ditional authorities are cited: 1 Sutherland on Damages, 9; Seat v. Moreland, 7 Humph. 574; Turner v. Carter, 1 Head, 520; Stuart v. Western Union Tel. Co., 66 Tex. 580; 59 Am. Rep. 623; Cooley on Torts, 235. With this dissenting opinion FOLKES, J., concurred.

TELEGRAPH COMPANY IS LIABLE TO RECEIVER OF MESSAGE for neglect in transmission: New York etc. P. Co. v. Dryburg, 35 Pa. St. 298; 78 Am. Dec. 338, and note.

MEASURE OF DAMAGES FOR FAILURE OR NEGLECT OF TELEGRAPH COMPANY in transmission of message: See Cannon v. Western Union Tel. Co., 100 N. C. 300; ante, p. 590.

CASES

IN THE

COURT OF ERRORS AND APPEALS

OF

NEW JERSEY.

READ V. PATTERSON.

[44 NEW JERSEY EQUITY, 211.]

PARTIES. IN A SUIT RELATING TO THE RESIDUARY ESTATE, all persons interested in the residue must be made parties.

WHERE TRUSTEES HAVE A DISCRETION TO DO OR NOT DO A PARTICULAR THING, courts of equity will not command or prohibit the exercise of the power, if the conduct of the trustees is in good faith, and not influenced by improper motives.

COURT OF EQUITY MAY MAKE AN ALLOWANCE OUT OF THE INCOME OF TRUST ESTATE FOR THE SUPPORT OF AN INFANT CESTUI QUE TRUST, though the instrument creating the trust contains no provision for main. tenance, and directs that the interest shall accumulate. In making such allowance, the court will be controlled by the amount of the infant's estate, and the expenditure required for the maintenance of the infant in his station and condition of life.

DISCRETION OF A TRUSTEE RESPECTING THE AMOUNT OF INCOME TO BE APPLIED TO THE SUPPORT OF AN INFANT WILL NOT BE CONTROLLED by a court of equity if the trustee has exercised a discretion within the limit of a sound and honest execution of the trust. CONDUCT OF A TRUSTEE IN THE EXECUTION OF DISCRETIONARY POWERS will be examined by a court of equity, for the purpose of determining whether he has abused his trust by acting beyond the limits of a sound and honest execution of the trust; and the court will, in a clear case, remove the trustee and assume the execution of the trust.

APPEALABLE ORDER.-Order denying defendant's application for leave to appear and answer is an appealable order.

BILL in equity by Charles and Cora, minor children of Sarah Patterson, deceased, by their guardian and next friend, against the surviving executor of Wilson Read, deceased, alleging that they are minors unable to provide for their support; that they are entitled to support out of the income of estate

in the hands of the executor, but that he refuses to concede their right, and has furnished nothing towards their maintenance except $466, interest realized from their share of the estate. Wilson Read, the grandfather of the complainants, died testate in 1882. Among the provisions in his will were the following: "I give and bequeath to my beloved wife, Cornelia, all the interest and profits arising from the residue of all my personal or real estate, of whatsoever kind and wheresoever found, for her own personal use and benefit, or as much thereof as she may require or desire, during the term of her natural life; and in case of her death before the children of my daughter, Sarah Patterson, should be of age, then so much thereof of the interest of said estate as in the judgment of my executor may be necessary for the support and maintenance of said children of my said daughter, Sarah Patterson, during their minority. It is my will and I do order that after the decease of my beloved wife, Cornelia, that the residue of all my personal and real estate shall be equally divided between all the children of the aforesaid Thomas H. Read and the aforesaid Sarah Patterson, to share and share alike; and my executor is hereby empowered, if in his judgment it will be for the advantage of either of my grandchildren on their attaining their majority, to pay to him or her what is their fair and just proportion or share of my residuary estate." The testator survived Sarah Patterson several years. She left three children, Charles, Cora, and James, of whom the two first-named were minors when the bill was filed. Testator's widow died in 1884. His son, Thomas H. Read, was the surviving executor, and he had, as shown by his accounts, a residuary estate in his hands of $23,747.84, after paying all debts. The executor was the only defendant in this suit. The complainants' brother, James, and the nine children of the executor were all omitted from the bill. No process was served on any one. A stipulation signed by a solicitor on behalf of the executor was filed, which waived the service of process, admitted the allegations of the bill, and stated that the parties desired to have the will construed, and the powers of defendant and the rights of the complainants determined. The case came on for hearing ex parte, and an interlocutory decree was entered as prayed for in the bill, directing a reference to ascertain what means of support complainants had, and what amount was necessary for such support. A hearing was had before the master, from which he found that they had no

means of support; and that five dollars per week for board and one hundred dollars per year for other expenses should be allowed to Charles, and four dollars per week for board and one hundred a year for other expenses should be allowed Cora. At this hearing the defendant appeared personally, and by the same solicitor who signed the stipulation. He also, acting by the same solicitor, filed exceptions to the master's report. The exceptions were heard before the chancellor, who pronounced an opinion, in which they were overruled. Before the order in conformity with this opinion was entered, the defendant presented a petition to the court, averring that he had no notice of the pendency of the suit until after the interlocutory decree was entered; that the stipulation was signed without the authority or knowledge of the defendant; that on complaining to the solicitor, the latter had replied that defendant would have a full opportunity to present proof, and that the whole matter, including the construction of the will, could be brought before the chancellor on exception to the master's report; and that he was subsequently surprised to learn that he could not be heard before the chancellor on the construction of the will. He prayed that the interlocutory decree and all subsequent proceedings be set aside, and that he be allowed to plead, answer, or demur to the bill. The petition was denied by the chancellor, and the master's report confirmed. The defendant appealed.

H. H. Wainwright, for the appellant.

Robert Allen, for the respondents.

DEPUE, J. From the order dismissing the petition and denying the application to open the proceedings and permit the defendant to make defense, and the order overruling the exceptions to the master's report, and the final decree, the defendant has appealed. The appeal also brings up the interlocutory decree, the final decree involving the merits of the case as settled by the interlocutory decree: Terhune v. Colton, 12 N. J. Eq. 312; Crane v. De Camp, 22 Id. 614.

The reasons assigned for reversal are:

1. That the other grandchildren are necessary parties. The account of the executor on file is a final settlement of the estate. The balance reported in hand is the residue, after payment of debts and expenses, to be distributed or applied according to the directions in the testator's will. In suits by

creditors or specific legatees for satisfaction of their demands, the residuary legatees need not be made parties. In such a suit, residuary legatees are interested consequentially only from the circumstance that the recovery of the debt or legacy will reduce the residue, and under such circumstances the executor is regarded as the representative of all persons interested: Story's Eq. Pl., secs. 140, 141. But that rule does not apply to this case. The testator directed the division of his estate, after the death of his wife, among his grandchildren. The event on which the distribution was to be made has occurred, and primarily the period for distribution has arrived. The testator made provision for the support and maintenance of those of his grandchildren who were children of his daughter Sarah, and conferred upon his executor power to pay to any of his grandchildren, on attaining majority, a fair and just proportion or share of the residuary estate. How far these clauses in the will control or affect the residuary disposition is one of the controversies in this case. In that controversy, the persons entitled under the residuary disposition have a direct interest. One of the questions in dispute is, whether the complainants are entitled to have support and maintenance, having regard to the entire residuary estate. On this question, the beneficiaries under the residuary clause are entitled to be heard. A decree against the executor in this suit would be no answer to a suit by the persons entitled under the residuary clause for immediate distribution. The case is therefore subject to the rule, that in a suit which relates to the residuary estate, all persons interested in the residue must be made parties: Sherrit v. Birch, 3 Bro. C. C. 229; Parsons v. Neville, 3 Bro. C. C. 365; Brown v. Ricketts, 3 Johns. Ch. 553; 8 Am. Dec. 567; Devoue v. Fanning, 4 Id. 199; De Hart v. De Hart, 3 N. J. Eq. 471; Keeler v. Keeler, 11 Id. 458. In Dandridge v. Washington, 2 Pet. 370, the testator, after several devises and bequests, directed that the rest and residue of his estate should be sold by his executors and invested, and the interest thereof applied to the education of his three nephews, Bartholomew Henly, Samuel Henly, and John Dandridge. He then provided that, debts and legacies being paid, and the education of his nephews being completed, the residuary estate should be divided among certain persons. On a bill filed by Dandridge for support against the executors, it was held that the residuary legatees were not necessary parties. In that case, there was no dispute involving the construction