$5,000, since it may have been uncertain, even to him, at that time, what amount would be due from him, as executor, to his sister, it being understood, whether or not he had her consent to use it as so much money borrowed from her. Mrs. Goodwin claims that she loaned him $1,000, which was in addition to the amount of her entire interest in her mother's estate. This $1,000, she says, was a gift to her by her mother some time before she died. The statement of Mrs. Goodwin with respect to this amount binds her absolutely, whether she be entitled to it or not. It will never be possible for her, hereafter, to say that she did not become possessed of $1,000 at the hands of her mother. Whether she is entitled to this absolutely, or only to her portion of it, as one of the legacies, is a proper subject for consideration. Her brothers (excepting John, the executor) and her sister all resist the insistment that her mother gave to Mrs. Goodwin $1,000 at any time. But they very earnestly charge Mrs. Goodwin with taking from the person of her mother, after she was dead, whatever money she was then possessed of. As to the amount, they differ, -the testimony leading to the belief that one or more of them supposed the amount to be $700; one or more of them, $1,400; one or more of them, $1,800; and another one of them, $4.500. But it is to be noted that this is the extent of their insistment. It may be inferred, perhaps, that they utterly ignored the notion of a gift from the mother to Mrs. Goodwin, but they do not in any manner directly attempt to controvert this claim made by Mrs. Goodwin. Therefore, finding from the testimony of Mrs. Goodwin herself that she has the $1,000, it still remains for me to determine whether she acquired it by gift from her mother, or whether she was guilty of larceny. The statements of witnesses produced do not justify the conclusion that she took this money from her mother's person after she died. Nor are there any circumstances which would justify such a result. The testimony is so barren of everything but naked assertion that it would be an entirely unnecessary expenditure of time to examine it in detail. A most careful consideration of the testimony of Mrs. Goodwin leads me to conclude that her mother gave her this $1,000. While one or two of her statements respecting what took place afterwards with her brother are contradicted, the contradiction is only as to the time of the occurrence, and not as to the fact. I refer to the transactions respecting the purchase of the burial plot in the cemetery. But Lizzie makes many other statements respecting what took place at and about the time of the gift, which are of a character capable of disproof, but they are not questioned, which very materially supports her integrity as a witness. Upon the whole case, I conclude that this $1,000 was given to Mrs. Goodwin by her mother. If there

be any uncertainty as to the amount really secured by the judgment and the conveyance, I will not refer the case, but will hear further testimony in open court.

Equity requires that the rule which was applied in the case of Roe v. Moore, 35 N. J. Eq. 526, 529, and the case of Levi v. Welsh, 45 N. J. Eq. 867, 19 Atl. 620, both in the court of errors and appeals, which held that conveyances of a like nature should be taken as security for the amount of money actually due, should be applied in this case. The deed of conveyance so held by Mrs. Goodwin, of the title of the French street property, will therefore be decreed to be a lien for the amount due upon her judgment, prior to the lien of the said attachment. The lien of the said attachment will be decreed to continue to and until such time as by the statute in such case made and provided, and the rules and practice of the courts at law, the sale of the said French street property under said attachment, and a conveyance made thereby, may be effected. I will advise a decree in accordance with these views, but without costs.

SING BOW v. SING BOW.

(Court of Chancery of New Jersey. Dec. 15, 1894.)

HUSBAND AND WIFE REALTY HELD BY WifeACTION TO ESTABLISH TRUST BY HUSBAND-PRESUMPTIONS BURDEN OF PROOF-WIFE'S EQUITABLE RIGHTS.

1. The burden of the proof required to rebut the presumption that, though the purchase money of a deed made to a wife belonged to the husband, such an application of it by him was intended as a settlement upon her, is on the husband.

2. The parties being husband and wife, in an action by him to establish a constructive trust in certain land held by her, in which he alleges that the purchase money therefor belonged to him, the burden is on him to show fraud on her part.

3. In an action by a husband against his wife to have established in his favor a trust in certain property held by her, on the ground that the purchase money therefor belonged to him, it appeared that plaintiff was a laundryman, and that defendant was paid by him for work done in the laundry under contract, retaining her wages by his consent, and making payments with them on a mortgage upon the property in question. Held that, though she could not have enforced the contract in law, equity would not disturb her possession of property in which she had invested what she had been paid thereunder.

Bill by Wing Sing Bow against Minnie Sing Bow, his wife, for a decree establishing a trust in his favor in certain realty held by defendant. Dismissed.

Francis Scott, for complainant. Z. M. Ward, for defendant.

GREEN, V. C. The complainant is a native Chinaman. He married the defendant, Minnie Keirstead, in Paterson, in 1878. His business then was that of a laundryman, in

the prosecution of which he was assisted by his wife. Royal L. Wolcott and wife, by deed dated November 25, 1881, for the expressed consideration of $1,000, conveyed a tract of land in Manchester township, Passaic county, to "Minnie Sing Bow, wife of Wing Sing Bow." Defendant paid $25 when the bargain was made and $125 when the deed was delivered, at which time a bond and mortgage on the property, to secure the payment of $850, was given. These last papers were drawn by, and the execution and acknowledgment thereof taken by, Mr. Sidney Farrar, a commissioner of deeds. They are from Minnie Sing Bow and Wing Sing Bow, her husband, to Royal L. Wolcott. The mortgage recites that the mortgaged property is "the same land and premises this day conveyed to said Minnie Sing Bow by said Royal L. Wolcott and wife." Mr. Farrar says he read the whole mortgage through to Wing Sing Bow and his wife, and that he seemed to understand, and that he was surprised he understood so well. This bond has been paid by the defendant, and the mortgage satisfied, and canceled of record. The complainant claims that the money used was his, and asks a decree that he is the owner of the said land; that the deed by which defendant obtained the title be decreed to have been obtained in her name by fraud and deceit; and that she be required to execute such deed as may be requisite to vest the title in him.

1. The parties being husband and wife, a resulting trust does not necessarily arise from the fact, if it is a fact, that the purchase money of the deed, made to the wife, belonged to the husband; the presumption being that a settlement was intended. Read v. Huff, 40 N. J. Eq. 229. The burden of proof to rebut this presumption is on the complainant, and is not established by a preponderance of evidence.

2. The burden of proof is also on the complainant to establish a constructive trust. In this case it rests on the charge of fraud, which must be proved. The complainant alleges that the title was put in his wife's name because she told him that he, being an alien, could not hold the title, and quieted his anxiety by telling him his name was in the deed, and showing him his name on the back of the conveyance. She denies having made any such representation, and his evidence is further contradicted by the fact that his name is not on the back of the deed. I was of opinion on the trial, formed from their manner on the stand, that she, of the two, was the truthful witness. Further discredit is thrown on his truthfulness by the fact that he attempted to sustain his case by a witness-Jim Ho-who undoubtedly perjured himself, swearing to former conversations of the wife, when it clearly appeared she had never seen him until he was on the witness stand.

3. The burden of proof is also on the complainant to show that the money used in the

purchase was his own. The presumption from the recital in the deed is it was the wife's. Stall v. Fulton, 30 N. J. Law, 430. There is no denial that the money was part of the proceeds of the laundry business, carried on by the husband up to the time they separated, and after that by the wife. As to the latter payments, there can be no valid claim on his part. As to the former, the wife testifies (and I believe her, for reasons before given) that she took a man's place in the laundry, on the promise of her husband to pay her the wages, viz. seven dollars a week; and that she retained her wages with his consent, saved them, and made the payments. There was nothing unfair or unconscionable in such an agreement, and the consideration was ample. By it the husband was relieved from employing help, and he only agreed to give his wife the wages he would otherwise have given such employé. The contract was not enforceable at law (Woodruff v. Clark, 42 N. J. Law, 198), but it has been executed, the wife has performed the service, and has received her wages. Equity will not deprive her of the money, nor of property in which she has invested it. Stall v. Fulton, supra; Woodruff v. Clark, supra; Skillman v. Skillman, 13 N. J. Eq. 403, at page 407, 15 N. J. Eq. 479; Peterson v. Mulford, 36 N. J. Law, 481; Quidort's Adm'r v. Pergeaux, 18 N. J. Eq. 472; Slanning v. Style, 3 P. Wms. 337; Savage v. O'Neil, 44 N. Y. 298-302; Raybold v. Raybold, 20 Pa. St. 308; Merrill v. Smith, 37 Me. 394; Henderson v. Warmack, 27 Miss. 830; Farley v. Blood, 10 Fost. (N. H.) 354. The bill must be dismissed, with costs.

KILBURN et al. v. DODD et al. (Court of Chancery of New Jersey. Dec. 26, 1894.)

CHANCERY JURISDICTION-CONSTRUCTION OF WILL -EXECUTOR'S POWERS OF SALE.

1. The fact that others claim to be in possession of the realty involved in proceedings under a bill filed by an executor to ascertain his powers and duties with reference thereto, does not oust the chancery court of jurisdiction.

2. Where testatrix authorized her executors to sell certain of her real estate on a named street, the boundaries whereof were well defined by ancient monuments, she will not be presumed to have intended to include other realty, adjoining that indicated, but fenced off from it, though she obtained both by the same instrument and in one description; it further appearing that her grantor acquired the property separately from such other realty.

3. Testatrix authorized her executors to sell her "real estate on" a named street. She also devised to her brother "the old homestead on" another street intersecting the first. A corner lot separated the two tracts, but they each extended beyond it, and it was in question which clause was intended to cover the disputed portion in the rear. It appeared that this portion had been fenced off from the "homestead" piece, of which it formerly was part, by the brother to whom testatrix devised such "homestead," from whom she had purchased both it and the homestead at different times; and, further, that testa

trix had leased it for 10 years with the property which was covered by the power. Held, that the disputed tract was included in the power of sale.

Bill by Charles F. Kilburn and another, executors, against Daniel Dodd and others.

John O. H. Pitney, for complainants. Cortlandt Parker, for defendant Daniel Dodd. Henry H. Dawson, for other defendants.

GREEN, V. C. This bill is filed by Charles F. Kilburn and James C. McDonald, executors of the last will and testament of Mary E. Kilburn, deceased, for instructions as to their power and duty under the sixth clause of her will, which, according to the bill, is as follows: Sixth. "I give and devise to my brother Daniel Dodd the old homestead on Main street, in the city of Orange, New Jersey, to him, his heirs and assigns, forever; and I authorize and empower my executors hereinafter named to sell my real estate on Hillyer street and on William street, in the city of Orange; also my real estate on Bruen street, Newark, New Jersey; and I also empower my executors to convey to my executor Charles F. Kilburn, in fee, my land on Lawrence street, Newark, if he desires to purchase the same at the sum of $5,600." The will is dated May 17, 1893, and Mrs. Kilburn died May 28, 1893. The real estate in Orange referred to in this clause is part of the property embraced in this diagram:

Mrs. Kilburn at the date of the will and of her death was seised of lots marked 1, 2, 3, 4, 5, 6, 7. The bill of complaint describes tract No. 1 as follows: "The first tract, known as the 'Hillyer Street Lot,' was devised to her by her father, Allen Dodd, deceased, in and by his last will and testament, dated July 12, 1856, and has a frontage on said Hillyer street of about 100 feet, and a depth of about 100 feet, and is about 113 feet wide on the rear." The bill describes tracts 3, 4, 5, and 6 as one tract, designating it as the "Third Tract." The prayer for instructions is as follows: "That by such decree it may be declared whether any of said third tract was devised to said Daniel Dodd, and, if so, how much, or wheth

er the whole of said tract should be sold by your orators, and the proceeds thereof divided, and, if so, to whom and in what shares the same should be paid; and for other and further relief." Hereinafter the tracts will be designated as follows: 1, "The Hillyer Street Lot"; 2, "The Mansion House Lot"; 3, "The Corncrib Lot"; 4 and 5, "The Playground Lots"; 6, "The Dodd William Street Lot"; 7, "The Kilburn William Street Lot." It is the right of the executors, in a case where there is a reasonable question as to their power and duty, to come into this court for instructions as to such power and duty. In passing upon such question, the rights of others will, as a rule, be incidentally involved, but the fact that a decision in such case may embrace in its effect such rights of others does not impair or take away the jurisdiction of the court to advise the executor as to his power and duty. The defendant Daniel Dodd claims to be in possession as owner of part of the real estate involved in this suit. Such possession, if it exists, cannot oust the court of jurisdiction to pass upon the question whether the power or duty of the executors extends over lands so claimed to be held. As to how far he may be concluded by the decree it is not for me here to suggest. The main question, so far as these executors are concerned, is, what property did Mrs. Kilburn mean when she authorized her executors to sell her real estate on Hillyer street and on William street? In passing upon this question we have a right to consider the number, time of purchase, relative situation, occupation, and use of the respective plots, and also their improvement, inclosure, and designation by the testatrix in her lifetime. Benham v. Hendrickson, 32 N. J. Eq. 441. The whole tract delineated on the diagram at one time belonged to Allen Dodd, the father of Mrs. Kilburn and Daniel Dodd. In his lifetime he conveyed the lot on the northeast corner of Main and Hillyer streets to one Harvey, and the lot on the southwest corner of William and Hillyer streets to Andrew Britton. By his will he devised to his wife the use, as long as she might desire to occupy the same, of his homestead house and lot in Main street, extending to a line in continuation of Andrew Britton's south line, not including the lot on Hillyer street. To his son, Daniel, he devised his house and lot in Main street, after his mother should cease to occupy it, and also his house and lot in William street adjoining premises late of Stephen D. Day, deceased; and to his daughter, Mary (Mrs. Kilburn), his lot of land on Hillyer street, and also his house and lot in William street adjoining lands of Andrew Britton. A close substantial fence was built along the rear of the Britton and other William street lots, almost parallel to William street, which has since that time been maintained, and is intact along the rear of the two lots on William street. Daniel Dodd,

after he came into possession under his father's will, conveyed to Charles H. Mann and others a lot on the northwesterly corner of the tract devised to him. This lot was about 80 feet front and rear, by 200 feet deep. He moved the barn and outbuildings on the homestead property further back, and brought on the lot an old corncrib. He also built a picket fence, on so much of a line drawn in continuation of the rear line of the Mann lot as was not covered by the buildings, down to the north line of the Hillyer street lot as it was originally, and also a picket fence, on the dividing line between his land and the Hillyer street lot, from the Harvey lot to the other picket fence. There was no fence along the rest of the original rear line of the Hillyer street lot, namely, from the picket fence to the Britton lot, and a wagon way was used across the Hillyer street lot from Hillyer street to the outbuildings. The northerly portion of the Britton lot was conveyed to one James Reid, and he, and his wife after his death, rented the tract of land to the rear of the William street property, and between it and the Mann property, the barn, and the picket fence, including the original Hillyer street lot. When they first leased it (from whom it does not clearly appear) there were no transverse fences from Hillyer street to the northerly line of the tract and land formerly belonging to a Mr. Day. The Reids built an open shed or lean-to on the north side of the barn, and to this was annexed the corncrib and a henhouse, and they also built an addition to their own barn extending over on the leased ground. Afterwards the tract lying between the Mann lot and the William street property was leased to the owners of the Mann property, who were the proprietors of a school, for a playground, and transverse fences were built, one in continuation of the southeasterly line of the school lot, and the other across the lot, about the middle thereof. Daniel Dodd, by deed dated February 13, 1880, conveyed to Mary F. Kilburn the property embraced in tracts 3, 4, 5, and 6, on the diagram, describing it by metes and bounds, taking the corner of the church lot on William street as the beginning corner, and running from that point along the church property to the Mann lot; thence down the north line of that lot and the picket fence to the original Hillyer street lot; thence northerly to the Britton lot; thence up the rear of the William street property at the corner of lot No. 6; thence along the lines of that lot to the place of beginning. Daniel Dodd, by deed dated February 1, 1883, conveyed to Mrs. Kilburn the property on Main street on which the old mansion stood. The description is by metes and bounds, beginning on Main street, at the corner of the Harvey lot, and running thence, along the Harvey lot "and a line of Mrs. Kilburn, to the line of another lot owned by her fronting on Hillyer street; thence westerly, along the

line of her said last-mentioned lot" (which must be the lot Daniel Dodd had formerly conveyed to her), to the lot formerly conveyed by Dodd to Mann and others; thence along the line of that lot and Main street to the place of beginning. Mrs. Kilburn, then, held the title of the Hillyer street lot and the Kilburn William street lot, being tracts 1 and 7 on the diagram, by devise from her father; of the corncrib lot, the playground lots, and the Dodd William street lot, being tracts 3, 4, 5, and 6 on the diagram, by deed from Daniel Dodd dated February 13, 1880; and of the mansion house lot, being tract No. 2, by deed dated February 1, 1883, from Daniel Dodd; and at the time of her death there was a substantial close fence erected on the rear of the William street lots, a fence having been built and maintained upon that line ever since, during her father's lifetime; a fence between the playground lots and the corncrib lot; a picket fence and buildings between the mansion house lot and corncrib lot; and a picket fence between the mansion house lot and the Hillyer street lot; and no fence between the Hillyer street lot and the corncrib lot, the latter being used in connection with the former, being leased together, and the outlet from the buildings on the corncrib lot to Hillyer street being by wagon way across the Hillyer street lot.

I see no difficulty in construing so much of this will as directs her executors to sell her property on William street. This consists of two houses and lots, the boundaries of which are well defined; one lot having been devised to her in her father's will, and the other conveyed to her by her brother. The rear line of these lots is an old and well-defined one, marked in her father's lifetime by the old fence, which has since that time been maintained. I see no reason to adopt the theory upon which the bill was evidently filed, which annexes tracts 3, 4, and 5 to tract 6. This was based on the fact that Mr. Dodd, in conveying this property to his sister, had joined these four tracts, by one description, in one deed. The deed was drawn by him, and he says, plausibly, that it was so drawn for his own convenience as a scrivener. As stated before, the boundaries of the William street plots were well defined by ancient monuments, and I see no reason to suppose that Mrs. Kilburn, in specifying her property on William street, intended to embrace anything more than what would ordinarily be considered as property so described, viz. the houses and lots as indicated by the existing fences.

A more difficult question is, what did she mean when she authorized her executors to sell her property on Hillyer street? The bill describes the Hillyer street lot as about 100 feet deep, which would make its rear boundary line a continuation of the dividing line between the mansion house lot and the Har