Cox v. Wills. of the testator, that she might use for her comfortable support so much as was reasonable and sufficient for her living expenses. The testator's personal property at the time of the settlement of his estate December 1st, 1868, amounted to the sum of $4,052.63, after paying to his wife a specific legacy of $500 and excluding the household goods bequeathed to her. He also owned the house that they occupied, which continued in her possession until her death. She survived him twenty-one years. It appears that her separate property, including the legacy of $500, amounted to about $1,300. They were childless; she was the special object of his bounty, and the only beneficiary named in his will. After her husband's death she received and invested all his money, mingling it with her own, and used the interest from the investments for her support. At her death the inventory of her estate, thus mingled, amounted to $8,626.12, and on final settlement there remained $7,445.10, besides household furniture, which she divided among legatees by her will. The contest is between these legatees, represented by the complainants, who are the executors of her will, and the defendants, who are the next of kin of the husband, John Leeds, deceased. There is no question as to the homestead dwelling-house, which was purchased by John Leeds after his will was made, and goes to the husband's next of kin, at the wife's death, as part of the residue of his estate. Nor is there any dispute as to her manner of living, which was careful and economical. It was within the amount of a reasonable and comfortable maintenance according to the testimony of all the witnesses who have testified. That she should have kept the trust fund received from her husband's estate separate from her own, and charged the expenses of her maintenance to this fund, is now evident. But by mingling this with her own, she incurred no penalty or forfeiture, without fraud, of which there is no pretence in the case. Pratt v. Douglas, 11 Stew. Eq. 516, 540. Equity will follow and separate them, and will put upon the trustees the burden of distinguishing what is his. Central Bank of Baltimore v. Connecticut Mutual Life Ins. Co., 104 U. S. 54; Perry Trusts § 447. It is evident that she supposed the bequest of the residue of the estate Cox v. Wills. by her husband's will gave her an absolute title, and this seems to have been so doubtful to the minds of those who are settling her estate, that they have called upon the court to remove the uncertainty before they will make distribution. What she has not done the court must now do, and there is no difficulty on the proofs that have been offered in stating the account, showing her receipts from the investments of moneys belonging to her husband's estate, and the amount she has used for her comfortable maintenance, from the time the balance came to her hand, as trustee, on the settlement of the final account in the orphans court. If there is any doubt as to the reasonableness of her expenditures, further proofs may be taken on reference to state the account. Her own estate and its accumulations, by this accounting, will be separated from the general funds in the hands of the executors of her will, and can be distributed under it. In stating the account, no credit should be allowed to her estate for permanent improvements put on the building by her, while in her occupation after her husband's death, though an allowance may be made for repairs, necessary to her comfort and for preserving the property, to a reasonable amount. Pratt v. Douglas, 11 Stew. Eq. 542. As the difficulty in settling the estate of Lydia H. Leeds, which has led the complainants, executors of her will, to file this bill for the direction of the court, has been caused by the will of John Leeds, deceased, and a reasonable doubt of its true meaning, and the proper method of accounting under it, as well as by the intermingling the trust fund, the costs should be paid out of the money in the hands of these executors, and reasonable counsel fees allowed, before any account is stated between the parties. The decree will be reversed and a reference ordered, according to the views above expressed. For reversal-DEPUE, DIXON, MAGIE, REED, SCUDDER, VAN SYCKEL, WERTS, BOGERT, BROWN, CLEMENT, SMITH, WHITAKER-12. For affirmance-None. Watjen v. Green. C. LOUIS WATJEN et al., appellants, v. ASHBEL GREEN, receiver of the North River Construction. Company, respondent. On appeal from a decree of the chancellor, whose opinion isreported in Watjen v. Green, 3 Dick. Ch. Rep. 322. Mr. Anthony Q. Keasbey, for the appellants. Mr. J. Howard Mansfield (of New York) and Mr. John P. Stockton, for the respondent. Decree affirmed, for the reasons given by the chancellor. DIXON, J. (dissenting). I agree, in substance, with the opinion of the chancellor in this cause, down to the point at which he regards the receiver's proposition to Fatman & Co. as an offer to perform the contract for the delivery of bonds. I deem that proposition as, in effect, a notice that he would not perform the contract, and, consequently, as relieving Fatman & Co., and, therefore, their principals, the appellants, from the obligation to make formal tender of the residue of the price and formal demand of the bonds. It also constituted a breach of the contract on the part of the receiver, and, hence, fixed the time at which the appellant's damages should be ascertained. These damages the chancellor correctly estimates at $650. To this sum I think they have a legal right; and it now appearing that, after the satisfaction of all other debts against the corporation, the receiver has in hand a considerable sum of money which the chancellor is about, not to turn over to the corporation, but to distribute among the stockholders in final settlement of the corporate affairs and dissolution of the corporation itself, I think,. O'Rourke v. Cleveland. on the simple equity that debtors should pay their debts, the appellants ought to be paid what is legally due. The fact that other creditors agreed to accept and did accept fifty per cent. of their legal claims in full satisfaction, should not in the least impair the rights of the appellants. In my judgment, the decree should be reversed, and a decree entered giving the appellants $650 and interest. For affirmance-THE CHIEF-JUSTICE, DEPUE, GARRISON, MAGIE, REED, VAN SYCKEL, WERTS, BOGERT, BROWN, CLEMENT, SMITH, WHITAKER-12. For reversal-DIXON-1. JOHN O'ROURKE, appellant, V. TREADWELL CLEVELAND, respondent. 1. The payment of a counsel fee cannot be imposed upon a party, held in contempt by the court of chancery, as a punishment. 2. A party in contempt cannot be adjudged to pay costs and counsel fee, and then to await further punishment to be imposed at a future period, if the court shall think proper. On appeal from an order advised by Vice-Chancellor Pitney, as follows: This matter being opened to the court, in the presence of Bedle, Muirheid, McGee & Bedle, Jr., the counsel with the complainant, and Albert P. Condit and John W. Taylor, esquires, for defendant, and it appearing that an order was entered in this cause on the 15th day of October last requiring the defendant to show cause on the 26th day of October last why he should not be adjudged guilty of contempt, and suitably punished by com O'Rourke v. Cleveland. mitment to the common jail of Essex county, or otherwise, as for a contempt of this court in disobeying the final decree made in this cause on the 24th day of December, 1890, in the particulars set forth in the petition on which said order to show cause was founded, which petition is on file in this proceeding, and that said defendant has filed his answer to said petition and has been heard personally before the court, and depositions having been taken, and said Albert P. Condit and John W. Taylor, esquires, of counsel with the defendant, having been heard, and the court being of opinion that said defendant is guilty of a breach of said final decree of December 24th, 1890, in the matters set forth in said petition it is, on this 23d day of November, 1891, ordered that the defendant, John O'Rourke, be and he hereby is adjudged guilty of a breach of said final decree in the respects in said petition set forth, and that he is guilty of a contempt of said court in violating said decree, and that he pay the costs of the complainant in this proceeding to be taxed, and also a counsel fee therein, for said contempt, of $250, and that sentence, by way of fine or imprisonment for said contempt, be suspended until the further order of the court, and that said John O'Rourke do appear before this court, when required, for such further order and sentence as may seem meet to the court. Mr. John W. Taylor, for the appellant. Mr. Joseph D. Bedle, for the respondent. The opinion of the court was delivered by O'Rourke had been enjoined by the court of chancery from blasting rocks by the use of explosives in such manner as to throw stones or dirt on the land of Cleveland. A petition was filed in behalf of Cleveland charging O'Rourke with violating this injunction. Upon the hearing, on the return of this petition, it was decreed that O'Rourke had been guilty of violating the decree of the court, and he was adjudged in contempt. It was |