author: Beed, Y. C.

text:
    Henry Whelen, Jr., et al., executors, &c., of Henry Whelen, deceased, v. George M. Osgoodby et ux.
    [Filed December 17th, 1901.]
    1. In a suit to reform, on the ground of mistake, a mortgage conditioned upon the mortgagor making certain payments to the mortgagee and “successors,” it appeared that the attorney who drew the1 instrument used the word “successors” in the sense of “heirs,” and that the parties intended to convey a fee, instead of merely a life estate.—Held, that the evidence authorized a reformation by substituting the word “heirs” for “successors.”

      2. An instrument will not be reformed for mistake in the absence of fraud, unless the mistake was mutual.
    3. Fraud or mistake, to sustain a reformation of an instrument, must be proved beyond a rational doubt.
    4. In a suit to reform a mortgage conditioned upon the mortgagor paying a debt in five years, with interest from date at “5 per cent., five years from date, which will be on May 1st, 1905,” on the ground of mistake, so as to provide for the payment of interest annually, instead of at the end of the five years, as claimed by mortgagor, the attorney who drew the instrument testified that the interest was to be paid at the end of five years, while an agent of the mortgagee testified that the interest was to be paid annually.—Held, that the testimony, measured by common experience and business usage, established an agreement which required the annual payment of interest.

      Mr. John V. Jolino and Mr. David J. Pancoasl, for the complainants.

      Mr. Martin V. Bergen, for the defendants.
   Beed, Y. C.

The bill states that the complainants, the executors of Henry Whelen, deceased, in August, 1899, agreed to sell a piece of land at Montclair, Essex county, New Jersey, to George M. Osgoodby for $3,700—$3,200 of the price to be secured by a mortgage, payable in five years, with interest at five per cent., payable annually or semi-annually; that this agreement was reduced to writing on August 23d, 1899, but, by a mutual mistake, it did not clearly state that interest was to be so paid; that on April 28th, 1900, a deed was delivered to the wife of defendant, who, with her husband, made a mortgage upon the said property to secure the sum of $3,200, which mortgage, by mutual mistake, contained the same omission in respect to the time of the payment of the five per cent, interest; that said mistake was not observed until after the execution and delivery of the deed and mortgage; that defendants refused to correct said mistake.

It is also stated that, by mutual mistake, the word “successors” was employed in the mortgage instead of the word “heirs,” by which mistake a life estate was mortgaged to the executors, and that the defendants have refused to correct this.

The answer states that the agreement was that the interest should be payable at the end of five years, and that the written agreement and the mortgage correctly, fully and properly expressed the intention of the parties. It also denies that there was any mistake in using the word “successors” instead of the word “heirs.” The defendants, by way of cross-bill, ask that the deed made to Osgoodby may be reformed by inserting in it a warranty of title, in accordance with the agreement for the sale of said property.

It appears that the agreement for the sale of this property was made for the complainant by Robert C. Ryerson, a real estate agent at Montelair. So far as appears there was no meeting between the executors of 'Whelen and Osgoodby, in which the terms of the sale were discussed. The agreement for the sale was drawn by Mr. Ryerson on August 23d, 1899. This agreement provides that the executors shall furnish abstracts of title; that the consideration to be paid is $3,700, to be paid as follows: $500 or more on'or before May 1st, 1900, at which time a proper deed of conveyance was to be delivered by the party of the first part and a properly executed bond and mortgage, bearing interest at the rate of five per cent., for the balance—if any part of the purchase-money remained unpaid-—to be delivered by the party of the second part to the said party of the first part; the said bond and mortgage to run for five ye'ars, with the privilege to the party of the second part to pay $500 or any larger sum whenever he desired to do so.

The bond and mortgage for $3,300 was executed on April 28th, 1900. The condition of the instrument is in the following words:

“Mary E. T. Osgoodby shall pay to Whelen and others, executors, &c., their successors, $3,200, with interest to be computed from May 1, 1900, at the rate of five-per cent, five years from date which will be on May 1, 1905, with the privilege to said Mary E. T. Osgoodby to pay $500 or any larger sum to apply thereon whenever she desires to do so.”

The bill was filed March 21st, 1901. The delay in filing the bill is thus explained: The bond was sent to the executors, who put it away, without their attention being drawn to the interest clause. Afterwards, when the time came for a semi-annually payment of the interest, as the interest was not paid, the executors put the matter into the hands of their Philadelphia solicitor, who found that the contract did not express when the interest was to be paid, and the executors at once asked for the payment of the interest. The solicitor of the executors, in Philadelphia, having only the bond, desired to see the mortgage, and he was informed that it had not been received by the executors from the record. He at once wrote to Mr. Ryerson to obtain the mortgage from the record, and it was sent to him. He, for the first time, noticed that the word “successors” was used in the mortgage instead of the word “heirs,” and then consulted with Mr. Joline, of the New Jersey bar, concerning the effect of the word “successors;” and Mr. Joline, in examining the mortgage, discovered that the condition in it did not call for annual or semiannual payments of interest. Soon thereafter, upon the refusal of the mortgagor to rectify the alleged mistake or pay the interest, this bill was filed.

In respect to the word “successors” it is clear that its insertion was the result of a mutual mistake, both parties intending that the mortgage should be upon the fee of the mortgaged property. Mr. Osgoodby, who drew the mortgage, is a New York lawyer, and says that this word, according to the law of that state, is sufficient to pass a fee, and he, in effect, admits that the word was used in this mortgage with the understanding that it had that force. The mortgage in this respect should be reformed.

The perplexing question is in regard to the interest clause in the condition of the mortgage. The language of the condition in the mortgage imports an obligation to pay interest at the time of the payment of the principal, namely, May 1st, 1905, at the end of the five years. Cooper’s Administrator v. Wright, 3 Zab. 200. There is no doubt at all that the mortgagees and their agent, Mr. Ryerson, had no intention whatever to take a mortgage with such a condition. Mr. Ryerson swears he had no such intention, and that- none such was expressed in his negotiations with Mr. Osgoodby. But while a unilateral mistake may be a ground for the rescission of a contract, upon the theory that the minds of .the parties never met and so no contract arose, it is not a ground for reformation in the absence of fraud. Green v. Stone, 9 Dick. Ch. Rep. 387, 396. Unless, therefore, Mr. Osgoodby participated in the mistake, there conld be no reformation, unless, in drawing the mortgage, he was guilty of a fraud upon the complainants. If Mr. Osgoodby, who drew this mortgage, wrote the condition, not by mistake, but knowing that it was not as the mortgagees intended, he was guilty of a fraud, which would justify a rescission or reformation of the mortgage. The circumstances would bring the case within the principle laid down by Mr. Pomeroy, that equity will afford the affirmative relief of reformation when, through fraud of the other party, the instruaiient fails to express the real relation that existed between the parties. 2 Pom. Eq. Jur. § 872. In Wiswall v. Hall, 3 Paige 313, where a vendor, knowing that the vendee understood that he was getting a lot, secretly had included in the deed only a part of the lot, for which the vendee paid the consideration agreed upon for the whole lot, he was compelled to make a deed for the rest of the lot; and this was practically a reformation, although in the shape of a decree for specific performance. To justify a reformation upon either of these grounds the proof must be entirely clear; either mistake or fraud must be proved, not only by the weight of evidence, but beyond a rational doubt. Green v. Stone, supra.

As to the matter of mistake, Mr. Osgoodby swears that there was an agreement that the interest was to be paid at the end of five years. In this he directly contradicts Mr. Ryerson. There being nothing to impeach the character of either Mr. Ryerson or Mr. Osgoodby, it follows that, if there was nothing in the character of the transaction itself to support the statement of either of these parties, the complainants’ case must fail.

But while the testimony of an unimpeached witness is not to be arbitrarily disregarded, it must be measured by the standard of common experience and business usage.

The statement that a man, under certain circumstances, did something which we know from experience not one in a thousand would do, under the same circumstances, is discredited by the inherent improbability of the statement. It is more rational to believe that the testimony is intentionally or mistakenly untrue, than it is to believe that the marvelous occurred. Now, the experience of men who have had occasion to take mortgage securities to run for more than one year for the payment of money is that -interest is payable annually or semi-annually. Mr. Jones, in his work on Mortgages (at p. 73), remarks: “Interest is usually payable annually or semi-annually from the date of the mortgage.” Vice-Chancellor Dodd observes, in Ackens v. Winston, 7 C. E. Gr. 444, 447 “The prevailing usage as to mortgage debts is to pay interest as often, at least, as once a year.” Now, when a party asserts that it was agreed that interest upon a mortgage debt to run for five years should not be paid until the end of the whole term, his assertion is so contrary to usage and common experience that it should be fortified by convincing evidence before it becomes credible. That such an express agreement was made in this case is, as already remarked, denied by Mr. Ryerson. It is also improbable from the fact that it nowhere appears in the agreement for the sale of the mortgaged premises when the interest shall be paid. If such an exceptional arrangement had been entered into, it is, in the highest degree, improbable that the mortgagor would not have insisted that it should be put into the written agreement in express terms. In fact, the agreement says nothing concerning the time when the interest is to be paid. It says that on May 1st, 1900, $500 is to be paid and the deed is to be delivered and a mortgage, bearing interest at five per cent., for the balance is also to be delivered. Then the agreement provides, in a separate sentence, that the mortgage is to run for five years. I am clear therefore that there was no express contract entered into between Mr. Osgoodby and Mr. Ryerson that the interest upon the mortgage should not be paid until the end of five years.

But it is equally clear that nothing at all was said about the time when the interest should be paid. The written agreement embodies all that was said, which was substantially this: That the mortgage should be given, bearing five per cent, interest, and that the mortgage should run for five years. The question is whether, by this language, the meaning is that the interest upon the mortgage shall be payable annually or at the end of the term. People speak of six per cent, and five per cent, mortgages. When mortgages run for a term longer than a year the implication is, from usage, that interest shall be, at least, annually. A mortgage differs from a promissory note, which is rarely drawn for a longer period than a year. If a court of equity was called upon to decree a specific performance of this agreement, to make this mortgage, it seems to me, in the light of general usage, it would decree execution of a mortgage with interest payable, at least, annually. Such would be the legal construction of the agreement, and such was the intention of the parties at the time the agreement was signed.

Now, if this be so, then the condition, as placed in the mortgage of Mr. Osgoodby, was varied from the terms of the agreement. If the language he used was used by mistake, it should be reformed; if it was used purposely, knowing it to be contrary to the intention of the other side, trusting that it would be overlooked until after the transaction was consummated, it was a fraud on his part, for which the mortgage should be reformed.

In my judgment, the probabilities lie in the direction that Mr. Osgoodby did not appreciate the force of the language he used in the condition, and that afterwards, when he ascertained that, by its legal construction, he was not bound to pay interest until the end of the five years, he refused to pay interest annually, and resolved to stand upon the strict letter of the condition.

If the transaction was fresh and no improvements had been put upon the property, and the parties could be placed in their former state, I would be inclined toward a rescission of the whole matter.

As matters stand I 'will advise a decree that the mortgage shall be reformed by substituting the word “heirs” for “successors” and by inserting in the condition the provision that the interest shall be paid annually.

The praj'er of the cross-bill is denied.


source: Caselaw Access Project

author: Stevens, Y. C.

license: Public Domain

text:
    John D. Canfield et al., executors, v. Isaac N. Canfield et al.
    [Filed November 16th, 1901.]
    1. A will directed the executors to reserve the sum of $5,000 for a monument, authorized expenditures for.a fence and certain inscriptions, and concluded by empowering them “to expend for the above purposes the sum of $5,000, and no more.”—Bold, not to require the expenditure of the entire $5,000 for the purposes named, but only that a greater sum should not be used.
    2. Held, also, that if the will required the expenditure of the whole $5,000 for the purpose named, the residuary legatees would not be benefited by the non-compliance with its conditions, but the executors would still be bound to carry out its directions, notwithstanding the erection of the cheaper monument.
    3. Where one of the residuary legatees in a will dies before the testator, under the peculiar language of the will, his share does not go to the other residuary legatees, but the testator dies intestate in respect thereto.
    4. A will directed that certain land be sold after the death of the testator’s wife, and that the money be divided among the residuary legatees, and the estate was so converted. The share of one of such legatees in the proceeds of the sale had, however, lapsed by her death before that of testator.-—Beld, that the purpose of the conversion having failed, such share should be treated, for the purposes of distribution, as real estate, and not as personalty, and should go to the heir-at-law.
    5. Under the Wills act, section 34 (Q-en. 8iat. p. 3763)—Beld, that the widow of testator’s brother was not within the act, and that a devise to her lapsed by her death before that of the testator.

      Mr. Alfred B. Mills, for the complainants.

      Mr. Maiilon Pitney, for Charlotte I. Shelton et al.

      Mr. Joseph Hinchman, for Cornelia C. Woodward.

      Mr. Philander B. Pierson, for Isaac N. Canfield.
   Stevens, Y. C.

The questions to he decided arise upon the will and codicil of Alfred W. Canfield, who died in 1871.

By the codicil he directed his executors to reserve the sum of $5,000, to be expended by them in building a monument. He recited that he was part owner of a lot in Evergreen Cemetery, and-he authorized his executors to erect it upon that lot, or, if they should not deem it advisable to erect it there, upon another lot to be purchased by them. He also authorized expenditure for a fence and certain inscriptions, and'he concluded as follows: “I authorize and empower my executors and the survivor of them to expend for the above purposes the sum of $5,000 and no more.”

This monument was not to be erected until'the death of his wife, the postponement being manifestly for her benefit, but, with the concurrence of herself and the family, the executors (she being one) put up on the lot of which he was part owner a monument costing $625. No other expenses were incurred. The ques-' tion is whether the executors were under a legal obligation to expend the whole of the sum of $5,000 for the purposes mentioned, and if not, to whom the unexpended balance belongs.

I think it was not the intention of the testator to require the expenditure for this one object of the full sum of $5,000. He intended that the monument, lot, fence and inscriptions should not together exceed $5,000. He says this in so many words, but he does not say that this sum must be spent if neither lot, fence nor inscription were necessary. He had no definite sum in mind for the cost of the monument alone. This might have been greater or less, as the cost of the other things was more or less. Again, he “reserves” the sum of $5,000, to be expended in building the monument “as hereinafter directed.” There is no explicit direction to dispose of all the money in that way only. The final direction is that they “are authorized and empowered” to expend that sum and no more. On the whole,,! do not think that, taking this obscurely-worded codicil as a whole, it requires such a construction as to compel the expenditure of more money than is reasonably sufficient to effect the object which ’testator had in view, viz., the erection of a suitable granite monument, laid upon a foundation six feet in depth, properly inscribed and protected. This object, it is conceded, has been attained, and the work has been done under the direction of the widow to whom he gave, with a trifling exception, the enjoyment of all his property for her life, and in whom he had, presumably, the fullest confidence.

If this is not the proper construction of this codicil the residuary legatees would not be benefited, as some of them appear to have supposed they would. No intestacy would result. It would still be possible to carry out the direction of the will in this regard, and the executors would be bound to do it if the testator had, in fact, required it; but I do not think he has.

The other question is whether the share of one of the residuary legatees, the widow of testator’s brother "William, she having predeceased the testator, goes to the other residuary legatees. It is well settled that it does not. The testator died intestate as to that share. Garthwaite’s Executor v. Lewis, 10 C. E. Gr. 351; Wms. Ex. 1315.

The only arguable question, on this branch of the case, is whether the share which thus lapsed is to be treated as real estate or personalty. By the so-called eighth item of his will the testator directs his land to be sold after the death of his wife and the money divided among his residuary legatees. The direction to convert- is imperative, and the executors have actually converted it. It is admitted that the balance now in their hands is the proceeds of the sale of land. Although this is so, I think there can be no doubt that the money is, for the purposes of distribution, to be treated as real estate and not as personalty. It was so decided in the leading case of Ackroyd v. Smithson, Lead. Cas. Eq. *690, where two out of a larger number of residuary legatees had died in testator’s lifetime, and this case has been relied upon and followed in this court, in Roy v. Monroe, 2 Dick. Ch. Rep. 356, and in the court of appeals, in Lerch v. Oberly, 3 C. E. Gr. 575. The principle is thus stated in Boy v. Monroe, in a passage quoted by Vice-Chancellor Van Fleet from the note of the American editors to the above-cited case of Ackroyd v. Smithson:

“The conversion of property from one species to another by the will of the testator, takes place only for the purposes of the will, and so far as those purposes do not extend or in so far as any of them do not take effect in fact or in law, the property is considered as remaining in its former condition, as it was in the hands of the testator, and passes accordingly.”

On the same general principle it is said by Chief-Justice Beasley, in Lerch v. Oberly: “The principle is established by a multitude of cases that where real estate is directed, either by the owner or by the order of the law, to be converted into money for a particular object, and a surplus remains after the accomplishment of such object, such surplus, as between the heir and personal representative of such owner, will be regarded by a court of equity as land, and will descend as such.”

“Where,” says Lord Eldon, in Hill v. Cock, 1 Ves. & B. 175, “a testator means, with regard to a particular purpose, to convert his real estate into personal, if that purpose cannot be served, the court will not infer an intention to convert the estate for any other purpose not expressed.”

In view of these authoritative declarations, I should not have thought the question open to discussion had it not been for the case of Hand v. Marcy, 1 Stew. Eq. 59. There a testator, after directing a conversion of his lands, gave and bequeathed “the residue of his estate to S. M. L. E. and M. S., their heirs and assigns, to be equally divided between the said S. M. L. E. and M. S.” M. S. died in the lifetime of testator. After holding that the legacy had lapsed, and that the surviving residuary legatees were not entitled by survivorship, Chancellor Eunyon further held that the lapsed share, composed in part of the proceeds of the sale of land, went wholly to the next of kin, on the ground that the direction to convert was absolute. The only case cited by him in support of that proposition was Miller v. Miller, 10 C. E. Gr. 354. But the point there decided was only that a contract for the sale of real estate works an equitable conversion of the land into personalty from the time it is made, and that the purchase-money becomes a part of the vendor’s personal estate, and, as such, distributable, upon his death, to his widow and next of kin. This decision is unquestionably sound, resting, as it does, upon the well-known rule declared in Fletcher v. Ashburner, 1 Lead. Cas. Eq. *659, but it had no application to the case then in hand. The distinction involved evidently escaped the notice of court or counsel, and the opinion indicates that the case was thought to turn chiefly upon another matter, viz., the effect of the words “heirs and assigns” on the question of lapse.

So strong is the rule that the undisposed of beneficial interest will result to the heir where the produce of the sale is to be applied for a purpose which, either wholly or partially, fails, that in the case of Fitch v. Weber, 6 Hare 145, it was held by Vice-Chancellor Sir James Wigram, on grounds that seem unanswerable, that the heir was entitled, notwithstanding testatrix’s declaration that the trustees should stand possessed of the proceeds of the sale,

“as a fund of a personal and not of real estate for which purpose I declare that such proceeds or any part thereof shall not in any event lapse or result for the benefit of my heir-at-law.”

The testatrix had provided that her trustees should apply the residue of her estate as she should, by codicil, direct, and she made no codicil. The controversy was between the next of kin and the heir-at-law. The vice-chancellor said: “Admitting the intention to exclude the heir, is not the intention equally clear to exclude the next of kin? Where, then, is there room for a necessary or any implication in favor of the next of kin? In these circumstances I feel myself called upon ,to follow the course of decisions, in holding that the testatrix has expressed an intention to exclude the heir only for the purposes of her will, and that if her words express more, and she has failed to say who shall take the surplus, the law must dispose of it. * * * I

cannot imply an intention in favor of those whom the will excludes. The heir takes, not by intention, but in the absence of intention.”

Without doing violence to the principle upon which Roy v. Monroe and Lerch v. Oberly were decided, I cannot, in this case, give the proceeds of the sale of the land to the next of kin in preference to the heir-at-law.

I think it is perfectly plain that the widow of William Can-field does not answer the description of any of the .persons mentioned in section 34 of the Wills act.


text:
    Francis P. Nugent v. The John McNeil Shoe Company.
    [Filed December 2d, 1901.]
    1. Where the mortgagor of a stock of shoes sold it to a company which took subject to the encumbrances, but did not assume the mortgage debt, it never became the personal obligation of the company so as to entitle the mortgagee to recover it from the company’s receiver.
    2. Where a partner continuing a shoe business gave a chattel mortgage to his late partner on the book accounts due to the dissolved firm, it imposed a lien on them, but not on the money collected on such accounts by a company which purchased the business from the mortgagor, the money being mixed with other money and used in the regular course of.the company’s business.
    3. Where a continuing partner of a firm gave a chattel mortgage to the other partner, on the book accounts and afterwards sold the business to a company, the mortgagee is entitled to claim from its assets whatever the company collected' on such accounts, as an unpreferred, creditor, as for money received to his use.
    4. Where a chattel mortgagee sold, under his mortgage, machines put on the premises by a purchaser of the business from the mprtgagor, which were distinct from the property mortgaged, and capable of identification, he is answerable for their value.

      Mr. Malcolm MpLear, for the appellant.

      Mr. Charles M. Myers, receiver, pro se.

   Stevens, Y. C.

This is an appeal from the determination of the receiver of the shoe company. The case is submitted on an agreed state of-facts. It appears tbat the appellant, Bainbridge, and one John McNeil were partners in the shoe business. Bainbridge sold his interest therein to McNeil for $4,000. The payment of the money was secured by eight notes, made by McNeil, all bearing date on the day of sale, August 12th, 1898, and further secured by a chattel mortgage, in the usual printed form, in which McNeil bargained and sold, upon condition,

“all the goods and chattels mentioned in the schedule hereunto annexed and now in that part of the premises known as 236 Bank St., Newark, N. J., and occupied by me and also all goods and chattels that may in the future be brought into said premises to take the place of said goods and chattels now therein and all stock, shoes, &c., that in the future may be manufactured to take the place of the stock now therein and all book accounts.”

The schedule refers, more particularly, to some of the goods on the premises, and concludes as follows: “And all book accounts now due the said firm of McNeil & Bainbridge now dissolved, and all book accounts in the future that grow due.”

'McNeil carried on the business on his own account from August 12th to August 24th, 1898. Then he transferred it to the John McNeil Shoe Company. Only one of the above-mentioned notes having been paid, a constable, on August 8th, 1899, at the instance of the mortgagee, seized the property of the shoe company, then on the premises 236 Bank street, and, on August 14th, sold it for the price of $556. This sum was credited on the mortgage debt.

On August 15th, 1899, the company was adjudged insolvent by this court and Mr. Myers was appointed receiver. Bainbridge presented his claim for the balance due on his mortgage ($2,942), and it was disallowed. From this disallowance the present appeal has been taken.

The debt was due, not from the company, but from McNeil. The company did not assume it, and so it never became its personal obligation. The case .states only that “the business mentioned in the said conveyance was conveyed to the said corporation subject to the encumbrances thereon.” Whatever claim, therefore, Bainbridge may have springs out of the lien created by his mortgage. He has no other claim, so far as the company is concerned. Now, the case states,that, on August 8th, 1899, Bainbridge, by his agent, the constable, seized all the personal property then on the premises No. 236 Bank street, and sold it. This, of course, exhausted his lien as to that. The company had, indeed, other tangible property on the premises 154 Market street, afterwards sold by the receiver, but upon that Bainbridge had no lien. The lien is carefully limited, both in the body of the mortgage and in the schedule annexed to it, to such property as was, or might be, brought upon the premises 236 Bank street.

Having thus exhausted his lien upon all the tangible property on which he had any lien, and having no personal (if I may use that term) claim against the company, what was left? There was left only his lien upon the book accounts. This lien, in terms, covered “all book accounts now due the said firm of McNeil & Bainbridge now dissolved, and all book accounts in the future that grow due.” I think that this language is sufficiently explicit to impose a lien upon the book accounts then due the firm. It is not necessary to consider whether it was sufficient to create a lien upon the book accounts to grow due McNeil, for, as far as appears, there were no such accounts. The language did not, in terms, impose, and could not have imposed, a lien upon accounts which might have become due the company subsequently incorporated. Kribbs v. Alford, 120 N. Y. 519. What McNeil, by his contract, stipulated to give was a lien upon the then existing book accounts of the firm and such other book accounts as might thereafter arise in- the conduct of his own business, not the business of anyone else. The case states that the amount paid in and collected by the corporation on these accounts was $3,235.85. But when they were settled and paid the lien ivas gone, unless it then fastened itself upon the money. On the facts agreed upon I think it impossible to assert that there -was any lien upon the money, for this money was mixed with other money, and used in the regular course of the company’s business. It could not be followed or identified. It could not be traced into any other specific property.

The important question is whether the company is accountable to the mortgagee for the money thus received; in other words, whether an action against the company for money had and received to the use of the mortgagee could be maintained. Contrary to my first impression, I have come to the conclusion that it could'be. The difficulty arises over the proper construction of the language of the mortgage. The scrivener used a printed blank, without considering very much whether its phraseology was adapted to the case of a continuing business. I think enough appears, however, to warrant an inference that the mortgagor had authority to sell the mortgaged property, in the usual course of trade, free from lien, and that the mortgagee would, as he lawfully might (Lister v. Simpson, 11 Stew. Eq. 438; affirmed, 12 Stew. Eq. 595, 607), look to the subsequently-acquired goods for his security. The language is that the mortgagor bargains and sells

“the goods and chattels mentioned in the schedule * ■* * and also all goods and chattels that may in the future be brought into said premises to take the place of said goods and chattels now therein,” &c.

If this were not the inference, as the mortgage was recorded, and as an inference of fraud, therefore, based upon continued possession by the mortgagor, was not possible, what was sold would have been sold subject to the mortgage—-a result plainly contrary to the intention of the parties. On this construction, however, the infirmity of the security is evident. The mortgagor could, in the usual course of trade, have sold all the mortgaged stock, without being under any contract obligation to replace them. If he did, in fact, replace them, then, and only then, would there be any lien.

As the mortgagor was authorized to sell and collect and to use the proceeds of his sales and collections to buy new goods and continue the business, which, of course, would involve other disbursements, like wages, rent, &c., I think, if he did this, he could not be sued, either in trover or in an action on the case, for money had and received. He is liable, as at the beginning, on such personal security as he may have given the mortgagor, and his property is liable to the extent of the lien existing for the time being.

It would seem, at first blush, that as this was the situation of the mortgagor, and as the mortgagor conld dispose of his interest in the entire property, subject to the lien, without being guilty of any illegal' act (Woodside v. Adams, 11 Vr. 417, 428), his vendee would stand in the vendor’s shoes, and would have the same right to continue the business and to sell, in the usual course of trade, that the vendor had. He would, undoubtedly, if the mortgagee had authorized him to do so. Did he do so? The case shows that the mortgagee knew of the incorporation and of its object very shortly after it took place. .He allowed the business to go on for a year, and he did not notify the debtors of the firm of the assignment of their book accounts to him. So far as his non-action has any significance, it is favorable to an inference of authority, and would probably prevent him from proceeding against those debtors who paid their debts to the corporation. Miller ads. Pancoast, 5 Dutch. 250. But I do not think that, as between mortgagee and vendee, with notice, the same implication can fairly be drawn as to the company’s right to continue the business, to the prejudice to the mortgagee’s lien, as was drawn in the case of the mortgagor. The right to continue is only an inference. This inference is based upon McNeil’s agreement that the new stock and the new accounts which take the place of the old shall be subject to the lien. But the language of the mortgage does not extend the lien to the new stock and the new accounts of anyone but the mortgagor ; and so, as to a stranger, the foundation for the inference fails, and we have merely the ordinary case of a recorded mortgage upon property assigned to another, of which that other has notice. On the authority of all the cases the purchaser who disposes of the mortgaged property, in defiance or exclusion of the rights of the mortgagee, is liable in an appropriate form of action. Woodside v. Adams, 11 Vr. 429; Smithurst v. Edmunds, 1 McCart. 408. I think, therefore, that the mortgagee is entitled to claim that whatever the company received on the property mortgaged, it received for Ms use, to the extent of the money now due. This claim is, of course, an unpreferred claim. It only entitles him to a share of the assets on an equality with the other unpreferred creditors.

It appears that among the tangible things sold by the mortgagee were some lasts and machines, or machinery, pnt upon the premises by the company. If these lasts and machines were capable of identification, and were separate and distinct from the property mortgaged, they did not become subject to the lien, and the mortgagee is answerable for their value.


author: Stevens, V. C.

text:
    Edward G. Duffy, surviving executor, v. Alfred Hargan et al.
    [Filed December 14th, 1901.]
    Under a will bequeathing property to a certain legatee and directing that on his death the property should pass to his next of kin according to the laws of the state, the children of a deceased sister of such legatee are entitled, on the death of the latter, to share with the surviving brothers of the legatee in such property as the representatives of the deceased sister, though the surviving brothers are his nearest of kin.

      Mr. Samuel F. Bigelow, for the complainant.

      Messrs. McCarter £ Adams, for the defendants.
   Stevens, V. C.

Nicholas Duffy died in 1880. He left a last will, in which he provided as follows:

“I give to my executors in trust for the use of my son Nicholas Duffy, Jr., all my stock in the New Jersey Railroad & Transportation Company, and all my scrip in the American Insurance Company of the city of Newark ; the dividends, income and profits of the same to be paid to my said son Nicholas during his natural life and at‘his death the principal to be divided between his children, if he should have any. But in case he should have no lawful children then the same shall be paid to such persons of his blood, either his brother or sister or the descendants of his said brother or sister, and in such shares or portions as he shall by his last will and testament or writing in the nature thereof designate and appoint. And in case he shall leave no last will and testament or writing in tne nature thereof, then to his nest of kin according to the laws of the State of New Jersey.”

Nicholas Duffy, Jr., died intestate in April, 1901, leaving neither widow nor issue. There survived him two brothers and three children of a deceased sister.

The question is whether the two brothers take to the exclusion of the children of the sister. This depends upon whether these children are comprised within the designation of “next of kin according to the laws of the State of New Jersey.”

In England, after considerable fluctuation of opinion, it has been decided that where a bequest is made to “next of kin” simpliciter, those only take who are, in fact, nearest of kin according to the civil law method of computation. Withy v. Mangles, 10 Cl. & F. 215. This gives the legacy to the brothers and sisters, to the exclusion of the children of deceased brothers and sisters. The rule in Massachusetts is the same. Fargo v. Miller, 150 Mass. 225. The contrary rule seems to have been adopted in New York. Murdock v. Ward, 67 N. Y. 387, 390. It is not necessary, to the determination of the present case, that this question should be decided, for it is held in all the cases that if there be any indication in the will that the testator intends that the next of kin shall be deemed to be such as would take under the statute of distribution, this intent shall prevail.

Thus, in Garrick v. Lord Camden, 14 Ves. 385, the bequest was “to be divided among my next of kin, as if I had died intestate;” and Lord Eldon, who was one of the judges who favored the view that prevailed in Withy v. Mangles, said: “My construction is that the next of kin should take the whole as they would take under an intestacy.” And in Smith v. Campbell, Coop. 275, Sir William Grant, another of the judges who took the same view, used the following language: “Even if the testator in .this case had made use of the words ‘his next of kin/ instead of ‘his nearest surviving relations/ yet, if there had been nothing in the will to show that he meant the next of kin accord ing io the statute of distribution, I should have thought the brothers and sisters would have been exclusively entitled.”

In the ease of In re Thompson’s Trusts, 9 Ch. Div. 607, the direction was to pay to “the heirs or next of kin of T. L.,” and Master of the Rolls Jessel held that the statutory next of kin were intended.

In the case in hand the bequest was to the “next of kin according to the laws of the State of New .Jersey.” As I must give effect, as far as possible, to every word of the will, I am not at liberty to eliminate the words “according to the laws of the State of New Jersey.” I must give them a meaning. If they mean anything, they mean that the next of kin are to take as the laws of New Jersey prescribe. But, by these laws, in cases of intestacy, where there are brothers and sisters and children of deceased brothers and sisters, the children take their parents’ share by right of representation, and the living brothers and sisters do not take the whole. If to the word “next” in the will under consideration the literal construction of “nearest” should be given, the result would be that the nearest of kin would take, not the whole, but only their shares, and the testator would die intestate as to the residue. To avoid a result so plainly opposed to the intention, the courts give to the words “next of kin,” when used in connection with the expression “according to the. statute of distribution (and I take it that “according to the laws of New Jersey” is a precisely equivalent expression), the meaning “statutory next of kin”—that is, next of kin who are, in fact, nearest, and those persons also who, by statute, represent or stand in the place of those who are nearest.

Reliance was placed upon Schenck v. Vail, 9 C. E. Gr. 544. The question there arose under the statute of descent, and was one of statutory construction. The reasoning of the court would have had some applicability had the words to be interpreted been only “next of kin.” It is not an authority upon the point here discussed.


text:
    Elizabeth G. Boylan v. Susan A. Townley.
    [Filed January 27th, 1902.]
    Testator’s will gave his wife a life estate in certain land, and provided that she might sell the same, if she deemed it advisable, and directed the investment of the proceeds. It provided that, on the death of the wife, such land, if not sold, and, if sold, the proceeds should go to a daughter for life, and that she might “invest the same” in a certain manner.' The daughter’s children were given the remainder in such property, in whatever form it might be.—Held, that in a suit by the daughter to compel specific performance of her contract to sell the fee in the land—it not being plain that it was not the intention of the testator, in employing the words “invest the same,” to refer to the proceeds in case of a sale by the widow so that the daughter would have no power of sale by implication, and the children of the daughter not being parties to the litigation, and it being impossible to’make tliem parties, and they having a right to litigate the question after their mother’s death—a decree for complainant should be denied.

      Mr. Frederick F. Guild, for the complainant.

      Mr. Frank II. Sommer, for the defendant.
   Stevens, V. C.

This is a bill, by vendors, to compel specific performance of an agreement, by vendee, to purchase land. The suit is resisted on the ground that complainant cannot convey a title which is free from doubt. The goodness of the title depends upon whether, under the will of Samuel T. Guerin, the complainant, Lizzie G. Boylan, has power to sell an undivided one-third interest in fee-simple in land of which she is only tenant for life. The testator owned many separate parcels of land, and as to three of them he provided that if his wife, whom he constituted his executor, should deem it prudent and advisable at any time to sell, she might do so. He authorized her, in ease she sold, to safely invest the proceeds in good bond and mortgage or in dividend-paying securities.

By the third paragraph of his will he then provided as follows:

“Third. On the death of my wife, X give, bequeath, and devise the said last above named three properties, viz., No. 95 Clinton avenue, No. 33 Bruen street and the undivided one-half interest in the vacant lot on Central avenue in said East Orange (if not sold, and if sold then the proceeds of such as are sold), to 'my three children, Lizzie, Theodore B. and Harry to be divided equally between them share and share alike, the shares of my two sons to go to them respectively, and their heirs respectively, forever, but the said share of my daughter Lizzie, in these said tnreo properties, is to go to her, only for her use, for and during her natural life, and she may invest the same, or any part thereof, in such property, as she may desire, for a home for herself, taking the title in her own name or in good bond and mortgage, or in dividend-paying securities, and she is to have the use of interest and income of her said share howsoever invested, for and during her natural life, and on her death, the principal of said share, in whatever it may consist, is to be divided equally among her children, or their heirs forever; and if she should die childless then the said principal of her share shall go to my surviving children in the same manner as is hereinafter, in the fifth item, provided for the disposition of the portions given to my children in case either of them die without leaving issue, him or her surviving.”

Tlie insistment, on the part of complainant, is that the words “may invest the same or any part thereof” gives, by implication, to testator’s daughter, Lizzie G. Boylan, a power of sale. If the word “same” is to be referred to its last antecedent, viz., “'her share in these said three properties,” then the power reads “may invest said share in these said three properties or any part thereof in such property as she may desire,” &c., and the argument is that, in order to invest, Lizzie G. Boylan must first sell, and that hence she has, by implication, a power to sell, not only what constitutes her share, to wit, her life interest in an undivided third, but also the fee of that third. Assuming, contrary to the literal sense of the words, that what was probably intended was that she might invest the fee, Seeger’s Executors v. Seeger, 6 C. E. Gr. 90, is a direct authority that an implied authority to sell is not given. There the executors were directed to invest two-thirds of testator’s property and to use the interest and so much of the principal as was necessary for the education and maintenance of the children. Chancellor Zabriskie held that the will did not, by implication, give a power of sale. He said: “There is no authority or decision, so far as my researches have extended, which holds that in a will which contains no power or directions to sell, such power is created by implication, because necessary or convenient to enable the executors to execute the directions of the will.” This language was criticised by the court of appeals, in Chandler v. Thompson, 17 Dick. Ch. Rep. 723. The truc rule was there said to be that “if a sale of the real estate is necessary to carry out the purposes of the testator, the power to make the sale will be given by implication, as otherwise the intention of the testator might be defeated.” Says Mr. Justice Van Syckel, in that case: “The rule of interpretation is that the implication must be clear from' the terms of the entire will, and it must be found that some duty has been imposed by the testator upon the executors which necessarily carries with it a power of sale in order to enable him to perform the duty.”

The case in hand does not fall within the terms of the rule as thus formulated. Lizzie G-. Boylan was not the executor, and she had no duty to perform in respect of the interest devised to her. She was to enjoy the estate as life tenant—-that was all— she was not to perform any trust. To such a situation the rule stated by Chancellor Zabriskie might still apply. It is one thing .to hold, as was held in Lindley v. O’Reilly, 21 Vr. 636, that the power will be implied where the objects which the testator had in view cannot be effectuated unless his land be converted into money, and quite another to hold that the power will also be implied where no duty is imposed and where conversion is not a necessary part of his scheme. It is certainly easier to deduce a power by inference where there is a duty, than where there is none.

But, aside from this, I think that there is great doubt, at least, whether the word “same” is fairly referable to its last antecedent—whether it does not refer to the prior antecedent “proceeds:” or, what amounts to the same thing, whether we should not supply after the word “same” the ellipsis “if sold.” According to this construction the daughter would take 'the land, “for her use for and during her natural life,” if it came to her as land, and if there had been a prior conversion by her mother of all or of part, and she thus got only “the proceeds,” then she might invest “the same” in the manner provided for.

There are two reasons for supposing that this construction would better harmonize with testator’s scheme—first, it is improbable that, having given his daughter only a life interest in an undivided third, he would be willing to vest her with the right to sell parcels of that third in fee, to the detriment of his grandchildren, for such parcels, as is well known, could not be sold advantageously; second, in the preceding paragraph he gives his wife, in express words, power to sell the very three properties which he subsequently gives, in part, to his daughter, without that express power. In the second paragraph he gives to his wife a power of sale and a power of investment. In the third he gives to his daughter a power of investment only. When he gives the power of sale to his wife, he gives it guardedly—she is to sell only if, in her estimation, it “be prudent and advisable.” If the daughter has it at all, she has it, at least, without any express limitations on its exercise. Under these circumstances, in this clumsily-drawn paragraph, it is not difficult to suppose that, looking at the whole will, what the testator had reference to when he gave his daughter the power of investment was the investment of the proceeds of sale, so far as they were derived from a prior conversion, or possibly a conversion in a partition sale.

I need not, however, decide that such is the proper construction of this will. All I have to decide is that it is not plain that it is not. Lizzie G. Boylan’s children are not, and could not be made, parties to this suit, and they will have a right to litigate this question at her death. Says the court of appeals, in Tillotson v. Gesner, 6 Stew. Eq. 326: “The true rule is stated in Pars. Cont. *380, that if the character of the title be doubtful, although the court were able to come to the conclusion that, on the whole, a title could be made that-would not probably be overthrown, this would _ not be good title enough, for the court have no right to say that their conclusion, or their opinion, would bind the whole world and prevent an assault on the title. The purchaser should have a title which shall enable him, not only to hold his land, but to hold it in peace; and, if he wishes to * * * sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value. The court cannot satisfactorily or conclusively settle a title in the absence of parties who are not before them.”

The other point, viz., that Lizzie G. Boylan had power to sell as substituted administratrix with the will annexed, was not insisted upon in the counsel’s brief, and does not seem to be tenable.


author: Grey, V. C.

text:
    Lizzie Sibley v. Japhet Somers, executor.
    [Filed October 26th, 1901.]
    1. A woman about seventy years of age conveyed one-half of her interest in certain property to her granddaughter, reserving to herself its use for life. She was a woman of eccentricities, but capably managed her business affairs. The subscribing witness explained the nature of the deed to her, and had an intelligent explanation from her of her reasons for its execution.—H'eld, valid.
    2. And held, also, to be a contract presently forceful, and therefore not invalid because not lawfully executed as a will.
    3. The instrument is not a conditional sale and is therefore not invalid, ’ 'because it does not comply with the statutory requirements.
    4. The instrument is a gift and not an assignment, and valid, though not based on a valuable consideration.
    On bill, answer and proofs.

      Mr. George A. Bourgeois, for the complainant.

      Mr. David J. Pancoast, for the defendant.
   Grey, V. C.

(orally).

I have had an opportunity, pending the argument, to examine all of the points which counsel have discussed, and can presently pass upon the questions in dispute as satisfactorily as if they were retained for further consideration.

The bill of complaint in this cause is filed by Lizzie Sibley; a granddaughter of Jane Somers, deceased. As originally filed, Isabel C. Somers, another granddaughter of Jane Somers, was the only defendant. The substantial allegations of the bill are that Jane Somers, for a period of ten years or more prior to her death, was of unsound mind, and unable to transact the ordinary business affairs of life; that, being in that condition of mind, she, on October 30th, 1895, executed an agreement, in writing, purporting to convey one-half of her interest in the estate of Elizabeth Petty, deceased, to Isabel C. Somers. The agreement is then set out, at length, in the bill as follows:

“AGREEMENT.
“Jane Somers, “Dated October 30th, 1895.
to Recorded May 17th, 1897, in agreement
Isabel C. Somers, Book 4, page 6.
“This agreement witnesseth, that I, Jane Somers, of Scullville, in the County of Atlantic, State of New Jersey, in consideration of the love and affection which I have for my granddaughter, Isabel C. Somers, and for other good and valuable consideration, do hereby bargain, sell, grant, assign, transfer and convey to her an equal one-half interest in and to all my right, demand and interest in the estate of Elizabeth Petty, deceased, including all money, goods, chattels and property of every kind, which I am now or may hereinafter be entitled to from said estate, subject, however, to a lifetime right in the same reserved to myself, the true intent and meaning of this instrument being to give to her the same now, to become hers absolutely at my death, when I am through with the use of it.
“In Witness Whereof, I have hereto set my hand and seal this Thirtieth day of October, a. d. 1895.
her
“Jane X Somers. mark.
“Signed, sealed and delivered in the presence of
“(Signed) Joseph Scull.”

The bill further alleges that Isabel C. Somers was frequently, and almost constantly, in company with Jane Somers, and that, by means of false and delusive statements, Isabel unduly influenced Jane to execute the agreement in question, upon merely colorable consideration. It further alleges that Jane had completely lost her power of reason and her mental faculties, and was incapable, in law, of executing such an agreement, either with Isabel or with anybody else. The prayer of the bill is for answer, &c., without oath, and that the conveyance or agreement in question may be decreed to be null and void against the complainant.

Isabel C. Somers, the defendant, answered the bill, and denied the alleged infirmity, unsoundness of mind and incapacity of her grandmother, Jane Somers; denied the exercise of any undue influence upon her, and averred the truth to be that her grandmother made the agreement voluntarily, without any undue influence.

Pending the suit, the defendant Isabel C. Somers, died testate, appointing her father, Japhet Somers, executor of her will and residuary legatee of her estate. He has been admitted as defendant in this suit, and it has come to a hearing since that time, without any formal answer, or adoption of her answer, on his part. Both the complainant and defendant have treated the answer of Isabel C. Somers as raising the issue on which the cause has been tried. Issue has been joined on it, and testimony taken on that issue. I will follow their action, accepting that answer as the pleading of the defendant on which the case shall be considered, not questioning the status of either party.

The bill charges that the agreement is a nullity and void, because of the incapacity of Jane Somers, the grantor in it, and because of the exercise of an undue influence by Isabel C. Somers, the grantee, to obtain it. It may just as well be stated at the beginning that there is no evidence in the cause which would support a decree that any influence, undue or otherwise, was exercised by Isabel C. Somers, as is alleged and charged in the bill. The 'testimony of the complainant’s own witnesses tends to prove that Isabel was rarely in attendance on her grandmother, and no proof whatever was offered to show that she, in 'any way, induced the making of the disputed contract.

The testimony offered has been directed almost wholly to an effort to prove that Mrs. Jane Somers was a lunatic, incapable of making any contract whatever, not only at the time she made this agreement, but that for years before she had been so mentally deranged as to be incapable of transacting any business.

The proofs do show that there were many times that Mrs. Somers did odd and eccentric things, but the complainant’s own witnesses who narrated these incidents, testified that they dealt with her again and again, in the ordinary affairs of life, in buying and selling and making and executing contracts.. Her dealings, it is true, were of trifling character, because her, circumstances1 were limited, and her situation in life such that she had no occasion for large transactions. She sold cakes and milk, and the very persons who declared that she was mentally incapable, testified that they bought cakes and milk of her, and that the greater the quantity of cakes and milk which they got, the greater was the price fixed by her. Other persons testified that they sold things to her, in the ordinary and usual course of business, during periods of weeks- at a time, naming the articles sold to her. There is no evidence whatever that any of the people, who were associated with her, ever attempted to control her in the management of her affairs, or in the disposition of her property, or to prevent others from dealing with her, or to' assume any care over her actions. She conducted her own business and managed her little transactions during a long life, displaying all the oddities of behavior noted, jret nobody ever did any act or made any suggestion indicating a belief in her mental incapacity. It is quite evident that she was, for a very considerable part of her life, a woman of very eccentric habits in some particulars; but, except in one instance of the purchase of an extravagant quantity of tinware (which, in the searching examination that has been made of her life for a period of sixty or seventy years, is the only one), there seems to have been no proof whatever of improvident or foolish bargains. On the,other hand, there is evidence that she carefully secluded that part of the house in which she kept her money, and would not let anybody go into it; that she violently abused the tax collector, because she thought she wras unduly charged; that she seemed to have an extremely keen sense of property, and that whenever there was any occasion to repel any intrusion upon her, or upon her rights, or her property, she was quite ready to do it. These incidents are all forceful to show that she had abundant mentality to transact business.

There is evidence of eccentricity in dress, and also of that sort of forgetfulness which attends old age and leads to the doing of things over and over again. Persons whom she ought, under ordinary circumstances, to have instantly recognized, she was unable to recall, but the witnesses who give this testimony also show that the moment an appeal was made to her to identify them, she almost instantly recognized-them, correctly recalling their personality, knowing who they were and dealing with them, in their true character. Failure of recognition, especially in old people, is one of the commonest things of life.

Such failure, unless complete and unchanging, merely shows temporary lack of memory, and is no evidence of mental derangement.

Another eccentricity in her housekeeping was that she sometimes forgot that she had once sufficiently washed her dishes, and repeatedly washed them. This eccentricity is of the same class as the temporary failure to recognize acquaintances. All these incidents alleged to show insanity are here gathered together and presented as if they were all continuing characteristics of Mrs. Somers, but, in fact, as the evidence shows, they were oddities in conduct which she exhibited at various times during her long life. None of them are fixed as characteristics of the period when the instrument in question, the contract with the defendant, was made, which was about October 30th, 1895. None were in her lifetime deemed to be evidential of mental derangement.

The proof offered on the part of the defendant of what took place on the occasion of the making of the challenged agreement is absolutely uncontradieted. Nobody even attempts to prove that, at that time, Mrs. Somers gave evidence of lunacy, or even of the eccentricities which she occasionally displayed. Judge Scull, the subscribing witness to the agreement, an entirely disinterested and capable person, attended this old lady on this occasion. He explained to her the nature of the instrument, read it® to her, witnessed her signature, and had from her an explanation of the reasons why she made it. These reasons are shown to be such that they might readily and properly have operated upon Mrs. Somers to induce her to make it. The instrument is then shown to have been carried by Japhet, Mrs. Somers’ son, at her request, to his daughter, Isabel, the grantee in the agreement. It was then sent to Newark, for use in securing the estate of Mrs. Petty, and afterwards came to the counsel of Isabel C. Somers, who filed her answer in this cause. It was obviously treated by all the parties, with Mrs. Somers’ assent, as a finally completed transaction. There is no evidence which supports the allegation that Mrs. Somers was mentally incapable when she made the agreement in question.

Upon the argument the counsel for the complainant sought to introduce a new element into the case, not raised by the pleadings. He contends that the agreement shows, on its face, that it is a will, and not a contract. That contention is directly contrary to the allegations of the bill of complaint. The bill recognizes the contract as presently forceful, and asks this court to declare it to be void, on the ground that it was obtained to be made by undue influence exerted upon the grantor, who was a person mentally incapable of executing it. Nothing in the bill intimates that the contract could only operate as a will. If, in fact, it could operate only as a will, it is obviously inefficient, because it was not lawfully executed as a will. An attack upon it on this ground suggests no fraudulent contrivance and ought to have been brought in the law courts, by Mrs. Somers’ administrator, claiming the property sought to be passed by it.

I doubt whether I ought to consider this argument. If I did, I should overrule it. The difference between a will and the operation of such a contract as is here attacked is perfectly clear. A will has no obligatory effect until the death of the testator, but this contract, by the very terms expressed on its face, passed title on its delivery. The words used are those of present conveyance. The grantor gives the property “now.” The thing given, an interest in an estate as distributee, was incapable of manual delivery. The grantor reserved to herself a life enjoyment in the property given, but, subject to that life interest, title passed from the grantor to the grantee, irrevocably, on the delivery of the instrument. If the argument made by coinplainant’s counsel were within the issues joined, it could not be determined in the complainant’s favor.

The same answer should be made to the contention of the complainant that the contract was a conditional sale, which does not comply with the terms of the statute. It is quite obvious that it does not operate as a sale. The inducements which led Mrs. Somers to make it were not those of' bargain and purchase, but those of love and affection which arise in the family relation. These, and not money considerations, led her to make this gift, passing title to ber granddaugbter, because she was fond of her, for services and kindnesses which she had received at her hands. It was a binding contract between the parties to it from the time of the delivery. Only creditors could impeach it.

Another suggestion by complainant is that the contract was not a gift, but an assignment, and that there was no consideration for it ] that equity will not aid such assignments, unless there be a valuable consideration. This contention is also outside of the issues joined in this cause. The instrument, and all its attending circumstances, show that the transaction was a gift, based wholly upon the consideration of love and affection, and not upon a valuable one. It is complete in itself, and does not need equitable aid to perfect it.

I have passed upon all the points that counsel for the complainant has suggested as grounds upon which the complainant’s bill should receive favorable consideration. None'are sufficient to support a decree. The bill should be dismissed, with costs.