v. Liverpool, L. R., 9 Eq. 579, by act of William III, land belonging to the parish of Liverpool was set apart and dedicated to the use of a burial ground, and by the sentence of consecration the corporation renounced all right to the land. In 1854 the ground was closed against burials by an order in council. In 1866 the corporation being authorized to take a part of the ground under an improvement act refused to pay for the land to be taken on the ground that the land reverted to the corporation on the closing of the ground against burials, and that on such closing the use came to an end; it was held that the land had been dedicated forever to the use of a burial ground; that there was no reverter to the corporation, and that the court would, if necessary, presume a conveyance of the legal estate. See, also, Moreland v. Richardson, 24 Beav. 33. Manifestly the fact that the place in question has become a nuisance from the neglect by the city of its duty to take proper care of it is no reason why the city should now be permitted to go still further and destroy the use altogether. By an act of March 3, 1848 - P. L. 1848, p. 152.--the fact that the city had authorized or permitted encroachments upon the ground was recognized, as also the fact that it derived revenue for such encroachments, and it was provided that it should be the duty of the mayor and common council to protect and preserve the ground as then inclosed and the inclosures thereof. It may be added that the nuisances mentioned in the answer are all of them such as the city may prevent. A preliminary injunction will be allowed according to the prayer of the bill.

SHARP v. HIBBINS.

April 28, 1887.

A retiring partner brought suit against H. and wife to obtain from the former an account of the partnership affairs and assets which at the dissolution of the partnership were left in his hands upon an agreement that he should settle the affairs of the concern, and to charge the real estate of Mrs. H. with the amount alleged to have been taken from the firm assets and expended thereon. Held, that plaintiff was entitled to the account, notwithstanding that H. had paid out more for firm debts than he had received from the assets, but there being no charge or evidence of fraud in the matters relating to the real estate of Mrs. H., plaintiff was entitled to no relief as against her.

Bill for an account. On final hearing upon pleadings and proofs. J. W. Field, for complainant. for defendants.

G. P. Kingsley and E. M. Colie,

RUNYON, Chancellor. Sharp and Hibbins were partners in business in Orange in this State. The copartnership began in 1872 and was dissolved by mutual consent in 1877. Sharp brings this suit against Hibbins and his wife to obtain from the former an account of the partnership affairs and assets which at the dissolution of the copartnership were left in his hands and to charge the real estate of Mrs. Hibbins with moneys which, according to the allegations of the bill, were taken by Hibbins from the funds of the firm and expended upon that property in paying interest upon a mortgage thereon and in improving the property with buildings, etc. That the complainant is entitled to the account which he seeks there can be no question. The proof is that

Sharp and Hibbins were copartners from August 1, 1872, to January 20, 1877; that at the dissolution of the copartnership all the assets were as before stated left in the hands of Hibbins upon an agreement on his part with Sharp that he would settle the affairs of the concern. He has acted under that agreement, has disposed of the property, collected the debts due to the firm and has, as he alleges, paid debts due from it, but he has never accounted with Sharp in the matter. It is urged on his behalf that he should not be required to account because it appears by his testimony that he has paid out much more for the firm in the payment of its debts than he has received from the assets. Sharp is entitled to an accounting notwithstanding this claim. The court will not in such a case as this take the account at the hearing; the only material evidence on this part of the case is that which bears upon the question whether the complainant is entitled to an account or not. Gres. Eq. Ev. 240; Hudson v. Trenton Locom. Works, 1 C. E. Gr. 475.

The claim to a lien upon the separate property of Mrs. Hibbins is not established. There is no proof that the property was not hers bona file. Nor is there any proof of fraud on her part. If her husband expended money drawn by him from the firm's funds in improvements upon her land and in the payment of interest upon the mortgage upon the property there is no proof that it was done surreptitiously; but, on the contrary, it would appear that it was done with the knowledge of the complainant. The expenditure for the green-houses built on her land appears to have been made in 1875, and the payments of interest upon the mortgage were made half yearly from November 25, 1872, down to April 10, 1876. The money drawn for those purposes was drawn by Hibbins upon his own account from the firm's bank account.

It is true they were not charged to him, but the reason was that neither the complainant nor Hibbins kept any account of the moneys drawn by them for their own account except the checks themselves by which they were drawn. There is neither charge nor evidence of fraud in these matters. The complainant is entitled to no lien upon Mrs. Hibbins' property.

As to her the bill should be dismissed, with costs.

CLAYPOOL V. NORCROSS.

April 28, 1887.

A will provided as follows: The residue of my estate to be kept in reserve for further consideration in the way of charitable purposes in a liberal way, not to any particular creed or sect of religion." Held, that the executors took by implication a valid gift of the residue for such charitable purposes as they might think proper.

Bill for construction of will. On final hearing on pleadings.

M. A. Sooy, for complainants. C. E. Hendrickson and S. Gummere, for defendants.

RENYON, Chancellor. Rachel N. Murphy, deceased, by her will, among other bequests, gave to the "Little Sisters of the Poor" and the

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"Working Girls Home," both institutions located in Philadelphia, $500 each, and she then provided as follows: "The residue of my estate to be kept in reserve for further consideration in the way of charitable purposes in a liberal way, not to any particular creed or sect of religion," and she appointed the complainants executors. The question presented is whether the gift of the residue is a valid charitable bequest. That the language of the clause was not used to signify an intention upon the part of the testatrix to withhold the residue for future disposition by herself; or, in other words, that she did not mean to express an intention not to dispose of it by the will is clear from the consideration of the language of the clause. Had she intended so to withhold it, why should she have designated the manner in which the residue was to be disposed of "in a liberal way, not to any particular creed or sect of religion?" It would also seem from the initial clause of the will "I, Rachel N. Murphy, herewith take my final leave of the world" that she did not contemplate any further testamentary or other disposition of any part of her property. By the words "to be kept in reserve" she meant "to be held in trust," and by the residuary clause she intended to give the residue to the executors in trust to be disposed of by them for such charitable purposes as they might, in their discretion, see fit to apply it to, she at the time expressing a wish that they should act therein with a liberal spirit, so far as religious tenets were concerned, and that they, therefore, should not in the distribution confine their gifts to any particular religious sect, or to those who professed belief in any particular religious creed.

It is to be observed that the direction is that the residue is "to be" kept, not is kept, in reserve, etc. That is equivalent to and is intended as a direction to keep the residue in reserve. It is not to be supposed that if the testatrix had intended merely to express an intention to withhold the residue for further disposition she would have considered it necessary to speak with any particularity as to her design in reference to it. It would have been enough to say that it was withheld for further consideration and disposition. But the language is that it is to be reserved for further consideration "in the way of charitable purposes in a liberal way, and not to any particular creed or sect of relig ion.' This language is clearly a direction as to the disposition to be made by those charged with the duty of disposing of the residue.

It seems to me quite clear that the testatrix intended by the clause under consideration to dispose of the residue, and that in the language she has used she must be regarded as speaking at the time of her death, and not at the time of making her will. Courts deal liberally in the construction of bequests for charity, and in some cases sustain such bequests where, if they were to an individual, they would not be sustained. The testatrix intended to give the residue to the executors. Although they are not named in the clause, the gift is to them by implication. And it is in trust for such charitable purposes as they may think proper.

PARKER V. GLOVER.

April 30, 1887.

Testator gave a certain share of his estate to his executor in trust to pay over the rents, issues, dividends and profits thereof to his, the testator's, daughter for life, and after her decease to pay the same to her children, or for their use and benefit, at his discretion, until the youngest should come of age, when it was to be divided among them, share and share alike. Held, that the gift in remainder vested at the death of the testator, and that the grandchildren took as tenants in

common.

An executor who continues an investment in bank stock made by his testator is not responsible for a loss thereof caused by a failure of the bank.*

Bill for construction of will. On final hearing on bill and answers. Frederick Parker, for complainant. Cortlandt Parker, for defendants M. P. and H. N. Gallup. Barker Gummere, for C. P. and F. Glover.

RUNYON, Chancellor. Charles Parker, deceased, late of Trenton, died in 1862. By his will, which was dated July 31, 1858, after directing payment of his debts and funeral expenses, and giving to his son, Joel, a pecuniary legacy charged with two annuities, and giving those annuities, he ordered and directed, by the fourth clause of the will, that the residue of his estate, real and personal, except two houses and lots of his on Southard street in Trenton, and his household furniture, be converted into money by his executor, his son Joel, within two years from his decease, and that the property and the rents, interest and profits that might have accrued thereon be then divided into three shares, one of which he gave to his son Joel in trust to pay over the rents, issues, dividends and profits thereof to his, the testator's, daughter Mary Ann, wife of James B. Glover, for and during her natural life, and after her decease to pay over such rents, interest, dividends and profits to her children, or for their use and benefit, at his discretion, until the youngest should come of age, when that share was to be divided among them, share and share alike.

By the fifth clause he ordered and directed that the before-mentioned two houses and lots should constitute part of that third, and should be estimated to be worth together $3,000; and he thereby authorized his son Joel to sell them at his discretion at any time after his, the testator's, decease, and to receive the proceeds and hold, appropriate, and pay them and the interest and profits thereof, upon the same trusts and for the same purposes as above set forth in regard to the third of which the property was to form a part. Mary Ann Glover survived the testator, and survived her husband also. She died in 1885. At the time of the testator's death she had four children living, viz.: Charles, Helen, Frank and Mary. Helen married Caleb A. Gallup, and died intestate in 1872, before the death of her mother, leaving her husband surviving and her two children, Mabel and IIerbert. Mary Glover, the other daughter of the testator's daughter Mary, married William Moore, and died intestate in 1877, before the death of her mother, and without issue - she never had a child born alive - leaving her husband sur

-

*See 9 East. Rep'r, 182.

viving. The Southard street houses and lots have not been sold. The testator died seized of other real estate in Trenton besides the Southard street property. Part of the estate of the testator which came into the executor's hands was certain shares of the capital stock of the State Bank at New Brunswick, which shares were owned by the testator at the time of his death. The bank failed in 1873, and the stock was thus wholly lost.

The questions submitted are as to the devolution of the before-mentioned third of the residue of the testator's estate given to the complainant in trust for Mrs. Glover, whether under the will the remainder over is to her children as a class and, therefore, to those of them who were living at her death; whether the Southard street property is to be regarded under the provisions of the will as real or personal property, and whether the executor should, under the circumstances, be charged with the loss upon the above-mentioned bank stock.

The testator by the fourth section of the will directs absolutely a conversion of the property constituting the residue with the exception of the Southard street houses and lots. The property which was thus to be converted must be regarded as personalty. The gift of the onethird of the residue in question was to his daughter Mary for life, with remainder to her children. The gift in remainder is of the rents, interest, dividends and profits until the youngest of the children shall come of age, when the corpus is to be divided among them, share and share alike. The gift in remainder vested at the same time as the life interest at the death of the testator. That the gift was not to the children as a class is evidenced by the fact that it is to them as tenants in common. Hawk. Wills, 112; Ilerbert v. Post, 11 C. E. Gr. 278; s. c., 12 id. 540. It follows from what has been said that the husbands of the deceased daughters of Mrs. Glover are entitled, upon taking out letters of administration, to the shares of their deceased wives.

The direction to convert the Southard street property was not absolute but discretionary only. That property is expressly excepted from the positive direction to sell in the preceding section. The testator intended that it should in its then condition as land-be and continue part of the third given in trust for his daughter Mary, and should so go to her children unless the trustee should think it best to sell it. There is no ground for holding that there was a notional conversion of it. As to the shares of stock of the State Bank at New Brunswick mentioned in the bill, the bill states, and it appears by the evidence, that the investment therein was made by the testator himself and was continued by the executor. The executor acted in good faith and in the exercise of a reasonable discretion, and the loss occurred without any fault on his part. A supplement act passed in 1881, to the orphans' court act P. L. 1881, p. 130— provides that where an executor or trustee continues in good faith an investment made by the testator on bond and mortgage, or in the bonds or shares of stock of any corpora tion, and such securities shall have come into the hands of the executor to be administered, and he in the exercise of good faith and a reasonable discretion may have before the passage of the act-continued the investment, or may after the passage of the act continue the investment,