Chipchase v. Chipchase. 49 594 57 600 49 594 63 680 CHARLOTTE F. CHIPCHASE, appellant, v. JOHN F. CHIPCHASE, respondent. On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in 3 Dick. Ch. Rep. 549. Mr. Gilbert Collins, for the appellant. Messrs. Vredenburgh & Garretson, for the respondent. PER CURIAM. Decree affirmed, for the reasons given in the court of chancery. For affirmance-THE CHIEF-JUSTICE, DIXON, GARRISON, MAGIE, REED, SCUDDER, VAN SYCKEL, WERTS, BOGERT, BROWN, CLEMENT, SMITH, WHITAKER-13. For reversal-None. INDEX. A. PAGE. ACCIDENT AND MISTAKE--1. Accident is an unforeseen and unexpected event, occurring external to the party affected by it, and of which his own agency is not the proximate cause, whereby, contrary to his own intention and wish, he loses some legal right, or becomes subjected to some legal liability, and another person acquires a corresponding legal right which it would be a violation of good conscience for the latter person, under the circumstances, to retain. HERBERT v. HERBERT..... 70 2. Relief will not be afforded in equity on the ground of mistake, where the defendant's liability is the result of pure carelessness. SERRELL v. ROTHSTEIN........ 385 See JURISDICTION, 3, 4. ACTIONS-See RECEIVERS, 7. ADJOURNMENT-See SALE OF LAND, 2. ADMINISTRATION-Right of.-1. In case of intestacy, where there is no widow, administration must be granted to one of the next of kin, if any one of them, against whom no disqualifying objection exists, will accept it. CRAMER v. SHARP 2. 3. 4. 558 The right of administration grows out of the right to distribution, and those, therefore, who are entitled to the intestate's clear estate, have an exclusive primary right to administration. Id........ 558 While the court is not bound to approve the nominee of the majority in interest, still, where they select one of their own number, against whom no objection exists, it will, as a general rule, appoint their nominee. Id...... 558 Where the appointing power has a discretion to select one or more from a class, and there are several claimants, it should, in deciding to whom the grant shall be made, give full consideration to the moral fitness and integrity of the several claimants. Id.................... 558 ADVERSE POSSESSION-See EVIDENCE, 1, 2. AGREEMENT-See HUSBAND and Wife, 1–5. PAGE. ALIMONY-1. An order for alimony and counsel fees pendente lite can only be made in favor of a person appearing to be the wife of the other party to the suit. FREEMAN v. FREEMAN. 2. 3. When, in answer to the allegation of marriage, facts are stated showing that the party claiming to be the wife of the other party was not competent, when the marriage took place, to contract matrimony, and did not thereby become a wife, such facts must, in order to entitle the applicant to an order for alimony and counsel fees pendente lite, be denied or explained to the satisfaction of the court. Id........ The court, in deciding whether an order for alimony and counsel fees shall be made or not, must, as in other cases, proceed only upon legal evidence, and reject hearsay and any other species of illegal evidence. Id............... ANNUITY-See DEVISE AND LEGACY, 8, 9. ANSWER-In a hearing upon bill and answer, the facts well pleaded in the answer will be taken as true, whether they be responsive to the averments of the bill or not. DOREMUS v. CAMERON....... APPEAL-See PRACTICE, 7, 9. ASSIGNMENT-Life insurance.-C., an executor of an estate, to which he was indebted, deposited a policy of insurance on his own life, for an amount greater than this indebtedness, with a paper stating it was collateral for the payment of his indebtedness whatever the deficiency might be, in a box with other papers of the estate. He testified it was done so that if he should drop off, they might take that with other securities. He kept the box and papers in his possession, and gave no notice of any attempted transfer to the insurance company or any one interested in the estate.-Held, that such acts did not assign the policy or create a lien thereon superior to the rights of a creditor which had attached by virtue of judicial proceedings. FALK v. JANES See RECEIVER, 1. ASSIGNMENT FOR BENEFIT OF CREDITORS—Preferences.-1. A debtor, in failing circumstances, executed to a favored creditor a deed of conveyance of all his landed property, a bill of sale of all his personal property, and an assignment of all his choses in action, taking from the creditor a declaration in writing that he held the property for the purpose of paying the amount due himself and the remainder for the benefit of the other creditors of the grantor.Held, (1) that the transaction amounted to an assignment for the 102 102 102 1 484 PAGE. ASSIGNMENT FOR BENEFIT OF CREDITORS—Continued. benefit of creditors, and was void because it created a preference. (2) That the case of Muchmore v. Budd, 24 Vr. 369, does not apply. STITES v. CHAMPION.. 2. 446 Vested interest.-An assignment under the statute, by a debtor, of all his property, real and personal, for the benefit of his creditors, will carry his vested interest as a residuary legatee of an estate, though such interest was not included in the inventory, and it was not his intention to assign it. MEEKER v. FELTS....... 502 See PREFERENCES. ATTACHMENT-Practice.-1. No one but a creditor of a non-resident or absconding debtor has a right to sue out an attachment, and it is essential to the exercise of his right that the plaintiff shall have a valid cause of action against the defendant. HERBERT v. HER 2. An auditor in attachment should not make a report in favor of a claim which will not support an action at law. His functions are precisely like those of a jury, and he must decide every question submitted to him according to law and the evidence. Id......................................... 70 70 Distinguished, Drake v. Lanning............................ Baker, Receiver, v. Tuckahoe &c. Ry. Co. Affirmed, Tuckahoe &c. Ry. Co. v. Baker........... Broom v. Broom, 2 Dick. Ch. Rep. 215. Affirmed, Broom v. Broom.... Chipchase v. Chipchase, 3 Dick. Ch. Rep. 549. Affirmed, Chipchase v. Chipchase Cleveland v. O'Rourke. Reversed, O'Rourke v. Cleveland......... Coles v. Pilkinton, L. R. (19 Eq.) 174. Cox v. Wills, 4 Dick. Ch. Rep. 130. Reversed, Wills v. Cox.......... Eberhardt v. Perolin, 3 Dick. Ch. Rep. 592. Reversed, Perolin v. Eberhardt.... 581 .... 347 594 ....... 577 .... 460 573 570 CASES CRITICISED--Continued. Eckel v. Eckel. Affirmed, Eckel v. Eckel Elizabethtown Gas Light Co. v. Green, 1 Dick. Ch. Rep. 118. Affirmed, Elizabethtown Gas Light Co. v. Green.. Fritts v. Turner, 1 Dick. Ch. Rep. 515. Reversed, Turner v. Fritts.......... Herbert v. Herbert, 4 Dick. Ch. Rep. 70. Affirmed, Herbert v. Herbert....... Irick v. Clement. Affirmed, Irick v. Clement.. Jernee v. Bentley. Affirmed, Jernee v. Bentley........ Kanouse v. Slock bower, 3 Dick. Ch. Rep. 42. Reversed, Slockbower v. Kanouse.. PAGE. 587 329 343 565 590 584 592 Kouvalinka v. Geibel, 13 Stew. Eq. 443. Distinguished, Crane v. Bolles.......................... 379 McCullough v. Absecon Beach L. & I. Co., 3 Dick. Ch. Rep. 170. Affirmed, Absecon Beach L. & I. Co. v. McCullough................... 593 McGrail v. McGrail. Reversed, McGrail v. McGrail.. 348 Morrisse v. Ingles, 1 Dick. Ch. Rep. 306. Explained, Bethlehem Iron Co. v. Railway Co................ Phelps v. Morrison, 9 C. E. Gr. 195; 10 C. E. Gr. 538. Reversed, Van Horn e. Van Horn....... Thompson v. Pennsylvania R. R. Co., 3 Dick. Ch. Rep. 105. Reversed, Pennsylvania R. R. Co. v. Thompson..... Van Horn v. Van Horn. Vreeland v. Vreeland, 3 Dick. Ch. Rep. 56. Affirmed, Vreeland v. Vreeland.................... Watjen v. Green, 3 Dick. Ch. Rep. 322. Affirmed, Watjen v. Green..... 318 327 322 576 |