rest thereon, he chooses, as a means of release, to marry the woman, the.constraint under which he enters into the marriage constitutes no ground, either in law or morals, for annulling it.

Bill to annul marriage. On rehearing of decree advised by special master acting as advisory master. '

The facts appear in the opinion.

James Chapman, for complainant.

S. G. Wm'ght, for defendant.

RUNYON, Oh. The bill is filed to annul the marriage between the parties upon the ground of fraud and duress. The complainant admits that he had illicit intercourse with the defendant before the marriage. She subsequently alleged that she was pregnant by him. He declined to marry her, but made provisions for her, by an agreement, up to and during her contemplated confinement. He fulfilled the agreement. Afterwards she made a complaint against him before a justice of the peace, that he had furnished her with medicine to produce abortion. He was arrested upon the charge. Being unable to procure bail, he went to the defendant’s house, and asked her to withdraw the charge. She did not consent to do so, but went with him, and the officer in whose custody he was, to the office of the justice. After they arrived there the officer said to the magistrate that she wished to withdraw the charge, to which the justice replied that it could not be done, and informed the accused that he must marry the woman, give $1,000 bail, or go to jail. The accused, being unable to get bail, ofiered to marry the woman. He asked her if she was willing to marry him, and she answered, “Just as you like.” After she had thus given her consent they were then and there married accordingly. The evidence is contradictory as to whether they lived together after the marriage. It is proved that the accused gave the medicines to the woman, and it is admitted that one of them, at least, was such as is given to produce miscarriage. It was undoubtedly furnished to her for that purpose.

The complainant insists that the circumstances establish the fact that the marriage was the result of unlawful duress by means of criminal proceedings. Where a man who has been guilty of illicit intercourse with a woman marries her under the constraint of proceedings against him in bastardy, lawfully instituted, in respect of the actual or apprehended result of such unlawful commerce, or where he marries her under the constraint of arrest in a suit for damages for seducing her, such constraint does not of itself constitute a valid ground for annulling the marriage. Sick-Ice v. Carson, 26 N. J. Eq. 4.40; Sayer v. Sayer, 37 N. J. Eq. 210; Jackson v. Winne, 7 Wend. 47; Scott v. Shufeldt, 5 Paige, 43. Where a man who has been guilty of illicit intercourse with a woman, and, supposing her to be pregnant as the result thereof, furnishes her with the means of producing abortion for the purpose of preventing the apprehended birth of the offspring, and criminal proceedings are lawfully instituted against him with a view to punishing him for the latter offense, and, being under arrest thereon, he chooses, as a means of release, to marry the woman, the constraint under which he enters into the marriage constitutes no ground, either in law or morals, for annulling it. In this case it is not denied that, if the arrest had been in lawful proceedings in bastardy, the constraint would not have constituted unlawful duress; but it- is urged that the fact that it was under criminal proceedings makes an essential difference. I cannot see the distinction. The charge was not a false one. It was true. The accused had, by his conduct towards the woman, rendered himself liable to the penalties of the criminal law. To obtain his release, and immunity for his criminal conduct, be deliberately chose to marry her. There is no evidence of any conspiracy, nor of any fraud. If a man who has committed a rape should, after his arrest for the crime, seek to escape the consequences of his offense by marrying the victim of his violence, he could not in a court of conscience obtain a decree nullifying the marriage on the ground that he was under duress when he entered into it, and that but for the duress he would not have been willing to marry the woman. This case does not differ from that in principle. The dictates of justice, no less than the policy of the law, forbid that a man should in any such case be permitted to annul his marriage on the ground of the duress of his imprisonment for his crime. The master advised that the bill be dismissed. There is no error in his conclusion. '

COLLINS and others 12. BERGEN and others.

(Court of Chancery of New Jersey. October 30, 1886.)

WILLS—LAPSED LEGACY. Where an aggregate fund is given to several persons nominatim, to be divided among them in equal shares, if one of them die, before the testator, the share of such decedent will lapse.

Bill for construction of will, etc. On final hearing upon pleadings and stipulation of counsel as to facts.

The facts appear in the opinion.

John E Harned, for complainants.

Martin V. Bergen, for defendants.

RUNYON, Ch. James Folwell, late of the county of Camden, died April 6, 1867. By his will he provided as follows:

“Second. I direct my executors herein named to pay, or cause to be paid, unto Sarah Green, my housekeeper, the net income or interest arising from my property. either in bonds or mortgages, notes or stocks, during her natural life, and at her death I give and'bequeath to my sister Leah Ann Davis the sum of $100. I also give and bequeath, after the death of Sarah Green, the one-half of all my residuary estate unto my three sisters Mary Little, Susan Sharp, and Hannah Kemble, share and share alike; being the third part of said devise to each of them. The other remaining half of my estate I give and bequeath, after the death of Sarah Green, to Rachel Collins, my wife’s daughter, Catherine Collins, her sister, and Harriet Collins,—these three sisters. I bequeath to each of them the third part of one-half of my residuary estate, as before noted, after the death of Sarah Green. To Mary Ann Horner, of Philadelphia, I give and bequeath the sum of $200.”

Sarah Green died November 5, 1884. Harriet Kemble and Rachel Collins both died before the testator. The former died in 1863, before the making of the will, and the latter died in 1864. Each died intestate, leaving issue. Susan Sharp and Catherine Collins both died after the death of the testator, and before the death of Sarah Green. Both died intestate leaving issue.

The questions presented for decision are the following: Whether the residuary gifts in remainder were vested _or contingent; whether the shares of Harriet Kemble and Rachel Collins lapsed, or whether they went, on the testator’s death, to the surviving residuary legatees in remainder; that is, whether the share given to Hannah Kemble went to Mary Little and Susan Sharp, and the share of Rachel Collins to Catherine and Harriet Collins.

The residuary gifts in remainder were vested, and not contingent upon the event of the legatees surviving Sarah Green. Howell v. Green, 31 N. J. Law, 570. Whether the legatees in remainder of each half of the residuary fund who survived the testator were entitled to the whole of the gift given to them and their deceased co-legatee depends upon the decision of the question whether those gifts are to individuals or to a class. The rule is that where an aggregate fund is given to several persons nominatim, to be divided among them in equal shares, if one of them died before the testator, the share of such decedent will lapse. The gift in this case is to six persons by name, to each one-third of one-half of the residuary estate in remainder. The testator gives one-half of that estate to his “three sisters Mary Little, Susan Sharp, and Hannah Kemble, share and share alike; being the third part of said devise to each of them.” He previously gave $100 to his sister Leah Ann Davis. The other half Of the residuary fund he gives to “Rachel Collins,” his “wife’s daughter, Catherine Collins, her sister, and Harriet Collins,—these three sisters ;” and adds that he bequeaths to each of them the third part of one-half of his residuary estate after the death of Sarah Green. Rachel, Catherine, and Harriet Collins were not sisters, but were sisters-in-law; and the first named was not the testator’s wife’s daughter, but her daughter-in-law. In Creswell v. Cheslyn, 2 Eden, 123, where a testator gave the residue of his personal estate to his three children, naming them, share and share alike, as tenants in common, and not as joint tenants, and by a codicil revoked the gift as to one of them, giving, instead of it, to the legatee a pecuniary legacy, it was held that the residuary third, the gift of which was so revoked, did not belong to the two other residuary legatees. See, also, Clark v. Phillips, 17 J ur. 886; In re Stanhope’s Trusts, 27 Beav. 201; and Havergal v. Harrison, 7 Beav. 49. It is true that the mere fact that the testator, in a devise or bequest to persons, mentions them by name, is not conclusive upon the question whether the gift is to those persons as a class or as individuals. But the rule is as above stated, and there is nothing in this case to take it out of the rule. Where the gift is to persons nominati'm, the intention to give a right of .survivorship may be deduced from other parts of the will. The cases cited by the complainant’s counsel—Jackson v. Roberts, 14 Gray, 546; Schafi‘er v. Kettell, 14 Allen, 528; and Stedman v. Priest, 103 Mass. 293 ——are instances of such construction.

In the case in hand there is nothing to indicate any intention to give to the residuary legatees in remainder as classes, and not as individuals. The fact that the testator intended to give one-half of the residuary fund to his three sisters of the whole blood, (Leah Ann Davis was his sister of the half blood,) upon whom he bestowed it, and the other half to the three sisters-in-law, wives of his wife’s sons, is not evidence of such intention, any more than the gift of the whole to the six, nominatim, in equal shares would have been. The shares of Harriet Kemble and Rachel Collins, who died in the testator’s life-time, lapsed. Being shares of the residue, they did not pass to the other residuary legatees as part of the residue. Hawk. Wills, 42. Consequently the testator must be held to have died intestate as to them.

HURLBUT and others, Surviving Ex’rs, etc., 1). HUTTON and others.‘

WHITING and others, Ex’rs, etc., o. HUTTON and others.

(Court of Chancery of New Jersey. October 26, 1886.)

1. WILL—DEvIs-E BY IMPLICATION—“I AM ABOUT 'ro Convnx,” E'rc.

To create a devise by inference, there must be such a strong probability of an intention to devise that an intent to the contrary cannot be supposed; and a clause in a codicil, executed three years before the testator’s death, to the efilect that he is “about to convey” certain real estate to his son’s wife, the grant not to be charged against either the son or his wife as an advancement or otherwise,” is a mere expression of an intent to grant her the propgrty by an appropriate conveyance inter W008, and cannot be construed as a

ewse. 2. SAME—REVOCATION OF LEGACY.

Where, by a will, 40 per cent. of the residuary estate is given to the son of the testator, and it is provided that, if that percentage shall amount to $400,000, the son is to take $50,000 absolutely, and the executors are to invest the residue of the son’s share for his benefit during life, and, on his death, to pay the principal to his family, and, by a codicil, $200,000 is to be first deducted from the son’s share before the $50,000 is given him, and the balance, if any, is to be invested as provided by the will, a subsequent codicil, directing that the balance of the 40 per cent. left after dedueting the $200,000 shall be invested for the support of the son’s family and education of his children, etc., does not revoke the legacy of $50,000 to the son; the gift not being referred to at all in the subsequent codicil, or canceled by implication.

3. SAME—LEGACY IN PAYMENT OF DEBT.

A direction in a will that certain sums advanced by the testator to his sonin-law on the security of an estate in France be deducted from that daughter’s share, and, upon payment of them in that manner, the securities should be assigned to her, does not entitle her to the securities until, upon a proper accounting, it appears that her share is sufficient to pay the debt.

4. Eé‘pcurons AND ADMINIs'rRA'rons — ABUSE OF DISCRETION CONFERRED BY

ILL.

In the absence of any abuse of discretion, executors who are given full power to sell and convey the real property of an estate as their judgment shall direct, will not be compelled to set ofl? to the beneficiaries under the will, at their option, real estate owned by the testator, on account of their re~ spective legacies.

5. EQUITY—REHEARING—Vrcn-CrrAN0ELLoR’s ORDERS. A matter pertaining to the appointment of executors under a will, disposed of by decretal order of one of the vice-chancellors, before the cause reachesa final hearing, cannot, as a matter of course, be reheard upon the final hear— mg.

Bills for construction of will, etc. On final hearing on pleadings and proofs.

The facts are stated in opinion.

Cortlandt Parker and E. H. Landon, for executors.

Fred’h Melinghuysen, A. P. Whitehead, and Benj. Williamson, for the Countess de M oltke-Huitfeldt.

Benjamin Williamson and A. P. Whitehead, for the Marquise de Portes.

T. N. McCarter and John Cadwalader, for Charles G. Hutton.

RUNYON, Ch. Benjamin H. Hutton, late of West Orange, in the county of Essex, died February 17, 1884. His wife was then deadHe left three children, Maj. Charles Gordon Hutton, Anna Mary, Countess de Moltke-Huitfeldt, and Adele, Marquise de Portes. The two daughters are widows. Madame de Moltke has no issue. Madame de Portes has two children, the present Marquis de Portes and the Comte de Portes. Mr. Hutton left a will with seven codicils. By the residuary clause (the twelfth) of the will he provides as follows:

“All the rest, residue, and remainder of my estate, real as well as personal, of whatsoever nature and wheresoever situate, I give, devise, and bequeathunto my executors, their heirs, executors, and administrators, as joint tenants, and not as tenants in common, in trust—

“(1) To set apart, and make a valuation and estimate of the same, in gold or silver coin of the United States, or the equivalent of such coin in currency (so called) according to the then market rate of such coin in currency, and. thereupon to invest, so far as shall not already be done, and keep invested, a. sufficient amount and fund, not less than two hundred thousand dollars,

- ($200,000,) reckoned in American gold or silver coin, as aforesaid, to pay the income of such amount and fund to my wife, Ann Hunter Gordon Hutton, during her natural life. If the income of the said fund shall not amount t0 the sum of ten thousand dollars ($10,000) per annum, reckoned in such gold. or silver coin, then my executors shall take from the proceeds or income of" the remainder of my said estate, or its income, a sufficient sum, from time to time, as may be necessary to insure to my said wife the said sum of ten thousand dollars, ($10,000,) in such coin, per annum, payable half yearly, as. aforesaid.

“(2) After deducting the foregoing bequest of two hundred thousand dol-. lars ($200,000) for the benefit of my Wife, I desire my executors to set apart. all the rest and'remainder of my said residuary estate, and to add to and esti* mate with the same the sum of one hundred thousand dollars, ($100,000.) (provided in and by said contract of marriage, referred to in the second article hereof, to be paid to my daughter Adele, and her husband,)and thereupon to» divide the aggregate, or sum thereof, into three parts, as follows: One part. of forty (40) per cent., and two parts of thirty (30) per cent. each; and, after such division, to invest, if not already done, and keep invested, one of said parts of thirty (30) per cent., less the sum of one hundred thousand dollars, ($100,000,) in gold or silver coin, so as aforesaid heretofore contracted to be paid by me to my daughter Adele, and her husband, which I direct to be de— ducted from said thirty per cent., and apply the income of said thirty (30);.