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the home of her husband; facts which This action was brought by the a lmin. would entitle her to a divorce in her istrators of W. D. F. to recover for his suit against an offending husband. services and for improvements and for value of property he brought on the farm.

This case does not, in our judgment, come up to the requirements of the law on either ground on which the libellant rests her suit; we therefore refuse to grant the divorce from bed and board for which she prays.

AGREEMENT.

DEMAND.

N. Y. SUPREME COURT. GENERAL TERM.
FOURTH DEPARTMENT.

Fox et. al., administrators, applt.s v. Fox, respt.

Decided June, 1876.

A demand was made before action

for the property brought on the farm by W. D. F., and defendant replied to the demand that if they could find any property of W. D. F. on the farm they could have it. The referee held this demand bad and gave judgment for the defendant.

A. B. Moore, for applts.
B. Bagley, for respt.

Held, That the death of W. D. F. terminated the agreement, and his representatives could not recover for the improvements put on by W. D. F., or for his services while occupying farm, as it does not appear that the repairs

Under an agreement by a party, in consideration of the use and proceeds of a farm and title to same on decease of owner, to take care of owner and his family, &c., the death of such party terminates agreement, and and improvements were put on the his representatives cannot recover for farm at defendant's request, or that the his time and labor as improvements, avails of the farm all went to defendbut they can for what he originally ant. brought on to the farm and its in

crease.

ant, W. D. F. was to run said farm and take care of and support said defendant and family during his life. W. D. F. entered into possession of said farm and continued to occupy same under such agreement until 1870, when he died.

In 1860 one W. D. F. entered into an agreement with defendant whereby in consideration of the use and proceeds

That the demand for the property brought on to the farm by W. D. F. of defendant was good. Defendant had the power to deliver the property im

of a farm belonging to defendant and mediately, and his refusal to deliver the the title to the same, and also to certain property, although he knew what it personal property on decease of defend-was, was a conversion.

That plaintiff as the representative of W. D. F. was clearly entitled to such property. That where property consists of several articles, it is customary to give a list when a demand is made, but in cases like this it is often impracticable to do so, and the party in possession is the only one who can

At the time W. D. F. went into possession of said farm he brought on to the farm certain personal property of give a list or description of the properhis own. While in possession certain ty. The demand in this case imposed improvements and repairs were made. on defendant the duty either of deliv

ering the property or taking the ground year from the making of the loan de that the intestate owned none of the fendants paid thereon $2,500. In a property in his possession, and he as- short time they applied to plaintiffs' sumed the risk of being held guilty of agent to have the $2,500 reloaned to converting such property if the person them on the same security, and it was making the demand should be able to agreed between them and plaintiff's that prove it belonged to the person in the money should be so reloaned and whose behalf he made the demand.

that plaintiffs should hold the mortgage as a security for the full $5,000. Plaintiffs' agent upon this reloan exacted $225, professedly for his princi pals, but it was really for himself. Plaintiffs did not share it or know anything about that it was demanded professedly for them. Evidence tended to show that plaintff's before it was given

USURY.

N. Y. COURT OF APPEALS.

Estevez et al., applts., v. Purdy et al., knew that the agent charged this sum, respts.

and the judge so found.

Judgment reversed.

Opinion by Mullin, P. J.

Decided June 20, 1876.

Where an agent, who is employed to effect a loan on bond and mortgage, retains a part of such loan, upon the pretense that a portion thereof is for his services and the balance a bonus for his principals, without the knowledge of the principals, they not receiving any portion of the part so retained, the mortgage is not usu

rious.

Samuel Hand, for applts.
Moses Ely, for respts.

Held, That plaintiffs were not af fected by the wrongful act of their agent, as they did not expressly, impli edly or apparently authorize it, and as they did not consent to or participate in the extortion, but simply took a security for the amount loaned, with lawful interest, it was not usurious. 21 N. Y., 219; 32 Id., 165; 3 Abb. Ct. Apps. Dec. 43. That if plaintiff's had knowl

This action was brought for the fore-edge of the subsequent claim of a closure of a mortgage made by de bonus, it did not vitiate the original fendants, Purdy and wife. The answer set up as a defense usury. It security, but that it did not appear that they knew that the allowance was acappeared that the money ($5,000) was tually made or that any claim was loaned by an agent of plaintiff's, and made, save for the agent's services. that he, in making the loan, without Alger v. Gardner, 54 N. Y., 360. distheir knowledge or consent, took from tinguished and limited. defendants $500, upon the pretense that a portion of it was for his services and the balance a bonus for his principals. The agent was not authorized to loan the money at a greater rate than seven per cent., and no part of the bonus was received by plaintiffs. At the end of a

Alger v. Gardner, 54 N. Y., 360, distinguished and limited.

Order of General Term reversing judgment for plaintiffs reversed and judgment of Special Term affirmed. Opinion by Earl, J.

and convey his share to his issue. Two of the children died before the testator, without issue. The testator gave the trustees full power and authority during the continuance of such trusts to sell any part of the property so held by them. The will also provided that certain charges entered on the testator's books should be deducted from the

NEW YORK WEEKLY DIGEST.

[No. 24.

VOL. 2.] MONDAY JULY 24, 1876.
TRUSTS. EQUITABLE ACTION.
N. Y. COURT OF APPEALS.
Bruner, respt., v. Meigs et al., trus-
tees, &c., applts.

Decided April 4, 1876.

Where a testator devises his property shares of his children, respectively. In to his executors as trustees, directing 1872, one of the children died, leaving them to divide it in seven equal

parts, the income of one part to be a widow and issue. At the time of paid over to each of his children the making of the agreement the during their lives, and on the death grantor's estate had not been divided. of any child, to convey his share to Jno. J. Macklin, for applts. his issue, a valid several trust is Osborn E. Bright, for respt. created for each of testator's children living at his death in oneseventh part of the estate, which ceased with the life of the cestuis que

trust.

Held, That a valid several trust was created by the will for each of the testator's children living at his death, in one-seventh part of the estate; that Two of the children died the testator, their shares went to the the two-sevenths designed for the two heirs, of testator and not to the exe. children that died before the testator, cutors in trust. The shares vested upon his death went directly to his immediately in those entitled in re- right heirs and did not go to the execumainder, and did not depend upon tors in trust; that an estate was vested the power given the executors to transfer such shares, and the vesting could in the executors during the continunot be defeated or delayed by the ance of the trust, which ceased with neglect or omissions of those vested the life of the cestuis que trust. 2 with the power. Keen, 664; 4 M. & C., 460. That the An agreement for the sale of a portion power to transfer the share of the estate of the real estate having been made by the trustees, a suit in equity to rescind the agreement can be maintained as an action to recover money paid upon a consideration which had failed, the title not being such as the purchaser was bound to accept.

to those entitled after the death of the cestui que trust for life did not constitute a trust, but was merely a power in trust, and could be executed as such; that the estate and interest of those entitled in remainder did not depend upon the execution of that power, and the vesting of their estate could neither be defeated nor delayed by the neglect or omission of those vested with the power. 43 N. Y., 303; Id., 99.

This action was brought for a rescission and cancellation of an agreement of sale of certain real estate made between the parties. It appeared that one P devised his property to defendants, as trustees, directing that it should be divided into seven equal parts, the income of one part to be paid over to each of his children during their lives, and up- the children did not delay or defer the on the death of any child, to transfer time at which the estate should be di

That the direction in the will to ascertain the advancements and deduct the same from the respective shares of

istration.

vided into shares as directed, or con- necessary in the course of their admintinue or extend the trusts; and that as a suit in equity to rescind an agreement for the sale of real estate by reason of

The petition sets forth that on the 18th of January, 1855, the appellant

a defect in the title or want of power applied to that court for the probate of to sell in the vendors, the action could the alleged will; and that by decree of not be maintained, because plaintiff the Supreme Court of the State the al1ed will was recognized as the last will and testament of the said Daniel Clark, and was ordered to be recorded and executed as such; that this decree of probate was obtained ex parte, and by its terms authorized any person, at any time, who might desire to do so, to

had a perfect defense to any action which might be brought to enforce the agreement, but it could be maintained Is an action to recover money paid upon a consideration that had failed, defendants' title not being such as plaintiff was bound to accept.

Judgment of General Term, affirm-contest the will and its probate in a diing judgment in favor of plaintiff, af- rect action, or as a means of defence by

firmed.

REMOVAL OF CAUSE FROM
STATE TO FEDERAL COURT.
U. S. SUPREME COURT.

way of answer or exception, whenever
the will should be set up as a muniment
of title; that the appellant subsequent-
ly commenced several suits against the
petitioners in the Circuit Court of the
United States to recover sundry tracts
of land and properties of great value,
situated in the parish of Orleans and
elsewhere, in which they are interested,
setting up the alleged will as probated
as a muniment of title, and claiming
under the same as instituted heir of the

Gaines, plff in error, v. Fuentes, et. al., defts. in error. (October, 1875.) A suit to annul a wili as a muniment of title, and to limit the operation of a decree admitting it to probate, in all its essential elements is a suit for equitable relief, and if it can be testator; and that the petitioners are maintained in a State court, may unable to contest the validity of the alalso be maintained by original pro-leged will so long as the decree of process in a Federal court, or removed hate remains unrecalled. The petitionthereto, where the parties are resiers then proceed to set forth the grounds dents of different States. upon which they ask for a revocation of the will and the recalling of the de

In error in the Supreme Court of the State of Louisiana.

cree of probate, these being substantialThis is an action in form to annul anly the falsity and insufficiency of the alleged will of Daniel Clark, the father testimony upon which the will was adof the appellant, dated on the 13th of mitted to probate, and the status of the July, 1813, and to recall the decree of appeliant, incapacitating her to inherit the court by which it was probated. It was brought in the Second District Court for the parish of Orleans, which, under the laws of Louisiana, is invested with jurisdiction over the estate of deceased persons, and of appointments

or take by last will from the decedent.

Opinion by Allen, J.

A citation having been issued upon the petition and served upon the appellant, she applied in proper form, with a tender of the necessary bond, for removal of the cause to the Circuit Court

ana.

of the United States for the District of her favor. Upon the hearing a decree Louisiana, under the twelfth section of was entered annulling the will and rethe judiciary act of 1789, on the ground voking its probate. The Supreme Court that she was a citizen of New York and of the State having affirmed this dethe petitioners were citizens of Louisi- cree, the case was appealed to this The court denied the application, court. for the alleged reason that, as the appellant had made herself a party to the proceedings in the court relative to the settlement of Clark's succession by ap pearing for the probate of the will, she could not now avoid the jurisdiction when the attempt was made to set aside and annul the order of probate which she had obtained. The court, however, went on to say in its opinion that the Federal Court could not take jurisdic-a State court to a Federal court, the tion of a controversy having for its object the annulment of a decree probating a will.

Held, error; That if the Federal court had, by no previous act, jurisdiction to pass upon and determine the controversy existing between the parties in the Parish Court of Orleans, it was invested with the necessary jurisdiction by the act of 1867 itself, so soon as the case was transferred. In authorizing and requiring the transfer of cases involving particular controversies, from

statute thereby clothed the latter court with all the authority essential for the complete adjudication of the controver

The appellant then applied for a re-sies, even though it should be admitted moval of the action under the act of that that court could not have taken March 2d, 1867, on the ground that ori inal cognizance of the cases. The from prejudice and local influence she language used in Smith v. Rines, cited would not be able to obtain jus- from the 2d of Sumner's Reports, in tice in the State court, accompanying support of the position that such cases the application with the affidavit and are only liable to removal from the bond required by the statute. This ap- State to the Circuit Court as might plication was also denied, the court have been brought before the Circuit resting its decision on the alleged Court by original process, applied only ground, that the federal tribunal could to the law as it then stood. No case not take jurisdiction of the subject- could then be transferred from a State matter of the controversy. court to a Federal court on account of the citizenship of the parties, which could not originally have been brought to the Circuit Court.

Other parties having intervened, the applications were renewed and again denied. An answer was then filed by the appellant, denying generally the allegations of the petition, except as the probate of the will, and interposing a plea of prescription. Subsequently a further plea was filed to the effect that the several matters alleged as to the

to

But the admission supposed is not The suit in the required in this case. tablish a will, but to annul it as a munparish court is not a proceeding to establish a will, but to annul it as a muniment of title, and to limit the operation of the decree admitting it to probate. It is, in all essential particulars,

status of the appellant had been the a suit for equitable relief-to cancel an subject of judicial enquiry in the Fed-instrument alleged to be void, and to eral courts, and been there adjudged in restrain the enforcement of a decree al

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