Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-07-05
COURT DECISIONS.
DIGESTED BY W. B. MARTIN
EXCLUSIVELY FOR
vlRcINIAN. PILOT.
Notes Of Cases Recently Decided
Which Are of Interest to
Our People.
KOss ". KASTLEBuRG.

a REQUEST OF ALL PERSONAL
PROPERTY USED IN A BUSI-
NESS. INCLUDING ALL CHOOSES
IN ACTION. DOES NOT INCLUDE
BALANCE OF MONEY IN BANK
WHICH is NOT FOR THE BEN
EFT OF THE BUSINESS. AND
WHEN THERE ARE OTHER
CHOOSES IN ACTION ANSWERING
THE REQUIREMENTS OF THE
REQUEST.
The executors OF Kastelberg excepted
to the report of the commissioner be-
cause an amount OF money on deposit
IN bank was not given by the report
TO his four sons.
The court says:
We are of opinion that this exccp-
lion should not have been sustained.
While the account stood in the name
of Kastelberg's Sons, the commission
er found. and in this respect the re-
belonged to Rudolph Kastelberg, de-
ceased, and passed under his will. 1t
Is claimed that it is embraced in the
third clause because 1T is IL chose in ac-
ton. a balance in bank to the credit
OF Il depositor is strictly speaking, q
chose In action. 1t Is often treated
however, as ready money, and whether
1t Is to be regarded in particular case
as the one or the other will depend
upon all the surrounding circum-
stances. and the conclusion reached
Will be In accordance with the cardi-
nal rule OF construction, which re-
quircs courts to ascertain from the will
the true intent of the tcstator, and ir
possible. give effect to It,
The third clause bequeuths to his
-FOUR sons all horses, harness. wagons.
machinery. and all other personal pro-
perty used In my butchering business,
including all chooses in action" Those
who claim balance in bank by vir-
tue OF the third clause must show not
only that It constitutes chose in ac-
ton, but that 1t was used in conncc-
ton with the butchering business for
IT is not every chose in action of which
the testator died possessed which
passes under this clause, but only such
chooses In action as comply with the
other term of the description and are
shown to have been used in the bust
ness conducted by the testator This
seems to be conceded by appellees.
The term CHOSE in action" is suff-
ciently broad to embrace the items of
property set out in the report of the
commissioner. except farm stock and
farm implements. which were of little
value, yet the appellces only excepted
SO much OF the report as pertains TO
the balance of S3,973.61 standing in the
name OF I<astelberg's Sons; S257l54 on
deposit in the State Bank OF Virginia:
stock in the United Banking and
Building Fund Association amounting
to sS20.f5. and interposed no exception
TO the amount of cash in safe deposit
box in the First National Bank of Vir-
Binia, amounting to $4,000. 1t Is very
clear from the decree OF the Circuit
Court read in connection with the
pleadlngs. the report and the cxcep-
tions thereto, that the learned judge
had the same view with respect to the
tr.tva Ion.
of the Will which we entertain. that
Ia to say. that only such chooses in ac-
ton passed under it as were used in
connection with the business of the
teStator.
In sustaining the appelIees' second
exception to the commissioners report
the Circuit Court seems to have been
controlled by the fact that the testator
had opened an account with the First
National Bank of Virginia in the name
pf r. Kastelberg's Sons. and was fur
Their of opinion that the evidence was
sufficient to show-that it WAS opened
for the convenience of. and used in
connection with the business, and the
evidence, without doubt, lends n good
deal of force to that view. Upon the
whole record. however we do not find
1t conclusive. 1t appears that that ac-
count was rcsorted to in connection
with the general business of the tes-
tator; that accounts were paid out OF
It in nOWiSe connected with his bust
ness as butcher; that 1t was not at all
necessary to the conduct of that bus
mess. which was an established and
profitable one. When we find that
there were other motives for opening
this account growing out of his visit
TO Europe then in contemplation: that
there was other personal property and
chooses in action which fully answer
ed all the requirements of the third
clause of the will, that is to say, the
accounts due by customers to his bus
mess as butcher. we are satisfied that
the testator did not intend that this
item should pass to his four sons, but
that 1t should be distributable among
all of his children. Reversed.
BEST BREWING CO. V. KLAssEN.
Supreme Court of Illinois.
April II, 1900
"A TRADING CORPORATION. IF NOT
ESPECIALLY AUTHORIZED BY
ITS CHARTER, CANNOT BE
SURETY ON AN APPEAL BOND,
AND IS NOT BOUND THEREBY.
This was All action of debt upon an
appeal bond. From judgment for
plaintiff the defendant appealed. Tho
defendant was q corporation chartered
for the purpose of making and selling
beer. ale and porter. and to carry on
the general brewing business, in ell
its branches. 1t executed the appeal
bond in suit as q surety. but claimed
that such act was ultra wires and that
1t was not liable on the said bond.
The court says:
The general nile Is that n corporation
can do only those acts which are with
in the scope of its character, and, If,
the signing of the bond in question
as surety was an act not originally
I'll, TIM
piled powers of the corporation. 1t is
void. and no subsequent act could make
II valid. by way OF estoppel.
IL there is no power to make the con-
tract there can be no power to rat
ify it."