services and for improvements and for value of property he brought on the farm. 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. 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. A demand was made before action for the property brought on the farm by A. B. Moore, for applts. 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, Decided June, 1876. 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 as it does not appear that the repairs 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. In 1860 one W. D. F. entered into an agreement with defendant whereby in consideration of the use and proceeds of a farm belonging to defendant and the title to the same, and also to certain personal property on decease of defendant, 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. 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 immediately, and his refusal to deliver the property, although he knew what it 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 At the time W. D. F. went into pos- impracticable to do so, and the party session of said farm he brought on to in possession is the only one who can 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 USURY. N. Y. COURT OF APPEALS. fendants paid thereon $2,500. In a short time they applied to plaintiffs' agent to have the $2,500 reloaned to them on the same security, and it was agreed between them and plaintiff's that the money should be so reloaned and 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 any thing about that it was demanded professedly for them. Evidence tended to show that plaintff's before it was given Estevez et al., applts., v. Purdy et al., knew that the agent charged this sum, respts. 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. Alger v. Gardner, 54 N. Y., 360, distinguished and limited. It This action was brought for the foreclosure of a mortgage made by de fendants, Purdy and wife. The answer set up as a defense usury. appeared that the money ($5,000) was loaned by an agent of plaintiff's, and that he, in making the loan, without their knowledge or consent, took from 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 and the judge so found. Samuel Hand, for applts. Held, That plaintiff's were not affected 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 plaintiffs had knowledge of the subsequent claim of a bonus, it did not vitiate the original security, but that it did not appear that they knew that the allowance was actually made or that any claim was made, save for the agent's services. 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. NEW YORK WEEKLY DIGEST. [No. 24. VOL. 2.] MONDAY JULY 24, 1876. 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 Bruner, respt., v. Meigs et al., trus- them. The will also provided that cersell any part of the property so held by tees, &c., applts. tain charges entered on the testator's books should be deducted from the 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. Two of the children having died before 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 the two-sevenths designed for the two the testator, their shares went to the 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 to those entitled after the death of the rescind the agreement can be main- cestui que trust for life did not contained 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. stitute 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 diThat the direction in the will to vided into seven equal parts, the income ascertain the advancements and deduct of one part to be paid over to each of the same from the respective shares 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 vided into shares as directed, or con- necessary in the course of their admintinue or extend the trusts; and that as a istration. suit in equity to rescind an agreement The petition sets forth that on the for the sale of real estate by reason of 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 alhad a perfect defense to any action 1ed will was recognized as the last which might be brought to enforce the will and testament of the said Daniel agreement, but it could be maintained Clark, and was ordered to be recorded Is an action to recover money paid and executed as such; that this decree upon a consideration that had failed, of probate was obtained ex parte, and defendants' title not being such as by its terms authorized any person, at plaintiff was bound to accept. any time, who might desire to do so, to 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. Opinion by Allen, J. 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, Gaines, plff in error, v. Fuentes, et. situated in the parish of Orleans and al., defts. in error. (October, 1875.) elsewhere, in which they are interested, A suit to annul a wili as a muniment setting up the alleged will as probated of title, and to limit the operation of as a muniment of title, and claiming a decree admitting it to probate, in under the same as instituted heir of the 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 resi-ers then proceed to set forth the grounds dents of different States. upon which they ask for a revocation In error in the Supreme Court of the of the will and the recalling of the deState of Louisiana. cree of probate, these being substantially the falsity and insufficiency of the testimony upon which the will was admitted to probate, and the status of the appeliant, incapacitating her to inherit or take by last will from the decedent. This is an action in form to annul an alleged will of Daniel Clark, the father of the appellant, dated on the 13th of July, 1813, and to recall the decree of 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 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 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 re ana. voking its probate. The Supreme Court of the State having affirmed this decree, the case was appealed to this court. the judiciary act of 1789, on the ground that she was a citizen of New York and the petitioners were citizens of LouisiThe court denied the application, for the alleged reason that, as the apHeld, error; That if the Federal pellant had made herself a party to the court had, by no previous act, jurisdicproceedings in the court relative to the tion to pass upon and determine the settlement of Clark's succession by ap controversy existing between the parties pearing for the probate of the will, she in the Parish Court of Orleans, it was could not now avoid the jurisdiction invested with the necessary jurisdiction when the attempt was made to set aside by the act of 1867 itself, so soon as the and annul the order of probate which case was transferred. In authorizing she had obtained. The court, however, and requiring the transfer of cases inwent on to say in its opinion that the volving particular controversies, from Federal Court could not take jurisdic-a State court to a Federal court, the tion of a controversy having for its ob- statute thereby clothed the latter court ject the annulment of a decree proba with all the authority essential for the ting a will. complete adjudication of the controverThe 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 application was also denied, the court resting its decision on the alleged ground, that the federal tribunal could not take jurisdiction of the subjectmatter of the controversy. State to the Circuit Court as might have been brought before the Circuit Court by original process, applied only to the law as it then stood. No case could then be transferred from a State 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 But the admission supposed is not. the appellant, denying generally the alThe suit in the legations of the petition, except as to required in this case. the probate of the will, and interposing tablish a will, but to annul it as a munparish court is not a proceeding to esa plea of prescription. Subsequently a iment of title, and to limit the operafurther plea was filed to the effect that tion of the decree admitting it to prothe several matters alleged as to the bate. 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 |