titled to a suitable compensation for his services in the nature of a charge on the gross receipts and profits of the real estate. Such services form no part of his executorial duty.-Lent et al. v. Howard et al., 85.

12. Where executors are empowered by a clause in a will to sell and convey real estate, a written contract of sale between the executors and a party contracting to purchase is binding upon the party so contracting, and the executors can convey a title in fee simple.-Kennedy et al. v. Hull,

95.

13. When the father of a child who is a legatee under a will is the executor of the will, and it clearly appears from the will that it was the intention of the testator that the income of the legacy should be applied to the child's maintenance and support, the father is entitled to use such income for that purpose and to credit himself in his accounts as executor with the amounts so used, although it is the general rule of law that it is the duty of the father, being of ability, to support his child.-Freeman v. Coit et al., 142.

14. A husband who pays the funeral expenses

of his deceased wife who has left a separate

estate is entitled to reimbursement for such expenses from such estate, but he is not entitled to reimbursement for the expenses of medical attendance during her last illness. -Id.

15. Moneys paid by the husband during the life of his wife for repairs and improvements upon the property occupied by them, where the bills were incurred upon his own credit, are not legal charges against her or against her property.-Id.

16. To render valid a judgment on a reference of disputed claims against an estate the provisions of the statute must be fully complied with.-Burnett v. Gould, 186.

17. Where there is a failure to file the original agreement or to enter an order of reference thereon, the court has no jurisdiction of the claim.-Id.

18. A judgment entered in such proceedings on the report of the referee without confirmation, or without judgment being ordered by the court, is void.—Id.

to such citation where the full relief following the citation could not be obtained in the equity proceeding.—Id.

21. An administrator who conducted the mercantile business in the store, and with the stock of the intestate, at retail, for about a year, during which time he purchased new goods from time to time, mixed in and sold them with the old stock, mingled estate moneys with his own, and did his business and kept his accounts so that the actual profits could not be ascertained, is properly charged by the surrogate, in settling his accounts, with the inventoried price of the stock on hand and interest thereon until his account was rendered. -Smith v. Weld et al., 369.

22. The expenses incurred or paid by the administrator in so carrying on the business in the store are not chargeable to the estate. -Id.

23. Section 2,481 of the Code of Civil Procedure will not allow a review of matters heard and determined by a decree, in settling the accounts of an administrator, except for clerical errors, newly discoverde evidence, or fraud.-Id.

24. It is no part of an executor's duty to resort to devices to evade the lawful assessment and taxation of the estate in his hands, and if in so doing he incur liabilities, or buys securities which bring loss upon the funds in his hands, however clear his motives to benefit the estate may be, he will doubtless be adjudged to make good the loss. But the estate cannot take the profit of the transaction, without adopting the incidents that attended its realization.- Wheelwright et al v. Rhodes et al., 406.

25. No commissions are due to executors until earned and awarded. The statute fixes the rate of compensation and provides the mode in which it shall be ascertained and paid; until that statutory requirement is complied with the executors cannot properly pay themselves at their own discretion. -Id.

26. An estate may not speculate at the expense of the executors.-Adair et al. v. Brimmer et al., 421.

27. Executors may show the actual consideration for their deed as against the heirs. -Id.

28. Where the evidence has been open to both parties, and the executors have not hindered the fullest investigation, the rule as to burden of proof and presumptions is not applicable.-Id.

29. What should be considered as assets in a particular case considered.—Id.

30. Executors are chargeable with interest at one per cent, less than the legal rate; but

a debtor is chargeable at the full legal rate. | -Id.

31. L. was a judgment creditor of F., who had a claim against the estate of which L. was executor. F. established his claim and obtained a decree from the surrogate directing payment thereof by said executor. Held, That though the judgments of L. against F. were not originally set-offs to F.'s claim against said estate, yet after the said claim was established, and said decree obtained, L. might have established his own judg ments as set-offs in a suit brought in equity for that purpose.-In re accounting of Liv- | ingstone, 455.

32. As the surrogate had no power to try the question of set-off the executor could not obtain relief on appeal from the said decree of the surrogate.--Id.

33. L. individually obtained a third party order for his own examination as executor in his action against F. Held, That such proceeding was necessarily collusive and therefore void.-Id.

34. An administrator with the will annexed takes upon his appointment all the powers that were annexed to the office of executor, but does not take trusts imposed in personal confidence in the persons named as executors. Fish et al. v. Coster, 482.

35. An executor by renouncing his office does not renounce a personal trust given to him by the will, and may accept and execute such a trust.--Id.

36. A power in trust to sell real estate given to executors as such, and to the survivor of them, or to such persons as may be appointed administrators with the will annexed, may be executed by administrators with the will annexed so as to convey a valid title, although there is a trust annexed to the proceeds thus realized which cannot be executed by them.--Id.

37. The decree of a surrogate on a final accounting by executors presumptively embraces all matters as to which the executors are liable to account, and is prima facie a good answer to a petition for a second accounting. If new facts exist which render it proper that a further accounting should be had they should be averred in the petition.--In re estate of Hood, 507.

38. J., as administratrix of a legatee and assignee of said legatee's heirs at law, petitioned that M., the executor, be required to file an inventory, and also to pay the amount of the legacy. On the return day of the citation issued on such petition the executor filed an answer asserting an appearance solely to object to the jurisdiction of the surrogate on certain grounds therein specified, but said answer also raised certain objections on the merits to said petition, and VOL. 15.-No. 26.

put some of its allegations of facts in issue. Held, That such answer made the executor's appearance general, and objection as to the ⚫ service of the citation could not then be raised; that the surrogate upon such petition and citation had power to examine and settle the accounts, and also to decree distribution to the legatees, and that under § 2723, Code Civil Proc., the surrogate could order the executor to account toward the ascertainment of money or property applicable to the petitioner's claim.-In re accounting of Macaulay, 519.

39. Notice for claims is for the protection of

the administrator and there is no absolute legal obligation to give it at all.-Fliess et al. v. Buckley et al., 540.

See ATTORNEYS, 15; ESTOPPEL, 8; LIMITATION, 6, 7; WILLS, 15, 30.

EXTRA ALLOWANCE.

See BROKERS, 2; COSTS, 12, 13, 15. 16.

FACTORS.

1. The payment of commissions to a factor is not a bar to an action by the consignor for the factor's breach of contract in selling at a price below his instructions.-Campbell et al. v. Thompson et al., 232.

FALSE PRETENSES.

1. An indictment for false pretences cannot be founded upon an assertion of an existing intention, although it did not in fact exist. -The People v. Blanchard, 470.

FALSE REPRESENTATIONS.

1. To authorize a recovery against a defendant for the false representations of a third person as to his title to property sold to plaintiff, or for breach of warranty of the title on such sale, it must be shown that such person was authorized by defendant to make the sale.-Leese v. Heins, 278.

2. A naked assertion by a vendor as to the value of property offered for sale will not render him liable to the vendee for damages sustained by him, unless there is a want of knowledge by the vendee, and the sale is made in entire reliance on the representations made, or unless some artifice is employed to prevent inquiry or the obtaining of knowledge by the vendee.—Chrysler v. Canaday, 399.

See FRAUD, 1.

FIRE INSURANCE.

1. A stipulation in a policy of insurance that no claim shall accrue thereon until sixty days after receipt of proofs of loss is valid,

and the time of limitation fixed in said policy does not commence running until the right to bring the action exists.-Steen v. The Niagara Fire Ins. Co., 41.

2. The premises insured having become temporarily vacant, a clause was inserted in the policy that the dwelling being unoccupied for a short time, but in charge of a trusty person living near, should be no prejudice to the policy. Held, That the permission was not limited to a single period, but would cover a subsequent vacancy; that evidence of the declarations of defendant's general agent that the clause would hold good if the premises were unoccupied was admissible, and that the construction given by him bound defendant.Id.

3. Where a policy of fire insurance provided that, in case of failure by the assured and the company to agree upon the amount of loss, the same should be determined by two appraisers and an umpire, to be chosen by them, and after a loss had occurred the appraisers failed to agree upon an umpire, Held, That, in the absence of bad faith on the part of the company, the insured was not then entitled to his action at law for his damages, but he should have proposed the selection of new appraisers and done all in his power to carry out the provision as to arbitration.-Davenport v. The Long Island Ins. Co., 62.

5. The policies in suit stated that the goods were contained in a building detached at least 100 feet." Held, That this statement was a warranty that no other buildings of such size and character as to constitute an exposure and increase of risk stood within 100 feet of the building, and that the existence of a building 75 feet distant, used as an office, with no stove in it, and in which gunpowder was temporarily stored at the time of the fire, was not a breach of the warranty.-Burleigh et al. v. The Adriatic Fire Ins. Co., 325.

6. A policy of fire insurance on a tugboat is not forfeited by a violation of a clause prescribing certain geographical limits beyond which the tug is not to go, but is only suspended while the tug is without those limits.-Hennessey v. The Manhattan Fire Ins. Co., 354,

7. A chattel mortgage on a tugboat is not a violation of a clause in a policy of insurance prohibiting a sale, transfer or change of title.-Id.

8. A town mutual insurance company can by parol bind itself to issue a valid policy.Van Loan v. The Farmers' Mut. Fire Ins. Assn., 393.

9. Plaintiff made application to a director and agent of defendant for a policy and her husband paid for the survey. The director made the survey and paid defendant's secretary for making out the policy. Before it was issued the premises were destroyed. Held, That a valid agreement for insurance was made out; that plaintiff must be deemed to have agreed in advance to pay the consideration in the mode prescribed by defendant's charter, constitution and bylaws, and that the agreement for insurance was binding on both defendant and plaintiff.-Id.

10. A vessel run upon the beach at high tide and left there fastened to rails on one side and to her anchor on the other to prevent movement in storms, is not "lying at anchor" within the meaning of a policy insuring her while plying a bay or while lying at anchor or at any bulkhead, dock or pier. -Reed et al. v. The Lancaster Fire Ins. Co., 498.

11. The occasional occupation of the vessel by workmen for the purpose of making repairs will not avoid the effect of a provision in the policy that it shall be void if the vessel shall be vacated in whole or in part and remain unoccupied without the consent of the company in writing.—Id.

12. In an action on a policy of fire insurance which provided that it should be void if the premises became and remained unoccupied without notice to and consent of defendant, the evidence was conflicting as to whether plaintiff's agent represented the premises to be occupied, and defendant's agent testified that when there was no written application he made inquiries and memoranda as to such matters as he deemed important, and did so in this case. Held, That it was for the jury to determine whether defendant's agent knew the condition of the premises, or regarded it of any consequence and made the insurance without reference whatever to the subject of occupation; if so, the condition as to future non-occupation may be regarded as waived.-Short v. The Home Ins. Co., 516.

See MORTGAGE, 6–8; STATUTE OF FRAUDS, 1.

FORECLOSURE.

See APPEAL, 16; INFANTS; MORTGAGE, 4, 1-114, 16, 20, 25-28, 30, 31.

1. Defendants

FRAUD.

were correspondents and agents of plaintiffs. Defendant S., by false representations that the firm held notes of plaintiffs previously sent, procured other notes which were discounted for the firm and plaintiffs were obliged to pay them. In an action to recover the amount of such notes, Held, That a case of fraud was established by these facts; that the representations were material; that the other partners were liable for the fraud of S. to the same extent as if they had participated in it and that the claim was not discharged by de fendant's discharge in bankruptcy.—Bradner et al. v. Strang et al., 162.

2. Plaintiffs retained an account rendered in which they were credited with the proceeds of the notes last sent. Held, That such retention did not waive or condone the fraud. -Id.

3. Where notes are obtained by fraud the undisclosed purpose for which they were obtained is not material.-Id.

4. The court refused to charge at defendant's request that evidence that S. afterwards stated that when he got a discharge in bankruptcy he would have the ability and disposition to make an honorable settlement with plaintiffs should be disregarded. Held, That while the court might properly have granted the request, the refusal did not prejudice defendants.-Id.

5. A written instrument, however sacred, may be set aside and overcome by parol proof of fraud.-Newton v. Rooney, 330.

6. Plaintiff was induced by her husband's representation that a deed included only his property above 59th street in N. Y. City to join in a deed thereof to defendant as a trustee for certain creditors, and thereby release her dower. In fact, her husband had included in the deed property below 59th street. Held, That the deed was void as to plaintiff in so far as it included property below 59th street with the exception hereinafter stated; that the purchase from the trustee, and the acceptance of a deed of a portion of the property below 59th street by plaintiff, in the absence of any intent so to do, did not ratify the fraud practiced upon her and bar an action to reform the deed, although plaintiff would be precluded from asserting a right to dower in the property deeded to her by the trustee, she retaining the property and benefits under the deed to her.-Witthaus v. Schaack, 408.

7. That, inasmuch as plaintiff received no benefit from the deed in which she joined, she had nothing to surrender before rescinding. While a clear case should be made out to reform a deed, such a case may be established by the uncontradicted testimony of a single witness.-Id.

See ARREST, 2, 3; BOND, 2; EXECUTION, 1; PLEADINGS, 5.

FRAUDULENT CONVEYANCE.

1. A conveyance is not fraudulent as to subsequent creditors, unless either the subsequent indebtedness is practically a continuation of an indebtedness existing at the time of the conveyance, or the conveyance was executed to avoid payment of debts which the debtor afterward expected to contract. Wells v. O'Connor et al., 122.

2. When the grantor does not retain possession of the premises conveyed, statements made by him, subsequent to the conveyance, showing that it was executed to avoid payment of his liabilities, are not competent evidence to impeach or set aside the title of the grantee.—Id.

3. A judgment obtained in good faith, on which proceedings to set aside a conveyance as fraudulent are founded, is conclusive against the party proceeded against as to the fact of indebtedness, but a judgment obtained collusively does not preclude the party whose title is assailed in proceedings of this nature from showing the true character and nature of the proceeding resulting in the judgment.-Id.

4. In a suit to set aside certain deeds as fraudulent, the burden is on the plaintiff, and facts not found by the referee are negatived by implication.-Pfeiffer et al. v. Moore et al.,

146.

5. Where delay in recording deeds tends to show fraud if unexplained, proof offered to explain the delay is strictly competent and material. Warner v. Gillette et al., 153.

6. Where a fraudulent grantee at the request of the grantor executed mortgages on the property to secure existing debts of the grantor to creditors who were ignorant of his pecuniary condition and of his intent in making the conveyance, Held, In an action by a receiver in supplementary proceedings, that the rights of the mortgagees were superior to those of the creditors represented by plaintiff, and that the fact that one of the mortgagees had notice of the circumstances in relation to the fraudulent conveyance when the mortgage was delivered, but not when it was executed, would not affect her rights.-Murphy v. Briggs, 158.

7. Certain real estate was conveyed in 1870 to the wife of S. The consideration therefor was paid by S., who at that time does not appear to have had any individual debts. The assets of his firm largely exceeded the liabilities, and the business of the firm was prosperous until the crisis of 1873. The firm failed in 1874, when the individual debts of S. were $1,400, and his assets brought only a few hundred dollars. In an