ESTOPPEL.

1. A verdict for the defendant and judgment
thereon in an ejectment suit, previous to
the revised statutes, brought for the recov-
ery of lands alleged to have been fraudu-
lently conveyed to the defendant, is not a
bar to a subsequent suit in chancery against
him, to set aside the conveyance on the
ground of fraud. Van Wyck v. Seward, 62

2. The doctrine of estoppels, as a mere tech-
nical rule, is not favored in courts of equi-
ty; and where there is no estoppel at law,
the court of chancery will not resort to it
to deprive a party of his rights. But the
verdict of a jury in an ejectment suit, be-
tween the same parties, and upon the same
question, is proper to be taken into consid-
eration in determining a doubtful question
of fact in a subsequent suit in chancery;
and it may be a sufficient reason for re-
fusing to award a feigned issue in a case
where an issue would otherwise have been
proper.
id

2. Where the complainants brought a suit
against the defendant and B. & N. in the
supreme court, as the makers of a note
given by a copartnership firm, and the de-
fendant and B. & N. pleaded in abatement
the non-joinder of D. & D., two other per-
sons who were alleged to be partners, up-
on which plea issue was joined and a ver.
dict and judgment was rendered against the
defendant and B. & N. thereon; and
upon
a creditor's bill filed in this court against
the defendant alone he put in a plea which, ||
among other things, averred that D. & D.
were partners in the firm, and were jointly
holden as makers of the note with the de-
fendant and B. & N.; Held that the record
of the judgment in the supreme court was
conclusive evidence in favor of the com-
plainants, in opposition to this averment in
the defendant's plea in this court. Dows v.
McMichael,

139

1. Where a part of the exceptions to an an-
swer are allowed and a part disallowed,
if the complainant excepts to the master's
report as to the disallowance of a part of
his exceptions, he must wait until his ex-
ceptions to the master's report are finally
disposed of by the court before he will be
entitled to an order for the defendant to an-
swer the exceptions which were allowed
by the master. And the entry of a com-
mon order to answer the exceptions allow.
ed before the entering of the order of the
court on the exceptions to the master's re-
port is irregular. New-York Fire Ins. Co.
v. Lawrence,
511

2. The proper course in such a case, if the
exceptions to the master's report are over.
ruled by the court, is to enter the special
order in conformity to the decision of the
court, and to make it a part of the same
order that the defendant put in a further
answer to the exceptions which were al
lowed by the master; or the complainant
may have a common order to answer the
exceptions allowed, after the report has
become absolute by the entry of the special
order overruling his exceptions to the
id

3.

same.

5. Upon the settlement of the accounts of
executors or administrators before a surro-
gate, he is not authorized to make an arbi-
trary allowance for services and counsel
fees to be paid by one party to the other,
or to be paid out of the estate, without re.
ference to the taxable costs allowed for
similar services in other courts. But in
the taxation of the costs of the proctors
and advocates, upon the settlement of such
accounts before the surrogate, the taxable
charges must not exceed those which are
allowed by law to solicitors and counsellors
in the court of chancery, in similar cases.
Halsey v. Van Amringe,

12

6. The statute allowing to executors, &c.
upon the settlement of their accounts, a
compensation for their services applies to
all settlements made after the passing of
the original act, although the services had
been performed before. And in cases com-
ing within the statute, the surrogate has no
discretion to refuse to allow to the execu-
tor or administrator the commissions es-
tablished for such services. Dakin v. Dem-
ming,
95

7. The surrogate upon the settlement of the
accounts of executors or administrators
before him is bound to allow them their le.
gal commissions for receiving and paying
out monies of the estate; and the amount
of the estate of the decedent in their hands,
which they are to account for and pay over
to the creditors or distributees, is the bal-
ance which remains after deducting such
commissions. Halsey v. Van Amringe, 12

8. The surrogate is not authorized to decree
the payment of costs out of the estate of
the decedent in the hands of his personal
representatives, to the exclusion of their
VOL. VI.
85

EXECUTORS AND ADMINISTRATORS, III.
When liable and when entitled to costs.

15. Executors are liable for the costs of a bill
of discovery filed by them in aid of their
defence to a suit at law, where it appears
from the defendant's answer that there was
no fact within his knowledge which could
in any way aid them in such defence.
Boughton v. Philips,
334

16. If an administratrix brings an appeal for
her own benefit, and fails therein, she will
be personally charged with the costs of the
appeal. Gardner v. Gardner,

455

4.

Where a parent makes an advancement
to his child, and honestly and fairly retains
in his hands sufficient property to pay all
his debts, such child will not be bound to
refund the advancement, for the benefit of
the creditors, although it should afterwards
happen that the parent does not pay his
debts which existed at the time of the ma.
king of such advancement. But where
the debtor makes a voluntary conveyance
of his property, without any valuable con-
sideration, and for the purpose of defraud-
ing creditors, it seems that a court of equi-
ty may follow the property into the hands
of the voluntary donee, for the benefit of
such creditors, although the donee was
not privy to the intended fraud.
id

5. Where a creditor of a fraudulent grantee
of real estate takes from him a mortgage
on such estate as a further security of the
previous debt, but without notice of the
fraud, such creditor is not protected against
the prior equity and legal lien of judgment
creditors of the fraudulent grantor, whose
judgments were recovered subsequent to
the fraudulent conveyance but prior to the
mortgage. Manhattan Co. v. Evertson, 457

6.

9. Where the president of a bank had hy.
pothecated his private stock to secure the
re-payment of a loan to himself, and for
the purpose of redeeming the same took
from the funds of the bank of which he
was president a sum of money, without
authority of the board of directors, which
he offered to the mortgagee of the stock
in payment of the debt; Held, that the
taking of the funds of the bank for such a
purpose was a fraud upon the bank, and
that the mortgagee of the stock acted cor-
rectly in refusing to receive the money,
thus embezzled by the president of the
bank, in the redemption of the stock.
Reed v. Bank of Newburgh,

337

10. Where a president or other officer of a
monied corporation, who has the custody
of its funds, appropriates the same to pay
his own debts, or for other private purpos-
es, without authority of the directors of the
corporation, it is a criminal embezzlement
of the fund entrusted to his care; and
his creditor who receives the money in
payment of his debt, knowing it to be
thus embezzled, is a participator in the
fraud and felony, and may be compelled
to refund the money thus received. id

11. A stockholder who has given another a
proxy to vote upon his stock, even for a
valuable consideration, is justifiable in re-
voking the proxy where it is about to be
used for a fraudulent purpose.
id

See DEED, 9. See VENDOR AND PURCHASER.

G

GRANT.

See CORPORATION, 1, 2. WATER, 3.

GUARDIAN AND WARD.

1. Where the general guardian of an infant
settles with the executors or personal re-

presentatives of the decedent for a legacy
or distributive share of the estate due to
his ward, the settlement is so far conclu-
sive upon the infant when he arrives at
full age, as to throw upon him the burthen
of showing that there was error in the ac.
count upon which such settlement was
made. Dakin v. Demming,
95

2. Where the real estate of infants was sold
under a judgment in a partition suit com-
menced in the supreme court, under the
act of 1813, the guardian ad litem of the
infants and not their general guardian was
the proper person to receive and invest
their shares of the proceeds of the sale.
Cook v. Lee,

158

3. And where the commissioners who sold
the property, instead of paying the infants'
shares of the proceeds to their guardian ad
litem in the suit, paid such shares to the
general guardian, who wasted the same
and became insolvent, the guardian ad li
tem not having directed such payment or
assented to the same; Held, that the rem-
edy of the infants was against the com-
missioners who made the payment with.
out authority; and that the guardian ad
litem was not answerable for the loss, it
not appearing that the commissioners
were irresponsible.

id

6. Where the legal title to property is in a
trustee, or where the guardian of an infant
has a complete legal control over the prop-
erty, so as to place it fully within the pow
er of the chancellor as the general guardi-
an of infants, the court may sanction the
acts of the trustee or guardian, although
not strictly legal, if the same are done in
good faith and for the benefit of the estate
of the infant. And the court sometimes
interferes to compel the performance of
marriage contracts made in behalf of in-
fants, where the marriage has been con-
summated on the faith of such agreement.
With these exceptions, chancery never in.
terferes to deprive an infant of his estate,
which has been disposed of without au-
thority during his infancy, unless upon