which he charges James with what had been passed over to him, and charges himself with what he had retained in the division, he makes this additional statement: "Dock stock, 10 shares, par value, $1,000;" beside which, on the margin, is written these words: "Not divided yet, and due the estate of S. G. Parker."

If Henry was the bona fide owner of five of these bonds, I find myself wholly unable to reconcile such ownership with the three considerations just presented. It should be further considered that the bonds which Henry says he purchased as his own were purchased April 6, 1882, and that only about two years expired before he and his brother met to make the division; and that he had made the purchase of the five bonds which he admits belonged to his mother only about a year before they met to make such division. With these transactions so distinct, and occurring so recently, I cannot understand how there could have been any doubt in Henry's mind, nor why he should make the statement that he did, that five of those bonds were his.

I had endeavored to reconcile these circumstances with the testimony given by Henry, and to conclude that these bonds belong to him, as he swears they do; but I cannot. Henry appeared upon the witness stand as a fair and honest witness. I was favorably impressed with his manner. Nothing was presented to awaken discredit. It is only fair I should say as much of James. Under such circumstances, what is the duty of court? Fortunately, long experience has established safe rules. First, it is well established that courts must be governed by the preponderance of testimony. Therefore, although the brothers may be said to be equally interested, yet all the other facts and circumstances above alluded to seem to give the greater weight on the side of the complainant. And, in the second place, it must be considered, because it has also been long and well established, that Henry was trustee, to some extent, or agent, for his mother, and had the care and custody of her estate, and, as such, is held to a strict account. As such, the burden is upon him. It was for him to make clear and plain,—to remove every reasonable doubt as to the ownership of these securities.

Consider next the claim of James that Henry owes the estate $14,300 besides the note of $9,800. James says that some time prior to his mother's death he called on Henry, and had an interview with him re. specting his mother's securities, and spoke of the impropriety of Henry's holding the notes which he had given to his mother; and that upon that occasion Henry produced three notes drawn by himself,-one for $5,800, one for $2,500, and one for $6,000. He says that Henry retained these notes. It will be observed that these sums aggregate $14,300, the amount which James claims is now due in addition to the $9,800. As I understand James' testimony, he got the impression at the time of the interview with Henry, before their mother's death, that Henry said he owed $14,300, and from that fact, and other circumstances, seems to have the conviction that that indebtedness remains as well as the $9,800. Henry admits that at the time of that interview he did owe his mother $14,300, but says that afterwards he had a settlement with his mother, which in

cluded the three notes, and that he gave her a note for the amount found to be due to her at that time, which was $800. This note bears date July 1, 1882. The mother was present at that interview, and, so far as appears, did not question anything that Henry may have said.

Independent of Henry's testimony, I am not able to conclude that he should be charged, according to the prayer of the bill, with $14,300 and $9,800. It is true he produced notes aggregating the former amount when he and James met, and, while he does not now produce the same identical notes, he admits a liability of $15,800. I am aware of the force of the insistment that Henry was holding the securities of his mother, among which were these notes which he had given her, which created obligations on his part towards his mother of a fiduciary nature; yet I can see no reason for charging Henry with the destruction of the two notes, (one for $5,800 and one for $2,500,) since a larger amount of indebtedness remains, and may fairly be supposed to be included in the $9,800 note. I am entirely satisfied that on this point there is nothing more due the estate than the $9,800 and the $6,000.

Consider, in the last place, the alleged gift of $7,000 to Henry. A check is produced in which the blanks are filled in by Henry, dated June 25, 1883, signed by his mother, for $7,000. The last charge in her bank-book shows that this went into her account. Can this be sustained as a gift? The mother was then 76 years of age, declining, somewhat at least, in physical and mental strength. She died the next March. The physician produced said that he was called to visit her prior to and subsequent to the date of the check. He swears that her brain was paralyzed to a certain extent. He says that he saw symptoms of this several months before her death. I am satisfied, however, that Mrs. Parker was a woman of great vigor of intellect, retaining her faculties of thought and action to a great degree, excepting only so far as indicated by the physician. Nevertheless, I must consider the fact that she was an aged woman, and the mother of Henry, in whom she had unbounded confidence. This confidence is particularly striking in that she not only trusted him with her securities, evidences of indebtedness by others, but the securities also which Henry had given, showing his indebtedness to her to the amount of $15,800. I have no doubt, from the testimony, and from what I have seen of Henry upon the witness stand, that, to his mother, he was a prepossessing son, and that his influence over her was very great indeed, and that, too, without any special effort upon his part. These things being so,-such confidential relations existing, -the burden of proof is on Henry, who claims the benefit of the gift. He has the money, it is true, and shows the formal way by which it passed to his credit. There he rests his case. Does this bring him within the rule of law, and save him from accounting for the $7,000? I think Henry is obliged to account for the $7,000. This view seems to be sustained by all the authorities. Huguenin v. Baseley, 14 Ves. 273; 2 White & T. Lead. Cas. Eq. 556, (top, 1156 et seq., American Notes;) Kerr, Fraud & Mis. 182, 183, 189.

I will advise a decree in accordance with these views.

(41 N. J. E, 485)

BOUNDBROOK MUT. FIRE INs. Ass'N v. NELSON and others.

(Court of Chancery of New Jersey. September 3, 1886.)

FIRE INSURANCE

MORTGAGEE'S RIGHTS UNDER POLICY-SUBROGATION-Costs. A vendor held a policy of insurance on the dwelling-house standing on the premises sold. She took a mortgage for a part of the purchase money, which was in excess of the amount due on the policy. She did not assign the policy at the time of the conveyance, nor until after the house was burned. The company tendered the amount due on the mortgage, and demanded an assignment of it, which was refused. Held, that the company was entitled to the mortgage. Held, also, that, in order to carry costs. it was not necessary that the company should tender the whole amount of the unpaid purchase money

On bill, answer, and proofs.

Gaston & Bergen, for complainant.

R. V. Lindabury and J. D. Bartine, for defendants.

ery.

BIRD, V. C. Mrs. N. was the owner of a tract of land. The dwelling-house thereon was insured in the complainant's company for $1,200. December 17, 1884, she sold and conveyed the premises to her sons, George and Albert, by deed, with full covenants of warranty. At the same time the sons executed to her a purchase-money mortgage for $1,500, being one-half of the consideration money. The deed was placed in the clerk's office for record immediately after its execution and delivThe mortgage was executed by Albert and wife, and by George, but not by George's wife, she not being present. There is some dispute as to the precise disposition of the mortgage after it was so executed; the defendants claiming that it was delivered to Albert to be retained by him until George's wife could be produced to join in the execution of the mortgage, and until George could raise a small portion of the consideration money to be paid by him. I do not think there is any room for doubt on this branch of the case. Without hesitation, I find that the mortgage was delivered to Mrs. N. In her proof of loss she swears that she took such mortgage as part of the consideration. Having been delivered to her the transaction was complete. She being the mortgagee, she could not hold it in escrow. The mortgage having been given for a part of the purchase money, it was not essential that the wife of the mortgagor should join in the execution.

An effort was made to sustain this branch of the defense by showing that the consideration money was not all paid by the one son or the other, and that the parties intended to suspend its completion until such payment could be made. But the conduct of the parties, their relations to each other at the time and before the delivery of the deed, very satisfactorily proves that what they did was complete in itself, and that for what remained to be done there was the same implicit confidence that it would be done as had been exhibited before between them. For example, the mother was indebted to the one for about $700, and the other about $250, without security to either. These claims were canceled, or intended to be, at the time of the transaction. The testimony is that Albert gave up his note at the time. George says that the exact amount

due him from his mother was $239, and that she was to give him a note for it, but never did. He says that was to go as part payment on the farm, and the balance he was to pay his mother. I repeat that, to my mind, it seems clear that in the law the transaction was complete between the parties.

As the deed and mortgage were delivered on the seventeenth of December, 1884, the house was burned on the twenty-fifth of that same month. At that time Mrs. N. held both the mortgage and the policy of insurance. The complainant admits that she had an insurable interest in the premises to the extent of the unpaid purchase money, and, from the time of proof of loss, had been willing to pay her the amount of the policy. The complainant tendered to her the amount of money due upon the policy, and demanded of her an assignment of her interest in the mortgage to that extent, but she refused to make such an assignment. Upon such refusal, the company tendered to her the amount due upon the policy, with such additional amount as represented the balance due upon the mortgage, and demanded an assignment of her interest in the bond and mortgage, which Mrs. N. also refused. Was Mrs. N. justified in this refusal? In other words, had the company a right, upon payment of the amount due, according to the proof of loss upon the policy, and the additional amount between that sum and the amount due upon the mortgage, to stand in her place? Independent of the rights of others, there seems to be no doubt of their right to subrogation. Sussex Co. Mut. Fire Ins. Co. v. Woodruff, 26 N. J. Law, 541, Springfield Ins. Co. v. Allen, 43 N. Y. 389; Kernochan v. Insurance Co., 17 N. Y. 428; Etna Fire Ins. Co. v. Tyler, 16 Wend. 385; Hall v. Railroad Cos., 13 Wall. 367; Foster v. Van Reed, 70 N. Y. 19.

But it is said in this case that the rights of the sons, in equity, prevent the application of the doctrine of subrogation. The claim is that the sons have the right to stand in the place of the mother, and not the company, and that although they did not have the policy assigned and transferred to themselves, and have such assignment approved, they intended to do so. The testimony leads me to the conclusion that, so far as there was any intention on the part of the sons to have the policy transferred to them, and then retransferred to their mother as collateral security, it was but a faint or uncertain intention. If there was any intention whatever, it was not so followed up or prosecuted as to justify the court in aiding the defendants George and Albert. It may well be said that it is the duty of the court to aid those who otherwise suffer, when an accident intervenes, and prevents them from the accomplishment of an object which they are honestly in the pursuit of diligently. But, with honest intentions, there must be diligence. Otherwise the court will frequently aid in the commission of the greatest injustice; otherwise it will only be necessary, in such cases, for parties to say, "We will complete or execute the transfers by and by, or at some other time," and be perfectly safe because under the protection of the court. The doctrine contended for is salutary, but the company against whom it is sought to be applied is certainly entitled to protection from laches.

In this case there were no steps taken by the sons, until after the house was burned, to have the policy transferred, and such transfer approved. One of the by-laws of the company is that "no transfer of any policy of insurance of the said company shall be valid until approved by an insurance committee, and certified by the secretary on the policy. In all cases of transfer, new notes shall be given." These requirements were in no sense complied with, and not a single step taken to show an honest and bona fide intention to comply with them, When the deed and mortgage were executed and delivered, the parties were, with their counsel, at the county-seat of the county in which the complainant's company is established, and has always had its offices. It seems to me that, while it is competent for the court to listen to the sworn statements of parties in such cases that it was their intention to do this or that, unless such intention is manifested and supported by some act done with all due diligence, the chances that the court will do injustice will greatly preponderate, if it be governed by such declarations. Hence I conclude that this defense in behalf of the sons also fails.

My attention was called to the doctrine of subrogation as laid down in Wood on Fire Insurance. After a careful examination of Wood's-exposition of the law, and of the cases on which he rests his conclusions, I find myself unable to place these parties within either the one or the other. Again, it was urged that the complainant, in case it was otherwise entitled to recover, was not entitled to costs as against Mrs. N., for the reason that it did not tender to her the whole amount due to her. The claim is that the amount of the mortgage, and also the difference between $239, the interest thereon for a short time, and $750, (being the whole balance of the purchase money unpaid and unsecured,) should have been tendered. As I understand the evidence, Mrs. N. made her claim for the benefit of the insurance because she held the mortgage, and not because of any vendor's lien. Making her claim on this ground, she could not expect the company to treat or deal with her on any other ground. She might, perhaps, refuse to accept only a portion of her security. But it is certainly different, when we consider her rights under the law respecting vendor's lien, where applied to this case; not that there would be any difference between the rights of a mortgagee and a vendor, (which I am not discussing,) but, in this case, Mrs. N. has herself done an act which I think prevents her from insisting that she shall not pay costs. That act was the taking of the mortgage for a portion of the unpaid purchase money, which, in this case, was in excess of the amount due on the policy. In so doing she had divided her lien or claim. She is now no worse off in any sense than she then was. If it was her intention to retain her lien as vendor, she still has it, notwithstanding the court may order the assignment of the mortgage to the complainant.

I think the complainant is entitled to a decree, with costs, as against all of the defendants.