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Hennion's Executors v. Jacobus.

68; Att'y-Gen. v. N. Y. & L. B. R. R. Co., 9 C. E. Green 49; City of Georgetown v. Alexandria Canal Co., 12 Peters 93, 98; Att'y-Gen. v. United Kingdom Electric Tel. Co., 30 Beav. 287; Att'y-Gen. v. Eastern Counties Railway Co., 7 Jur. 806.

The order to show cause will be discharged.

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HENNION'S EXECUTORS vs. JACOBUS and others.

1. A gift of a fund, with limitation over in the contingency of the legatee's dying without leaving lawful issue, entitles the legatee to possession of the fund.

2. The rule is settled, that interest begins to run on general legacies to which no time of payment is fixed, from the expiration of one year from testator's death.

3. The rule that a general legacy in favor of a child will draw interest from testator's death, when given for his maintenance, does not apply to a legacy to adults; nor where the maintenance of the child is otherwise provided for, either by the will or in any other mode.

Bill for directions to executors.

Mr. J. G. Trusdell, for executors.

Mr. J. W. Taylor, for legatees.

THE CHANCELLOR.

The will of James H. Hennion, deceased, contains the following sections: "Item First. I give and bequeath to my two sons, Daniel and John H., in equal portions, all of my real and personal estate, whom I hereby declare and appoint my executors, out of which they shall meet all expenses incident to my sickness, death, and burial." "Item Second. I give to

my daughter Phebe Ann the sum of $1000, to be paid out of the estate devised to my sons Daniel and John H.”

"Item

Hennion's Executors v. Jacobus.

Third. I give to my daughter Margaret the sum of $1400, to be paid out of the estate given to my sons Daniel and John H.; and if she dies without issue, the same to revert to the remaining children of mine, or their legal heirs, if dead, in equal portions as represented by the children." "Item Fourth. I give to my daughter Mary E. the legal interest of $1400, to be paid to her annually, of the above estate given to Daniel and John H.; and after her death, the principal shall be equally divided among her legal heirs; provided that she may not need; if, in the judgment of my sons Daniel and John H., her necessities do require, they may from time to time pay her such sums as they may deem proper, of the principal; the rest to be divided as above stated."

The testator died on the 24th of May, 1874.

The questions presented are: First. Whether Margaret is entitled to possession of the $1400 bequeathed to her; and, second. At what time the interest given to Mary began to

accrue.

Margaret is entitled to the possession of the $1400 given to her by the will, notwithstanding the gift over in the contingency of her dying without leaving lawful issue. Ex'r of Rowe v. White, 1 C. E. Green 411; Jones' Ex'rs v. Stites, 4 C. E. Green 324; Hull v. Eddy, 2 Green 169.

The interest given to Mary began to accrue on the 24th of May, 1875, and the first payment will consequently be due to her on the 24th of May, 1876. The rule is settled, that interest begins to run on general legacies to which no time of payment is fixed in the will, from the expiration of one year from the death of the testator. 2 Redfield on Wills 565; Lawrence v. Embree, 3 Brad. Sur. R. 364. Mary, however, claims that because she is a child of the testator, and, as she alleges, the provision is made for her maintenance, she is entitled to interest from the death of the testator. She is an adult, and a married woman. There is no evidence in the will that the interest is given to her for her support. Besides, it is presumed that her support and maintenance are provided by her husband. Nor does it appear but that she is in affluent cir

cumstances.

German Reformed Church v. Von Puechelstein.

The rule which she seeks to apply to her legacy does not apply to adults, nor where the maintenance of the child is otherwise provided for, either by the will or in any other mode. Cessante ratione, cessat ipsa lex. Raven v. Waite, 1 Swanst. 553; In the matter of Rouse's Estate, 9 Hare 649.

THE BOARD OF DOMESTIC MISSIONS OF THE GERMAN REFORMED CHURCH IN AMERICA vs. VON PUECHEL

STEIN.

1. An objection to a bill filed by a corporation, that it does not aver that the complainants are a corporation, is an objection of form which cannot be raised under a general demurrer for want of equity.

2. An averment of the corporate existence of the complainants is unnecessary.

3. A statement in the bill in reference to the execution of a mortgage by a corporation of the German Reformed Church that it was executed "through their trustees," under the "act to incorporate trustees of religious societies," held sufficient as a matter of pleading.

4. A general demurrer for want of equity overruled, with leave to file a new one, on the ground that the bill showed no title to a mortgage; unless complainants should amend.

On bill to foreclose and demurrer.

Mr. J. M. Scovel and Mr. S. D. Dillaye, for demurrant.

Mr. J. E. P. Abbott, for complainants.

THE CHANCELLOR.

The bill is filed to foreclose two mortgages on the same premises; one stated to have been given directly to the complainants by The German Reformed Church in Egg Harbor City, and the other by them, through their trustees, to "George Gelbach, treasurer of the Church Extension Fund of the

German Reformed Church v. Von Puechelstein.

Reformed Church in the United States."

The bill states that

this latter mortgage was given by the same parties as the first, and that it was given "for the use and benefit of the German Reformed Church in America to the German Reformed Church in Egg Harbor City." The consideration of the second mortgage is not stated. That of the first is stated to have been a debt due from Henry Hotz, vice-president, and John Henry Fisher, secretary of the congregation of the German Reformed Church of Egg Harbor City, to Rev. Dr. J. H. A. Bomberger, of Philadelphia, in the State of Pennsylvania, president of the Board of Domestic Missions of the German Reformed Church in America. The bill alleges that the German Reformed Church of Egg Harbor City, in order to secure the payment of that money, with interest, made and executed under the hand and seal of their vice-president, attested by their secretary, a bond or obligation which they delivered to the complainants; that the condition of the bond was that the "said congregation" should pay to "said Rev. Dr. J. H. A. Bomberger, president aforesaid, $1500 in five years, with $1.00 a year interest. It further states that in order to secure the payment of the money, The German Reformed Church of Egg Harbor City executed and delivered to the complainants a certain indenture of mortgage of even date with the bond, which mortgage was made between the former of the first part and the latter of the second part. The defendant, Louisa Baroness von Puechelstein, administratrix, is the owner of the equity of redemption of the mortgaged premises through purchase at sheriff's sale under an execution at law. She has filed a general demurrer for want of equity. On the argument the following causes of demurrer were assigned: that the bill does not aver that the complainants are a corporation, and that the mortgages are not (according to the bill) executed according to the requirements of the act under which the mortgagors are incorporated, (Nix. Dig., p. 804, § 13,) which provides that no deed or instrument of conveyance for any lands, tenements, hereditaments or real estate of the corporation shall be good and effectual in law unless it be sealed with the common seal, and signed by a majority of the corporators.

German Reformed Church v. Von Puechelstein.

The first ground of demurrer is an objection of form, which cannot properly be raised under a general demurrer for want of equity. But to dispose of it: The complainants are not required to allege in their bill that they are a corporation. Bennington Iron Co. v. Rutherford, 3 Harr. 158; Star Brick Co. v. Ridsdale, 7 Vroom 229.

As to the second objection: The defendant's counsel insist that the mortgages were not executed in conformity with the provisions of the law under which the mortgagors were incorporated, and that they therefore have no validity as against the defendant. The first mortgage is stated to have been executed and delivered by the mortgagors to the mortgagees, the complainants. There is a statement as to the officers by whom and the manner in which the bond which that mortgage was given to secure was executed, but none as to the mortgage. The other mortgage is stated to have been executed by the German Reformed Church of Egg Harbor City, 'through their trustees." The act declares, (Nix. Dig., 804, § 11,) that the minister or ministers, elders and deacons for the time being of the church shall be the trustees thereof, and a body corporate and politic in law by whatever name they shall assume. As a matter of pleading, the statement of the bill in reference to the execution of the mortgages is sufficient.

But the bill alleges that the second mortgage was given to "George Gelbach, treasurer of the Church Extension Fund of the Reformed Church in the United States," and that it was given for "the use and benefit of the German Reformed Church in America to the German Reformed Church of Egg Harbor City." This statement is, in the latter part just quoted, unintelligible, probably from the use, by mistake, of the word "to" for the word "by." But apart from this, But apart from this, the complainants show no title to that mortgage. The bill alleges that it was given to the treasurer of the "Church Extension Fund of the Reform Church in the United States," for the use and benefit of The German Reformed Church in America, not for the use or benefit of the complainants, The Board of Domestic

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