text:
    Luella Aumack et al. v. W. Scott Jackson et al.
    [Decided January 16th, 1911.]
    1. Admissions are generally regarded as somewhat unsatisfactory-evidence.
    2. Testimony of a party to an action against an executor as to statements made by decedent is inadmissible.
    3. Evidence in an action to establish a parol trust upon property given by will to decedent’s wife held to show that because of his mental and physical incapacity, decedent’s wife induced him to give the property to her for life, and promised to leave it at her death to decedent’s relatives, to whom he had intended it should go.
    4. Since a devise of property to testator’s wife to hold for life on her promise to leave it to testator’s relatives on her death, as testator had intended, constituted a legal trust, being' defective only in that the proportion of the distributive shares of testator’s relatives were not designated, the wife will take the property as trustee for testator’s next of kin, to be divided according to the statute of distribution.
    5. In an action to establish a constructive trust in property left to, testator's wife under a promise by her to leave it to testator’s relafives at her death, but which she left to others, evidence held to show that defendant unduly influenced testator’s wife to leave the property to him contrary to her promise to her husband.
    6. The executor and legatee of one to whom property was given by will in trust to be. left to testator’s relatives, and who induced such trustee to leave the property to himself instead of to testator’s relatives, stands in no better position than such devisee, and holds the property as trustee for such relatives.
    7. Where testator left his property to his wife under a parol understanding that at her death she should leave it to his relatives as he had originally intended doing, so as to make her the trustee of the property for such relatives, it cannot be held that the wife took one-half of such property as a childless widow under the statute of distribution, so as to permit her next of kin to inherit such half, especially as to one of her next of kin who wrongfully induced her to leave the property to him contrary to testator’s understanding and wish; equity not permitting one to gain an advantage from his own wrong.
    On final bearing on pleadings and proofs.

      Mr. Aaron E. Johnston and Mr. Edmund Wilson, for the complainants.

      Mr. Isaac W. Carmichael, Mr. Halsted H. Wainright and Mr. William H. Corbin, for the defendant W. Scott Jackson.

      Mr. Foster M. Voorhees, for the defendant Bella Drake.
   Walker, V. C.

The bill is bled by the heirs-at-law of Selali Aumack, deceased, late of Toms River, in the county of Ocean, to impress a parol trust upon the estate which he devised and bequeathed to his wife, who died after he died, leaving a last will and testament in which she gave small legacies to four nieces of her deceased husband, left a considerable legacy to her sister, and gave the rest and residue of the property, comprising the bulk of the estate, to her brother, W. Scott Jackson, whom she appointed sole executor of her will.

The facts are these: Selah Aumack, who was a thrifty man, accumulated a fortune of something over one hundred thousand dollars. He had a stroke of apoplexy in the month of January, 1905, from which, however, he substantially recovered and lived until September 21st of that year, when he died. ITis mind, though probably weakened, was, doubtless, not seriously impaired. Between his first stroke of apoplexy and the second one, from which he died, his physique, at times at least, was not what it had formerly been, and to a certain extent he lacked bodily vigor. Before he was stricken in January, 1905, so far as appears, he had never made any will. In April or May of 1905 he considered the making of a will, but complained to his wife that the undertaking distressed him and made his head hurt. His wife, Louise Aumaek, then suggested that he make a will giving all his property to her for life, saying that she would make a will dividing it among his heirs, as she understood he desired his property should go. The proof of this Res partly in the testimony of Mrs. Corinne A. Holmes, one of the nieces of Mr. Aumaek, and who is one of the complainants, and whose testimony was taken subject, to objection. She recounts a conversation between her uncle and his wife, in her presence, in the spring of the year 1905, from which it may be inferred that the agreement claimed to have be,en made was made, although, standing alone,, this testimony would not establish it. Disregarding the testimony of Mrs. Holmes entirely, there is proof of a trust which lies principally in admissions made by Mrs. Aumaek. I know that admissions are generally regarded as somewhat unsatisfactory, but in this case they are so clearly and overwhelmingly established as to carry conviction to the mind and are sufficiently certain to leave no doubt of the trust they operate to establish.

Mrs. Ann Griffiths, an intimate friend of Mr. and Mrs. Aumaek, had a conversation with Mrs. Aumaek, not long after Mr. Aumaelds death, in which Mrs. Aumaek said that she supposed Mrs. Griffiths was surprised to know that she had received the whole of the estate, because her husband had told her they had had an understanding that it was all to go to his relatives, that he was going to leave a will, but his head troubled him so that she said to him, never mind, just leave it to her and she would do what he wanted; and concluded by saying she was going to leave it as he wanted it. Later on, when calling upon Mrs. Aumaek, who was considerable of an invalid, the witness jokingly said that sbe wished Mrs. Aumack had left the house to her; whereupon Mrs. Aumack, with tears in her ej^es, asked her how she could say that, knowing that she had made the promise to her husband, that he had trusted her, and she must keep the promise.

Mrs. Augusta M. Havens, another witness, who was a neighbor of the Aumacks and intimate with the family, on December oth, 1907, hearing that Mrs. Aumack was very ill, called at the house. Mrs. Aumack, who had been quite feeble for a long time, was lying on a couch. In the course of the conversation Mrs. Aumack remarked that her husband had said to her he did not know how to make his will, there were so many of them (his relatives), and she had said to him, well, you leave that to me, and she further said she did not know whether she had done right or not; she thought he (her husband) would outlive her.

Leola Clayton, a remarkable young woman and whose testimony bore the impress of absolute truth, who was housekeeper for Mrs. Aumack from June 20th, 1907, until her death, on January 4th, 1908, was present on the occasion of Mrs. Havens’s visit on December 5th, 1907, and heard the conversation between them, Mrs. Aumack lying on the couch. She heard her telling Mrs. Havens that her husband was going to leave a will and leave his money to his relatives, and he said he did not know how to make it, there were so many of them; and that she (Mrs. Aumack) said to leave it to her and she would do it for him, and he did, and she did not know whether she had done right or not; she thought that he would outlive her.

Mrs. Cora Brooks, an intimate friend of both the Amnacks, describes a conversation with Mrs. Aumack during a call at her house in August, 1907, in which Mrs. Aumack said to her that her husband intended to leave a will, and leave his estate so that after his death it would go to his Relatives in different amounts, the larger amount to the family of his brother Elijah; and further said that her husband started to make a will a short time after his first stroke, but said that .lie had so many relatives that it hurt his head to think about them all; and that she (Mrs. Aumack) said that she told him not to bother about his affairs but just to make a short will, leaving everything to her, and she would make a will and fix it for Ms relatives just as she knew he wished to have it; and that he left it to her in that way.

Mrs. Annie Bennett, while at the Aumaek house two or three years before Mr. Aumaclc was first stricken, heard him say, in the presence of bis wife, that he was going to make a will and leave everything to his wife, and that after her death, his sister (Mrs. Bond) and bis nephews, or his brother’s children (John and Frank), would get a nice present, and the bulk of his money would go to Elijah’s family, and she (Mrs. Aumaek) said yes, that was Selah’s will and-the way he was going to make it.

Mr. Aumack’s feeling toward his brother-in-law, "W. Scott Jackson, the defendant, as disclosed by the testimony, seemed to be one of dislike and distrust.

The testimony of the witnesses adverted to, with the exception of that of Mrs. Holmes, which will be disregarded because she is a party and the defendant Jackson is sued in a representative capacity (which prevents her repeating statements made by Mrs. Aumaek), was by disinterested friends of the deceased persons (Mr. and Mrs. Aumaek), and in one instance by the housekeeper, none of whom had any bias or interest whatever in the case.

The testimony, succinctly detailed above, leaves upon my mind the indelible impression that Selah Aumaek intended to leave his estate to his own blood relatives, and that his wife, in whom he had supreme confidence, dissuaded him from that purpose, or, rather, act, on account of his mental and physical indisposition to engage in it, and requested him to make a will in her favor, leaving her all of his property for her life, and promising, at her death, to leave it to Ms relatives, as he had intended; she to substitute her discretion for his in the manner of its distribution, i. e., the proportion which should go to each of his nephews and nieces. In the one particular that he had never charged upon her the exact proportions of the disposition and distribution of his property, was there no certainty in the terms of the trust confided to Mrs. Aumaek, but that, as will appear, was not necessary to sustain the trust; in other words, uncertainty in that regard will not work its defeat.

In Ramsdell v. Streeter, 62 N. J. Eq. (17 Dick.) 718, a case in which a will was attacked upon the ground that the testatrix gave the residue of her estate to the defendant to carry out certain purposes upon which they had agreed, Vice-Ordinary Reed said (at p. 719) :

“It is not sufficient that it should appear that testatrix intended that the property should be devoted by the legatee to purposes other than his personal use. Unless lie induced this disposition by expressly or impliedly assenting to the expressed purposes of the testatrix, it would not affect the gift at all.

“'Nor if he did so induce the testatrix would it avoid the will, for if the purposes were legal and ascertainable, he would be compelled to execute the trust (Vreeland et al., Executors, v. Sarah A. Williams et al., 32 N. J. Eq. (5 Stew.) 734), and if they were illegal or unascertainable, he would be held to be a trustee for the heirs or next of kin. 2 Underh. Wills 220; In re Boyes, L. R. 26 Ch. Div. 531. It must further appear that he fraudulently procured the execution of the instrument by unduly influencing her to make her will to accomplish these purposes.”

Now, applying the doctrine enunciated in Ramsdell v. Streeter to this case, the purpose of the trust here being legal, but unascertainable as to proportions of distributive shares, the legatee will be held to bo a trustee for the next of kin of the testator.

The law reaches a case like this. Williams v. Vreeland, 32 N. J. Eq. (5 Stew.) 734, is, in my judgment, a controlling authority for the complainants in this cause, and is the only case which I will cite on this head. The statement of facts in that case (Williams v. Vreeland), with which Mr. Justice Van Syckel prefaces the opinion of the court of errors and appeals, shows a situation very like that in the case in hand. It is as follows (32 N. J. Eq. (5 Stew.) 735) :

“Homy Erost, by his will, bequeathed to his nephew, Cornelius C. Yreeland, the sum of $30,000. The complainants, who are children of Eliza Saunier (the legatee’s sister), allege that, although no trust is declared in the will, $10,000 of this sum was given to the said Vreelancl in trust for them, and on a parol promise, on his part, to the testator, that, if the latter would give him a legacy of $30,000, he would pay over $10,000 of it to the complainants. The bill is filed against the executors of the legatee, who has since died, to enforce this alleged trust.”

And on p. 736, Mr. Justice Van Syckel, quoting from Story Eq. Jur., puts the rule which appositely applies to the case at bar:

“Tims, if a man, in confidence of the parol promise of another to perform the intended act, should omit to make certain provisions, gifts or arrangements, by will or otherwise, such a promise would be specifically enforced in equity against such promisee, although founded on a parol declaration creating a trust contrary to the statute of frauds, for it would be a fraud upon all the other parties to permit him to derive a benefit from his own breach of duty and obligation.”

And at p. 737:

“This case must be classified with trusts which arise ex maleficio, and in which a court of equity, in order to reach the fraudulent procurer of what, in conscience, belongs to another, turns him into a trustee.”

The fraud in this case proceeds a step further than Mrs. Au-mack, and I doubt very much if she, left to her own conscience as a guide, would have made a breach of the trust imposed upon her by her husband and accepted by her, or, rather, sought by her from her husband. Tire ultimate fraud-doer was her brother, the defendant W. Scott Jackson, who coerced her, when in the extreme discomfort of bodily and mental weakness, and when she was practically a dying woman, to malee her will principally in his favor, in which will she bequeathed almost the entire estate of her husband to him and her sister, and diverted it away from the family and natural objects of Mr. Aumack’s bounty.

Mrs. Aumaek’s will was made on Saturday, December 7th, 1907. The day before Mr. Jackson went to the house and asked Miss Clayton how Mrs. Aumack was, to which Miss Clayton replied that she was “very bad.” Mr. Jackson said he did not think she was going to live long and asked her if she did, and Miss Clayton said no, and something must be done, for she, Miss Clayton, would not stay alone; and he said he would see about a nurse, and asked Miss Clayton if she had heard Mrs. Aumack say anything about making a will, and she told him “no,” only from what she said to Mrs. Havens the afternoon before; and she informed him that Mrs. Aumack had told Mrs. Havens that Mr. Aumack said he was going to make his will and leave his money to his relatives, and said he did not know how to make it, there were so many of them, and that she, Mrs. Aumack, said leave it to her and she would do it for him, and he did, and she did not know whether she had done right or not; she thought he would outlive her; whereupon Mr. Jackson said there were a lot of relatives who would come in, and if she had anything for him, he wanted it, and he said, “she has got to make a will.” That afternoon Mr. Jackson went to the house again to see his sister and went in where she was and closed the door, and was there about an hour and a quarter, and after he had gone Miss Clayton went into the room and found Mrs. Aumack very nervous and worried. The next day, in the morning, Mr. Jackson told Miss Clayton that Judge Martin would call at the house at one o’clock and they were going to do some business, requesting her to go to the door when Judge Martin arrived. When the judge called and Miss Clayton announced him to Mrs. Aumack, she said, “What does he want, I don’t want to see him.” He was, however, admitted. Miss Clayton passed through into the kitchen where Mr. Jackson was, and he said to her: “'She don’t want to do it, she don’t want to make a will, but if she will only sign it will be all right, and I think she will.” Mrs. Aumack was lying on a couch in the sitting-room and it was possible to see from the kitchen into the room occupied by her and Judge Martin. The judge was sitting there reading a paper, and while this was going on Miss Clayton took Mrs. Aumack an egg-nog, and then left the house on an errand, and met Dr. Austin and Edward Camburn entering; they were the witnesses to the will. Mr. Camburn was sworn, and it appears that he was summoned by Mr. J ackson, a thing harmless in itself, but considered, with all the other facts, it is a somewhat significant circumstance.

In Judge Martin’s testimony it is shown that Mr. Jackson brought him the memorandum in his own handwriting, from which the will was prepared, and he testified that Mrs. Aumack told him she had talked with Mr. Jackson about the preparation of the will; and he says that Mr. Jackson was still in the house after the will had been executed. Nor is this all: Immediately after the will was executed, Mrs. Copperthwaite, a neighbor and intimate friend, called on Mrs. Aumack. She found her feeble and agitated. Mrs. Aumack said to her, “There have been some men here this afternoon and I don’t want them;” and Mrs. Copperthwaite replied that if she hadn’t wanted them she would not have had them; and Mrs. Aumack said, “I had to, Scott made me.” That evening, about six o’clock, Edith Richmond, a trained nurse, who had been employed, reached the house. She found Mrs. Aumack still upon the couch and very miserable. Mrs. Au-mack said to her: “I have been through a dreadful ordeal today; T have done something and I am very sorry, and I wish I had not done it.”

Another significant fact is this: After the making of the will, Mr. Jackson wanted to keep Mrs. Aumack’s pastor and the children of her husband’s brother Elijah away from the house, and told the nurse that he did not want them to come there; that it would not be good for the patient. He said to Miss Clayton that there was no sense in letting the girls upstairs, that he did not want them there. The reason for this conduct on his part is perfectly obvious; he did not want the testatrix to fall under the influence of her pastor or her husband’s relatives lest they might control her to his undoing.

To my mind it clearly appears that W. Scott Jackson induced and controlled the making of this will, and but for his nefarious interference it never would have been made. I cannot be persuaded that Mrs. Aumack, in her anaemic and dying condition would have sent for anybody to draw her will leaving her husband’s property to her relatives instead of to his, as she had promised. Whether the bequest to Mrs. Drake and the Aumacks was a device of Mr. Jackson’s to throw off suspicion, or whether Mrs. Aumack insisted upon that much herself, I do not know, but believe Mr. Jackson controlled it. It was not unnatural for him to desire that his sister should receive some of her sister’s bounty. The bequests to the Aumacks were inconsiderable; and doubtless were permitted to give the transaction a color, that was unreal, and in the hope that it would ward off an attack upon the will.

I have not overlooked the evidence on the other side. True it is that Mr. Aumack said to Miss Fisher, the scrivener who drew his will, that he had never made a will because he did not know how to leave his property, and he guessed he would leave it all to his wife and she could do what she pleased with it, that she helped earn it. He made declarations of similar import to several other witnesses. These assertions are not inconsistent with the arrangement made between him and his wife, and if they are they do not control the situation. I can understand that he would not disclose to Miss Fisher and to his somewhat mysterious friend Potter, and to Gaskill and to Cranmer, what his real intentions were; although he might have talked to them with more or less freedom about the making of a will, and even pretended to have sought advice from them. I repeat that the statements that these witnesses testified to do not contradict the facts which go to establish the trust, except'by way of inference and argument, and the inference is not strong enough, and the ai'gument not deep enough to change the situation. If the trust be once established, and I think it is, it would be singular indeed if it could be overthrown on such testimony as this.

But, after all, finding the trust established, it must be fastened upon Mr. Jackson as Mrs. AumaclCs executor or legatee, or both, for he can stand in no better situation with reference to the property than she did, and as it was not hers to bestow, it could not be his to receive, and I hesitate the less to deprive him of it when I believe, as I do, that he procured it only by the exercise of coercion and undue influence.

As the will of Mrs. Aumaek was impotent to devolve the estate upon Mr. Jackson and-the other legatees, and as she must be treated as having held it as trustee for the next of kin of her deceased husband, that estate must now be divided between them, according to the statute of distribution. Ramsdell v. Streeter, ubi supra.

The defendant Mr. Jackson contends that if this view of the case be adojfled, it must be held that Mrs. Aumaek took her share, one-half, as a childless widow, under the statute of distribution m force at the tipie of Mr. Aumack’s death. This cannot be admitted for an instant. Finding that Mrs. Aumaek procured the property upon an express promise to bestow it upon the next of Kin of Mr. Aumaek, equity and good conscience required that it be so bestowed by the court, which must substitute its conscience for the conscience that Mrs. Aumack should have exercised, and that therefore none of her next of kin are entitled to inherit property which passed out of her upon her death, and this is especially true with reference to Mr. Jackson, whose participation in the property, under the circumstances disclosed in this case, would be but gaining an advantage from his own wrong, a thing prohibited by a positive maxim of equity.

The complainants are entitled to a decree in accordance with the views above expressed. The defendant W. Scott Jackson will be visited with the costs.


source: Caselaw Access Project

author: Walker, V. C.

license: Public Domain

text:
    Somerville Water Company v. Borough of Somerville.
    [Decided January. 18th, 1911.]
    1. Where a water company sought a preliminary injunction to restrain the authorities of a city from preventing it from opening the city's streets to lay water pipes, it was no ground for relief that the city authorities acted arbitrarily and unreasonably.
    2. An offer by one litigant to .another stated to be without prejudice is not admissible in evidence.
    3. An offer of compromise stated to be made without prejudice, not being admissible in evidence, cannot be pleaded. Therefore an amendment should not be permitted to allow the incorporation of such an offer into a bill.
    4. Where a water company, without right, attempts to open city streets to lay pipes, the city may either resist the invasion of its property or obtain equitable relief, preventing the invasion.
    5. Where a water company sought an injunction to restrain a city from preventing' it opening certain streets, and the city filed a cross-bill seeking to restrain the water company on the ground that the company was without right, the company could not dismiss the bill and cross-bill.
    O. Where the complainant answered a cross-bill filed to the original bill, he cannot, on dismissing the bill, have a dismissal of the cross-bill. 7. Where a bill is answered, it must be fully answered; and hence an answer to a cross-bill which failed to answer interrogatories is open to exception.
    8. Public grants of power to corporations are to be strictly construed, and whatever is not- plainly granted must be taken to have been withheld.
    9. A comxjlainant is not entitled to an injunction to protect a right which dex^ends on a disputed question of law.
    10. A water company was organized under act of April 21st, 1876 (Rev. 1877 p. 1365; 2 Gen. Siai. 1895 p. 2199), as amended by act of March 12th, 1880 (P. L. 1880 p. 273), which, in section 1, provided that a corporation might be formed to construct and maintain water works in any city, town, village, or seaside resort or borough, &c., and in section 2 required the filing of a certificate with the name of the city, town, or village where the works were to be constructed, with the consent in writing of the corporate authorities of the city or town to be supplied with water, and section 12 authorized such companies to lay their pipes under the streets, &c. A company was organized to supply water to two municipalities, and the consent of both was filed. — Held that, under the rule that what is not granted is presumed to have been withheld, it was doubtful whether a corporation to supply two towns with water was valid, and whether the consent of the two towns gave the company the right to open the streets; so that a preliminary injunction to restrain one of the cities from xneventing the company from opening its streets to lay mains could not be issued.
    11. Where a municipal water company sought to justify the laying of enormous pipes through the city’s streets upon the ground that they were going to extend their mains without the corporate limits to supply people on adjoining roads, a thing the company could do under the direct provisions of 2 Gen. Stat. 1895 p. 2202 § 369, upon condition that the consent of the owners on the road be secured, the consent of such owners is a condition precedent to compelling the city to allow the extension, and, until that be shown, the company is not entitled to a preliminary injunction to restrain the city from preventing the laying of the pipes.
    12. A water company sought a preliminary injunction to restrain the city from preventing it from opening the streets to lay their mains. The company claimed to have the right to increase and extend mains outside of the city, which right the city denied. — Held, that the preliminary injunction would be refused, for, if granted, the mains could be laid before the matter could be decided, and hence the city would be irreparably injured if the company did not have the right which it claimed.
    Oit application for preliminary injunction.

      Mr. Alvah A. Clark. for the complainant.

      Mr. James L. Griggs and Mr. Craig A. Marsh, for the defendant.
   Walker, V. C.

The complainant filed a bill-in this court against the mayor and council of the borough of Somerville praying for an injunction restraining them from interrupting and interfering with the complainant’s work of opening Cliff street, in the town of Somerville, and laying its pipes therein. An application for a preliminary injunction was denied upon the ground that it was at least doubtful whether the complainant had the right to proceed in the face of the borough’s resistance, when, in fact, the company had not complied with an ordinance of the municipality, which required that the written consent of the chairman of the standing committee on streets be obtained to open any street. Subsequently, application was made for a permit in compliance with the ordinance, which was neither granted nor refused, and which action therefore amounted to a denial.

In Gaslight Company v. Borough of South River, 77 N. J. Eq. (7 Buch.) 487, the complainant made application to the mayor of the borough for permission to open streets and highways therein for the purpose of laying mains and gas pipes, which it was authorized by law to do, and the mayor refused the permission sought but assigned no reason for his action. This court granted an injunction to prevent the borough and its officers from interfering with the laying of the mains, because it held that the mayor’s refusal to grant a permit, which it did not appear he ever considered, amounted to a prohibition, and as such was manifestly void, and as the company had complied with the terms of the ordinance, it became the duty of the mayor to grant the permit, and his action in refusing it was to be disregarded. This case (Gaslight Company v. Borough of South River) was cited by complainant' in the case at bar as authority for the issuing of the injunction prayed for in this case, but, except in respect to overriding the refusal to grant a permit, the case has not, in my judgment, any application to the facts in the case sub judice.

After denial of the injunction in the first suit the complainant filed another bill, the one in this cause praying for the same relief; and an order to show cause why a preliminary injunction should not issue in accordance with the prayer of this bill was made, and on its return was fully argued.

Questions of pleading have arisen and must be disposed of before the merits of the application may be considered and decided.

The complainant asks leave to amend by. charging that subsequent to the filing of the bill it caused a communication to be addressed to the defendant submitting for consideration a proposition looking to a solution and settlement of the difficulties existing between the parties, and that in pursuance of such communication, treaty 'was had between them, but that nothing came of the negotiations. The prayer for amendment in this regard concludes by charging that the object and position of the mayor and council and chairman of the standing committee on streets is not to grant any application of the complainant, but to vex, harass and annoy it in and about its business of supplying Somerville with water, with the object and purpose of arousing sentiment against the complainant, whereby the people will be induced to agree to a municipal plant upon the theory that the complainant is unwilling to provide an adequate supply of water. Exactly what the complainant hopes it could obtain by this amendment, if made, I fail to see, unless it be that claim would be put forth that the conduct of the defendant in and about the negotiations showed an unreasonable attitude toward the complainant, and its offer of settlement, which, by the way, would not afford a reason for relief to the complainant. The proposition for conference, however, assumed the form of a written stipulation, signed by counsel for both parties, was filed in the cause, and concluded with a provision that the “negotiations shall be without prejudice to either party.”

Now, it is perfectly well settled that an offer made by one litigating party to the other is incompetent as evidence, if stated to be made without prejudice (Richardson v. International Pottery Co., 63 N. J. Law (34 Vr.) 248), and, as the proposition in this case could not be given in evidence, it is not substantive, and therefore cannot be pleaded. The application to make this amendment is denied.

Two other amendments are sought, one to make the borough of Somerville a party defendant, it having been sued as the mayor, &c., instead of by its corporate name; and the other charging that application has been made to the chairman of the standing committee on streets for permission to lay a six-inch main on Spring street in Somerville, so that a dwelling in process of erection may be furnished with water, which application has been ignored. No objection is made by the defendant to the making of the last two mentioned amendments, and they will be ordered to be made.

As complainant and defendant each succeed in part- on the question of amendments in this suit, no costs will be awarded on this feature of the litigation.

Another question of pleading has to be dealt with. It arises in the first suit, which is still pending and open on the record. In that suit the defendants filed an answer and cross-bill.. In the answer, by way of cross-bill, it is averred, among other things, that the complainant has made a contract in writing with the Piscataway Water Company, the Raritan Township Water Company and the Elizabethtown Water Company, in which it agrees to furnish and supply the Piscataway 'Water Company large quantities of water not at any time to exceed two million gallons a day; and that the complainant company has never obtained the consent of the borough of Somerville, or the township of Bridge-water or the board of commissioners of Somerville to make and enter into any contract with any other water company for a supply of water; and that the making of the contract mentioned is ultra vires, in that the complainant does not own or possess a sufficient water-supply to enable it to furnish a sufficient quantity of water through its proposed thirty-six-inch water main, and has no power to condemn lands or Avater for any new or additional source of supply, or to divert water from any such source; that within a short time then last past the complainant laid a thirty-six-inch main from its pumping station and stand pipe in the town of Raritan, in the township of Bridgewater, through portions of certain public streets in the borough of Somerville, and that complainant was proceeding to open Cliff street for the purpose of continuing the laying of the main, when its engineers and workmen were made to desist from further prosecution of the work by the police of the borough, acting under orders from the mayor and council. 'The cross-bill charges that the thirty-six-inch main is of enormously excessive size for the purpose of supplying the needs of Somerville and its inhabitants, plus the needs of Baritan and its inhabitants, plus the needs of the dwellers along any road leading either from Somerville or Baritan, along which complainant has procured consents of property owners; and that a main sixteen inches in diameter would be of ample size for all such needs for at least fifty years to come; that the improving of the service in Somerville, and the satisfying of the patrons and customers of the complainant and forestalling the danger from conflagration which the complainant professes in its bill of complaint, is a fraudulent pretence, and that the real purpose of complainant is to enable it to fulfill the contract made between it and the three water companies above named; that the laying of the thirty-six-inch main would work injury to the interests of the borough; that through Cliff street, where complainant proposes to lay the main, are sewer pipes, laid at such distance beneath the surface as to make it impossible to lay such main over the pipes; that because of house connections and sewer pipes in the street it would be necessary to dig ,a trench not less than five feet wide, and not less than nine feet deep, whereas, the laying a main of ample diameter to supply the water needs of Baritan and Somerville would not necessitate a trench of more than two feet six inches in width, and four feet six inches in depth. The cross-bill prays that the complainant may be decreed to cease from further laying a thirty-six-inch water main in Cliff street and other public streets of Somerville; and from laying a main in the borough that may be grossly disproportionate to the needs of Somerville, and the dwellers along any road leading from it, as such need's now exist or arc likely to arise in the next thirty years; also that the complainant may discover as to whether or not it made a contract with the three water companies above mentioned and the terms thereof; and whether or not it had procured the consent in writing of the owners of property along the roads •through which it proposes to lay a water main under the contract; and whether or not it has procured the consent, by ordinance, of any municipality through which the main is proposed to be laid as required by law; and whether or not it has procured the consent in writing of the majority in frontage of the owners of land on or along any road or portion thereof leading from Somerville, to extend its mains outside and beyond the corporate limits of the borough for the purpose of supplying dwellers with water; and if any such consents have been obtained, for what frontage, and along what road.

On the hearing of the application for a preliminary injunction in this cause, the complainant’s counsel moved to dismiss the bill and cross-bill in the former cause.

The defendant’s counsel resists the application to dismiss the cross-bilb upon the ground that it is the province of the borough to prevent the digging up its streets, and of laying pipes therein which it alleges is illegal, and claims the right to invoke the aid of this court, without the intervention of the attorney-general, if, as charged in the cross-bill, the complainant has failed to comply with conditions precedent, expressly prescribed by the statute in that behalf.

If the act of the complainant is illegal, two remedies are open to the defendant, one, to resist the invasion of its property, and the other, to apply to this court to compel the defendant to desist from such invasion. The latter course is within the right of the defendant and is preferable, and therefore the cross-bill is properly filed and will not be dismissed.

Another reason exists for not dismissing the cross-bill, and that is, that before making the motion to dismiss, the complainant submitted to answer the cross-bill. To this answer exceptions were submitted, as follows — first, that the complainant has not, in its answer to the cross-bill, set forth whether it procured the consent, by ordinance, of any municipality or municipalities -through which the thirty-six-ineh water main or mains are 'proposed to be laid under the contract for the supply of other water companies referred to in the cross-bill; and second, that the complainant has not set forth what, if any, consents, in writing, of the owners of land fronting on any road or street leading from the borough of Somerville have been obtained under the statute in the cross-bill referred to, and for what frontage along any such road or street. On the authorities these exceptions must be sustained. If a defendant submits to answer he must answer fully. Thompson v. North, 67 N. J. Eq. (1 Robb.) 278; City of Salem v. Board of Health, 76 N. J. Eq. (6 Buch.) 264.

The complainant may enter a decree dismissing his bill in the former suit, with costs, to the answering defendant, if he so elects; but it must be without prejudice to the defendant’s rights to prosecute its cross-bill. The motion to dismiss the cross-bill will be denied, with costs. The answer to the cross-bill, of course, stands, and there must be further answer in regard to the matters to which exception was made. The defendant is entitled to costs on the exceptions.

This brings me to the consideration of the merits of the application before the court.

The Somerville Water Company was organized under an act of the. legislature authorizing the construction, maintenance and operation of water works, approved April 21st, 1876. Gen Stat. p. 2199.

The defendant makes the following contentions, among others, against the complainant’s claim of right: that the attempted incorporation of the complainant company was a nullity, because unauthorized, in this, that the authority, by legislative enactment, was to form a water company for operating in any city, town, village, or seaside resort, having a population of not more than fifteen thousand and not less than five hundred inhabitants, and supplying such city, town, village or seaside resort with water; that section 2 of the act provides that the certificate of incorporation shall state the name of the city, town or village in which the works are to be constructed, and the business of the company carried on, and further provides that such certificate shall be filed in the office of the secretary of state, together with the consent in writing of the’ corporate authorities, if any, of the town or city proposed to he supplied with water; that the legislative intent was to authorize the incorporation of a company to supply water to a single city, town, village or seaside resort; whereas, the complainant’s certificate of incorporation, instead of being confined to one municipality, is extended to two, namely, Somerville and Raritan; that the complainant’s certificate of organization expressly set forth the town of Somerville and the adjoining town of Raritan as the names of the towns in and for which such works were to be constructed; that the certificate having thus set forth a purpose not authorized by the statute, it was not within the power' of the corporate authorities of Somerville to consent to the alleged incorporation, the consent being in these words: “And this board hereby consents to the incorporation of said water company for the purposes aforesaid.” A second consent is alleged to have been given by the corporate authorities of Raritan; and it is claimed that both consents were, therefore, to an incorporation for a purpose not authorized by the act, and were nullities. Further, that the consent of the proper corporate authority to the complainant’s incorporation was not obtained; that the conditions precedent io the exercise of its right to lay water pipes in the public streets not having been complied with, the complainant has gained no such right as a de facto corporation ; that the complainant not having shown a right to open the streets and lay pipes therein, it follows that the defendant is entitled to an injunction as the only way of affording full, complete and adequate remedy to the borough in the enjoyment of its statutory right; that if complainant is legally incorporated and possessed the rights of a water company in Somerville, it has no right to lay the proposed thirty-six-inch main, because a main of that size is out of proportion to the needs of Somerville, plus the needs of Raritan, plus the needs of dwellers along any road or streets leading from those towns, which the complainant is authorized to supply with water, as those needs now exist, or as they will be likely to arise for fifty years to come; that injunction should be denied because the alleged right of the complainant is legal and not equitable, and is not clear and undisputed, and depends upon a disputed question of law.

Now, let us examine the question as to whether the incorporation of the Somerville Water Company was valid. It was effected under the act of April 21st, 1876 (Rev. p. 1365; Gen. Stat. p. 2199), amended by act of March 12th, 1880 (P. L. 1880 p. 273). The act, as it stood amended, and under which the complainant company was formed, provided (section 1) that a company might be incorporated

“for the purpose of constructing, maintaining and operating water works in any city, town, village or seaside resort or borough in this state, having a population of not more than fifteen thousand and not less than .five hundred, and for the purpose of supplying such city, town, village or seaside resort or borough, and the inhabitants thereof, with water.”

Section 2 of the act provided, among other things, that the persons desirous of forming a company for the purposes of the act, should make, file and acknowledge a certificate, in writing, which should state

“the name of the city, town, or village in or for which such works are to be constructed and the business of the company carried on; such certificate shall be filed in the office of the secretary of state, together with the consent, in writing, of the corporate authorities, if any, of the town or city proposed to be supplied with water.”

By section 12 it is provided

“that such company be and they are hereby fully authorized and empowered to lay their pipes beneath such public roads, streets, avenues and alleys, as they may deem necessary for the purposes aforesaid, free from all charge to be made by any person or persons, or body politic whatsoever, for said privilege and also such hydrants at the crossings or intersections of said streets and alleys; provided, that the said pipes shall be laid at least three feet below the surface of the same, and shall not in anywise unnecessarily obstruct or interfere with the public travel, or damage public or private property; and provided, that the consent shall be obtained of the corporate authorities, if any there be, of any town through which the same may be laid.”

By supplement of March 23d, 1883 (Gen. Stat. p. 2202), it is provided

“that it shall and may be lawful for any aqueduct or water company organized under the act to which this is a supplement, or specially chartered for the purpose of supplying any city, borough or town with water, to extend its mains outside and beyond the corporate limits of such city, borough or town, along any road or street leading therefrom, for the purpose of supplying the dwellers along such road or street with water, provided a majority in frontage of the owners of land fronting on said road or street, or any portion thereof, proposed to be supplied, shall consent thereto in writing.”

The consent of the corporate authorities of Somerville both to' the incorporation of the company and the use of -the streets was given.

Counsel for defendant urges that the words of the act under which the complainant was incorporated limit the purpose of incorporation of any one company to supplying with water a single city, town, village or seaside resort, and they point out that the complainant’s certificate of incorporation, instead of being confined to the purpose so defined and limited, sets forth its. purpose to be the construction, maintenance and operation of water works in two towns, instead of one, and the supplying of both of such towns, and the inhabitants of both, instead of one, with water; and that instead of setting forth ‘he name of the city, town or village, in which such works are to be constructed, it expressly designates two, namely, the towns of Somerville and Raritan. They further contend that the certificate having thus set forth a purpose not authorized by the statute, it was not within the power of the corporate authorities of Somerville to consent to the alleged incorporation.

In Hampton v. Clinton, 65 N. J. Law (36 Vr.) 158, the supreme court had under consideration the legality of proceedings in condemnation by a water company formed under the act now being considered, in which a certificate had been filed in the office of the secretary of state, but the consent in writing, of the corporate authorities of the town proposed to be supplied with water, which, by the provisions of the act, must accompany the certificate, was not filed. Referring to the contention that the defendant was a do facto corporation, and subject only to direct attack on quo warranto, the supreme court said (quoting from Tyler v. Plainfield, 54 N. J. Law (25 Vr.) 526) that only when the certificate and consent have been filed does the incorporation become complete, and that this differs from the General Corporation act as to which it has been held that the recording and filing of the certificate are not conditions precedent to the legal existence of the corporation, but merely the necessary evidence of. such existence (Vanneman v. Young, 52 N. J. Law (23 Vr.) 403), and that under that act whenever the certificate is filed, it relates back to the time named therein for the commencement of corporate existence. In the case before the court (Hampton v. Clinton), there was an attempt to take the property of a citizen against his will, and the court observed that whether in such a case the regularity of incorporation may be attacked is a vexed question; but remarked that no doubt non-compliance with the conditions precedent to incorporation would defeat a condemnation. The opinion concluded that.whether the court construed the defendant as never incorporated, or as not having procured the requisite •municipal consent at the time it sought to take the prosecutor’s property, the result was the same, and the attempt to condemn was nugatory.

The supreme court of the United States, in Oregon Railroad Co. v. Oregonian Railway Co., Ltd., 130 U. S. 1; 32 L. Ed. 837 (at p. 842), said:

. “It is to be remembered that where a statute making a grant of property, or of powers, or of franchises, to a private individual of a private corporation, becomes the subject of construction as regards the extent of the grant, the universal rule is that in doubtful points the construction shall be against the grantee and in favor of the government or the general public.”

See, also, National Trust Co. v. Miller, 33 N. J. Eq. (6 Stew.) 155, 162; Jersey City Gas Light Co. v. Consumers Gas Co., 40 N. J. Eq. (13 Stew.) 427, 429; Stockton v. Central Railroad Co., 50 N. J. Eq. (5 Dick.) 52, 62.

Public Service Corporation v. De Grote, 70 N. J. Eq. (4 Robb.) 454, is relied upon by the complainant for the proposition that a corporation having the power not only to maintain gas mains and pipes in the streets of a village, which it has the right to supply with gas, has also the right to lay and maintain in such streets pipes large enough for the transmission of gas to other municipalities in which it has power, and is charged with the duty of purveying gas, and reasons therefrom that a water company similarly situated has the same power. The defect of the reasoning lies in this fact: By an act of April 8th, 1903, relating to corporations having authority to lay or maintain gas pipes or mains in the streets or public places of any municipality for the distribution of gas, it is provided, among other things, that any such company may use its pipes or mains, within such municipality, for the transmission of gas, to any other municipality in the streets or public places of which it may also have lawful authority to lay or maintain pipes or mains for the distribution of gas. The act dealt with a situation where there were two separate franchises and provided that any corporation in the possession of two such franchises (by consolidation) might use its pipes or mains within the corporate limits of each municipality, for the transmission of gas to the system maintained in the other; and "Vice-Chancellor Stevenson said in that case (Public Service Corporation v. De Grote) that the legislature had laid down the rule, in such a case as was before him, that the companies would be permitted to lay large enough pipes anywhere throughout the entire area over which their franchise extended, not only for the supplying of gas within a particular municipality in which the pipes were laid, but large enough to supply the whole system, and for the reasons which he indicated he reached a general conclusion that the complainant corporations, or one of them, had the power, not only to maintain a plant of gas mains and pipes in the streets of Ridgfield Park, but a right to lay and maintain pipes therein large enough for the transmission of gas to the other municipalities in which the complainants, or one of them, had the power, and were charged with the duty of purveying gas.

As this question was decided on the act of 1903, and as no similar act concerning a consolidation and giving additional powers to separate water companies has been passed, I fail to see that it is any authority for the complainant’s position. Anyhow, if such an act existed with reference to water companies, it is neither pleaded nor proved that the complainant falls within it. Complainant does not invoke powers derived from any act save that under which it was incorporated and the supplement of March 23d, 1883; and does not claim a right through or under any other company, but only in and of itself.

Complainant places reliance upon Long Branch Commission v. Tintern Manor Water Co., 70 N. J. Eq. (4 Robb.) 71. The defendant, the Tintern Manor Water Company, was the successor, through merger and consolidation (under sections 104-107 of the act concerning corporations, P. L. 1896 p. 277) with the Long Branch Water-Supply Company which was organized in 1882 -under the act of April 21st, 1876. The declared object of the latter company was to supply with water the township of Ocean (Monmouth county) and the seaside resorts of Long Branch, Monmouth Beach and Sea Bright and adjacent places. Long Branch was the only one of those places then incorporated. Attached to its articles of incorporation was the joint consent of the municipalities of Long Branch and -of Ocean township.

It does appear from, the facts recited in the Tintern Manor Water Case that the Long Branch Water-Supply Company did exactly what the Somerville Water Company did; that is, formed a corporation to supply two municipalities with water, namely, Ocean township and Long Branch; and it obtained the consent of both municipalities. That case, however, is no authority for the complainant in this case, because the question here pressing for solution was not raised by counsel or noticed by the vice-chancellor in that case.

The defendant contends that the township of Bridgewater was the municipality whose consent was requirable to clothe the complainant company with corporate existence (section 2 of act) and to empower it to lay pipes in the streets (section 12), and that the town of Somerville was merely a gmsi-municipal corporation formed for certain defined and restricted purposes under the private act of the legislature. P. L. 1863 p. 479. On this application it is unnecessary to decide this question, because, in my judgment, under the act of the legislature (Gen. Stat. p. 2199) whether a water company could be formed for supplying more-than one municipal corporation (and in this case the company, as we have seen, was formed to supply two municipalities) is at least doubtful. Under the cardinal rule of construction laid down by Vice-Chancellor Van Fleet in Jersey City Gaslight Co. v. Consumers Gas Co., 40 N. J. Eq. (13 Stew.) 427, that public grants are to be strictly construed, and whatever is not plainly granted must be understood to have been withheld, it would seem that the act of 1876, under which the complainant company was-incorporated, and-which provides for the formation of a company for the purpose of constructing and operating water works in any city, town, village or seaside resort, meant the formation of such corporation in any one such municipality, especially as the disjunctive word “or” is used in defining the place for which the company may be formed and its work carried on. Additional force is given to this view when we consider that section 2 of the act requires that the certificate of incorporation shall be filed with the consent in writing of the corporate authorities, if any, of the town or city to be supplied with water.

City, town, village or seaside resort, it would seem, cannot mean city and town, or town and village, or village and seaside resort, or city, town, village and seaside resort.

The Gas Company act, passed on the same day as the Water act (Gen. Stat. p. 1608), contains a similar description of municipalities in which gas may be supplied and distributed by corporations formed under the act, the exact language being, “the village, town or^ity in which it is proposed to supply and distribute illuminating gas.”

In Broome v. Telephone Company, 49 N. J. Law (20 Vr.) 624, 625, the word “town” in our legislation was held to be variable and its signification in any particular enactment to depend largely upon the occasion and purpose of the law, and in that case it was held that the word was broad enough to include all such places, whether formerly styled towns, townships, boroughs or villages. This pluralization of the word comprehended classes of places, and the case did not hold that the word “town” should be given a plural significance so as to include more than one of such places when the singular number was used.

It is settled law that a preliminary injunction will not issue in a doubtful case. Complainant is not entitled to a preliminary injunction to protect a right which depends on a disputed question of law. Jersey City Gaslight Co. v. Consumers Gas Co., ubi supra.

It is a grave question, and at least a doubtful one, whether the consent by the towns of Somerville and Earitan was such a compliance with conditions precedent as entitles the complainant water company to open the streets of the borough of Somerville. This alone is sufficient to deny the preliminary application. But that is not all; the-complainant has not shown that it has the necessary consents of property owners to lay its mains. I take it that before the complainant company can open the streets of Somerville and lay enormous water pipes in them — pipes far larger than any reasonable requirement of the present or future would seem to call for — it must show that it possesses the conditions precedent to the right to supply the dwellers along such roads as a basis for laying pipes in the streets of Somerville to carry water through and out of the town to supply such residents beyond. Certainly the provision in the statute that the consents of the owners along the roads must be obtained means something, and if it means what it says, it follows that any person or body corporate who owes a water company a duty with respect to the right claimed, is entitled to be shown that the company has the authority to require compliance and obedience with its requests.

Nor do I think that the exigencies of the case call for a preliminary injunction. If the writ issued the complainant could doubtless fully accomplish its undertaking before final hearing and thus the defendant would suffer irreparable injury. The court of errors and appeals has recently reiterated the established rule that a preliminary injunction shall never issue except to prevent such injury. McMillan v. Kuehnle, November term, 1910, not yet reported. See, also, Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. (2 Stew.) 299, and Haggerty v. Lee, 45 N. J. Eq. (18 Stew.) 255.

The complainant company has been supplying Somerville with water for a generation, and there is no complaint that its present plant and works will not supply the reasonable requirements of the borough now and for some considerable time to come, and, if the complainant is entitled to increase its plant, as claimed, it will suffer no great injury by being compelled to wait until its rights can be ultimately adjudged upon the final hearing of this cause.

The motion for preliminary injunction will be overruled, with costs.


author: Pitney, Ordinary.

text:
    Mahlon Pitney, Ordinary.
    Edwin Bobert Walker, Yice-Ordinary.
    Henry Huston, administrator, &c., of Catharine A. Roe, deceased, appellant, v. Minnie Roe, respondent.
    [Decided November 1st, 1910.]
    An administrator having adopted loose methods in dealing with the affairs of his estate, and having delayed his accounting for more than fifteen years after the time when it ought to have been filed, doubts arising upon the evidence -taken on exceptions to his account were resolved against him.

      On appeal from a decree of Sussex county orphans court.

      Mr. Henry Huston, pro se, for the appellant.

      Mr. Charles M. Woodruff, for the respondent.
   Pitney, Ordinary.

This controversy arises over the final accounting of the appellant as administrator of Catharine A. Boe, deceased. The respondent filed numerous exceptions, and tire orphans court, after a hearing, sustained these exceptions in part and disallowed them in part. The administrator appealed to this court. The respondent, in her answer to his petition of appeal, specified (as permitted ly the rules) certain items in the account with respect to which she claims the decree to be erroneous as against her and in favor of the appellant.

The disputable questions are almost wholly questions of fact; the matters are somewhat complicated; the evidence, oral and documentary, is voluminous, and the oral evidence not altogether lucid or satisfactory.

Judge Coult, who heard and decided the case in the orphans court, filed a carefully-prepared statement of his conclusions, containing a clear presentation of the controversy, the character of the evidence and the results reached by him.

After repeatedly examining the ease, I have come to the conclusion that the resulting decree must be affirmed, substantially for the reasons given by him.

If there be doubt whether this decree is precisely correct, any error in it must be attributed to the appellants loose mode of dealing with the affairs of the estate, and his failure to file his accounting until nearly twenty jrnars had elapsed since his appointment as administrator; whereas the orphans court held, and I think correctly, that at the latest the final account ought to have been filed within four years after such appointment.

The costs of the respondent should be paid by the appellant out of his own estate.


author: Walker, Vice-Ordinary.

text:
    In the matter of the estate of Nelson S. Hibbler, deceased.
    [Decided November 17th, 1910.]
    1. Where one was named executor and trustee under a will and the estate of testator came to him under the will and his duties as executor were inconsiderable as compared with his duties as trustee, in determining the amount of his compensation, the principal fund should be deemed as having passed to him at once as trustee and an allowance on the corpus should be held to have been an allowance to him as trustee, though the accounts' were fiied as executor.
    2. The general duties of an executor are to collect the effects of decedent to pay the claims against his estate and distribute the residue to those entitled thereto.
    3. A “trustee” is one in whom some estate, interest or power in or affecting property is vested for the benefit of another; and, while an executor is a trustee in the broadest sense, he is not a trustee in the general acceptation of the term.
    4. The office of executor or trustee will be determined by the character of the estate confided to him by the will and the powers to be exercised by him as the representative of testator.

      5. One may- be executor and trustee under a will and entitled to commissions on the corpus of the estate in each capacity.
    6. No more than five per cent, in all may be allowed to a trustee or trustees, either one or several in succession, for the care and management of the corpus of the trust estate.
    On application for appointment of new trustee, &c.

      Mr. James P. Northrop, for the cestui que trust.

   Walker, Vice-Ordinary.

The last will and testament of Nelson S. Hibbler, deceased, was admitted to probate by the ordinary April 18th, 1888. In it the testator appointed William S. Yoorhies "executor and trustee,” who filed an inventory showing the value of the estate to be $161,878. He has managed the estate to the present time and now resigns and asks.to be relieved from his trust. All of the adult cestui que trust consent to the accepting of his resignation and ask that Nelson R. Stryker, one of the beneficiaries, be appointed trustee in his stead. The only infant interested is before the court by guardian, and, there being nothing in the way of granting the request of Mr. Voorhies, his resignation will be accepted and Mr. Stryker will be appointed in his stead. The adult cestui que trust consent that Mr. Stryker be not required to give a bond exceeding $25,000. Considering the presence of the infant, for whom consent cannot be given, I will advise that the bond be made $50,000, which will more than protect him in any event.

In 1889, Mr. Voorhies, as “executor,” filed an account in which he was allowed commissions of three per cent, on $141,888.73, the principal that had come to his hands, less investments of the testator not assumed by him. He filed accounts every two years thereafter until his fifth account, which was styled a final account as “executor.” This was in 1898. In the account of 1891 he was allowed three per cent, on $14,291 of additional principal which he had gotten in. In the account of 1893 he was made a similar allowance on another increment of principal amounting to $10,-680.10. Thus it will appear that he received three per cent, on a principal fund amounting to $166,859.83. In addition to this he has been allowed commissions of five per cent, on all income which has passed through his hands. He now asks for an allowance of two per cent, on the principal so that his total allowance of commissions on that fund will be five per cent. His claim is, that the allowances already made were to him as “executor,” and now he desires an allowance of two per cent, as “trustee” for handling the corpus of the estate since 1898.

The testator, after directing that his debts and funeral expenses be paid, made specific bequests of chattels and small sums of money to certain persons, and made certain devises of real estate, and then devised and bequeathed unto his “executor” all the rest, residue and remainder of his real and personal property upon certain trusts — first, to pay unto certain grandsons and granddaughters certain annuities for ten years after his decease; second, after ten years, to pay to certain grandsons and granddaughters each a certain sum of money, and after deducting and paying but those bequests, the balance to be disposed of as follows : One-fourth of the net income to be paid to his daughter

Ellen Stryker during her life; one-half of the remaining three-fourths to be equally divided between the children of his daughter Emma Y. Abernathy; and the net income derived from the remaining one-half of the three-fourths to be paid to his daughter Josephine Otterson during her life. Upon the decease of his daughters Mrs. Stryker and Mrs. Otterson, the respective shares of the trust estate set apart to them to be divided between their children.

The testator was a rich man and left comparatively few debts, and the executor had few duties to perform as such. Mr. Yoorhies, in his first account, charged himself with $10,983.42 of interest and dividends collected to June 4th, 1889, and in discharge prayed allowance for disbursements of $6,149.04, of which about $1,340 were disbursements as “trustee,” making $4,809.04 of disbursements as “executor.” The account is so stated that it cannot be exactly ascertained to which account, that of executor or trustee, all of the items of charge or discharge belong, without examining the vouchers, which are not before me.

Now, it seems to me, it would be manifestly improper in a case like this, where one handles practically $5,000 in the capacity of executor in an estate amounting to approximately $167,000, to hold that his allowance of three per cent, on the corpus should be credited to him as “executor” upon the theory that he passed the estate over to himself as “trustee,” to enable the court to make him a further allowance out of the principal, especially in view of his having received the highest commissions allowed, namely, five per cent, on the receipt and disbursement of all income during his entire stewardship. He was created both “executor and trustee” under the will, and the estate of the testator came to him under that -instrument, and, considering the fact that his duties as executor were inconsiderable as compared with his duties as trustee, the principal fund should be regarded as having passed to him at once as trustee and his allowance on the corpus be held to have been an allowance to the trustee although the accounts were filed as executor.

The duties of an executor and those of a trustee are well recognized in the law as being distinct. The general duties of an executor are to collect the effects of the deceased, pay the claims against his estate and distribute the residue to those entitled. 11 Am. & Eng. Encycl. L. (2d ed.) 903. A trustee is a person in whom some estate, interest or power in or affecting property is vested for the benefit of another. 2 Bouv. Dict. (Rawle’s ed.) 1146. Of course, an executor is a trustee in the broadest sense, but not in the general acceptation of the term.

Chief-Justice Beasley said, speaking for the court of errors and appeals, in Pitney v. Everson, 42 N. J. Eq. (15 Stew.) 361 (at p. 366): “It is true that throughout the will trustees are called executors, but this is a mere descriptio personarum, and even if otherwise intended, could not, as has been remarked already, alter, in any respect, the substantial qualities and attributes of the estate, which, in point of fact, has been called into existence.” Thus it will 'be seen that no matter what the designation in the will, the office, whether of executor or trustee, will be determined by the character of the estate confided to, and the powers to be exercised by, the representative of the deceased.

It is true that one and the same person may be executor and trustee under a will and entitled to commissions on the corpus of the estate in each capacity (Pitney v. Everson, ubi supra), nevertheless, I am of opinion, in this case, that Mr. Voorhies has acted as trustee in the husbanding of this estate and in disbursing the annuities directed to be paid, notwithstanding that in his fifth account he set off to himself, as trustee, $71,240.56 as the Josephine Otterson share and $47,493.74 as the Ellen Stryker share. This was a mere bookkeeping scheme and in nowise changed the character of the securities which he held, nor did it change his position with reference to the estate.

No more than five per cent, in all may be allowed to a trustee or trustees, either one or several in succession, for the care and management of the corpus of an estate. Mrs. Stryker is now sixty-seven years of age, and her expectancj’' of life is ten years. Mrs. Otterson is fifty-six years of age, and her expectancy of life is nearly seventeen j’ears, according to the tables of mortality. As Mr. Voorhies has had three per cent, on the corpus of this estate, as much as two per cent, may hereafter be awarded to the trustee who succeeds him, and that trustee, as it appears, may be obliged to manage a portion of the estate for ten years and another portion for over sixteen years, though, maybe, for a greater or lesser period of time as to each interest.

The court should, in my judgment, be in a position hereafter to allow commissions to the trustee on the corpus of the estate not exceeding two per cent., according to the time during which he shall have charge of it, considering also the value of his services.

This view leads to a denial of the application for further allowance to Mr. Yoorhies out of the corpus.


text:
    Alvafi J. Bloom, appellant, v. Joseph L. Terwilliger, respondent.
    [Decided December 28th, 1910.]
    1. Where a will offered for probate contains a formal attestation clause, the burden of proof is thereby thrown upon the contestant to negative its averments upon the points in dispute by -strong and convincing evidence.
    2. Evidence held sufficient to show that a will offered for probate had been published in the presence of the subscribing witnesses.
    On appeal from a decree of the Essex county orphans court denying probate of the paper-writing purporting to be the last will and testament of Lucinda M. Terwilliger, deceased.

      Mr. Frank Kemble, for the appellant.

      Mr. Charles B. Gurney, for the respondent.
   Walker, Vice-Ordinary.

The court below refused probate upon the ground that there did not appear to have been a publication in the presence of the subscribing witnesses. And this conclusion, in my judgment, was right, considering the evidence before the court. After the matter had been removed into this court on appeal, the appellant applied to the ordinary and obtained leave to take additional testimony. In pursuance of this order further testimony was taken, consisting largely of a re-examination of the principal witnesses who were sworn and examined before the court below. On this examination May Bloom, the sister and principal beneficiary under the alleged will, who had previously testified that, at the time the will was signed, she did not remember her sister said anything to the witnesses or they to her about the paper; said she then remembered that Mr. McLelland, the draftsman, and one of the witnesses, said to her sister, “Do you declare this to be your last will, and testament?” to which she answered, “Yes, I do.” She says she did not remember it at the time she testified before the orphans court because she had never been in a- court room and was excited.

McLelland testified that he read the will to Mrs. Terwilliger, but that she gave no indication whether she heard or understood the contents; Miss Bloom held her hand and guided it while she signed her name, and he, McLelland, then requested Dr. Whitfield to sign it, which he did, and then he (McLelland) signed it, and they both left.

The judge of the court below put his refusal to probate the will on the ground that the presumption of due execution arising out of the perfect attestation clause, was overcome by the direct testimony of McLelland that publication had not taken place, while the statements of the other two persons present, namely, Dr. Whitfield and Miss Bloom, were that they did not remember anything that amounted to a publication either by word or act.

As the testimony now stands, the stories are different. We now have Miss Bloom saying in the most positive terms that there was publication, while McLelland makes an equally positive declaration that there was not.

Ordinarily, I would say that the belated testimony of Miss Bloom, interested as she is, coming after leaving the stand and conferring with counsel as to further testimony (and this is no reflection on counsel), could not be accepted as against the direct and positive and apparently disinterested testimony of McLelland, bnt I am prepared to give it the greater weight in this case for the following reasons: McLelland knew the importance of an attestation clause to a will (he says so); he made the contents of the document known to the testatrix at the time of its execution, and there arises to my mind a strong presumption that he did not omit so important, and, in fact, controlling solemnity, as to procure a publication before subscribing his name to the attestation clause and thus solemnly proclaiming a falsity over his own signature. Still, he says that is what he did, and, if there were nothing more in the case, I should feel constrained, just as the orphans court did, to refuse probate. I state the matter thus to show that it does not require much to be thrown into scales to change the situation.

As was said by this court in Darnell v. Buzby, 50 N. J. Eq. (5 Dick.) 725 (at p. 726): “By this (attestation) clause the burden of proof is thrown upon the contestant, to negative its averments upon the points in dispute, by strong and convincing evidence.”

Vice-Ordinary Van Fleet in Robbins v. Robbins, 50 N. J. Eq. (5 Dick.) 742 (at p. 745), said he could not conceive how any upright, competent and careful lawyer could, tinder the special circumstances of the case before him, have allowed so essential a part of the business in which he was engaged, as publication, and which it was his duty to see was successfully done, to be overlooked or omitted. In that case the will was witnessed by a lawyer and a doctor, and the lawyer said there was publication while the doctor said there was not, and the court believed the lawyer and admitted the will to probate. In the case at bar the situation is different, and, while the scrivener is not a lawyer, he is assistant clerk in the office of the clerk of Essex county and has had some experience in the drawing and execution of wills. And, with the evidence of publication now in the case, I am unwilling to believe that he attested this will without its having been duly executed, including publication. I think, when he says it was not published, he is at least mistaken. A circumstance tending to show that Miss Bloom’s evidence is more reliable than his, is that Dr. Whitfield said on both of his examinations that when he entered the room Mrs. Terwilliger inquired for his family and asked him to have Mrs. Whitfield to come over and see her, and Miss Bloom on her first examination said she heard her sister, the testatrix, tell Dr. Whitfield to tell Mrs. Whitfield to come over and see her, and on her second examination she said she heard her sister greet Dr. Whitfield when he came in and asked him how his wife was and told him to tell her to come over and see her. True she tells more of her sister’s remarks to Dr. Whitfield on the second examination than she did on the first, but the matter was one of minor importance and the two statements substantially agree. Now,, we have both Miss Bloom and Dr. Whitfield stating that on the occasion of the execution of the will Mrs. Terwilliger indulged in conversation with the doctor, while Mr. McLelland says that she did not do so, but said nothing. I think that McLelland is mistaken about this feature of the case, and, that being so, he is liable to be mistaken about the other feature of' it. In fact I find that he was mistaken about it.

Another thing: Doctor Whitfield says that either the attestation clause was read or its purport was stated at the time of' execution. Although this was before the orphans court, and while I agree with the decision of the orphans court upon the-testimony that was before it, nevertheless, I think that this fact may be legitimately used as lending additional probability to-what Miss Bloom now testifies to on the subject of publication. What she says she heard may not be literal, word for word, asMcLelland stated it, but she doubtless approximates closely what he did say.

Now, Miss Bloom did not say tliat there had not been any publication, only that she did not remember. She has been recalled, and now says that she does remember; and what she remembers is just what McLelland, in the discharge of the duty he apparently well knew how to perform, would have been expected to say, and -doubtless did say, namely, ask the testatrix if she declared the paper to be her last will and testament. At-first Miss Bloom said she did not remember, now she says she-does. Either she is untruthful or is mistaken. Her testimony throughout shows her, I think, to be an ingenuous and truthful person. I believe McLelland is tbe mistaken one. In any event •I do not regard his testimony strong enough to overcome the attestation clause, pins the testimony of Miss Bloom.

While the court below did not err, but was right on the testimony presented to it, the decree must, nevertheless, be reversed and the cause remitted with direction to admit the will to probate.