Hayes v. Waverly and Passaic R. R. Co. bought is their property and must be paid for. I think they are entitled to have it protected in this court, for even if the stipulation from which it originates runs with the land, the redress at law must be had through a multiplicity of suits, and therefore is inadequate. Lastly, the question arises whether an elevated railroad is within the inhibition of the stipulation in question. Slaughterhouses and manufactories of fertilizers, glue and vitriol are expressly within it and so also are nuisances. A railroad is not within any of these descriptions. Existing under authority of law it is not a nuisance. The remaining forbidden use is "a purpose detrimental to the surrounding property." Is the erection and operation of the elevated railroad such a use? This question must be answered in view of the saving clause at the end of the stipulation, for the intention of the parties to the stipulation, manifested by the whole instrument, is the thing to be ascertained. That clause excludes a railroad on the level of the adjoining streets. The question, then, is reduced to this, whether an elevated railroad, as distinguished from a railroad upon the level of the street, is detrimental to surrounding property in that locality. The bill charges that it is because the locality is suitable only for residential purposes. It may be that the reason given, as applied to the particular locality in question, in view of its peculiar conditions and the proposed use of the elevated railroad, will not support the charge. The charge, however, upon this demurrer, which does not specially attack it, is sufficient. The demurrer admits the charge in its full force, and that admission must stand upon this argument, even though we may be able to conceive of circumstances which would destroy the reason upon which it is based. I think that the bill presents a meritorious case within the jurisdiction of this court. It is obvious that the court must act by injunction, and it may be well here to say, in view of the fact that injunction is asked to stay an important public work, that it is the general practice of a court of equity in such case either to withhold its final decree until opportunity may be given the parties to agree upon proper compensation for the complainants' In re Farrell. right, or, that failing, until opportunity may be had to take the right by proceedings in condemnation (Story v. New York Elevated R. R. Co., supra); or if for any reason that may not be done, to itself ascertain the value of the right to be protected, and decree that unless within a certain time that value be paid to the complainants, the inhibited use shall be restrained. Carpenter v. Easton and Amboy R. R. Co., 9 C. E. Gr. 249; Church of the Holy Communion v. Paterson Extension R. R. Co., 1 Dick. Ch. Rep. 372; S. C., affirmed on appeal, 2 Dick. Ch. Rep. 600. The demurrer will be overruled. In the matter of WILLIAM E. FARRELL. 1. In proceedings in lunacy upon a commission in the nature of a writ de lunatico inquirendo, where the alleged lunatic is found to be of sound mind or the commission is superseded before a guardian is appointed, the prosecutor cannot be allowed his costs and expenses, however meritorious his conduct may have been, there being no fund out of which they can be directed to be paid. 2. The act of March 23d, 1887 (P. L. of 1887 p. 48), does not, in such case, authorize the charge of the fees of jurors and commissioners upon the estate of the alleged lunatic if he shall be found to be of sound mind. On motion for the allowance of costs and expenses from the estate of an alleged lunatic, who died before inquisition of lunacy had. Frank W. Farrell, a brother of William E. Farrell, sued out a commission in the nature of a writ de lunatico inquirendo, under which inquest was had in November, 1892. A jury was summoned and, after a protracted inquiry, the commissioners and jurors made return to the commission that, at the time of the inquest, William E. Farrell was of sound mind, memory and understanding, capable of the government of himself, his lands, tenements, goods and chattels. Late in February, 1893, upon In re Farrell. application of Frank W. Farrell, the chancellor reviewed the evidence which had been taken at the inquest, and, upon the 4th of March in the same year, being of opinion that the finding was clearly against its weight, set the inquisition aside and ordered that a new commission issue. On the 9th of the same month, before a new commission was issued, William E. Farrell died, childless, leaving an estate valued at about $150,000. Immediately after his death, his father, brothers and sister filed caveats to prevent the probate of any paper purporting to be his will. Later, his widow and one Henry H. Barton offered for probate, to the ordinary, such a paper, in which they, respectively, were nominated as its executrix and executor, and which, in terms, bequeathed and devised to the widow the greater part. of the decedent's estate. Probate of that paper was resisted by the next of kin, and contest touching its validity as a will was commenced and is yet pending. Shortly after the litigation was begun, the widow and Henry H. Barton and, as well, the next of kin, by separate bills, applied to this court to conserve the property pending the contest in the prerogative court, and the chancellor, having first consolidated the suits commenced by the two bills, took custody of the estate, through the instrumentality of a receiver, merely for the purpose of preserving the same pending the determination of the right to probate of the will and administration of the estate. Frank W. Farrell now applies, by petition entitled both in the lunacy proceedings and in the suit to conserve the property of the decedent, to be paid out of the estate of William E. Farrell the costs and his expenses in the lunacy proceedings, which will include his necessary petty cash disbursements, witness fees and expenses, stenographer's charges, fees of the sheriff and jurors, and such just allowances to the commissioners and his counsel as this court may see fit to award. The proponents of the will demur to the jurisdiction of the court in the premises. In re Farrell. Mr. Herbert A. Drake and Mr. George M. Robeson, for the motion. Mr. Samuel H. Grey, contra. THE CHANCELLOR. In The matter of Curtis White, 2 C. E. Gr. 274, application was made to Chancellor Green to compel the party at whose instance a commission in the nature of a writ de lunatico inquirendo had issued, the return thereto being that the subject of the commission was of sound mind, to pay costs. The chancellor, being satisfied that the proceeding had been instituted in good faith, for the benefit of the alleged lunatic, denied the motion, remarking that, in such case, the petitioner, in justice, should be allowed his proper costs, whether the lunacy be established or not, adding, however, this language: "But if the party be found of sound mind or the commission be superseded before a guardian is appointed, the prosecutor canot be allowed his costs, however meritorious his conduct may have been, there being no fund out of which the chancellor can direct them to be paid." The language quoted was substantially taken from 1 Coll. Lun. 461, and accurately states the rule upon this subject, which existed in England prior to the statute 25 and 26 Vict. c. 86, the eleventh section of which provides that the lord chancellor may order the costs, charges and expenses of and incidental to the presentation of any petition for a commission in the nature of a writ de lunatico inquirendo or for any order of inquiry under the Lunacy Regulation act of 1853, and of and incidental to the prosecution of any inquiry, inquisition, issue, traverse or other proceedings consequent upon such commission or order, to be paid either by the party who shall have presented the petition or out of the estate of the alleged lunatic, or partly in one way and partly in another, as he shall in each case think proper, which order "shall have the same force and effect as orders for the payment of money made by the high court of chancery in cases within its jurisdiction." In the case Ex parte Ferne, 5 Ves. 832 (1801), Ann Ferne, In re Farrell. upon inquisition, was found to be of unsound mind, so as not to be able to manage herself or her property, and, upon the trial of the traverse of that inquisition, such traverse being a matter of right in one who was capable of understanding it (2 and 3 Edw. VI. c. 3 § 6; Shelf. Lun. 148), was found to be of sound mind and capable of governing herself and her property. The commission was thereupon superseded. The petitioners then asked for costs from the lord chancellor, claiming to have established lunacy at the time of the inquisition. Upon these facts, the lord chancellor, Loughborough, said: "Where is the fund to pay the costs? Where the commission is superseded there can be no fund. There is a step to be taken--possession to be taken of the property. The traverse stops that. The land and goods have never come into the hands of the crown. The traverse is de jure. It was no favor. The parties apply by petition, stating that they are dissatisfied with the finding, and that stops the commission. There is no amoveas manus here. If I could act cum imperio, it is a very proper case, and the parties have entitled themselves to all the costs I can give them; but I have no jurisdiction." In Sherwood v. Sanderson, 19 Ves. 280 (1815), on petition of relatives and after her examination by physicians appointed by the chancellor, a commission issued to inquire into the lunacy of Kitty Sherwood. It was found that she was of unsound mind. Leave to traverse was granted and then costs were asked. Lord Eldon said that after the inquisition came the right to traverse, and added: "No grant therefore of the custody of the person or estate can be made; and the person issuing the commission, if there is no fund in his hands, cannot make an order as to the costs. When the determination of the party to traverse is made known, I am bound to put the soundness of the verdict in that course of inquiry; in the interval everything with regard to the dominion over the property of the person is stopped, and the consequence is that it is impossible to make any order about the costs, as there is no fund upon which they can attach." This case was stronger than the case of Ex parte Ferne, for it is noted that in it the traverse had not yet been tried and the inquisition |