Bateman's Executor v. Bateman. insurance policies, on some of which, in order to preserve their validity, I annually pay a premium to the said companies. Now it is my will and desire that these several policies should be kept valid until they become due and are paid; therefore, I do order that my executor shall, from time to time, draw from the interest on the legacy mentioned and invested in Item 9 of this my last will and testament, such sums as may be necessary to pay the premium and keep good and valid the several policies in full force and virtue, and I do hereby order the person or persons who may be appointed trustee or trustees, according to Item 9 of this my last will and testament, to pay over to my executor, from time to time, such moneys as he may need for this purpose from the interest of said fund, his receipt being a good and sufficient voucher for the same." The testator and Miss Logue were married in 1868. She survives him, and has not remarried. There was no issue of the marriage. The residue of the estate is a large sum, $20,000, or thereabouts. The judges of the Orphans Court of Cumberland county have refused to appoint a trustee under the will. The widow claims that she is entitled to the income of the residue, excepting so much as may be necessary for the payment of the premiums upon the life policies. Her claim is disputed, on the ground that by her marriage to the testator she lost her right to that provision, and it is insisted that she is only entitled to the sum of $2000 in gross. The testator intended to provide for her, in the event of his death before the marriage, which at the time of making the will had been contracted for between them, should have been solemnized, and the will was probably made in view of that contingency. It provides that, after his death, she, his "intended wife," shall enjoy the income of the residue, except so much as shall be necessary to pay the premiums on the life policies, so long as she shall remain unmarried. But it further provides that, in the event of her marriage, that provision shall wholly cease, and a gross sum of $2000 Bateman's Executor v. Bateman. be paid to her out of the body of the fund. This latter provision gives rise to the question raised in this cause. Had there been no marriage between her and the testator, she would, of course, have been entitled to the income, and notwithstanding the marriage, she is equally entitled to it (for the marriage of the testator to her after the making of the will, would not be a revocation of the legacy), unless deprived of it by the terms of the will itself. Does the will, by its terms, deprive her of the income? It is insisted that it does, by the provision for a reduction in the event of her marriage, it being argued that the marriage contemplated by that provision was no less the marriage of the legatee to the testator than her marriage to any one else, whether before or after the testator's death. The testator, in this instrument, makes liberal provision for the legatee, as his betrothed. Is it not reasonable to presume, that so far from reducing the amount of that provision, in the event of her becoming his wife, he would rather have increased it? Is it reasonable to presume, that he intended. that, by her marriage to him, she should forfeit her claim to the provision she otherwise would have enjoyed? Is it not reasonable to presume, that if he had intended that his marriage to her should work a change in the provision he had made for her, he would have said so in terms? And yet, if indeed it was his intention that she, as his widow, should only receive the gross sum, instead of the income, such must be the construction. I look in vain for any evidence of an intention, that the marriage of the legatee to the testator, should effect any change in the provision made for her. The fact that he left this will in full force and unaltered, is of itself evidence to the contrary; and I find, in the will, satisfactory evidence that the marriage, in the event of which the reduction was to take place, was one which was to be contracted after the testator's death. It is after his death the residue is to be funded; after his death she is to receive the income so long as she shall remain unmarried; the gross sum she is to receive in the event of her marriage, is to be paid Squier v. Shaw. out of the body of the fund, which is to be created after his death; and it is after his death that she is to forfeit the income, if she forfeits it at all. It is noteworthy, in this connection that the gross sum of $2000, which is to be given to her in the event of her marriage, is accompanied with the expression of a "hope that that sum may assist her in rendering that condition of life a comfortable and happy one." Was it his own contemplated marriage to her to which he thus alluded? The answer is obvious. I do not deem it necessary to apply other rules of interpretation to the instrument under consideration. To my mind, the testator's intention clearly was, that the legatee, as his widow, should enjoy the same provision he had made for her as his "intended wife," so long as she should remain true to his memory-that is, until, by her marriage, after his death, she should forfeit it. I shall decree that the trusts in the will be executed; that the widow is entitled to the income of the residue, except so much as may be required to pay the premiums on the life policies, during her widowhood; and I shall appoint a trustee to take charge of and administer the trust fund. The view I take of this case, from the will itself, and the admitted facts, renders it unnecessary for me to pass upon the parol testimony adduced in the cause. The costs should be paid out of the estate. SQUIER and others, trustees, vs. SHAW and others. 1. An answer, of which any part entitles it to fill the character it assumes, will not be ordered to be stricken from the files. 2. When an answer is impertinent only in part, the remedy is by exceptions. 3. It is not impertinence, in an answer to a bill for foreclosure by a second mortgagee, to aver that his mortgage is for a larger amount than is alleged in the bill, nor in an answer thereto by the mortgagor, to aver that he has paid a specified sum on the complainants' mortgage, for which he claims credit. Squier v. Shaw. On motion to strike out answers. Mr. Thomas Anderson, for complainants. Mr. W. Luse, for defendants. THE CHANCELLOR. The complainants move to strike out the respective answers of Rusilla Wintermute and Caroline Shaw, as frivolous and impertinent. The bill is filed to foreclose a mortgage held by the complainants upon premises owned by Mrs. Shaw, and upon which Mrs. Wintermute has a subsequent mortgage. It prays answer, on oath, from the defendants. It states that Mrs. Wintermute's mortgage was made to secure the payment of $400, with interest. These defendants were called upon to answer as to the facts, stated in the bill; to answer, among other things, as to the making and priority of the complainants' mortgage. Mrs. Wintermute admits both, and answers that her mortgage was made to secure $1000 of principal, instead of $400, and that the former sum, besides interest, is due upon it. Mrs. Shaw, in her answer, admits the making of the mortgages of the complainants and Mrs. Wintermute, and the priority of the former over the latter, but sets up a payment, sufficiently well pleaded, of $1200, on the complainants' mortgage, for which she claims credit. The complainants insist that these things are all subjects of proof, and that the answers in respect to them are immaterial, and that, in other respects, the answers are impertinent. They, therefore, ask that they be stricken out. If these answers had contained no more than the matters above specified, could the court have been successfully appealed to, to strike them out? And will the fact that they contain other matters which are impertinent, make them impertinent or immaterial in the respects above referred to? There are parts of both these documents which entitle them to fill the character they assume. The court will not, Christie v. Griffing. therefore, order them to be taken off the files. 1 Daniell's Ch. Pr. 786; Travers v. Ross, 1 McCarter 257. The remedy of the complainants is by exception to the answers. The motion is denied. CHRISTIE vs. GRIFFING. This court will not, in the exercise of its discretion, entertain a motion to dissolve an injunction upon bill and answer merely, where the complainant's right is supported by evidence before the court, or within its control, regularly taken in the cause, and on which the complainant intends to rely, on the final hearing. This suit is brought to restrain the defendant from violating an agreement, which the complainant alleges was made between them. On the filing of the bill and its accompanying affidavits, an injunction was ordered. The defendant answered, denying the agreement. Replication was filed, and the parties have proceeded to take testimony. The proof on the part of the complainant is all in. The defendant now moves to dissolve the injunction, on the bill and answer alone. Mr. A. S. Jackson, for the motion. Mr. Linn, contra. THE CHANCELLOR. This case is, in its nature, one in which the court would be loth to dissolve the injunction on the mere denial of the complainant's equity, by the defendant, in his answer. I am, therefore, the more unwilling to entertain this motion, at this stage of the cause. Were I to do so, and dissolve the injunction on the allegations of the parties, as contained in the pleadings, I might, on the hearing, conclude, upon the |