Gardner v. Jersey City. It is a good reason for recourse to equity instead of law, that, though there is a remedy at law, it will give more than the complainant is in equity entitled to. In this case the complainants ask less than the law would accord, but claim that which equity will allow. Recognizing the right of the defendants to equitable relief against their strict, legal right, they themselves come at once to equity for their remedy. Their claim against the city is in fact an equitable one. In equity they have no right, provided the award is paid to them, with the interest thereon, to eject the city from the property condemned. All they have a right to in equity is their money. They have no equitable right to have recourse to law for relief, but their claim to relief should be made here. Again, though the complainants have a remedy at law, it is not complete, for it would be subject to a recourse by the defendants for relief to equity, and it is not, therefore, an adequate remedy. Clouston v. Shearer, 99 Mass. 213. It is a favorite object of equity to prevent multiplicity of suits, and to prevent circuity of action. In this case, that which would not be available to the defendant were he the complainant seeking relief against the result of an application to the legal tribunals, will not avail him as defendant. The defendants could not successfully defend an action of ejectment, for they have no legal title (Mayor &c. of Jersey City v. Fitzpatrick, 7 Vr. 120), unless they have obtained it by dedication, of which hereafter. And if, after judgment against them in ejectment, they were to apply to this court for relief, the claim that the complainants are barred by limitation from maintaining a suit for the award, of course would not avail them. Nor would the claim of dedication. Manifestly there was no dedication, but only a mere recognition of the existence of the avenue after it had been laid out under municipal authority, and the land had been taken by condemnation, and the city had become liable to pay for the land and damages. The recognition of it was merely the recognition of the fact of such laying out and condemnation. When the deed from Sackett and wife was Huston v. Read. made, and of course when the map was made and the auction sale took place, the condemnation had taken place, the avenue was a street, in fact, and the city had incurred legal liability to pay the award. The recognition of the existence of the avenue, under such circumstances, cannot be held to operate as a dedication to release the city from the payment of the award. Again, it may be remarked, when the deed from Sackett and wife was made, he had no legal title to the land, for he had already conveyed it to the complainants, and, besides, it contains full and complete evidence that there was no intention to dedicate, for it excepts the land as "land taken by the city of Jersey City for the opening of Jackson avenue." In the deed from the members of the firm to the complainants, the property conveyed is not particularly described. The defendants will be required to pay the award and interest and costs of this suit, and in default thereof will be perpetually enjoined from using or occupying the land of the complainants in the situs of the avenue for which the award was made. ADELAIDE S. HUSTON and others v. ZACHARIAH READ, surviving executor &c. 1. Where an intention to give a perpetual annuity is apparent in the will, the legatee will be held entitled to the fund itself. 2. Testator gave an annuity of $400 to Samuel, and over to the legatees afterwards named in the will, to whom he had given annuities of $200, or to their "descendants and to no others;" also, an annuity of $1,000 to Joanna, besides a life-estate in his lands, with remainder to Mary for life or until marriage, then over, "to be equally divided between my three nieces, or their descendants, named below, hereby giving them a title in fee-simple to my real estate;" also, "to my 32 591 47 26 32 591 50 524 32 591 57 276 32 591 62 699 Huston v. Read. three nieces, Martha, Mary (if unmarried) and Ellen, and to Eliza and Elizabeth, and to their heirs and descendants," an annuity of $200 each, or to the children of such as should die; and, if no children, to be equally divided among the survivors; also, the residue of the income, after the executors had retained enough to meet contingent losses, "to be distributed among my female annuitants before named." By a codicil, Sarah, the wife of a nephew, was given from the income of the residue an annuity the same as Martha and Ellen, if not needed to meet losses. Eliza and Elizabeth were the wives of two nephews. Testator died in 1856; Samuel, in 1859; Mary, in 1850, unmarried; Joanna, in 1860; Martha, in 1861, leaving two children; Ellen, in 1876, leaving three children; Elizabeth, in 1867, leaving several children; Eliza, in 1875, leaving one child; Sarah, in 1870, leaving chil dren. The will was proved in the prerogative court, and the executors' first account filed there. Afterwards, two of the executors filed a bill in chancery against the third, for an account, and, he having died, his representatives were ordered to account and pay over testator's assets in their hands to the surviving executors, who afterwards filed an account in the orphans court.—Held, (1) That Samuel's share goes to the representatives of Martha and Ellen. (2) That Mary's share lapsed by her death in testator's life-time without "descendants." (3) That the provision that the lands "be equally divided," makes Martha and Ellen tenants in common, and the lands descended accordingly. (4) That the residue, in the absence of other testamentary direc tions, is to be divided equally among the children of Martha and Ellen. (5) That the executors were not, by the suit in this court, prevented from settling their accounts afterwards in the orphans court; but such settlement does not conclude this court as to the validity of their payments to the several legatees. Bill for construction of will &c. On final hearing on pleadings and proofs. Mr. J. L. N. Stratton, for complainants. Mr. C. E. Merritt, for the children of Ellen Shreve. Mr. M. P. Grey, for the children of Elizabeth and Eliza Eakin. Huston v. Read. Mr. Barker Gummere, for the children of Martha Read and Ellen Shreve. THE CHANCEllor. James Eakin, late of Mount Holly, died in May, 1856, leaving a will which was proved the 20th of that month. The will contains the following provisions: "To my brother Samuel H. Eakin, I will and bequeath an annuity of four hundred dollars during his natural life, to be paid him quarteryearly by my executors hereinafter named, and, at his death, it is my will and desire that said annuity be paid in equal proportions, and at like periods, to such of my legatees hereinafter named, or to their descendants, as I have by this will bequeathed annuities of two hundred dollars, and to no others. "3d. To my sister Joanna Shiras, I will and bequeath an annuity of one thousand dollars, to be paid her quarter-yearly by my executors; and, further, I will and bequeath to my said sister Joanna a life-estate in my house and lot of ground in Mount Holly, with all the appurte nances and improvements thereunto belonging, together with all the furniture, plate, china, books, pictures, and all the other contents of said house, in which I have an interest; and, at the death of my said sister Joanna, all her claim to and interest in said bequests are to cease, and, in her place and stead, I substitute my niece Mary P. Shiras, giving and bequeathing to her, during her natural life, and while unmarried, my aforesaid house and lot of ground, together with the furniture, annuity, and all other benefits and advantages secured by this instrument of writing to my said sister Joanna Shiras. But, should my said niece Mary die or marry before the death of my said sister Joanna, then and in that case, at the death of the latter, it is my will and desire that all the property, both real and personal, together with the annuity hereby secured to my said sister Joanna, and conditionally to my said niece Mary, be equally divided between my three nieces, or their descendants, named below, hereby giving them a title in feesimple to my real estate. 4th. To my three nieces, Martha Read, wife of Dr. R. Z. Read; Mary P. Shiras, if married, as, by such act, she forfeits all provision heretofore made for her by this testament; and Ellen Shreve, wife of Alexander R. Shreve, and to Elizabeth Eakin, wife of Constant M. Eakin, and to Eliza Eakin, wife of Alphonso L. Eakin, and to their heirs and descendants, I will and bequeath an annuity to each of two hundred dollars, to be paid to them by my executors, quarter-yearly; or, in the event of the death of either, said annuity to be paid to the Huston v. Read. guardian of the infant child or children of the deceased, for the sole and entire benefit of the said infant or infants; or, should either of the annuitants die without leaving a child, then the annuity intended for her infant or infants to be equally divided between those of the survivors. "7th. The residue of the income of my estate, after the payment of the legacies and annuities heretofore provided for, I desire may be retained by my executors to meet and make good any losses which may be sustained on the personal estate or capital that I may die possessed of, leaving it with them to determine how often, and at what time, should there be a surplus fund arising from interest and dividends, it may be distributed among my female annuitants before named; but I hereby strictly enjoin it on my executors to use every possible means to prevent the capital of my estate being impaired. Should it, however, unfortunately happen that losses to such an extent should occur as to render the annual receipts unequal to the payment of all the annuities provided for, it is my will that my sister Joanna shall suffer no loss thereby, if alive, but the deficiency is to be borne by the other annuitants, in equal proportions." By a codicil (the first), dated February 1st, 1848, to the will, he made the following provisions: "At the time of the execution of that will [the will just mentioned], my nephew James E. Shiras, was unmarried, and, in consequence, it was not deemed necessary to introduce his name by making any provision for him. He having subsequently, however, taken a wife, I am unwilling that she should be overlooked in the distribution of my estate, and I, therefore, enjoin it on my executors, that from the residue of the annual proceeds of the property left by me, after the payment of all legacies and annuities given and granted by my will above referred to, there be paid to Susan Shiras, the wife of my nephew James, half-yearly, for her sole and entire use, independent of her hus band, a like annuity with that provided for, by my said will, my nieces Martha and Ellen, with the following condition, viz., that should not the annual income of my estate be sufficient to meet such annuity, then the aforesaid Susan Shiras is to receive such sum, or portion of it, as the excess of receipts, after the payment of all sums provided for by my will, will authorize, and no more." By the will, the testator appointed Alphonso L. Eakin, Alexander R. Shreve, Zachariah R. Read and Abraham Brown, executors. The first three (Brown died in the lifetime of the testator) proved the will and codicil, and duly |