The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1883-11-27

paid for by the cestui qae trust Such a purchase
ute OF frauds, and the fund may be followed so
| long as its general character can be identified.
| Where the grantees admitted the trust and that
| the purchase was made with trust funds as well
as that they held as trustees the trust arises by
| operation Of Law based upon presumed intention
OF the parties, and is a resulting trust
4. Where party knows that he is dealing
| with trust funds he is held to knowledge of the
character Of the trust whether he advises himself
of its precise nature or not A know ledge of the
fact that another person has an equitable title TO
| the fund IS SUFFICIENT to charge him with know l.
| edge of the character of the trust.
| 3. Admissions bv parties sought to be charged
| as trustees that they were trustees sworn to by
| disinterested witnesses, such admissions being
| accompanied by cOrroborating circumstances. are
| evidence OF the highest character This in a suit
| to establish the trust against one who claims
| through the party so admitting the trust So
also is the fact that all the parties dealing with
the estate admitted the existence of the trust for
years admissible as evidence, as we'll as the fact
| that at the time OF the purchase the financial
condition OF the party was such as makes il i'm.
possible for him to have been the purchaser"
| o. Where the facts SET forth in bill disclose
the nature OF an express tftlot u:tler III that
| the character ot the trust is misconceved and
the effect of the devise or bequest not correctly
stated is immaterial. The court will make its
| u.
=. Where the facts are set forth in the original
blll an amendment simply stating a conclusion
| OF law deemed to follow from those facts such
rs general charge that an act was the result of
| fraud, accident mistake, no specific act of
fraud, accident mistake being alleged NAV
and should be treated rs surplusage While this
| is bad pleading, its effect cannot he To destroy
equities otherwise alleged and shown upon the
hearing to exist,
Decree affirmed
5. Pasco and G. w Stevens. for Appellants .
A. Paterson, j. b. Marshall and Frank W. Pope.
for Respondents.
Thomas f. Strhng and Mary f. Stribling, his
wife, Appellants, vs. Catherine 5. Hart, Exec
ntrix of the will Of Ossian B. Hart, deceased
Paran Moody, Abel s Baldwin, Calvin l..
Robinson, Ozias Buddngton and William p
! Marvin, Administrator de bonis non Of II Fl
Hoeg, deceased, RespondentS-Duval county
WESrCoTT, j.
l. The 4jtl Rule of Chancery Practice pre-
scribes the time in which an answer after ap.
| pcarance should be filed by the defendant and
the 51st Rule prescrihcs the time in which the
defendant, after his demurrer to plaintiffs bill is
oyermed, shall file his answer. In neither case
Is the plaintiff required by these rules or the gen.
eral rule upon the subject of notice (Ilule 81 to
take any action to authorize him to enter an or
der that the bill be taken pr" con- SsSo in the event
the answer is not filed as required by the rules
mentioned.
,. After entry of the order that the bill be
taken pr" ronte~", the plaintiff may at once. and
without notice, canse the matter O the bin TO be
decreed at any time, if the same can be done
without an answer and is proper TO be decreed,
that is to say, he can have such decree as the
equities disclosed by his bill authorize
3. When the bill is thus taken pro ronfS&~o and
| final decree had, il is under Rnle A. a decree
niM, subject to he opened upon cause shown
| upon motion and affidavit and upon terms, and
| does not become " absolute" until the expiration
| ot twenty days after the rendition thereof. After
| the expiration Of this time without any action
| by the defendant, the decree becomes final and
" absolute" There is no difference arising out
OF the fact that under the statute this final de-
| cree is entered ont of term between it and de
cree entered in term; and the proceeding is in a
| strict sense record by which the rights of the
parties in controversy are finally adjudcated
a. While it appears that the Circuit Courts OF
! the United States have NOT power 10 open such
DEGREES absolute and enrolled upon motion, and
! that their power is confined 10 such proceedings
as may he had by bin of review, rehearng or
original bill, still under the uniform practice in
| the State courts such power is admitted to ex-
ist, and may be exercised under certain crcum-
stances and as motion is the only means bv
which the decree may he opened, and defence
! upon the merits let in, although the party may
be guilty OF no laches, and his failure to set up
| his rights in the time required may be OccasiOned
by ca"s'sdegond hs contro and by ostocles insuer-
nHC in their chnrnc,er, 0nd lie 1nGv hare q 1ood dr
tfnc', we think the rule Of the State courts as TO
the matter Of power is the better rule, and We
adopt it.
| 5. The power to open such decree however
is not to he exercised in cases where the de-
cree has been made absolute in the regular
I course, and the defendant has been guilty of
neglect and failure to give attention to the pro-
cess of the court. Without the existence of
strong and unavoidable circumstances excusing
such neglect and aches, the decree should not
be opened. Snchpower should not be exercised
upon mere desire to let in defence upon the
merits. The facts established must show deceit
surprise or irreguarity in obtaining the decree,
that the defendant has acted b0nn tide, and with
reasonable diligence, and has meritorOns de-
fence, and the facts constituting such defence
must distinctly and satisfactorily appear, and the
proposed answer should be exhibited.
g. The action Of the chancellor upon a motion
OF the character mentioned may be reviewed in
this court under the law and practice in this
State
The order of MAY ., 1882, and the final de-
cree Of March 90 1888 are reversed
John F. Hartrdge and W b Young, for Ap-
pellanis Fleming Il Daniel. for Respondents
Eppinger, Russell & Co. ct nl. Appellants vs..
Frank Canepa, Executor, Respondent and
Frank Canepa, Executor, Appellant. vs.. Ep-
pinger. Russell & Co. rf a., Respondents
Duval county.
| WEsTCOTT ].
/. Upon bill by creditors against an execu-
tor, alleging deficiency in personal assets and
insolvency, and praying discovery of all assets,
their sale and the application Of the proceeds TO
the debts il is erroneous tO direct an execution
to issue against the executor as for deunstarit
to the extent of the estimated value Of the a..
sets in his hands subject to administration To
the extent that the assets consist of money in
his hands he should he directed to pay the same
into the registry of the court, and if sale Of the
real and personal property OF the estate is ne
cessary to the satisfaction Of the debts proved be-
fore the MASTER it should he decreed. An exc
cutiOn against the executor should issue only for
the sum with which he is chargeabc, on account
OF losses occasioned by negligence or failure in
the discharge of his duty, or like causes. II
should issue then only 10 the event that the
money and the proceeds Of the sales Of the prop
erty are not sufficient TO satisfy the claims Of
the creditors Creditors have such equities
whether the estate is solvent or insolvent' 1t is
the ordinary bill by creditors for the marshalling
and administration of assets of an estate
2. Where the responses of the answer are az
broad as the allegations and interroeatories oi
the bill, there il replication to the answer and
the general facts to be proved are put In issue
by the pleadings, it is sufficient. Proof Of fac
not specially alleged, but embraced substantially
in the case made by the answer and the bill, is
admissible
3 Two life insurance policies, each for one
thousand dollars, are taken out by A payable to
himself He subsequently places on each policy
in writing direction TO pay the money upon
one policy to one person and npon the Other