To survey has several significations. It may mean to inspect, or take a view of; to view with attention; to view with a scrutinizing eye; to examine; to examine with reference to condition, situation, and value; to measure, as land; and many others. Survey, as a noun, as in the act referred to, may mean an attentive or particular view; examination of the land with a design to ascertain the condition, quantity, or value. It certainly does not necessarily mean a paper containing a statement of’ the courses, distances, and quantity of land, and does not necessarily mean a plat of land made by a surveyor as such. The act would seem to contemplate that the survey and location of the street contemplated to be extended, laid out, or widened, should be made before or at the time the damages were assessed, and not afterwards. And such seems to have been the view of the town council, if we are to judge from the notice which they gave to Mr. Fulton on the twenty-sixth day of March, 1886, for in that note they say: '

“You are hereby notified that the town council of the town of Dover, at its regular meeting, on the seventh day of December, 1885, did resolve to open Queen street, from Cecil street to Clara street, of the width of sixty feet, and that they have condemned sixty feet front, and twelve hundred and sixty feet deep, of land belonging to you; and that the said council has allowed to you as damages the sum of six cents.”

It is true, this is a general description of the land, and all that the act requires; but it is not so particularly a description of it as that contained in the resolution adopted by the council on the seventh day of December, 1885. It was not on the twenty-fifth or twenty-sixth day of March, 1886, that the town council had determined to locate and lay out or extend Queen street, and fix the compensation therefor, but it was on the seventh day of December, 1885, that they did these things. And the act of assembly under which they acted, declared that it should be their duty, (immediately after doing these things, to notify, in writ-ing, Fulton, the owner of the real estate through which Queen street should run, of their determination to open the same, and to furnish a general description of the location thereof, and also the amount of the damages or compensation allowed to him. Now, the twenty-sixth day of March, 1886, was not immediately after the seventh day of December, 1885; and notice given on the former day was not the notice required to be given by the act of assembly. The law sedulously protects a man’s freehold. He cannot be deprived of it except in accordance with law. The question is not what was in fact done between the seventh day of December, 1885, and the twenty-sixth day of March, 1886, but what might have been done. A man shall not be deprived of the free use of his freehold except in strict accordance with law. '

I am therefore of opinion, for this reason, that Queen street cannot be extended from Mary street to Clara street under the proceedings had and taken by the town council, as set forth in the papers in this cause. I therefore shall decree that the preliminary injunction heretofore awarded in this cause, so far as it relates to Queen street between Cecil street and Mary street, be dissolved, and that so far as relates to the land between Mary street and Clara street it be made perpetual in respect to any proceedlngs by the town council heretofore taken and had to the same; and 1t is ordered that the corporation pay the costs in three months.

RUBENCANE, Trustee, 'v. MCKEE, Adm’r, etc., and another.
(Court of Chancery of Delaware. September Term, 1886.)

1. WILL—LEGACY—VESTED INTEREST—DEATH OF LEGATEE DURING LIFE-ESTATEwADMINISTRATION.

If a legacy be bequeathed to a person to hold in trust. to pay the interest half early to A. during her natural life. and, from and immediately after A.’s eath, to pay the principal sum to her child or children, the interest of the child or children is a vested interest, and, upon their death intestate, survives1 to their administrators whether they die before the time for the payment of the legacy or not.

2. SAME—PAYMENT POSTPONED—CONVENIENCE OF ESTATE.

A bequest in the form of direction to pay and divide at a future period vests immediately if the payment be postponed for the convenience of the estate, or to let in some other interest.

Interpleader. The facts are stated in the opinion.
Benjamin Melds, for complainant.
Lewis G. Vandegrift, for respondents.

SAULSBURY, Ch. Jacob Rubeneane, the complainant, as trustee, under the last will and testament of John McKnight, deceased, has filed his bill against the defendants, praying that they may be decreed to interplead and settle between themselves their rights in respect to the sum of $1,200, mentioned in the fourth item of the last will and testament of John McKnight, late of Mill Creek Hundred, New Castle county, in this state. Said fourth item is in the following words:

“I give and bequeath unto my friend Jacob Rubencane the sum of twelve hundred dollars, in trust, nevertheless, to pay the interest thereof unto my niece Annabella Town, half yearly, for and during her natural life, without being subject to the debts, control, or interference of any present or future husband she may take, and her receipt alone to be a sufficient discharge, and, from and immediately after the decease of the said Annabella Town, to pay the said principal sum of twelve hundred dollars to the child or children of the said Annabella Town free and discharged from this trust. And my mind and will is and I do hereby charge all my real and personal estate with the payment of the legacies or bequests hereinbefore mentioned.”

The fifth item of the will is as follows:

“All the rest, residue, and remainder of my estate, real and personal, I give, devise, and bequeath unto my nephew James W. Ball, his heirs and assigns, forever, charged and chargeable with the payment of the said legacies or bequests as hereinbefore provided.”

James W. Ball was appointed executor of the will. Annabella Town had a child born in the life-time of the testator, in 1844, named Anna T. McKee. The testator died in 1851. Annabella Town had another child, born after the testator’s death, in 1852, named James Town. J amcs Town died about 1855, aged three years. Anna T. McKee married Ellwood B. McKee in 1869, and died April 24, 1885, leaving to survive her, her said husband, Ellwood B. McKee, and one child, Francis T. McKee. Annabella Town died October 6, 1885, without having had any other child or children. The legacy of $1,200 was paid to the complainant, Jacob Rubencane, the trustee of the same named in the will. This $1,200 is claimed by Ellwood B. McKee, administrator of Anna T. McKee, deceased, and administrator of James Town, deceased; and also by Charles M. Newlin, a. d. b. n. c. t. a. of John McKnight, deceased, defendants in the bill of interpleader.

The question is, did Anna T. McKee, the child of Annabella Town, born in 1844, in the life-time of the testator, and James Town, a child of said Annabella Town, born after the death of the testator, take vested interests in the bequest of $1,200, the interest of which was to be paid by the trustee to their mother, Annabella Town, during her life-time, and did their interests, respectively, survive to their administrator, they having died in the life-time of their mother, or did the said legacy lapse or become a portion of the estate of John McKnight, the testator, deceased, and is the same payable to his administrator de bonis non c. t. a. ?

It is impossible that it should have lapsed, because the interest thereon was payable to the complainant, as trustee, during the life-time of Annabella Town, which did not occur until October 6, 1885. This sum was in the hands of its trustee named in the will, from about 1852 until the present time, having been paid to said trustee by the executor of John McKnight, the testator, about the first-named period.

If the said $1,200 does not belong to the administrator Of Anna T. McKee and James Town, children of Annabella Town, then it belongs, under the residuary clause Of the will, to James W. Ball. John McKnight did not die intestate as to any portion of his estate. He bequeathed and devised his whole estate, real and personal, to the person named in his will. The $1,200 mentioned in the fourth item of his will was given to Jacob Rubencane in trust to pay the interest thereof unto his niece Annabella Town, half yearly, for and during her natural life, “and, from and immediately after the decease of the said Annabella Town, to pay the said principal sum of twelve hundred dollars to the child or children of the said Annabella Town, free and discharged from this trust.” The bequest of the principal sum was not to Annabella Town during her life, and, from and immediately after her decease, to any child or children of hers who might survive her, but the corpus of the $1,200 was devised to Jacob Rubencane in trust, not to pay that sum, but to pay the interest upon that sum to Annabella Town, half yearly, during her natural life, and then, “from and immediately after her decease, to pay the said principal sum of twelve hundred dollars to the child or children Of the said Annabella Town, free and discharged from this trust.”

Can there be any doubt that had Anna McKee, who was born in the life-time of the testator, and survived him until April 24, 1885, and died only about six months before her mother, survived her mother, that she would have been entitled to a share in this $1,200, the interest of which was to be paid to her mother during her natural life, “and, from and immediately after her decease, to be paid to her child or children?” Was the surviving of her mother made a condition to her having any interest in the principal sum of $1,200,—made a condition by the testator in the bequest? If not, how is such a condition created? And how can such a condition be implied? The same questions are applicable in respect to the interest Of James Town, the child of Annabella Town, who was born after the death of the testator, and died in 1855, aged about three years. If the interest in the principal sum of $1,200 was a vested interest in these children, respectively, then it mattered not whether they survived their mother or not. They were both children of Annabella Town. Had they survived their mother, they would have been entitled tO receive from the trustee the said sum of $1,200. Having died before their mother, their interest, respectively, in said sum, survived to their administrator.

In the case of Conwell’s Adm’r v. Heaoelo, Adm’r, 5 Har. (Del.) 296, it was decided that a bequest to A., B., and C., at the marriage or decease of the testator’s sister, to each $300 in cash, to be paid them by his executor, was held to be a vested legacy in A., B., and C. In that case, Elias Conwell, one of the legatees, died after the testator, but before the death or marriage of the testator’s sister, who died unmarried. The law applicable to such cases was thus Stated by Chief Justice BOOTH in the case referred to:

“ When a legacy is directed to be paid at a future time, or on a future event, it is vested or contingent according to the intent of the testator, as expressed in his will. If the time or event is annexed to the payment of the legacy, it is vested; if to the substance or gift of the legacy, it is contingent,—because such appear to be the intention of the testator. Therefore, if a legacy be given tO a person, payable or to be paid at or when he shall attain the age of twenty-one years, or at or upon any other definite period or event, the legacy becomes vested immediately upon the testator’s death, and is transmissible to the executors or administrators of the legatee, although he dies before the time of payment. But if the words ‘ payable’ or ‘ to be paid ’ are omitted, and the legacy is given at twenty-one, or at or upon any other future period or event, the interest is contingent, and depends for its vesting on the legatee being alive at the period or event specified.”

The case in 5 Har. (Del.) and the present case are very similar in their facts, and the law applicable to each is the same. The payment of thelegacy of $1,200, the right to which is in controversy in this cause, must be considered as postponed for the convenience of the estate, so that the interest on the same might be paid to Annabella Town during her life. It was not postponed on account of the age, condition, or circumstances of her children, who were to take the principal sum at her death. The general rule on this subject is that a bequest in the form of direction to pay, or to pay and divide at a future period, vests immediately if the payment be postponed for the convenience of the estate, or to let in some other interest. Hawk. Wills, 232. Now, it is manifest from the terms

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Of the bequest that the only reason why the legacy of $1,200 was postponed tO the period of the death of Annabella Town was that the interest might be paid to her for her life free from the control of her husband; and to secure this interest to her the principal sum was given in trust to Jacob Rubencane to pay the interest to her half yearly, and, from and immediately after her death, to pay the sum held in trust by him to her child or children. I think that there can be no doubt that a proper construction of this will requires that Rubencane, the trustee, should pay the legacy of $1,200 to the administrator Of the children of Annabella Town, although she survived her children, because their interests, respectively, in said sum were, during their lives, vested, and not contingent. Let a decree be drawn accordingly.

SPAULDING v. TOWN OF NORTHUMBERLAND.‘
(Supreme Court of New Hampshire. July 30, 1886.)

1. ESTOPI’EL—NEGLIGENCE—EXECUTION—IRREGULAR LEvY. One collaterally interested in the collection of an execution. who assents to the levy being made in a manner not in conformity with legal requirements, is estopped to say that the creditor was negligent in making the levy.

2. INDEMNITY—ACTION 0F PARTY INDEMNIFIED—RIGHTS OF INDEMNITOR—TAX COLLECTOR.

One who agrees to indemnify a town for releasing its attachment in a suit. on the tax collector’s bond cannot successfully object, when sued on his agreement. that the selectmen retained the tax warrants, they having done so with his assent, and did nothing towards collecting the uncollected taxes, or that, after two or three years, the town, against his protest, redelivered the warrants to the collector who was in default.

8. OFFICE AND OFFICER— RESIGNATION 0F Tax COLLECTOR—NOT INFERRED FROM REFUSAL To COLLECT TAXES. The resignation of a tax collector will not be inferred, as a matter of law, from the fact that, being in default, he delivered up his tax warrants to the selectmen, and refused to- proceed with the collection.

Reserved case from Coos county.

Bill in equity for an injunction to restrain the further prosecution of an action at law by the defendant against the plaintiff. Facts found by the court.

About the first of April, 1877 , Charles Cobleigh, the town’s collector of taxes for the years 1870, 1871, 1872, and 1874, being in default in neglecting to seasonably collect the taxes, went out Of the state with no definite intention of returning, and left his tax-lists, with directions that they should be delivered to the selectmen if they called for them. The seiectmen called for and took possession of the tax-lists, April 2, 1877, considering them to be, to some extent, security for the uncollected taxes, and April 7, 1877, brought two suits on the collector’s bonds,—one against Charles Cobleigh, \Vayne Cobleigh, and \V. A. Little, and the other against Charles Cobleigh and Wayne Cobleigh,—and in both suits an attachment was made of the real and personal estate of Wayne Cobleigh.