acceptance or acquiescence are sufficient to constitute an election cannot be designated with sufficient precision to justify a general rule. Each case, as it occurs, must be governed by its own peculiar circumstances. The general questions are whether the parties acting or acquiescing were cognizant of their rights, whether they intended to make an election, whether they can restore the individuals affected by their claim to the same situation as if the acts had never been performed, or whether these inquiries are precluded by lapse of time.

** There must be some decisive act of the party, with knowledge of her situation and rights, to determine the election, or there must be an intentional acquiescence in such acts of others as are not only inconsistent with her claim of dower, but render it impossible for her to assert her claim without prejudice to the rights of innocent persons." There is in the present case no question of choice between inconsistent claims, but merely one of the acceptance of a gift upon terms. And if Col. Stites, or his son, Richard, the present defendant, had said and done certain equivocal and indeterminate things indicating an intention not to accept the devise upon the terms mentioned, those cases would be authority for the position that they might, in the absence of irretrievable action by the parties adversely interested, retract what they had said and done, and finally accede to the terms and accept the gift. In Baldwin v. Vreeland, In Baldwin v. Vreeland, 43 N. J. Eq. 446, 11 Atl. 341, there was a devise of land to a trustee, with power and direction to sell and divide the proceeds among several persons named. The beneficiaries united in an agreement to sell the premises at a price named, which, however, was never carried out. Subsequently one of the beneficiaries sold and conveyed his interest in the land to an outside party, and afterwards the executors, at the request of the other beneficiaries, proposed to exercise the power of sale; and the question was whether the uncompleted agreement entered into by the beneficiaries to sell was such an expression of an intention to take the land itself, instead of the proceeds of its sale, as destroyed the power of sale, and it was held that it was not. Clearly, the decision does not apply here.

Stress was laid at the argument upon the parenthetical expression, "but not for speculation," found in the devise in question, and it was argued that giving the unfettered title in fee to the grandson will run counter to the expressed wish of the testator. But I think this argument misconstrues the force and pur pose of that expression. It was not relied upon by the testator to limit the estate given to his son. That was done by vesting it in the trustees for the life of the son, and until the grandson attained 25 years of age. After the death of his son, and the arrival of his grandson at the age of 25 years, it was his clearly expressed will that the grandson should have an unfettered fee simple. The true office of the expression in question, as I read the will,

was to express one of the reasons which influenced the testator in making this provision for his son and grandson, and for limiting the son's estate therein. I will advise a decree in accordance with the foregoing views.

BENTLEY et al. v. BENTLEY et al. (Court of Chancery of New Jersey. Aug. 21, 1897.)

WILLS-CONSTRUCTION-INFANTS-DISABILITY-ESTOPPEL-COSTS IN EQUITY.

1. A will provided: "After payment of my debts, I give, devise, and bequeath to my wife, during her widowhood, the income of all my estate, both real and personal. * *After the marriage or death of my said wife, I give, devise, and bequeath to my children my whole estate. *** I nominate and appoint my wife sole executrix of this, my last will and testament, and hereby empower, authorize, and direct her to sell and convey any or all of my real estate as to her shall seem meet, and authorize and empower her to execute sufficient deeds to the purchaser thorize and direct that, so long as my wife rethereof." A codicil declared: "I do hereby aumains unmarried, that she may make and continue such investments of my estate as to her shall seem best, and that she shall not be held accountable for any loss or mismanagement incurred during said widowhood, nor shall she be compelled to account for the said estate or its management by any court or officer authorized for that purpose during said widowhood." Held, that the grant to the wife of the income only of the estate was not enlarged by the clause appointing her as executrix, nor by the codicil, nor did they authorize the appropriation by her of any portion of the corpus of the estate for her own or her children's benefit.

2. Minor children, who are beneficiaries of their deceased father's estate after the expiration of the life estate of the mother, who is also executrix, are not estopped from bringing a suit to restrain waste by the executrix, incurred in attempting to maintain a high standard of living for herself and children

3. In a suit to restrain an executrix from committing waste, the defense was an unwarranted contention that she had complete power under the will to dispose of the corpus of the estate for her own benefit and that of her children, who were the only other beneficiaries under the will. The decree granted an injunction to restrain the waste, and appointed a receiver to manage the property. Held, that plaintiffs' costs should be paid from the estate, but defendant's costs must be paid by her.

Bill by Emily F. Bentley and others against Emma Bentley and others to restrain waste. Heard on bill, answer, and proofs. Decree for complainants.

This is a bill by remainder-men against the tenant for life, to restrain waste. The complainants are three of the children of the late Peter Bentley (second of that name), of Jersey City, and the defendants are the widow and four infant children of Mr. Bentley. The infant defendants are in the same interest as the complainants. The widow is the sole executrix of the will of Mr. Bentley, and also, by its provisions, entitled to the use of his whole estate during her widowhood. He died in April, 1888, leaving seven children, ranging in age from 3 to 17 years, viz. Eleanor B., Emily P., Peter, Richard, John, Eugenie,

and Parker. The bill was filed on the 9th of January, 1894, and upon its presentation to the chancellor he made an order that Mrs. Bentley show cause why an injunction should not issue restraining her from further dealing with the estate, and a receiver of the estate of the deceased be appointed in accordance with the prayer of the bill. Mrs. Bentley answered the bill on the 12th of February, and, after argument, the chancellor 'announced a decision 1 on the 19th of February, 1894, which was embodied in an order made on the 5th of March. The injunction was granted, enjoining Mrs. Bentley from selling or incumbering the estate of her husband, and the receiver appointed, who has since had charge of it. The gravamen of the bill is: First, that Mrs. Bentley claimed, assumed, and exercised greater rights and powers under the will than the instrument warranted; and, second, that she had mismanaged and wasted the estate. Both of these matters the chancellor, as the order shows, determined against her upon the case as then presented to him. The will, which was made in July, 1871, and about a year after the marriage, is in these words: "After payment of my debts, I give, devise, and bequeath to my wife, Emma, during her widowhood, the income of all my estate, both real and personal, as well that which I may be possessed of as all that which I am now possessed of. After the marriage or death of my said wife, I give, devise, and bequeath to my children my whole estate, be it real or personal, in fee simple; all after-born children to be bound by this will. I nominate and appoint my said wife, Emma, sole executrix of this, my last will and testament, and hereby empower, authorize, and direct her to sell and convey any or all of my real estate as to her shall seem meet, and authorize and empower her to execute sufficient deeds to the purchaser thereof." In March, 1882, he made a codicil as follows: "I do hereby authorize and direct that, so long as my wife remains unmarried, that she may make and continue such investments of my estate as to her shall seem best, and that she shall not be held accountable for any loss or mismanagement incurred during said widowhood, nor shall she be compelled to account for the said estate or its management by any court or officer authorized for that purpose during said widowhood." It was suggested that Mr. Bentley was prompted to make this codicil by a then recent decision of one of our courts holding executors liable for loss arising on assets which they found in an estate, and continued to hold, but which were not such as they would be justified in investing the funds of the estate in the first instance. His widow proved this will, and took possession of the estate, which she found in a complicated and embarrassed condition. It consisted of several pieces of real estate in Jersey City, all unincumbered except by arrearages of taxes,

1 No opinion filed.

of some of which Mr. Bentley was the sole owner, but others he held as tenant in common with his sister, Mrs. Towar, having derived title by descent or devise from his father, Peter Bentley, the first. The personal estate consisted of a one-half interest in a railroad obligation of $100,000, which was held for life by the widow of the first Peter Bentley; of a bond against a gas company for $20,000, the validity of which was disputed; a claim for professional services against the Lehigh Valley Railroad Company, for an indefinite amount, but which was afterwards adjusted for $12,500; $2,600 of bank stock, and $550 of electric light company's stock. Besides these, there were some ordinary fees due him for professional services in a number of causes; a pleasure yacht, which had cost a large amount of money; and ordinary house furniture. He was indebted for arrears of taxes to the amount at least of $16,000, and also to the Hudson County National Bank in the sum of over $21,000, $15,000 of which being for direct loan, and $6,000 his liability on indorsements. He had assigned to the bank as collateral his reversionary interest in the $100,000 railroad obligation. In addition to the foregoing, he owed divers individuals on various accounts nearly, if not quite, $10,000. The gross annual rental value of the real estate was a little over $5,000, but, taking out taxes and repairs, would amount to between $3,000 and $4,000. His professional income had been considerable, and he had lived in rather expensive and extravagant style, but for a short time before his death had somewhat contracted his expenditures by dropping horses and carriages and coachman. After his death the widow kept the family together, continued to live in the homestead mansion, and attempted to further contract the expenses of living, but did not bring them within the income of the estate. She collected the claim against the railroad company, receiving $12,500. She collected, also, some arrears of interest upon the gas bond, to the extent of $3,700, and then compromised the bond itself at $15,000. She also sold the bank stock and electric light stock, and also divers pieces of real estate, and made some payments on account of the debt to the bank. In all this she acted upon the idea that she had, by the will, unlimited power over the body of the estate during her widowhood, and was not subject to be called to account by anybody for her dealings therewith; and she claims such right and power by her answer, and by her counsel in argument before the chancellor; and in accordance with that idea she kept substantially no account of such dealings. She, however, annexed to her answer several schedules, by which she admits receiving from the proceeds of the personal estate and rents due at the testator's death, about $38,807, omitting, however, $3,700 of interest on the gas bond, and from sales of real estate about $19,195, making about $58,000 in all. She claims to have paid out of

that, on account of arrears of taxes, $10,600, due at decedent's death, and about $20,500 on account of debts due by the testator at his death, and the expenses of his last illness and funeral; leaving still due, however, by the testator, about $16,000 to the bank and about $6,000 arrears of taxes. She admits receiving as income of the estate for 5 years $20,700, an average of about $3,600 a year, including $450 dividend on bank and electric light stock, · but not including $3,700 interest on the gas bond. She claims that she paid for taxes accruing after the death of testator, and for the maintenance of the estate, $7,500; that she paid for interest on the bank debt about $5,200; and that the balance of what she received went to the maintenance of herself and family. By another schedule she says that she has received in 54 years from the body of the estate, over and above what she has expended for debts of the testator and ccst of maintenance, about $22,000, and that the net income has been about $13,000, making about $35,000 which she has expended for living, to which must be added the omitted item of interest on the gas bond, $3,700. For this expenditure the schedule states that she can produce receipts for household expenses amounting to $28,000, leaving by her schedule about $7,000, but, adding the item of interest just mentioned, between $10,000 and $11,000, unaccounted for, except that it went for general living expenses. By schedules handed up by counsel for defendant at the argument on final hearing the average amount of the body of the estate applied annually to family maintenance was $3,882.86, the average net income was $2,297.07, making a total annual expenditure of $6,179.93, making an average to each member of the family of $772.49. In other words, living expenses were supplied from the two sources in the ratio of three from the body of the estate and two from the income. At the hearing the matter of the management of the estate in respect to the making of sales, and so forth, was gone into extensively, as well as the application of the funds which she had received as the proceeds thereof. With regard to the latter it appears that the amount expended was substantially as stated in the answer and schedules, and that she had continued to live in the mansion house of the deceased, and that all the children had lived with and been supported by her until the filing of the bill, except that the elder child had married, and left home. With regard to the management of the estate in the matter of sales, and so forth, it did not appear that the estate had suffered any serious loss in any of the sales made. With regard to the claim of unlimited power over the estate during her widowhood, it appeared that she was so advised by a very young member of the bar of this state; that she took no other advice upon that question, except that of an experienced counselor of New York, who declined to give her advice upon the subject, and only acted as a friend in the matter of ne

gotiating sales and settling with creditors, and so forth.

Gilbert Collins, for complainants. Cortlandt Parker and Earle Insley, for defendant.

PITNEY, V. C. (after stating the facts). 1. The question raised upon the construction of the will has already been determined by the chancellor in this cause. The order appointing the receiver is in these words: "And the chancellor being of the opinion that the intention of the testator was to limit the defendant in expenditure to the income only of the said estate during her widowhood, and that the powers and immunities with which she is clothed by said will were designated to protect her from any annoyance and danger in the bona fide the bona fide exercise of her discretion in making and continuing investments and otherwise managing the estate, and from responsibility for losses occasioned thereby, but that such powers and immunities were not intended to enlarge the estate by the will first given to her, or to authorize the appropriation by her of any portion of the corpus of the estate of her husband for her own or her children's benefit." The learned counsel for defendant claimed and was accorded the right to be further heard before me upon that part of the case, but his elaborate and ingenious argument has not manifested to me any unsoundness in that opinion, in which I fully concur.

2. With regard to the management of the estate with respect to sales and renting, etc., I think the defendant has succeeded as well as the testator had any right to expect that she would succeed. I am unable to believe that at the time he made the codicil he contemplated or expected to die leaving his estate in the embarrassed and complicated condition in which it was when death overtook him. No doubt, if his estate had been free from debt, and no arrears of taxation upon it, and had acquired such proportions that the income would support his family, his widow would have been quite competent to manage it. But he was, comparatively, still a young man when he died, and had been launching out into some hazardous operations, had been indulging in expensive habits, had appropriated some trust moneys, was largely in debt to his own sister for rents collected, and had permitted taxes to accumulate and become liens to a large amount upon his estate. To manage such an estate, extract it from its difficulties, pay the debts, and at the same time manage a large family of young children, was altogether beyond the capacity of the defendant. The facts developed at the hearing do not vary materially, and certainly not favorably to the defendant, from those which appeared before the chancellor on the application for an injunction. Upon those he concluded that the control of the estate should be taken from the defendant.

Criticism was made upon the prayer of the bill that the defendant should be removed from

her position of executrix. Of course, this court has no power to do that, and so much of the prayer of the bill was properly abandoned; but it does pray further that she may be enjoined from further management of the estate, from executing the power of sale conferred by the will, from disposing of any of the personal estate, and that some fit and proper person may be appointed as receiver of the estate, real and personal; and for other relief. The power of the court to grant this relief cannot be disputed. The serious charge against the defendant is that she had assumed an unwarranted power over the estate, and exercised it to the extent of living at a rate of expense far beyond what the situation of the estate warranted. In answer to this it was said that these very complainants had the benefit of that in part. But there can be no estoppel in this case as against infants. As soon as they came of age (and, with regard to one or two of them, before they came of age), they saw the impropriety of their mother's expenditures, and applied for this remedy, and they are entirely justified in doing so for the protection of the estate against further depreciation, although they themselves, while infants, had the benefit of the waste that had previously occurred. It appears that the defendant never sat down and calmly estimated the amount of the estate after paying debts, and the amount of the net income, in order to arrive at a just conclusion or determination as to how much money the family ought to spend, but simply went on living as nearly as she thought she could afford in the style that the family had previously lived when the husband was alive and able to provide by his own daily exertions. This failure to calmly consider the situation and deal with it accordingly shows the incapacity of the defendant to act as the conservator of this estate, and to regulate the expenditures under it. It seems to me that $700 or $800 a year for each member of the family, including small children, was altogether too great an expenditure, considering the situation and amount of the estate. But there is nothing in the evidence to indicate that the defendant was aware how much she was spending, or how much she was depleting the estate, until made so by the exigencies of this suit.

against the defendant. They distinctly disavow any desire to compel their mother to refund any moneys spent, and the suit is not framed in that view. All they ask is protection for the future; and the question of whether or not the expenditures were reasonable is only important as showing the judgment and capacity of the defendant in the premises. And in that view it seems to me that the expenses were altogether too extravagant. Thus it appears that every summer she spent from six to eight weeks in the country with her children, at an expense of $125 or more a week. And it is very plain that the court would not, in this case, have authorized the expenditure at a rate of three parts of the corpus to two parts of the income for the support of this family in the manner that it was supported. Much detail was gone into as to the habits of the family, and the manner in which the children were reared, which I do not consider it necessary here to comment upon, except to say that while it shows the defendant to be an affectionate mother, it also shows her to be lacking in sound sense, judgment, and discretion. The defendant's counsel did not ask that the control of the estate should be restored to the defendant until after so much of the property was sold as would suffice to pay all these debts and extricate the estate from its complications, but he urged that no decree should be made that would prevent the restoration of the estate to the wife when that end should be attained, and further asked that the costs of the litigation, including counsel fees to the defendant, should be paid out of the estate. It is unnecessary now to decide when, and under what circumstances, the court may withdraw its restraint, and restore the control of this estate to the defendant. But with regard to the question of costs and counsel fees, in view of the attitude taken by the defendant in her answer, and by her counsel in the argument before the chancellor, and even at the final hearing, I am unable to see any ground upon which I can allow costs and counsel fees to the defendant. She set up an unfounded, and I think unwarranted, claim to the complete control of this estate, and her conduct shortly before the filing of the bill was such as did, in fact, alarm her children, and I think there was enough, at least, in it to justify their alarm. The costs of the complainants, including the disbursements for writing out the evidence, etc., will be paid out of the estate. I will advise a decree accordingly.

The courts have made such allowances in proper cases, the latest instance to which my attention has been called being the case of Alling v. Alling, 52 N. J. Eq. 92, at pages 94, 95, 109, 27 Atl. 655, at pages 655, 656, 661. But the complainants ask no accounting 38 A.-19

WHITTAKER et al. v. BELVIDERE ROLLER-MILL CO. et al.

1897.)

to pay that one of the bonds which is held by the complainant, and the costs of the pending foreclosure to date, accompanied by a demand for an assignment of the bond, is not such a tender as will stop the running of interest or the accruing of costs.

2. Such a demand can only be made in behalf of some person having an equitable right to stand in the place of the holder of the bond, and that right must be disclosed when the demand for assignment is made.

3. The demand must be made upon the holder, or some person authorized to make the assign ment. A solicitor employed to collect the bonds by foreclosure of the mortgage has no power to assign them, and is not a proper person upon whom to make a demand for an assignment.

4. A payment to the clerk of the court of moneys due in a pending suit, without a special order directing the payment to be made, is of no force, unless some statute or general rule of the court authorizes the payment to be made.

5. The right of a second mortgagee to have the assets and securities marshaled so that a preceding mortgagee may be required to look first to the lands on which the second mortgage is not a lien is absolute against the mortgagor, and against his voluntary fraudulent grantee of the lands on which the second mortgage is not a lien.

6. The purchaser at a foreclosure sale under a second mortgage receives the title which the mortgagor had at the time of the delivery of that mortgage, and, attendant upon that title, he takes the right which the second mortgagee received to have the assets marshaled, and he may assert this equity against the subsequent voluntary and fraudulent grantee of the mortgagor.

(Syllabus by the Court.)

Bill by Josephine Whittaker and others against the Belvidere Roller-Mill Company and others to foreclose a mortgage. Heard on bill, answer, etc.

The bill in this case was originally filed by Josephine Whittaker, as sole complainan't, against the Belvidere Roller-Mill Company, Adam B. Searles, and William H. Searles, executors, etc., of Frederick Searles, deceased, and others, defendants, to foreclose a mortgage, with prayer that the defendants answer under oath, and for the ordinary decree for foreclosure and sale of the mortgaged premises. On and prior to May 22, 1890, Adam B. Searles was the owner of four lots of land in the town of Belvidere; lot No. 1 being a mill property situate in, and being part of, the block lying between Front street, Second street, Depue street, and the Delaware river, and the other pieces lying separately and having other uses. At that time Searles was in financial distress, and his creditors were pressing him for settlement. He sought to arrange with them, and was able to induce an agreement to be entered into by all but one Hess. The latter refused to parley or delay, and was pushing a suit for his claim against Searles to judgment. Searles made bonds to the complainant and a number of others of his creditors, obligating himself to pay their several debts upon the death of his father, Frederick Searles. These bonds he secured by a mortgage made to the complainant and other several bondholders, and recorded on May 22, 1890. The mortgage covered lot No. 1 the mill property), and also lots Nos. 2, 3, and 4, and will hereafter be referred to as the

It

"complainant's mortgage." On May 23, 1890, Searles made another bond and mortgage to Robert E. Morris and others of his creditors (one of whom was Levi Ott) to secure payment of several bonds also made by him to each creditor. This mortgage was dated and recorded on May 23, 1890, at 1:20 p. m., and will hereafter be referred to as the "Morris mortgage," and included only lot No. 1, the mill property. On the same day, May 23, 1890, Searles conveyed to Levi Ott the whole block lying between Front, Second, and Depue streets and the Delaware river, including the Mill property (lot 1) in the description of that block, and also another lot on South Water street, not included in any of the mortgages. This deed was dated May 23, 1890, and was expressed to be in consideration of $1, and contained a recital that the conveyance was not to be deemed to affect the interests of Ott in the mortgage made by Searles to Morris, Ott, and others on lot No. 1 (part of the property conveyed), but that Ott's interest in that mortgage was to continue to be a hen on lot No. 1. This deed also contains covenants of seisin, power to convey, general warranty, and against incumbrances, except from certain named mortgages, of which two are those of the complainants and Morris and others. was recorded May 23, 1890, at 3 o'clock and 30 minutes, afternoon. On the same day, May 2, 3, and 4 to his son Roderick B. Searles, by 23, 1890, Adam B. Searles conveyed lots Nos. deed expressed to be for the consideration of $100, with full covenants of seisin, power to convey, general warranty, and against incumbrances, except five mortgages, of which the complainant's is one. This deed was recorded May 23, 1890, at 5 o'clock and 10 minutes, afternoon. Neither of these two deeds con-. tained any covenant or agreement on the part of the grantees to pay off any of the incumbrances. On the 18th day of August, 1890, Ott conveyed to the Belvidere Roller-Mill Company lot No. 1 in the complainant's mortgage (the mill property), with slight variances in the boundary lines, by which the lot conveyed to the Roller-Mill Company is somewhat less than that mortgaged to the complainants, leaving the title to two strips of land, parts of lot No. 1, of the mortgaged premises, still remaining in Ott at that date. This deed contains an agreement on the part of the grantee to assume and pay four mortgages, one of which was the complainant's, and another the Morris mortgage, as part of the consideration of this conveyance. It was recorded on the 24th day of November, 1890. The Belvidere RollerMill Company entered into possession under this conveyance, and paid off a number of the bonds which were secured to be paid by the complainant's mortgage. A number of them, however, remained unpaid. Among these was one held by Josephine Whittaker, the original complainant, and another held by Frederick Searles, who died in February, 1894, testate, and whose executors have been admitted as complainants, and are now prosecuting