, citing Lord Eldon, who in speaking
this kind would not be void as intended to strangle of one who had undertaken to convey a greater inter competition, and therefore as being in restraint of est than he possessed, says: “For the purpose of this
trade and obnoxious to public policy, irrespective of jurisdiction, the person contracting under these cir
the act of Congress, is a question which it is not necescumstances is bound by the assertion in his contract,
sary to discuss; it suffices that such an agreement is and if the vendee chooses to take as much as he can
void because contrary to the policy declared by Conhave, he has a right to that,
and the court
gress. Cir. Ct., S. D. New York, March 28, 1884. will not hear the objection, by the vendor, that the
Western Union Tel. Co. v. Balt. & 0. Tel. Co. Opinion purchaser cannot bave the whole.” See also Morss v.
by Wallace, J. Elmeudorf, 11 Paige, 287; Hatch v. Cobb, 4 Johns. Ch. 539; Kempshall v. Stone, 5 id. 193; Fray Spec. Perf., SS ASSIGNMENT FOR CREDITORS-RESERVING INTEREST 654, 258. Cir. Ct., E. D. Virginia United States v. TO ASSIGNOR-VOID.--An assignment for the benefit of City of Alexandria. Opinion by Hughes, J.
creditors, under the laws of Texas, wherein the asPATENT-LICENSE-SALE OF, TO SATISFY JUDGMENT,
signor has expressly reserved an interest to himself, to -A license to use a patented invention may, by a bill
the exclusion of his creditors, is null, void, and of no in equity, be subjected to sale for the payment of a
effect. Lawrence v. Norton, 15 Fed. Rep. 853, foljudgment debt. Cir. Ct., E. D. Penusylvania, Feb. 11,
lowed. It seems to us, the following propositions are 1881. Matthews v. Green. Opinion by Butler, J.
well taken, and can be equally supported on principle
and authority. The assignment in favor of creditors, TRUST-REVOCATION-- FAILURE TO EXERCISE.- A
under the act of 1879, is a contract between the assigtrust declared by testator during his life-time, with
nor and assignee, which while it may be aided by the the privilege of revocation, will, if unrecalled, prevail law, must be taken and construed by the terms and over the title of a residuary legatee. Testator trans
provisions expressly stipulated therein. Donoho v. ferred stocks and bonds to L., upon trust to pay him
Fish, 58 Tex. 167; Keevil v. Donaldson, 20 Kans. 168. the income while he lived, and after his death to trans
That when an assignment is made, under the third fer them to others, reserving the power however to
section of the act of 1879, any stipulation therein revoke this disposition of the property at any time.
which is intended to hinder and delay non-consenting He died, leaving the trusts unrevoked. Held, that the power of revocation died with him, and that upon assignment as to such creditors is null and void.
creditors must find warrant therefor in the law, or the his death the trusts became absolute. Cir. Ct., D. Vermont, March 20, 1884. Barlow v. Loomis. Opinion
Keevi) v. Donaldson, supra; Lawrence v. Norton,
supra; Bryan v. Sundberg, 5 Tex. 423. See also Jaffray by Wheeler, J.
v. MoGehee, 107 U. S. 361; S. C., 2 Sup. Ct. Rep. 367. ASSIGNMENT FOR CREDITOR-IMPEACHING-BURDEN The assignment in this case, which is under the third OF PROOF:--A deed of assignment prima facie good section, provided : "And for said purposes the said may be impeached for circumstances connected with, | Fred. Muller and A. Jacobs are hereby authorized and and conduct of the insolvent at and about the time of directed to take possession at once of the property the execution of it. In such cases the burden of proof above conveyed, and convert the same into cash as is on the grantor or his beneficiaries under the assign- soon and upon the best terms possible for the best in
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., S 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 assigument placed it in the power and discretion of the assiguee 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 assigument 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.
dence of mala fides on the part of such fiduciaries, I think, to adopt the language of this court in Elliott v. Carter, supra, "That they should be treated with tenderness, and due caution should be taken not to hold them liable upon slight or uncertain grounds." Soutball's Admr v. Taylor, 14 Gratt. 274. Watkins v. Stewart. Opinion by Horton, J. [Decided Dec. 6, 1883.)
JUDICIAL SALE-JUDGMENT CREDITOR NOT PURCHASER-EQUITIES-RESULTING TRUST-PAROL EVIDFNCE.-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
cle 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 Penn. St. 129; Kane v. O'Conuers, supra. Sinclair v. Sinclair. Opinion by Lewis, J.
VIRGINIA SUPREME COURT ABSTRACT.
NEW JERSEY SUPREME COURT ABSTRACT.*
NOVEMBER TERM, 1883.
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. & 0. 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 acoustomed 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 V. Brown, 4 Johos. 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
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 Orleaus 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 improfitable for use; but of a present connection with the sewer can be assessed
NEGLIGENCE-TRAIN NOT STOPPING AT WAY-STAa large accretion of land occurred in front of the said
TION.--A passenger buying a ticket to D. station on lot by alluvial deposits, and the line of ordinary high-defendant's road, was told by the ticket agent to take water mark and also the line of storm-tides were by
a particular train. She did accordingly. The train the accretion carried out a considerable distance further than they were when the deed was made. proved to be an express, not allowed by the regula
tions of the company to stop at D., but she did not Held, that the title of M. and those who succeeded to
know this until informed of it by the conductor after his estate was not restricted to the storm-tide line as
the train had started. She told him of the direction it was in 1856, but that it extended to the line of
the agent had given her, and insisted on being let off storm-tides as that line was carried out by the alluvial
at D. He took up her ticket, but refused to stop at increase. If the words of a grant be ambiguous, the
D., and took her to the next stopping place beyond. In court will call in aid the acts done under it as a clue to
an action against the company, held, that the plaintiff the intention of the parties. Tyler on Bound. 124; ought to have counted on the negligent misdirectiou of Adams v. Frothingham, 3 Mass. 362; Stone v. Clark, 1
the ticket agent, and not on the refusal of the conductor Metc. 378; Lovejoy v. Lovett, 1:24 Mass. 270; Livingston v. Ten Broeck, 16 Johns. 14--23; Dunn v. English,3 shall v. Railroad Company. Opiuiou by Hough,
to stop, for he could not have done otherwise. MarZab. 126; Jackson v. Perrine, 6 Vroom, 137;1 Greenlf.
C. J. Ev., $ 293. Camden & Allantic Land Co. v. Lippincott. Opinion by Depue, J.
PARTNERSHIP--NOTE MADE IN FIRM NAME.- Money
was borrowed on the credit of a firm and used for the CONTRACT-EXECUTORY-NOT BARGAIN AND SALE.
purposes of the firm, but the individual note of one of An agreement for the sale of goods in the following the partners was given for it, and by mistake of the form: “The party of the first part agrees to sell to
lender was accepted. Afterward when the mistake the party of the second part all the material used in
was discovered, the lender demanded aud received making barrels, at the actual cost price of the same,
from that partner the vote of the firm in lieu of his now in store. The party of the second part agrees to
own note. Held, that this was not the giving of a take and use the same as fast as the sugar-house re
partnership note for an individual debt, and that the quires the barrels, and to pay for the same in notes,
latter note was binding on the firm. Distinguishing with interest added, running two months from the
Farmers' Bank v. Bayless, 35 Mo. 423. Meader v. Haldate of the same, settlements to be made semi
colm. Opinion by Norton, J. monthly." Held to be an executory contract, and not a bargain and sale. The rule that the contract of sale JUDGMENT—APPEAL-ABATEMENT OF ACTION.-(1) passes the property immediately, before charge of The perfecting of an appeal from the judgment of a possession or payment, so far as the duties and obliga- jus:ice of the peace divests the judgment of its legal tions of the vendee are concerned, at least, seems to be effect, and if the case be one in which the cause of acwell settled. Benj. on Sales, $ 318. Au agreement for
tion does not survive, upon the death of the party the present sale of specific chattels, without payment
before the entering of a lawful judgment in the appelor delivery, casts on the buyer the risk of loss. The late court, the action will abate. Turner v. Northlaw fixes the risk where the title resides. Joyce v. cut, 9 Mo. 252. (2) A prosecution for violation of a Adams, 8 N. Y. :291; Leonard v. Davis, 1 Black. 476; city ordinance abates upon the death of the defendant. Bessell v. Balcom, 39 N. Y. 275. The sale of all the State v. Perrine, 56 Mo. 602; Kansas City v. Clark, 68 vendor's material for making barrels then in store
id. 588. Town of Carrallton v. Rhomberg. Opinion by was a sufficient specification of the property to appro
Martin, Comr. (As to first point see ante, p. 57.priate it to the contract. It was not like a sale of a ED.) part out of a bulk. And the price to be paid is sufficiently certain, being ascertainable by reference to
PENNSYLVANIA SUPREME COURT an existing fact-their cost. The whole agreement however must be construed together, and the latter
ABSTRACT. clause, which provides that the party of the second part is to take and use the material as fast as the
WIFE CARRYING ON sugar-house requires the barrels, and to pay for the BUSINESS-ONE DYING-GIFT-TITLE TO FUND IN SAV same, etc., is an essential qualification of the first part INGS BANK.--The earnings of a wife belong to her busof the contract, which if standing alone, would import band, save in those exceptional cases specified by acts au absolute sale. Brock v. O'Donnell. Opinion by of Assembly. Such earnings do not therefore belong Kuapp, J.
to the wife unless the busband has made a gift of them MUNICIPAL CORPORATION-POWER OF ASSESSMENT
to her. A widow, carrying ou a butchering business BENEFITS.-(1) Unless restrained by express words,
in premises belonging to her late husband, married the authority to impose special assessments for muni again. Husband and wife continued to carry on the cipal improvements is contiuuiug power. 2 Dill.
business, in which the husband was not versed. It was Mun, Corp., $$ 686, 780; Green v. Hotaling, 15 chiefly through her skill, industry and economy that Vroom, 347. (2) A sewer in the city of Hoboken, for profits were realized. A portion of those profits were which an assessment had been levied, by reason of the
put aside in a savings fund in the wife's name, but uneven sinking of newly-made laud, ceased to conduct
there was no evidence to show that the husband knew sewage toward its outlet, but allowed its contents to
of the existence of such deposit. Immediately after How out upon low lands and become a nuisance. Held, book, and declared that the money was or ought to be
the wife's death the husband inquired for the depositthat an assessment for a new sewer to do the work which the old one was intended to do was legal. (3)
his. On the settlement of the account of the wife's No person whose lands are uot so placed as to permit
*Appearing in 78 Missouri Reports.
administrator: Held, that the profits of the business trix devised certain real estate to her daughtor A. for all belonged primarily to the husband; that there was life, and at her death to A.'s daughter B. in fee simple; no sufficient evidence to show that he had made a gift and in case of B.'s death “then to be divided amongst of them to his wife, and that the husband was enti- the children," A was enceinte at the time of the will, tled to the sum in question accordingly. That the and testatrix knew it. B. was not married until long mere possession of money by the wife is not sufficient after the testatrix's death, and then died before A. evidence of her ownership was settled by Parvin v. Held, upon A.'s death that the expression “ the chilCapewell, 9 Wr. 89, where it was said: “A mere gift of dren” in the will must be taken to refer to A.'s chilmoney to a wife is not a settlement of it as her separate dren, and not to B.'s, and that the former were thereestate, for it may be for safe-keeping and deposit, with- fore entitled to the real estate. The inquiry now is, out any intention to divest the husband's title. And what was the intent of the testatrix? That intent her possession of funds ordinarily implies no more gathered from the whole will furnishes the cardinal rule than that she is holding them for her husband." This of construction. When it is not inconsistent with csis settled law, and is peculiarly applicable to this tablished rules of law, and manifested with sufficient case. There is not a scintilla of proof of any intention certainty, it must govern. Middleswarth's Admr. v. of the appellant to make a gift of this money; nothing Blackmore, 24 P. F. Smith, 414; Schott's Estate, 28 id. can be implied from the facts beyond the mere cus- 40; Reck's Appeal, id. 432. Facts existing and known tody thereof on the part of the wife. The cases cited to the testatrix at the time she executed the will, furby the learned judge do not sustain his conclusions. nish strong aid in arriving at her intention. When a Herr's Appeal, 5 W. & S. 494, was a case in which there parent or ancestor in disposing of property, and in was strong evidence of a gift, and this court said: “But desiguating the objects of her bounty, speaks of "the such gift must be established by clear and convincing children,” we think it more reasonable to assume that proof, not only of the act of donation and delivery, but she intended those in being, or those likely to be born of her separate custody of it.” The same doctrine is of an existing marriage, rather than those who at some held in Tripner v. Abrahams, 11 Wr. 220. In Bachman remote and indefinite time in the future might possiv. Killinger, 5 P. F. Smith, 414, it was held that the bly be born of a marriage neither existing not contempossession by the wife of the husband's moneys, se- plated. As then a fair and reasonable intent can be curity and property is very slight evidence of the trans- given to the language of the will by applying it to the fer of the ownership, and his possession of her chattels children nearer to the testatrix, we cannot so construe ought to be considered still less evidence of title in it as to disinherit them and carry the property to those him. In Crawford's Appeal, 11 P. F. Smith, 52, the more remote, and who we think did not enter into the husband informed his wife that he had added $3,000 to thought of the testatrix. Webb v. Hitchins Opinion her money; he directed his clerk to credit her in his by Mercur, C. J. books with the $3,000 as cash received from her, and it [Decided March 17, 1884.] 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 exe- IOWA SUPREME COURT ABSTRACT. cuted gift followed by an express trust for his wife, and payable to her from his estate, but that could
JUDICIAL SALE-VOID-GETTING TITLE not be supported as a debt. In addition it appeared that the husband had that amount of his wife's money
QUENT SALE.-A person who is not in possession of
real estate, but who claims title thereto under a void in bis possession. Here there was a plain intent to
tax deed, can become a purchaser at a subsequent tax make a gift, followed by a positive unequivocal act. But where there is a mere permissive act, such as to
sale, and claim title by virtue of his purchase. This allow the wife to be a custodian of his money, I know
question was determined adversely to appellant in of no case in which it bas been held that a gift can be
Mallory v. French, 44 Iowa, 133, which is in accord implied from such act. McDermott's Appeal. Opin
with Coxe v. Gibson, 27 Penn. St. 165; Bowman v.
Corkrill, 6 Kan. 331; and Blackwood v. Van Vleit, 30 ion by Paxson, J.
Mich. 119. Neal v. Frazier. Opinion by Seevers, J. [Decided April 28, 1884.)
[Decided April 25, 1884.] WILL
PART, NO died, leaving a wife and son. By his will he devised
SUIT FOR BALANCE.—Where a claim against a county his real estate to his wife. The real estate was incum
is presented to the board of supervisors, and they albered by a judgment against A. and by debts of A.,
low a part of it and reject the rest, a claimant acceptwhich upon his death became liens against it. Subse
ing the portion allowed, knowing that the rest has quently the wife died, also indebted. The real estate
been rejected, cannot recover in an action for the porbeing sold under order of court for payment of her tion rejected. Wapello Co, v. Simaman, 1 G. Greene, debts: Held, that the son was entitled to claim the
413. That was a case where a claim was presented $300 exemption out of the proceeds in priority to the
against the county, and part of it was allowed and the claims of his mother's creditors, but that his father's
balance rejected. The court said: “If the plaintiff creditors must be satisfied in full before he could
in this case presented his claim for allowance, and it claim such exemption. Interest could not be recov
was in part allowed by the board, and he accepted the ered upon the judgment against A. after the confirma
amount thus allowed, he should not be permitted to tion of the sale in the above case. King's Appeal, 3
afterward sue for the balance. The acceptance of the Norris, 345; Himes' Appeal, 13 id. 381, distinguished.
part allowed should be considered satisfaction for the Wauger's Appeal. Opinion per Curiam.
whole." It is contended however that a different rule [Decided Feb. 25, 1884.)
was announced in Fulton v. Monona (0., 47 Iowa, 6:22. WILL,"CHILDREN”-CONSTRUCTION.-When a par
In that case it was not shown that the claimant reent or ancestor, in designating the object of her ceived the part allowed on the claim with knowledge bounty, speaks of "the children," the more reasona- that the balance had been rejected, and the case is ble construction is that children in being, or those made to him upon this fact. The case is in no manlikely to be born of an existing marriage, were in- ner in conflict with Wapello Co. v. Sinnaman. It is tended, rather than those who at some remote and in
claimed however that the defendant was bound to pay defiuite future time might possibly be born of a mar
the full amount of the claim, because it had been apriage neither existing nor in contemplation. A testa- proved by the board of health, But having held that