author: Foster, V. C.

text:
    Cedar Realty Company, complainant, v. William J. Bahrs, defendant.
    [Submitted June 16th, 1924.
    Decided June 23d, 1924.]
    Specific Performance — Conveyance of Real Estate — Tax Title Only — 'Defective Because of Improper Advertising Alleged.
    On bill, &c.

      Mr. James R. Nugenl. for the complainant.

      Mr. George A. Henderson, for the defendant.
   Foster, V. C.

This is a bill for the specific performance of a written contract relating to real estate in the city of Newark. The purchase price was to< have been paid and title passed on the 1st of March, 1924. Defendant refused to take title, and in his answer gives as the reason for his. refusal that the complainant does not own the premises in question in fee, but has only a tax title thereto.

The defendant further states that complainant's tax title is defective, because the comptroller of the city of Newark, who made the sale, failed or neglected to- post notices of the sale in five of the most, public places in the city of Newark, as required by the Tax act of 1918 relating to such sales.

Complainant admits that the comptroller did neglect or omit to post such notices, and it is conceded by counsel for the parties that in all other respect the act was complied wi th.

The case has been submitted on the pleadings and memorandum of counsel, and from the facts recited in the pleadings, it does appear that the notices in question were not pasted. It further appears that complainant, more than two years after the date of the sale, foreclosed as. a mortgage the tax lien it had acquired under the certificate of sale from the comptroller of the city of Newark, by a proceeding in this court, and that a final decree in such action was made in favor of the complainant, by virtue of which it claims an indefeasible title in fee for the lands in question.

By section 53 of the Tax act of 1918, page 898, provision for redemption is made in the event of any defect in the assessment, or any proceedings to enforce or collect the same, upon the payment of the amount due to the holder of the certificate of sale.

No such proceedings were taken setting up the defect in question, nor to redeem the premises.

It is further contended, that the action of the comptroller should have been reviewed by certiorari, and that tins was never done.

Tt further appears that in the foreclosure proceedings in this court, while all parties interested in the premises were brought into court, by due process on them, none of them appeared to defend the action nor to' redeem the premises, and that the final decree in such proceeding was duly regarded by complainant as a deed, and no application has ever been made to reopen this decree^ and it cannot be opened except for fraud.

By section 36 of the act of 1918, page 892, the certificate of sale is made presumptive evidence in all courts in all proceedings by and against the purchaser, and the regularity and validity of all proceedings had in reference to the sale after two years from the record of such certificate of sale, and no evidence can be admitted in any court to rebut such presumption, unless the holder of the certificate has procured the same by fraud, or had previous knowledge that the same was fraudulently made and procured, and it appears that complainant’s certificate was duly recorded in the office of the register of Essex county on August 1st, 1920.

Furthermore, it appears that complainant’s' title to the premises in question has been expressly confirmed by a supplement to the Tax act, approved March 27th, 1924, by which, among other things, it is provided that when a collector or other officer in making a sale of lands shall fail to post notices of sale required by section 19 of the act, the sale having been otherwise duly advertised as required, and more than two years have elapsed since said sale, the tax sale certificate delivered to the purchaser having been * * * foreclosed * * * and the final decree having been made and entered in such foreclosure, such sale shall be held valid and effectual in law and equity against all the parties defendant named in the decree.

From this recital of the facts and the law applicable thereto, I do not find the answer of the defendant presents any valid reason justifying his refusal to perform the contract to- purchase the premises in question, and I will advise that the decree for specific performance prayed for be granted.


source: Caselaw Access Project

author: Buchanan, Y. C.

license: Public Domain

text:
    George H. Franklin, executor, &c., complainant, v. Eva Silvers et al., defendants.
    [Decided June 18th, 1924.]
    Wills — Construction—Income to Widow for Life and so much of Principal as She Might Need, With Power to Dispose of Balance by Will — Power Not Exercised — Balance Goes to Representatives of Testator.
    On final hearing.

      Mr. Aaron V. Dawes, for the complainant.

      Mr. W. Holt Apgar, for the defendants.
   Buchanan, Y. C.

Complainant’s bill is for interpretation of the will of his testator and determination of the right of several claimants.

The will gives the income to the widow for life, and so much of the principal as she might need, with certain legacies payable after her death and the power to dispose of the balance thereof by will. This was not exercised. The balance, therefore, goes, not to the widow’s legal representatives, but by intestacy to the representatives of testator.

The will directed the real estate to be converted into cash if and when the widow so desired. This was done. From and after such conversion the land was converted into' per sonalty, ihe proceeds of the sale. The balance passing by intestacy as above mentioned, goes therefore to testator’s next of kin, instead of his heirs-at-law.

A question was sought to be raised at the hearing as to a payment of $430 made by complainant to the widow. This, however, is res judicata, under the decree of the orphans court allowing and confirming the account, and is not open to collateral attack in this proceeding.

Allowances of $300 to complainant’s counsel and $100 to each of the three counsel for appearing defendants will be made, to be paid out of the fund, together with the costs of all parties. •


author: Walker, Chancellor.

text:
    Minnie Emmert, petitioner, v. John Emmert, defendant.
    [Decided July 3d, 1924.]
    On petition for nullity of marriage. On final hearing on master’s report and depositions ex parte.

      Mr. Isadore Bdbinowitz, for the petitioner.
   Walker, Chancellor.

The facts of this case as to marriage, age of petitioner and residence are, for the purpose of decision, so like those in Capasso v. Colonna, 1 N. J. Adv. R. 1159; 122 Atl. Rep. 358, that it is quite unnecessary to recite them here. The decision in that case, which was affirmed by the court of errors and appeals (S. C., 2 N. J. Adv. R. 985), is absolutely dispositive of the one at bar.

The petition in the present case must therefore be dismissed.


text:
    Nicholas A. Kaiser, petitioner, v. Mazie (May) Kaiser and Michael Gelsimine, defendants.
    [Submitted June 25th, 1924.
    Decided June 30th, 1924.]
    Divorce — Desertion and Adultery — Counter-claim of Desertion and Adultery — Evidence Examined — Decree for Complain- „ ant.
    On petition, &c.

      Mr. Matthew J. Reilly and Mr. Theodore G. Hinderlang, for the petitioner.
    - I/r. Douglas R. Todd and Mr. Merritt Lane, for the defendants.
   Foster, V. C.

Petitioner originally charged his wife with the offense of desertion, which, by her answer, she denied, and by her counter-claim she charged him with constructive' desertion, and also charged him' with adultery alleged to have been committed - with Caroline Burdick. Petitoner thereupon amended his petition, charging that the defendant had committed adultery with one Michael Gelsimine, during the months of October, November and December, 1922. Gelsimine, who intervened as a party to the.suit, filed an answer denying the petitioner’s charge of adultery, and Mrs. Kaiser filed an ansryer containing a similar denial.

The jurisdictional facts of the marriage and residence of the parties have been duly established. The parties separated on the 4th of September, 1921, and the clear preponderance of the proof establishes the truth of petitioner’s charge that his wife' deserted him on that date, and the petitioner’s further charge that Mrs. Kaiser committed adultery with the co-respondent, Michael Gelsimine, is further established to my satisfaction by a clear preponderance of the proof, which shows that they lived together at the home of Mr. and Mrs. Jackson, from about the middle of October, 1922, until December 7th, 1922, when, because of a quarrel between Mr. and Mrs. Jackson, she left the home, and no further proof is offered of the relations between Gelsimine and Mrs. Kaiser after that date.

Tt appears from the proofs that Mrs. Kaiser lived at the Jackson house under the name of Miss Jackson. That within a few days after taking up her residence with the Jacksons she bought a double bed from Kirch, and it further appears that shortly thereafter Gelsimine took up his -residence there, if not continuously, at least for a large portion of the two: and a half months above mentioned. There is some proof that during that period he also' kept up his residence with Mrs. Summers, with whom, apparently, he is now residing, and with whom, prior to- the fall of 1922, he had boarded or roomed. Gelsimine denies having lived at the Jackson home, but his denial is completely overcome by the testimony of witnesses that they-saw him there on several occasions when he seemed to be in control of the household, and quieted a noisy party that was held there on a Hallowe’en, and that he was seen by another resident in the apartment-house, in the house at late hours of the night, or early hours of the morning, attending to the furnace. It is also significant that while in 1923 he voted from Mrs. Summers’ residence, in 1 92.2, when he is said to have been living with Mrs. Kaiser, he voted from police headquarters in Maplewood, and no explanation whatever is offered to account for his failure to< vote from his alleged place of residence with Mrs. Summers.

Aside from the testimony of Gelsimine;, Mrs, Kaiser is without any corroboration on her charge of desertion, and aside from the testimony of a drunken police officer, who was under the command of Gelsimine, and the driver of a taxicab, there is not the slightest evidence to show any improper relation existing between petitioner and Mrs. Bnrdick. The testimony of the drunken officer and the taxicab driver is to the effect that at a party in petitioner’s home', or rather in the home of his brother, that petitioner, at a late hour of the night, or early in the morning, left; the company and retired ton room, presumably, a bedroom, with Mrs. Burdick, and was not seen again by these two men. This testimony is contradicted by a number of people who were present at the party,'and who testify that the officer Yogel was in such a. drunken condition that he became ill, and, apparently, was incapable of observing or understanding anything that took place at-the party. I find no proof of any kind that will satisfactorily establish any improper relations existing between the petitioner and Mrs. Burdick, and certainly none of adultery committed by them at the times charged in the counter-claim, or at any other time. I will therefore advise that the counterclaim for desertion and adultery bo dismissed, and that petitioner be granted a decree on the grounds of both desertion and adultery.


author: Leaming, V. C.

text:
    Thomas S. Coady and Alonza Cheeseman, liquidating trustees for the Coady & Cheeseman Company, a dissolved corporation, complainants, v. Luigi Ciccion, defendant.
    [Heard and determined June 23d, 1924.]
    Contracts — Reformation—Question of Sale of Lands — Evidence Examined and Decree for Complainants, Court Holding That Defendant Thereby Gets What He Bargained for.
    On bill, &c. On final hearing.

      Mr. Francis J. Smith and Mr. Charles A. Cogan, for the complainants.

      Mr. Charles W. Leizgus, for the defendant.
   Leaming, V. C.

(orally).

Gentlemen, since you wish my best judgment in this matter without being enlightened further by argument of counsel, 1 will tell you what my convictions are from the testimony in a very few words; the real issue is an issue of fact.

It is perfectly clear, and of it there can be no doubt in my mind, that it ivas the understanding of the complainants that they were simply selling these two houses with the two eighteen-foot lots on which they stood. There cannot be any doubt about that. Even Lugui, the defendant, by this time must be satisfied that that was their understanding, and if, in fact, they said anything that led him to a contrary view, it was because they were not comprehending the situation ; becaue it isn’t reasonable to suppose that they would come here for the sake of this forty-four feet, I think it is, in dispute, and swear that they understood they were selling only thirty-six feet, if, in fact, they understood they were selling sixty feet. I don’t believe anything of the kind, and I don’t believe even Lugui, in his most sanguine moments, thinks the complainants are not sincere in their testimony, that they understood they were selling only thirty-six feet. It may be that the defendant is sincere at this time in what appears to be bis present belief that at the time he made the bargain he thought he was buying sixty feet, but I don’t believe, and can’t believe, he thought so at that time; but he has read the agreement, and the agreement calls for sixty feet; he has thought that over many times; it is there in writing, clear and distinct, and it may well be that he believes at this time and has fully convinced himself that he thought he was buying sixty feet at that time.

Of course, there is some testimony that cannot be reconciled. Tie said that Mr. Coadv was down at his house to deliver the agreement which he already signed, and that Coadv read the agreement to him, and read it sixty feet that night. That may have happened, but it is a very unnatural and a very illogical thing to have happened. I can’t conceive that Luigi would go into Mr. Cogan’s office with these, other parties and execute this agreement in duplicate, or even without them, and go away without his copy. The other parties had already signed, or signed at the same time, and there was no occasion for his doing that, and Mr. Oogan is postitive that he did not. If he took that agreement away with him, or his copy, the circumstance he testified to, and that his wife corroborates, could not have occurred. There is another feature of the case which, to my mind, is even more important: here were two bungalows,, or rather a twin bungalow. located on a property bounded by a fence on either side — that is, fences equally distanct from the buildings. It is true the fence on the far side from the land owned by Luigi did not extend the full length of the lot, but it extended all the way from the rear of the lot out to a point opposite the rear part of the building, and the only reason it did not extend all the way to the street was because of anticipated building operations on the other lots, showing clearly it was intended by the complainants to utilize the other lots for building purposes, and that they were not selling those lots. How could they foreshorten that fence to make room for future building operations on the adjacent lot if they were selling the full sixty feet which would embrace the adjacent lots? So, it is admitted that the buildings which defendant purchased were fronting on Jersey avenue,_ with a fence on either side — the two fences being thirty-six feet apart — and, in addition to that, building opei*a,tions were in progress on the other lots — the lots now in controversy — which had extended to the excavation of cellars; so it seems incomprehensible that any person, however ignorant they may have been in their ability to read or write, or in their lack of education,'could have helped but discerned and known that in buying those twin bungalows the land that would naturally, appropriately and properly go with them would be the land between those two fences, and would not include the land beyond, which was already being excavated for. other buildings. I cannot see how Luigi could have thought for a moment he was buying any more land on the far side of the building than he was on the side of the buildings next to him, about six feet, I think it is, and the fence was about six feet on the other side, and that was a proper, reasonable and natural amount of land to go with those twin bungalows. It would have been most extraordinary to have sold two bungalows like those and include thirty feet on one side of the bungalows and six feet on the other. Of course, the additional twenty-four feet, now claimed by defendant, could have been utilized by him for building purposes, but that twenty-four feet would not appropriately go with the sale of those twin bungalows, and that is what the sale was; it was not in any sense a land purchase — it was a bungalow purchase. At first defendant only anticipated buying one of the bungalows, No. 820, and it wasn’t until he was persuaded it would he advantageous to him to buy the other bungalow that he concluded to buy that, so he wasn’t buying for a land speculation, with the idea of getting more ground so he could build other bungalows or sell land, but he was after the bungalows; he was first after one, and then agreed' to take two, and the thirty-six feet, eighteen feet for each bungalow, was a proper and reasonable amount of land to go with them, and it is impossible for me to believe that defendant had any other thought or purpose.

I think the truth is, as Mr. Oogan has testified, that he was the villian. He has made a blunder that was vastly against his own clients’ interests and very much in favor of: the interest of the other side, and it isn’t very much of a strain upon human nature for defendant to now want to take advantage of it, and, perhaps, convince themselves that, after all, that was their idea from the beginning. T doubt it. I doubt whether Luigi ever had any sixty feet thought in his mind as to the amount of land he was purchasing until after it was discovered that there was a mistake. Tt was a natural enough mistake for Mr. Cogan to make; he had already drawn the two building and loan association mortgages, each on one of the bungalows, eighteen feet of land for each, and if he hadn’t been dreaming of his future glories, and recalling some of his past victories, and mooning more or less, he would have drawn the agreement to cover the same land which if was intended to cover, but somehow or other his brain did not work normally, it got muddled, and he made what in common parlance was a “bull,” and, after getting the descriptions right in the mortgages, evidently copied the description in the agreement from, the old deed and called it sixty feet instead of thirty-six. It was an easy mistake to make if one was dreaming. The descriptions are identical in every other respect; the numbers of the lots are given, which are the house numbers, and every course and distance is the same in both descriptions, the one that is in the agreement and the one tho complainants say was intended, excepting that one course of sixty feet in width, so that the error is the word “sixty” instead of the word “thirty-six” occurring on the hack line and on the front line of the lot. It is impossible to contemplate Mr. Cogan’s conduct in drawing the two building and loan association mortgages specifically and accurately on the eighteen-foot lots and reciting in the agreement that the agreement covered the same property referred to in those mortgages, referring to the mortgages as “covering the same property above described,’’ without concluding that he, in his mnd, thought that,the property here described in this agreement was the property he had mortgaged, which was thirty-six feet. So, everything I find in the case, from one end to the other, indicates to my mind that all the parties to this agreement understood that what was being sold and what was being bought was two bungalow lots, each lot covering a bungalow with about six feet of land on either side, making eighteen-foot lots. I think, perhaps, it was four feet, someone testified that between the bungalows and side lines it was four feet instead of six, I think. However, that is immaterial. These tax bills are really of no importance, anyway. I wish we could judge titles by the conduct of tax assessors, it would save me a lot of work. As a matter of fact, they do get things right sometimes, but seldom. This is a case where they hadn’t gotten even where either side contend. For instance, in the tax bill of 1920, they have “bungalow property 30 x 120,” marked as “block' 114, lots 7 and 8,” and they have for tire same year another bungalow property “30 x 120, lots 8 and 9.” Now, that is imjiossible, they have got part of one bungalow in twice, but that is simply an error on the part of the tax collector that doesn’t amount to anything.

I am convinced there must be a decree in this case for complainants, reforming, this agreement by changing the word “sixty” to the word “’thirty-six.” I think Luigi will thus get what he really bought, what he bargained for. and what at the time he thought he was getting. I think that since then he has worked himself into- the belief that at that time he thought he was getting more, because his agreement reads that way. In fact, much of the testimony of Mr. Hambleton indicates pretty strongly in my mind that Luigi was not over-vigorous in his earlier assertions and impressions that he was entitled to- sixty feet; he has become more strengthened in that view as time has gone. Some of the testimony of - Mr. Cheesman touching his unrefuted accusations to Lugui that he was not playing fair in this deal indicates strongly that was true, and that in the earlier stages Luigi was not very persistent in his sixty-foot claim. I can understand when Mr. Letzgus saw the papers and heard Luigi’s story he was satisfied he had an impregnable case.

I will advise a decree reforming the agreement in accordance with the prayer of the bill.


author: Iygjírsoll, Y. C.

text:
    Henry Singer, petitioner, v. Bessie Feld Singer, defendant.
    [Determined June 25th, 1924.]
    On petition for divorce.

      Mr. William Charlton, for the petitioner.

      Mr. Joseph B. Pershie, for tlie defendant.
   Iygjírsoll, Y. C.

Without reciting the testimony, I am .convinced that the petitioner is entitled to a decree.


author: iNGERSOLL, Y. C.

text:
    A. Ashworth Taylor, complainant, v. John C. Hahle et ux., et al., defendants.
    [Determined June 25th, 1924.]
    Specific Performance — Decree Denied But Plaintiff Held Entitled to Recover for Work Done.
    On bill for specific performance. On final hearing.

      Messrs. Palmer & Poviell, for the complainant.

      Mr. George M. Hillman % for the defendants.
   iNGERSOLL, Y. C.

I am unable to advise a decree in favor of the complainant, lie has offered to pay for the houses in cash, and eliminate the question of whether the heaters installed by him were of sufficient capacity. The properties, however, are in the possession of others by virtue of agreements to purchase, made prior to the filing of the bill.

The complainant is eni itled, however, to payment for work done by him upon the property, and a reference will be made to a master for this purpose. Leave to amend, if found necessary, may be applied for.


author: INGERSOLL, V. C.

text:
    Ferdinand Thommessen, complainant, v. Absecon Land Company and John R. Stringer, defendants.
    [Determined June 25th, 1924.]
    On bill for specifice performance. On final hearing.

      Mr. John C. Reed, for the complainant.

      Messrs. Bourgeois & Coulomb, for the defendants.
   INGERSOLL, V. C.

I will advise a decree dismissing the bill. If necessary, I will write a memorandum.


author: Ingersoll, V. C.

text:
    Harry W. Brothers, complainant, v. Frank Spector, defendant.
    [Determined June 25th, 1924.]
    On bill for specifice performance. On final hearing.

      Mr. Morris Bloom, for the complainant.

      Mr. 8. Slang or Iszarcl, for the defendant. -
   Ingersoll, V. C.

It is unnecessary to write a memorandum.

The bill trill be dismissed.


text:
    Howard W. Hampton et al., complainants, v. Joseph I. Levy, defendant.
    [Determined June 26th, 1924.]
    On bill for relief. On order to show cause.

      Messrs. Bourgeois & Coulomb, for the complainants.

      Mr. Carlton Godfrey and Mr. William I. Garrison, for the defendant.
   Ingersoll, V. C.

The order to- show cause heretofore granted in this matter will be made absolute, upon the condition that Hampton execute and deliver to- Levy a bond in sufficient security condition for the payment of the amount due, o-r which may hereafter become due, by virtue of a lease made by said Levy and one Howard W. Hampton, the payment of which was guaranteed by Nicholas G. Hampton. Said bond to he approved as to its form and sufficiency by a special master of this court.


text:
    Margaret Workman, complainant, v. Ralwech Realty Corporation, defendant.
    [Submitted June 4th, 1924.
    Determined June 25th, 1924.]
    Deeds — Restrictions—Hotels or Apartment-Houses Prohibited— Question of Fact Regarding Use — Injunction Allowed.
    On bill for injunction. On final hearing.

      Messrs. Katzenbach & Hunt, for the complainant.

      Messrs. Gassman .é Golttieb, for the defendant.
   Ingersoll, V. C.

The complainant, being the owner of two contiguous lots of land on United States avenue, in Atlantic City, conveyed one lot to- one Thomas M. Davis, by deed dated February 10th, 1921. Said deed contained the following restriction:

‘‘Subject, however, tp the operation of any and all restrictions running to and with the said land prior to the date hereof and the restrictions agreed to by the parties hereto that no hotel or apartment-house shall be erected or placed on said land; provided, however, the above covenant against the erection or placing of an apartment-house on said lot of land shall not be constructed as prohibiting the use of the ground or basement floor of any building erected or placed on said lot of land from being used as an apartment for the use and occupation of one family; and further, that any building erected or placed upon said lot of ground shall be kept back from the building line running along United States avenue, in conformity with the restrictions formerly made and running with said lands.”

The Ealwech Realty Corporation, defendant, bolds title to the land conveyed to Davis through mesne conveyance from Davis. The deed to the realty corporation contains the clause “subject, however, to the restrictions contained in former deeds.”

After Davis purchased the lot, be caused to be removed thereto a building of considerable size, and to some extent remodeled it. After the purchase by the realty corporation, it made extensive alterations and repairs thereto.

The complainant is still the owner of the adjoining lot, and alleges that the defendants are permitting the premises to he used as a “hotel or apartment-house.” The defendants deny this charge. It is entirely- a question of fact. I am convinced that the building is being used as a hotel.

A decree will be advised in accordance with this finding.


text:
    Marie N. Watson, complainant, v. John B. Watson, defendant.
    [Heard and determined June 23d, 1924.]
    Divorce — Alimony—Complainant Gives Order to Terminate, Conditional on Facts Stated.
    On bill, &e.

      Mr. William 8. C. Boray,. for the complainant.

      Mr. Joseph H. Carr, for the defendant.
   Leaming, V. C.

(orally).

I think,' Mr Boray, that, under the circumstances, if defendant will drop Mary Kane out of his life entirely he is entitled to have his wife live with him and give him another trial. I will make the order conditional; I will malte an order that the alimony terminate providing he discontinues all social intercourse with Mary Kane of every kind, drops her out of his life, so she can be no source of trouble, and provding; of course, he supplies a home with means proportionate to his income that will clothe her and feed complainant ; and the order may provide that, in the event of it being made to appear at a subsequent time, upon complainant’s application, that defendant isn’t supplying a household with adequate funds for proper use;, proportionate with his income, or if she makes it appear he isn’t living up to his promise to absolutely isolate himself from Mary Kane, that the order may at that time be terminated and the alimony reinstated; in other words, the original order may be reinstated. In other words, it will be a termination of the aliinony order on condition that if she resumes cohabitation with him it shall be with the understanding that he eliminate Mary Kane from his life, and supplies her with what would be suitable support, according to his station in life.

Mr. Carr- — May I make this suggestion: If your hono-r is thicugh, I would like to- ask Mr. Koray, with the court’s permission, to- instruct his client when she is talking with her husband, and talking about this business of resuming their married life, he shall instruct his client to exclude this sister.

The Court — Yes, I think that is a matter of prudence, and I think Mr. Koray will do that. If you will prepare an order satisfactory to both counsel, embodying the suggestions 1 have stated, making it a conditional termination of the alimonj7" payments, I will advise it. She may not go back to him, then the almo-ny will not be resumed until further hearing; if she does go back it will be terminated on condition, and the order may be reinstated at any time she makes it appear he does not live up to his promises.

Mr. Koray — She must, under these conditions, return to him. is that the idea, that she shall return to him ?

The Court — If she doesn’t the order will he terminaled in any event, and if she does return to- him it may be reinstated if he doesn’t live up to his present promises. In other words, let us try out his good faith in the matter, see whether it is a good faith offer, or whether it isn’t.

Mr. Carr — It seems to me it is, but, of course, I am not gii'ted with sight into the future.


author: Buchanan, V. C.

text:
    Marian L. Richards, complainant, v. Thomas T. Richards, defendant.
    [Decided July 2d, 1924.]
    Divorce — Maintenance'—Abandonment and Non-support Admitted — Decree Entered.
    On final hearing.

      Mr. Paul O. Oliver, for the complainant.

      Mr. Richard Boardman, for the defendant.
   Buchanan, V. C.

The wife’s bill is for maintenance under the statute. At the hearing the defendant admitted the abandonment and non-support, and upon consent of the parties and their solicitors, in open court, decree is to be entered that defendant shall pay to complainant one hundred dollars ($100) per month on the first of each month, in advance, commencing July 1st, 1924; shall permit the complainant to occupy the residence and use the furniture therein (except the articles hereinafter mentioned) without prejudice to the respective claims of ownership in said furniture; shall pay the taxes-on said residence now due and hereafter imposed; shall pay the interest on the $4,000 mortgage thereon for the six months’ interest period, now, approximately, at an end, and shall pay complainant’s taxed costs, including counsel fee of $250. Complainant is to pay the mortgage interest in future, and is to permit' defendant to take from the house a hall clock, a chiffonier, a bookcase and books, a pair of andirons,-two large rugs and one small rug.


text:
    Amelia Franklin, complainant, v. Anna C. Creth et al., defendants.
    [Determined June 25th, 1924.]
    Deeds — Restrictions—Part Now Under Consideration no Part of a General Plan of Improvement — Purely a Personal Covenant.
    On bill to1 quiet title. On final hearing.

      Mr. William Elmer Brown, Jr., for the complainant.

      Mr. Joseph Beck Tyler, for the defendants.
   Ingersoll, V. C.

In 1906 the defendants, being the owners of certain lands and premises consisting of ten lots in Ocean City, conveyed one of said lots, lot No. 867, in section C, to one Sarah W. Liggett.

The said conveyance was made “subject to the restrictions of the Ocean City Association, and also the restriction that said lot hereby conveyed shall be used for no other purpose than a site for a private cottage costing not less than $4,000.”

The said land was conveyed by Sarah W. Liggett and husband to Katharine Kenderdine, and by her and her husband convened to complainant, in each of which deeds the restrictive covenant was recited.

The remainder of said ten lots have been conveyed by the defendants to various grantees. In none of these conveyances was the clause concerning the use “for no other purpose than a site for a private cottage costing not less than $4,000” included.

The prayer of the bill is: “That it be decreed that the restrictive covenant quoted in the bill be declared to have no force or effect, invalid arid unenforceable as against complainant’s land, and that the same is clear and free from the operation thereof, and that complainant have such other remedy as may be agreeable to equity.”

No attempt is made to consider the clause of the restriction “subject to the restrictions of the Ocean City Association.”

There can be no doubt that that portion .of the restriction now under consideration is not part of a general plan of improvement, and, therefore, a subsequent grantee of an adjoining lot is not entitled to> enforce it. Haines v. Einwachter, 55 Atl. Rep. 38.

There can likewise be m> doubt that the clause is a purely personal covenant, and the defendants having divested themselves of all the remaining land, have no further right to enforce the same.

Finding that the defendants have no right to enforce the covenant in question, I will advise a decree in accordance with this view.


text:
    Reliable Cloak Company, complainant, v. Clara Sorbella, Clementina Sorbella, Rose Sorbella et al., defendants.
    [Determined June 20th, 1924.]
    Strikes — Injunction—Attachment for Contempt — Order in Case of Some Defendants, Dismissals in that of Others.
    On bill for injunction. On order to show cause in contempt.

      Messrs. Cole & Cole, for the complainant.

      Mr. Walter S. Keown, for the defendants.
   Ingersoll, V. C.

On August 6th, 1923, the complainant filed an affidavit, upon which an order to show cause was granted. This order was returnable on August 14th, 1923.

An affidavit was filed proving service on Hyman Adler, Caroline Waif, Henry Myers, Lewis Morellia, Marie Watson, Clara Sorbella, Rose Sorbella, Morris Domsky, Lillian Boody and Morris Emidor.

At the hearing affidavits were filed by the defendants, and the ease was held under advisement, the restraint continuing in force.

On the 30th day of August, 1923, an order was granted that Clara Sorbella, Clementina Sorbella, Marie Watson and Henry Myers show cause why they should not be attached in contempt for alleged violation of the order to show cause, dated August 6th, 1923.

This was heard on the return day, a considerable volume of testimony taken, and was also> held under advisement.

While the matters were under consideration, another petition and affidavits were presented on November 24th, 1923, upon which an order was made directing Clara Sorbella, Clementina Sorbella,, Rose Sorbella, Marie Watson, Emma Newton, Josephine Penine, Marie DeLuca, Anna Grossman, Frances Yedesta, Henry Myers, Francis Yiditskv, Lillian Boody, Elizabeth Flannigan and Evelyn Ohristofon show cause why they should not be attached for contempt for violating said original order to show cause. This was heard on December 11th, 1923.

Under the circumstances, I deemed it advisable to procure a transcript of all the testimony. The securing of the transcript and the consideration thereof has consumed much time.

The original affidavits filed by the complainants presented sufficient facts to authorize the issuance of the restraint. The voluminous affidavits presented by the defendants are denials of the charges of the complainant. The only question in my mind at the time of the hearing was whether, upon an examination of the affidavits presented by the defendants, the court could accept them at their face value. They Avere too strong. In fact, so strong that they shoAved evidence, in some instances, at least, of untruthfulness. I am compelled to find that the affidavits of the complainants are more than sufficient to carry the burden of proof necessary.

It should here be said that my findings are based upon the affidavits as presented, but the testimony presented by the defendants, in ansAver to the remaining orders to show cause, confirm these findings of facts.

These proceedings in contempt being ^«wi-criminal, I am compelled to find that the complainants have not produced sufficient testimony for me to convict the parties named in the order to show cause, dated August 30th, 1923, and they are therefore discharged in SO' far as that order is concerned.

The testimony produced at the hearing of the last order . to shoAV cause is convincing, that the greater, if not the entire, responsibility of the occurrences since the original order to show cause is upon the heads of several persons who are volunteers (although paid by someone interested in the conduct of the strike). Henry Myers and Marie Watson, who were not original strikers, and who never had Avorked at the plant according to their testimony, although one of the members of the firm testified that Marie Watson liad worked a short time (a day or so) for them, are in this class.

Carolyne Wolfe may, perhaps, also be placed in this same category. She states that her interest in the matter is purely humane; that she is remunerated for her actual expenses.

T do not find the attack alleged to have been made by Clara Sorbella and Rose Sorbella sufficiently connected with the individuals as strikers, and they are discharged.

There can be no question but that Marie Watson, Emma NeAvton, Francis "Viditsky and Henry Myers had full knowledge and notice of the original restraint.

I have eliminated the question of the throwing of a brick by Elizabeth Flannigan, and of a piece of concrete by Francis Yiditsky. These acts, although inexcusable, were, apparently, provoked by the attempt of some person or persons to obtain their photographs.

Marie Watson, as one witness expressed herself, is “the figure,” another said “Mario Watson is the one always picking on me. She call me names. She is down there first oiie in the morning. * * “Always hollering at me, you dirty scab, lousy scab. Ought to be ashamed to> work in the dirty place — bastards. Skunk of the--.” Especially Mario Watson, she hollers and screams at the top of her voice. You can hear her a block away * * Another witness testified, “Marie Watson, she said, 'You will get another black eye if you don’t stay out of that place, you dirty, striking, rotten scab.’ ”

The testimony concerning Emma Newton is hut little less effective than that about Marie Watson. I am not impressed with her denial of the charges made against her.

Henry Myers, although, apparently, one of the present leaders of the strike, has in all instances, except that concerning the assault by the Sorb elks, refrained from any act which could be taken to be a violation of the restraint. Having found those who were charged with the assault not guilty of a violation of the restrainst in that matter, Myers must he discharged. The result is that the restraint will be made permanent; that Marie ‘Watson and Emma Newton will be found guiltv of contempt, and flic other defendants be discharged.


text:
    Ella Barlow, petitioner, v. Isaac Barlow, Jr., defendant.
    [Decided July 2d, 1924.]
    Divorce — Adultery—Bed and Board — Counter-claim—Both Dismissed.
    On final hearing.

      Mr. Bemson Gowenhoven, for the petitioner.

      Mr. Adrian 8. Appelget, for the defendant.
   Buchanan, V. C.

The wife’s petition is for divorce from bed and board on the ground of adultery. The husband counter-claims a vinculo, on the ground of adultery, and by another count on the ground of constructive desertion. The husband’s proofs are utterly insufficient, and the counter-claim will be dismissed.

As to the wife petition, I have grave suspicion that the husband may be guilty. As stated at the hearing, however, the proofs are, to my mind, insufficient to warrant the granting of decree, especially in view of the fact that from the length of time and the recklessness with which his relations with the co-respondent were carried on, there should have been no difficulty in presenting adequate proofs of his guilt.

Costs wül be' awarded against defendant.


author: Backes, V. C.

text:
    Herbert H. Smith, complainant, v. Central Lumber Company, a corporation, defendant.
    [Decided July 1st, 1924.]
    Sale of Goods — Credit on Certain Conditions — Allegation of Violation — Arrest—Facts Disputed — Equitable Interference Not Justified.
    On motion to strike bill.

      Messrs. Slamler, Stamler <& Koesller, for the motion.

      Mr. James T. Mylod, for the complainant.
   Backes, V. C.

This is a motion to- strike the hill. The case made bv the bill is: That prior to October 22d, 1923, the PI. H. Smith Building Corporation, of which the complainant was president, purchased lumber from the defendant on credit, for which indebtedness the company and the complainant, respectively, had given promissory notes payable in New York; on the date mentioned a note of $400 made by the complainant, and five notes aggregating $4,062.11 made by the company, fell due and were not paid; on the due da}r the complainant was lured into. New Jersey and arrested on a capias in an action brought in the Union county circuit court by the defendant against him to recover $10,187 upon a complaint which charges that the complainant gave the defendant notes as evidence of the debt; that he had renewed the notes on the promise "that he would continue in business and pay the same from time to time;” that there was due on overdue notes $4,300, and that the remaining notes, which had not matured, were also due, "for the reason that the extension of time for payment as evidenced by said notes were obtained by the fraudulent representation of the defendant that he would continue in business in the regular way,” and that complainant had, with intent to defraud his creditors, disposed of his assets and business in bulk without giving notice to the creditors of the sale as required by statute. The complainant filed an answer denying that there was any money due, to which the defendánt filed a reply, reiterating the allegations of his complaint. The bill then alleges that the allegations of the complaint at law are not true; “that the complainant did not individually purchase any lumber from the said defendant, and did not give any promissory notes merely as evidence of any such indebtedness [but in payment of any indebtedness of H. H. Smith Building Company], and did not promise to continue in business, and did not represent to the defendant that -he would continue in business, and has not disposed of his business and assets with 'intent to defraud his creditors;” that the defendant did not offer to surrender the promissory notes, “and have not offered, or attempted to rescind, the contract arising out of the making and delivery of said notes to the defendant corporation;” that Herman Jacobsen, the president of the defendant company, in conspiracy with others, lured the complainant into the state,’and “that the defendant ought to be enjoined from pleading at law that there was any promise or representation made by him before said promissory notes were given that he would continue in business, for the reason that the defendant has not rescinded, or offered to rescind, the contract made by the delivery of the said notes, and has not surrendered the said notes to the complainant,” The prayer of the bill is that the defendants be perpetually enjoined from prosecuting his action at law.

The bill presents no ground for equitable interference. I£ the complainant does not owe the debt, or if he is indebted, and some of the debt was not due at the time the suit was brought, because he did not make the alleged promise to continue in business, or if he at one time was indebted, and the defendant took the corporation notes in satisfaction — not as evidence — (a novation), or if the defendant is barred from suing at law until it rescinds the substituted contract represented by the notes, and returns the notes, are all matters triable in law, not in equity.

The bill will be dismissed.


text:
    Henry Metzger, trustee, complainant, v. William Metzger et al., defendants.
    [Determined June 23d, 1924.]
    Wills — Construction—Execution of Trust .Requiring an Estate in Lands or Power of Sale, Executor Will Take Necessary Power.
    On bill for construction of will.

      Messrs. BoUe, Sooy & Gill, for the complainant.

      Mr. Clarence E. Knauer, for the defendants.
   Ingersoll, V. C.

This is on hill for construction of will of Reinhardt Metzger, who died July 13th, 1905. The will was filed for probate in Philadelphia, Pennsylvania, on July 19th, 1905. An exemplified copy thereof was filed in the office of the surrogate of Gloucester county, on February 9th, 1923.

The prayer is for the construction of the following clause:

“I give, devise and bequeath the one full equal one seventh interest, part or share thereof unto my said sons, Henry Metzger and William Metzger and the survivor of them in trust nevertheless for the following uses and purposes to invest the same in real estate or in good and safe securities as my said Trustee may deem wise and proper, and to pay the net income realized therefrom simi-annually unto my said daughter, Mary I-Iarrer [intermarried with Anthony Harrer] for and during the term of her natural life and at her death. I give, devise and 'bequeath the principal sum so held in trust unto' her lawful issue absolutely and forever. In case my said daughter, Mary, shall leave no lawful issue, then in that event, I order and direct said principal sum shall revert to and become a part of my residuary estate.”

The clause is repeated several times, with change of name of beneficiaries.

. A consideration of the entire will is necessary in the consideration of the present inquiry.

After directing tire pajonent of his debts and the burial of his body, and the disposition of his jewelry and household goods, and the payment monthly of a small sum to a beneficiary, items sixth, seventh and eighth of said will reads as follows:

“Item Sixth. I order and direct that my said Executors to sell and dispose of and convey into money all my personal property not hereinbefore disposed of, within one year after my decease, and the money so realized therefrom together with all money I may have on deposit or otherwise, as well as such money as shall be paid to my estate on account of my Life Insurance policies after first however deducting therefrom all costs and expenses incurred in settling up the affairs of my estate and otherwise, and also deducting therefrom such sum of money as my said wife, Mary Metzger, may need if any. to enable her to maintain and keep m.v home open, if she shall desire to so do, my said wife herself shall name the amount which in her judgment she shall require-and her action therein shall be. final.
“And the balance so remaining after making the deductions as aforesaid, I dispose of in +he following manner, that is to say: I give, devise and bequeath the same in equal shares, share and share alike, unto by seven children to wit: — Mary Harrer [intermarried with Anthony Harrer] Emma I-Iaenel [intermarried with Harry Haenel I Othillie Troutwein [intermarried with Frederick Troutwein] Louisa Koch [intermarried with Otto Ivocli] William Metzger Henry Metzger, and Howard Metzger absolutely and forever.
“In case any of my said children shall not then be living, but shall leave lawful issue him, her of them surviving, then in that event, such lawful issue shall take and receive such share which his, her or their parent would have taken if living. If such deceased child shall leave no lawful issue him, her or them surviving then in that event I order and direct that such share shall revert to and become a part of my estate.
“item Seventh. All the rest, residue and remainder of my estate, real, personal and mixed whatsoever and wheresoever the same may be at the time of my decease and to which I may ,be entitled, not hereinbefore disposed of, I give, devise and bequeath the same unto my two sons, the said William Metzger and Henry Metzger and the survivor of them in trust nevertheless for the following uses and purposes that is to say:
“To collect, receive and receipt for all rents, issues and profits issuing thereout and therefrom: to keep my real estate in good and tenantable condiiion: to pay all tastes, water rent and repairs and other jn-oper charges that may be assessed or levied against the same.
“And all the net income, rents and profits so collected and received as afforesaid I order and direct the same be paid over quarterly unto my said wife, Mary Metzger, for and during the term of natural life.
“Item Eighth. And from and after the death of my said wife, Mary Metzger, I order and direct that my said Trust Estate shall continue to be held in trust as aforesaid for a further period of ten years and at the expiration of said term of ten years said trust shall cease, terminate and end.
“All the net income, rents and profits received and collected therefrom I order and direct that the same be paid over at the end of each year in equal shares, share and share alike unto my said seven children hereinbefore named.
“In case any of my said children shall not be living at the time when said yearly payment or any of them shall be made but shall leave lawful issue them surviving such lawful issue shall take and receive the share which his, her or their parent would have taken if living. In case such decease child shall leave no issue him, her or them surviving in that event such share shall revert to and become part of my residuary estate as aforesaid.”

Item ninth, in part, is as follows:

“And from and immediately upon the expiration of said term of ten years I order and direct that my said Estate so held in trust as aforesaid shall be finally wound up and divided into seven equal parts or shares which I dispose of in the following manner, that is to say:
“I give, devise and bequeath the one full equal one seventh interest, part or share thereof unto my said son, William Metzger, his heirs and assigns in fee absolutely and forever.
“I give, devise and bequeath the one full equal one seventh interest, part or share thereof unto my son, Henry Metzger, his heirs and assigns in fee absolutely and forever.
“I give, devise and bequeath the one full equal one seventli interest, part or share thereof unto my said son, Howard Metzger, his heirs and assigns in fee absolutely and forever.”

Then follows the clause we rto asked to construe, and its repetition.

William Metzger, one of the trustees named in the will, has resigned, and the complainant, Henry Metzger, is the sole acting trustee.

Mary Metzger, the widow of the decedent, died November 5th, 1912.

At the time of his death the decedent was seized of certain real estate in New Jersey, the title of which is still in the trustee.

Mr. Justice Depue, speaking for the court of errors and appeals in Lindley v. O’Reilly, 50 N. J. Law 636:

“Where a testator, in the disposition of his estate, imposes on his executor a trust to be executed or duties to be performed, which require for their execution or performance an estate in his lands or a power of sale, the executor will take bjr implication such an estate or power as will enable him to execute the trusts or perform the duties devolved upon him. This case is followed by Vice-Chancellor Reed in Cook v. Cook, 47 Atl. Rep. 732, and cites Haggerty v. Lanterman, 30 N. J. Eq. 37.
The court of errors and appeals in Chandler v. Thompson, 62 N. J. Eq. 723 (on p. 726), quoted Haggerty v. Lanterman, supra, “that if a testator, having a right to dispose of his real estate, directs that to be done by his executor, which necessarily implies that the estate is first to be sold, a power is given by this implication to the executor to make such sale and execute the requisite deeds of conveyance,” and stated “this I understand to be in harmony with the. rule adopted in other jurisdictions, 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.”

In Chandler v. Thompson, supra, the power of sale was denied, but for reasons mot existing in the present case.

Girard Trust Co. v. Cheeseman, 115 Atl. Rep. 745, also follows the same reasoning.

A decree will be advised declarative of the powers of the trustee to sell the real estate for purposes of distribution or investment of the proceeds.


text:
    The Mechanics National Bank of Trenton, a banking corporation, complainant, v. Michael Fedorko et al., defendants.
    [Decided June 19th, 1924.]
    Messrs. Perlman & Berner, for the complainant.

      Mr. William Reach, for the defendants.
   Buchanan, V. C.

I am advised by counsel that settlement of the above-named case has been reached -out of court.


text:
    Thomas Quinn et ux., complainants, v. Stirling Home Builders, Inc., &c., defendants.
    [Decided June 19th, 1924.]

      Messrs. McDonagle ,& McDonagle, for the complainants.

      Messrs. Codington & Blatz, for the defendants.
   Buchanan, V. C.

I am advised by counsel that settlement of the above-named case has been reached out of court.


text:
    Louise H. Humphries, complainant, v. William S. Humphries, defendant.
    [Decided June 27th, 1924.]
    On final hearing.

      Mr. Sylvester O. Smith, Jr., for the complainant.

      Mr. Frank IF. Long, for the defendant.
   Buchanan, V. C.

Complainant’s bill is for maintenance, under the statute, for herself' and two minor children of the marriage — a boy of sixteen and a girl of thirteen. A careful consideration of the evidence leads me to the conclusion that she is entitled to decree, and that the amount, under all the present circumstances, should be fixed at eleven dollars ($11) per week.

Costs will be awarded, including a counsel fee of one hundred dollars ($100).


author: Pek CrETAAf.

text:
    MORRIS L. RUBIN, PLAINTIFF-APPELLEE, v. EDWARD BLAU, INCORPORATED, DEFENDANT-APPELLANT.
    Decided June 25, 1924.
    Workmen’s Compensation — Question of Fact Which Court Should Leave to Jury — Court’s Instructions Substantially Correct.
    On appeal from (he East Orange District Court.
    Before Justices Iyalisch and Katzenbach.
    For the appellant, Stein, Stein & Hannoch (Herbert J. Hannoch, of counsel).
    For the appellee, lining Weinstein (-Jerome Heyman, of counsel).
   Pek CrETAAf.

This is an appeal from a judgment of the East Orange Distret Court given on a verdict of a jury in favor of the plaintiff and against the defendant for $311.

There are only two ground of appeal presented and argued in the appellant’s counsel’s brief.

The first is that the trial judge erred in Ms charge to the jury that if the jury should find for the plaintiff it should assess his damages at forty per cent, of $840, which is $311.

To support this contention it is argued that the.' scale of plaintiff’s compensation was a disputed question of fact which the court should have left to the jury, instead of requiring the jury to find for the plaintiff in the full amount claimed.

A reference to the charge discloses that there is no substantial foundation for he appellant’s contention.

The trial judge instructed the jury as follows:

“If you find as a matter of fact,, by a preponderance of the evidence, that the plaintiff did have such an agreement as testified to by himself and Mr. Biton and Mr. Strauss with the defendant corporation, or its duly authorized representatives or agents, under the terms of which he was to receive forty per cent, of the commissions received by the corporation upon procuring of either the seller or tire purchaser, or, in this case, the lessee or lessor, and that he did procure, or was procuring, cause of the lessor’s entering into the arrangement with the lessee, then your verdict shall be for the plaintiff. It is incumbent upon the plaintiff to make out this case by a preponderance of the evidence, and that is as outlined before. And if you don’t find by a preponderance of the evidence as above outlined your verdict shall be for the defendant. If you find for the plaintiff you shall assess his damages at forty per cent, of $840, which is $311.”

Mathematically this is incorrect, but as $25 had been credited on account, the amount stated was right.

It is to be observed that an exception was taken to the latter part of the court’s charge, arid to consider such detached portion of the charge, without heeding to what was said in its natural connection immediately preceding, would be not only contrary to all well-established legal precedents, but eminently unfair and unjust.

It is therefore quite obvious that under the instruction given by the court the dispute as to the sale of plaintiff’s compensation was left to the jury for determination.

A plain reading of the testimony demonstrates the accuracy of what the court said on the subject. The plaintiff and two witnesses testified that the contract between the defendant and the salesman was that if a salesman brought in either tenant or landlord he would be entitled to forty per cent, of the commission that the defendant received. The defendant’s witnesses testified that only ten per cent, would go to ilie salesman in that event. Because the court did not charge that if the jury believed the defendant and its witnesses as to the scale of compensation, the plaintiff’s damages should he assessed at ten per cent, instead of forty per cent.; that, therefore, the jury was deprived of passing upon a proposition essential to defendant’s defense. The complete answer to this contention is that the defendant’s counsel made no request to this court so to charge.

It is no longer a debatable question in this state that, unless there is a request to charge upon a particular point, error is not assignable, because the trial judge may have omitted to charge on that point. The omission to state any legal proinciple which my be pertinent or applicable to the case affords in itself no ground for reversal. Leiferant v. Progressive Agency, Inc., 120 Atl. Rep. 26.

The second and only other reason urged for a reversal is based on the refusal of the trial judge to charge: “There was no consideration for the promise made by either Leslie or Edward Blau [if any such promises was made] to pay commissions that might accrue in the future on deals in which Bubin had worked. Hence, no recovery for the plaintiff can be based on that promise.”

We think this request was properly refused.

It appears from the testimony that at the request of the defendant corporation the plaintiff having entered into an agreement for forty per cent, commission, turned in the leads and acquainted the defendant with the negotiations for the leasing of the property in question to the Cornell cafeteria. It may very well be that he could have turned over this matter to some other real estate company if he had chosen to do so, but that fact does not detract from the transaction the element of consideration to support the plaintiff’s claim.

We have reached the conclusion that there was proof of ample consideration to support the agreement for the payment of commissions.

Judgment is affirmed, with costs.


author: Per Curiam.

text:
    JOHN T. MURRAY, ADMINISTRATOR, ETC., PLAINTIFF, v. ALFRED H. PUERSCHNER AND JAMES BIRTWHISTLE, DEFENDANTS.
    Argued May 8, 1924
    Decided June 25, 1924.
    Negligence — Death Act — Verdict Contrary to Evidence — Rule Made Absolute.
    Before Justices Kalisci-i, Black ana Campbell.
    For the plaintiff, William E. Sewell.

    For the defendants, James Birtwhistle, Comgleton, Stall-man & Hoover and Charles W. Weelcs.

   Per Curiam.

This suit was brought to recover damages under the Death act. The trial resulted in a verdict of $3,000 in favor of the plaintiff. The defendant James Birtwhistle obtained a rule to show cause, and writes down eleven reasons for a new trial. The view that we take of the case, it is only necessary to consider the first reason, viz., the verdict of the jury is contrary to the weight of the evidence. It seems quite unnecessary to state'the evidence in detail. Our reading of the record leads us to the conclusion that so far as the defendant James Birtwhistle is concerned, the verdict against him is clearly against the weight of the evidence, and the rule to show cause will be made absolute.


text:
    FRED E. JAYSON, PETITIONER, DEFENDANT, v. THE PENNSYLVANIA RAILROAD COMPANY, PLAINTIFF IN CERTIORARI.
    Argued May term, 1924
    Decided June 25, 1924.
    Workmen’s Compensation — Interstate and Intrastate Commerce Employment.
    Before Justices Kaltsch, Black and Campbell.
    Eor the prosecutor, Well, Haight, Carey & ITartpence.

    Por the defendant, Press & Press.

   Per Curiam.

This is a workmen’s compensation case. The certiorari was allowed to review a judgment of the Essex County Court of Common Pleas, which revised a judgment of the Workmen’s Compensation Bureau. The Court of Common Pleas held, the petitioner had made a case within the provisions of the state statute. The petitioner on- May 23d, 1923, at the time of the accident, was employed by the defendant in repairing an empty freight car, which stood on No. 38 track at the Meadow shops of the defendant at Kearney, New Jersey. The testimony shows that cars engaged in both state and intrastate commerce are repaired at that shop. Judge Kannagan, sitting in the Court of Common Pleas, held, the case was controlled by Herzog v. Hines, 112 Atl. Rep. 315, followed Price v. Central Railroad Co., 2 N. J. Adv. R. 492; Carberry v. Delaware, &c., Railroad Co., 108 Atl. Rep. 364. With this review we concur. The judgment of the Essex County Court of Common Pleas is affirmed, with costs.


text:
    ALBERT C. D’ALOIA ET AL., RELATORS, v. CIVIL SERVICE COMMISSION OF NEW JERSEY, DEFENDANT.
    Argued May 7, 1924
    Decided June 25, 1924.
    Civil Service — True Construction of L. 1908, p. 235, § 26.
    For writ of mandamus.

    Before Justices Kalisch, Black and Campbell.
    For the relators, Ernest L. Quacicenbush.

    For the defendant, Edward L. Katzenbach, attorney-general of New Jersey.
   Per Curiam.

A rule was granted in this case why a peremptory or alternative writ of mandamus should not issue out of the court, directed to- the civil service commission of New Jersey. The point involved is the true construction of a section of the Civil Service act (Pamph. L. 1908, p. 235. ¶ 26), and a supplement thereto (Pamph. L. 1918, p. 158), a salary regulation which is known as the classification and standardization plan. This statute is of state-wide application and of general public interest. We think the alternative writ should issue, and it is so ordered.


text:
    CHARLES M. STEPHENS, PROSECUTOR, v. CIVIL SERVICE COMMISSION OF NEW JERSEY ET AL., DEFENDANTS.
    Argued May 6, 1924
    Decided June 25, 1924.
    Civil Service — Army Field Clerk — Within Scope of Act of 1920 Relating to Honorably Discharged Soldiers.
    On certiorari.

    Before Justices Kalisch, Black and Campbell.
    Eor the prosecutor, Ernest L. Quaclienbush.

    Eor the civil service commission, Edward 8. Katzenbach, attorney-general.
    Eor the defendant, Carl W. Dairies, Randal B. Lewis and Philip Forman.

   Per Curiam.

A certiorari in this case was allowed to review an order of the civil service commission, dated January 11th, 1924, relating to the certification of Carl "W. Daines, for appointment as chief probation officer of the county of Bergen.

The proofs show that Carl W. Daines served in the army of the United States from May 28th, 1918, until September 2d, 1919, inclusive, in the capacity of an “army field clerk.” The point involved is whether such service and discharge brings him within the scope of the act (Pamph. L 1920, p. 540), as being “an honorable discharged soldier.” We think it does.

The writ of certiorari is dismissed, with costs.


text:
    HERMAN M. STOCKFISH ET AL., RELATORS, v. WILLIAM C. SCHWEIGERT ET AL., DEFENDANTS.
    Argued May 7, 1924
    Decided June 25, 1924.
    Mandamus — To District Court — To Direct Entrance of Verdict in Favor of Plaintiff — Application Denied.
    On mandamus.

    Before Justices Kalisch, Black and Campbell.
    For the relators, George J. McEwan.

    For the defendants, J. Raymond Tiffany.

   Per Curiam.

This is an application for a peremptory writ of mandamus commanding and enjoining Hon. Charles J. Carrick, judge of the First District Court of Jersey City, to enter judgment for possession in favor of the plaintiffs and against the defendants for the garage at Nos. 130 and '132 Charles street, Jersey City, New Jersey. The First District Court permitted the tenants, the defendants, to pay into' court after the return day of the summons, the rent, which became due on-November 1st, 1923, and dismissed the action. It is elementary learning that an act of mandamus never lies to review a decision of a lower court simply because it is a wrong decision; as was said by Chief Justice Kirkpatrick, in the case of Squier v. Gale, 6 N. J. L. 158, a mandamus will lie to an inferior court to command them to proceed to judgment, yet it will not lie to command them to proceed to« any particular judgment. The case of Zweig v. Tiffany, 111 Atl. Rep. 263, is not in point.

The application for a mandamus is denied, with costs.


text:
    Docket 51-588.
    James C. Manning et al., complainants, v. Home Building and Supply Company et al., defendants. James C. Manning et al., complainants, v. Home Building and Supply Company et al., defendants.
    Docket 51-73.
    [Decided July 11th, 1924.]
    Title to Land — Foreclosure—Sale Not in All Respects Same as Mortgaged Land — Reformation of Deed — Issuance of Alias Writ — Benefit of Perfected Title to Subsequent Purchasers.

      Mr. J. Edward Ashmead and Mr. William R. Codington, for the complainants.

      Mr. Winfield, S. Angleman, for the Home Building and Supply Company, defendant.
   Foster, V. C.

(orally).

Í may as well dispose of this case now. If either of you desire to appeal, T will file a formal memorandum, but I hare the situation in mind now better than I will have a month hence, if I wait for briefs to be filed.

It appears that in 1908 James C. Manning, one of the complainants in these causes, was the owner of property in the town of Westfield, county of Union, which he conyeyed about the 15th of May of that year to the Home Building and Supply Company, the defendant corporation in these causes; that he took back for part of the purchase price a mortgage for $16,000, and, that he held the mortgage for some time, and that before he made the transfer of the property to the Home Building and Supply Company he had laid out the property by one map, which apparently never was put in use. Subsequently, about 1907 or 1908, he revised that map, and it has been designated and referred to throughout the pleadings as the revised map.

About the time of the conveyance of the property to the Home Bulding and Supply Company, another map of the premises was prepared, which was designated or referred to-throughout the cases as the perfected revised map; In the course of years the Home Building and Supply Company defaulted in the payment of interest, so- that Mr. Manning was entitled to foreclose, and did foreclose. The record of that foreclosure proceeding has been offered on behalf of the complainants here, and offered at the court’s suggestion. I haven’t the papers before me to know when the hill of foreclosure was filed, but counsel agree that the sale of the premises by the sheriff occurred some time about 1915. In the bill to forclose that mortgage, the mortgaged premises are described. It is stated therein that certain parts of the mortgaged premises were duly released according to¡ the terms of the mortgage, from the date of the conveyance up to the date of the filing of the bill, and they are excepted from the foreclosure by express reference thereto', and by further express reference to the fact that such releases of mortgage are recorded in the office of the clerk of Union county.

The foreclosure proceedings were uncontested by any of the defendants; decrees pro confesso were duly entered, and a writ of fi. fa,, was duly issued. In the decree, as counsel have called it to my attention, it directs the sale of the mortgaged premises, to satisfy the amount of about $9,000, due to' Mr. Manning, the complainant therein.

In the course of the hearing I stated that T understand the reference in the decree to the mortgaged premises to mean or to refer to all of the mortgaged property that had not been released by complainant, and I would say that this is so, whether the releases refer to the perfected revised map or the revised map. No intervening interest of an innocent party has appeared in the case.

By the terms of the writ, the language of the decree is not followed, nor were the terms of the allegations of the bill of complaint followed, but a reference is made in the writ to the revised map, and this reference is the cause of and has produced this litigation.

The sale and conveyance to Mr. Manning by the sheriff occurred some time in the year 1915. Subsequently, it was discovered that the sheriff’s deed, given in pursuance of the sale and in'the performance of his duty under the writ, did not conform in the description to the mortgaged premises as described in the bill of complaint, nor did it convey the property which Mr. Manning held as security under his mortgage after the released premises had been deducted therefrom.

As a result of this discovery, Messrs. Codington & Blata, on the 19th of December, 1921, concluded that, in order to get the title to the mortgaged premises, the decree had directed to be sold, into Mr. Manning or into the name of his grantee, Miss Adams, cleared up, the proper procedure was to file a bill of strict foreclosure against the omitted and unsold portion of the mortgaged premises, if there were any, as admittedly there was. ' That proceeding went along until one of my motion days, a year or two ago, wli.cn objection was made to the bill, and I then intimated, apparently, not only on that day, but on a subsequent motion day, when the matter again came before me, tha-t I thought Mr. Manning was without any right to file a bill of strict foreclosure, and suggested that he had better take some other proceeding to get the relief he thought he was entitled to; acting upon that suggestion, or acting independently of it, Messrs. Lindabury, Depue & Ea,ulk& were consulted and a new bill was filed, without the old bill for strict foreclosure having been dismissed, or the action thereon discontinued. Mr. Angleman, representing some of the directors and stockholders of the EDome Building and Supply Company, answered in both suits, disputing the right of any or all of the complainants to the relief they seek. Both suits have now gone to final hearing, and no evidence has been offered in support of the bill for strict foreclosure, and I shall advise that it be dismissed, as I find no right in the complainants to maintain any such bill, in view of the facts set out in the pleadings in the second suit, and such facts as are offered in evidence on this present hearing.

I am not clear when it happened, but by the governor’s proclamation the defendant EDome Building and Supply Company has had its charter forfeited, and it is now appearing by two of its stockholders and directors, who are acting, more or less, in the capacity of liquidators. The other defendant, Mr. William H. Abbott, was a stockholder and also a director of this defunct corporation. Complainants, this morning, at the opening of the hearing of both of these causes, asked leave to amend the -bill of complaint, by adding as a party complainant the Bkitish-American Investment Company, which is a corporation organized and controlled by Ada Abbott, one of the complainants, and, notwithstanding the objection of Mr. Angleman, I have allowed the amendment to be made. I am making it on the express condition that it actually be made on the record in the clerk’s office, and that if Mr. Angleman’s pleadings do not already meet tlxe rights of the British-American company, which I understand are merely the same rights of Miss Abbott, and is only another name for her, I shall, of course, give him leave to file any additional pleading he may wish to file, to protect his clients’ interest against this corporation, and shall consider that he has done so as of this morning. I presume, if I understand your position correctly, Mr. Angleman, it will be that you deny that this corporation has any greater rights or is entitled to any more relief than Ada Abbott or Mr. William EL Abbott, and is bound as much as Miss Abbott and Mr. Manning, and if you desire you can file a formal answer to that, effect, and I shall consider that to have been done for the purpose of this hearing.

From the statements of counsel, which are not disputed and are in harmony up to the issuance of the writ, I find that there is a substantial discrepancy in the mortgaged premises as described in the hill, and referred to in the decree, and that described in the writ and as sold by the sheriff, and for which he gave a deed. I find that complainants are entitled to have this discrepancy corrected. I think that the Home Building and Supply Company and the other defendants have no interest therein, or in the premises that were omitted from the sheriff’s sale by reason of such error and mistake, and I will advise that complainants are'entitled to have an aims writ issue, if that he the course they elect to pursue, and 1 think it is a proper one, or I will permit the writ to be amended and deed reformed, if it he necessary, in order to give them relief so that they may effect a sale of the premises or acquire title'to the omitted premises. I am inclined to think that is almost unnecessary. The decree in itself, I think, gives you all the relief you want, but if you desire the additional sale, in order to perfect your rights in the interest of other parties who have purchased from you, as well as others who may purchase in the future, I will advise that such an alias writ issue to you, with the understanding, however, that if you do so perfect your title, or perfect it in any way under the decree of the court that you shall give the benefit of that perfected title to any purchaser from you since the date of the conveyance from the sheriff to you, so that other people may he protected with yourselves.


text:
    M. Bergen Stone et al., complainants, v. Avalon Ice and Cold Storage Company et al., defendants.
    [Submitted June 16th, 1924.
    Determined June 26th, 1924.]
    Deeds — Restrictions—Subsequent Modifications and Abandonment of Certain Other Terms — Building to be Erected Not in Violation of the Restrictions.
    On bill for injunction. On final hearing.

      Ur. George II. Jacobs, for the complainants.

      Mr. AnJrew G. Boswell, for the defendants.
   Ingersoll, V. C.

In .1887 the Seven Mile Beach Company, a corporation of this state, was the owner of a large tract of land in the borough of Avalon, on the island known as Seven Mile Beach, in Cape May county. On July 11th, 1892, this corporation filed in the office of the clerk of that county a map of said tract, on which was delineated streets and lots to the number of, approximately, four thousand. The company sold a. great number of said lots, and in each of the conveyances made by the company there was included the following:

“Tp have and to HOLD the said hereinabove described premises with all and singular the appurtenances, unto the said party of the second part, liis heirs and assigns forever, subject as aforesaid. And the said party of the second part for himself, his' heirs, executors, administrators and assigns, doth hereby covenant, promise and agree bo and with the said party of the first part, its successors and assigns, that he, the said party of the second part, his heirs, executors, administrators or assigns, will not erect, or cause or suffer to be erected, on said lot any building for any purpose nearer than fifteen feet to the line of any street or avenue, or nearer than five feet to any party or division line of said lot; and that no porch, bay window or other projection, except steps, shall be nearer than five feet to the line of any street or avenue, or nearer than two feet and six inches to any party or division line, and no stable shall be nearer than twenty-five feet to the line of any street or avenue, or nearer than ten feet to any party or division line; and further, that he or his heirs, executors, administrators or assigns, will not sell, or permit, any malt, spirituous or other intoxicating liquor to be sold on said premises, except in buildings containing at least ten furnished bedrooms, and in such buildin&s only upon condition that the room or rooms in which said liquors are sold shall not be front rooms, but shall be back of a room at least fifteen feet in depth, and shall have no direct entrance to any street or avenue, but shall be entered'through the said front room, or a hall way along said front room, or an entrance back of the said front room; that he will not dig, or cause or suffer to be dug, in the earth upon said lot any cesspool, and will not at any time permit the drainage into the soil from any water closet, or the drainage into the soil of anything that will contaminate it, but will provide for such purposes such device or devices as shall be directed or approved by the Seven Mile Beach Company, or by any existing municipal government established, 'or to be established, with jurisdiction over territory embracing said premises, and will keep the same dean and odorless, and subject at all times to their inspection; that he will not erect, or cause to erected, upon said lot any slaughterhouse or bone-boiling establishment, 'or any other nuisance, or permit or suffer the drainage of any filth into the soil or said lot in any way whatever; that he will construct the roofs of all buildings erected upon said lot of some incombustible material such as slate, metal, tile, etc.; that he will maintain and keep the surface of said lot in all its parts not lower than the grade of the street curb opposite thereto, as-fixed by the Seven Mile Beach Company, or by any municipal government which may be established as aforesaid, and that he will keep the front of said lot clear and free from all weeds, rubbish or nuisance of any kind, and that all buildings, fences, etc., upon said lot shall be kept sightly and in good order. And it is hereby further covenanted and agreed by tlie said party of the second part for himself, his heirs, executors, administrators and assigns, that the above covenants and agreements shall attach to and run with the land and premises hereby granted, and that the same may be enforced, or their breach and nonobservance may be restrained or enjoined at any time by the said party of the first part, its successors or assigns, or its grantees, or the owners of the said lands now or late of the said party of the first part or any part thereof. And the said party of the first part, for itself and successors, doth by these presents covenant, grant, and agree to and with the said party of the second part, his heirs and assigns, that it. the said party of the first part, and its successors, all and singular the hereditaments and premises hereinabove described and granted, or mentioned and intended so to be, with the appurtenances, unto the said party of the second part, Ms heirs and assigns, against it, the said party of the first part, and its successors, and against all and every other person or persons whomsoever lawfully claiming or to claim the same or any part thereof, 'by, from, through or under it, them or any of them, shall and will, subject as aforesaid, warrant and forever defend.”

There is no question but that this was a general development scheme, and that the restrictions were enforceable.

The complainants are each the owners of a lot or tract of land included in this map and subject to the restrictions.

The defendants are the owners of “all that ^certain. tract, lot or piece of ground composed of lot number 70, parts of lots numbers 68, 69, 72, 74 and 76 in section 7 on plan of Avalon, beginning a.t the westerly corner of Third avenue and Seventh street; thence, extending southwesterly along the northwesterly side of said Third avenue one hundred and sixty feet, more or less, to- a point sixty feet eastwardly from the centre line of the West Jersey Railroad Company; thence northward, following a curve of said railroad company’s land distant sixty feet from the centre line thereof, two hundred and seventy-five- feet, more or less, to: the southwesterly side of said Seventh street; thence southeastward^ along the southwesterly side of said Seventh street two hundred and twenty-five feet, more or less, to the place of beginning,” upon which they are or have erected a building covering a portion of lots 68, 69, 70 and 72 on said map or plan.

The building is to be used for the manufacture of ice.

The complainants allege- this building to be a violation of three separate clauses of the restrictions.

1. The clause, that “no building should be erected nearer than five feet to any party or division line of said lot.”

S. “That there will not be erected any-slaughter-house or bone-boiling establishment or any other nuisance.”

3. That the roof of all buildings should be “of some incombustible material, such as slate, metal, tile, &e.”

An examination of Exhibit 0-10 evidences that' the first contention of the complainant cannot prevail.

It is evident that the tract of land of the defendant is only a part of a block of land remaining after the right of way of the West Jersey Seashore railroad crosses said block, and that only one lot remains in its original entirety, i. a., No. 70, and tbit the remainder of the land consist of part of lots Nos. 68, 69, 72, 74 and 75, as originally laid out and numbered. Although this entire lot is subdivided, it has, in each instance, been sold as a single tract.

No contention was made that the building thereon was erected too near the West Jersey Seashore railroad right of way. In fact, it was stated that no claim was made that the building was too- near the line of streets.

It is further contended by the defendants that the Seven Mile Beach Company, the original grantors, gave a “practical application and interpretation” upon this restriction, in that many years ago, and shortly after the placing of the restrictions, they erected a double cottage upon and extending over the division line between two- lots, and that they erected, or permitted to be erected, a large hotel building upon and over the division line of several lots; That said hotel was afterwards, because of the encroachment of the sea, moved upon other lots and over other division lines.

The principles as stated in Underwood v. Herman & Co., 89 Atl. Rep. 21, are dispositive of this question.

I, therefore, find that complainant is- not entitled to relief, because of the erection of the building over the division line of the lots as plotted on the filed map.

The building is not per se a nuisance.

The reasoning of Vice-Chancellor Backes in Ronan v. Barr, 89 Atl. Rep. 282, and the cases cited by him are applicable to the present case^ as, are the findings- of the learned vicechanceJJor in Bourgeois v. Miller, 104 Atl. Rep. 383.

The restriction concerning the material to be used on the roofs has been practically interpreted by the Seven Mile Beach Company, and has been abandoned in so- many instances it cannot now be enforced.

The result is that the bill will be dismissed, with costs.


author: Fielder, V. C.

text:
    Stanislaus Kukielski, complainant, v. Albert Kukielski et al., defendants.
    [Decided July 7th, 1924.]
    Wills — Construction—Perpetuities—Certain Beneficiaries of Unsound Mind — Trusts Created for Benefit of Heirs With Discretion as to Use by Trustee — 'Powers and Duty of Trustee.
    On bill.for construction o£ will.

      Mr. James R. Bowen, for the complainant.

      Mr. William Q. Cudlipp, for the defendant'Albert Kukielski.

      Mr. Paul C. Supinslci, for the defendants Anastasia Mystkowska et al.
   Fielder, V. C.

Frank Kukielski died April 4th, 1918. The complainant, as trustee under the will, has filed his bill praying for a construction of certain provisions of the will and for instructions as to his duty with respect thereto.

The will gives all the residue of the testator’s estate to his brother “during the lifetimes of my wife, Mary Ellen Kukielski, and my children, Albert Kukielski and Catherine Kukielski, and the last survivor of my said wife and children,” in trust, to collect the rents from the real property and therefrom to keep' said property in good condition, and pay such charges and liens as shall be imposed thereon, with power to sell and convey the same, and

“(3) The income and so much of the i>rincipal as to the trustee shall appear fit shall be, by the trustee,', either paid over to my said wife Mary Ellen Kukielski and my said children Albert Kukileski and Catharine Kukielski, or any one or more of them, or shall be, by the trustee, applied to the care, maintenance and support of my said wife Miary Ellen Kukielski and- my said children Albert Kukielski and Catharine Kukielski, or of any one or more of them, and to the expenses of the funeral and interment of my said wife Mary Ellen Kukielski and my said children Albert Kukielski and Catharine Kukielski, or of any one or more of them:
“ (4) .If, on the death of the last survivor of my said wife Mary Ellen Kukielski and my said children Albert Kukielski and Catharine Kukielski, any balance of the estate hereby given, devised and be queathed in trust shall remain, such balance * * * shall be, by the trustee, paid, divided and distributed among those who, at the time of the death of the last survivor of my said wife Mary Ellen Kukileski and my said children Albert Kukielski and Catharine Kukielski, would be my legal heirs at law, per stirpes and not per capita.”

The trustee is advised that the disposition of the trust fund does not violate the rule as to perpetuities, which is a rule against postponing the vesting of estates for a period extending beyond a life, or any number of lives, in being and twenty-one years thereafter. Lembeck v. Lembeck, 73 N. J. Eq. 427; affirmed, 74 N. J. Eq. 848; In re Smisson, 79 N. J. Eq. 233, Canda v. Canda, 92 N. J. Eq. 425.

For some years prior to the execution of tlie will and thereafter to the time of their deaths in an asylum, the te'stator’s wife and daughter were of unsound mind and incapable of governing themselves or their affairs. At the date of the execution of the will, the testator’s son was twenty-two years of age, of sound mind, unmarried, unemployed and subject to draft for service in the United States forces in the late war. Less than three months, after the execution of his will the testator died. His daughter died intestate and without issue October 5th, 1919,,and his wife died intestate June 6th, 1922. Dnring the lifetime of the testator’s wife and daughter, the trustee applied a portion of the income from the trust estate to their care, maintenance and support. The son enlisted in the army May, 1918, and was discharged July, 1919. In the year 1918, after the- testator’s death, the trustee gave the son $150, nothing in 1919, $50 in 1920 and nothing thereafter. The reason assigned by the trustee for giving tire son no more of the income, is that since his discharge from the army the son has had steady employment and has been able to- support himself.

It appears that the trustee has been in doubt as to his powers and duties under the will. He seems to have thought that only so much of the income from the trust fund as was necessary for the care, maintenance and support of the cestuis que irustent should be used for-that purpose, and that the balance should be retained by him. 'As 1 read the will, bearing in mind the situation and condition of the testator’s family at the time of its execution, the- testator intended that the entire net income of the trust fund should be paid to his wife and children, if they were capable of handling it, or if they were not, in the judgment of the trustee, then that he should apply the whole income to their care, maintenance and support. There is no direction in the will that the trustee shall use only a portion of the income for such purpose, or that he shall accumulate such portion of the income as he deems it unnecessary to expend and add such accumulations to the trust fund. The words- “so much of,” contained in clause three, refer to principal and not to income'. The provision for the disposal of the fund after the death of the last survivor of the cesiuis que tncstent is, that if any balance of the estate given in trust shall remain, such balance shall be paid to the testator’s heirs-at-law, which means unexpended principal and does not include income. If the total net income was not expended during the lives of the testator’s wife and daughter, such part thereof as should have been expended for their benefit, but was not, belonged to their estate, and upon their death, intestate, passed to the son Albert, as their only next of kin, and such part as should have been expended for the son, but was not, belongs to him. No reason appears from the testimony why the trustee should not pay the income direct to the son, but the will gives the trustee discretion as to whether he shall do so, or apply it to his care, maintenance and support-, and such discretion, if fairly and reasonably exercised, should not be interfered with. The trustee is advised that all unexpended net income in Ills hands, and the whole of all future net income, should be paid to Albert, or, in the discretion of the trustee, used for his care, maintenance and support.

The trill further directs that so much of the principal of the trust fund, as to the trustees shall appear fit, shall be paid over to Albert, or be applied to' his care, maintenance and support. The intention of the testator was to permit the trustee to determine whether at some future time it would appear safe to turn over the whole, or part, of his residuary estate to his son. The testator’s wife and children were the natural objects of his care and solicitude, and were the persons to whom he would desire his estate to go under normal conditions. When he executed his will his wife and daughter appeared to be incurably insane, and, of course, he would not bequeath and devise his residuary estate to them, but he desired that the whole of that estate should be Used for their care and maintenance, if the income therefrom was insufficient for that purpose. There was, doubtless, the fear in his mind that the same malady which affected his wife and daughter might attack his son. The United States was then involved in the world war and the son was liable to service with the United States forces, and the father might have bad in mind the possible enlistment and death of his son. It might also have been that his son was a spendthrift, or that the father doubted the scuffs ability, then undemonstrated, to manage and conserve an inheritance. Por any of these reasons, or for all of them, or for some other reason, the testator did not deem it wise to give the corpus of his estate, or any portion thereof, immediately to his son, but realizing that his son might live and be fully competent to manage his affairs, he confided a discretion to his trustee to give the son, when ho had demonstrated his fitness, the whole, or some portion of the corpus, or to apply the same to his care, maintenance and support.

In his answer to the bill of complaint, the son insists that the trustee should be instructed to turn the trust fund over to him forthwith. Prior to the filing of the bill, the son made such demand on the trustee, but received no direct repfy, possibly because the trustee was uncertain as to the extent of Iris powers and was not sure that the will authorized him to accede to such demand. Had he been certain that he could safely comply with the demand, he might have exercised his discretion and complied. In his testimony the trustee has not stated a refusal, or given any reason why he should refuse. He was willing at one time to give the son a sufficient sum to start him in business, and, had the son requested, would have given him money for his support, but shortly after the son was discharged from the army, he secured a position and has worked steadily, and has not only supported himself, but saved monejr from his earnings. He is, apparently, industrious and not a spendthrift, ox unable to manage his own affairs. He is a graduate of a high school, and his testimony shows him to be a young man of fair education, and, at least, ordinary common sense. He is twenty-nine years of age, in good health, mentally sound and is contemplating marriage. It may well be that when the trustee ■is advised of his power and authority under the will, the trustee will see fit, in the exercise of his discretion, to pay over the trust fund to the son. At any rate, the trustee should be given the opportunity to exercise his discretion, and he is advised that he can safely pay the whole, or any portion of the fund, to the son, if he thinks it advisable so to do. It is his duty to pay it if he thinks it proper, and payment made by him in the proper exercise of the discretion committed to him, will discharge him from all further duty in respect to the fund and also from all liability for it.

The trustee is a brother of the testator, and in the event that the corpus of the estate is not paid over to the son, and the son shall die without issue, the trustee may be oxre of the heirs-a.t-law of the testator who will take the fund, and it may he suggested that such ixrterest xvill affect the proper exercise of the trustee’s discretion, and therefore the court should specifically instruct the trustee whether or not to pay the fund to the son. The testimony does not indicate that the trustee is influenced by any personal interest, and such interest, after all, is rather remote, because if the son marries, as seems likely, and leaves issue surviving him, such issue will inherit as the heir-at-law of the testator. But the testator knowing that the provisions of his will gave his trustee a possible interest in the ultimate disposition of the trust fund, nevertheless, had confidence in his trustee, and committed to his judgment and fairness the determination of the fitness of his son to receive the fund, and such determination, when exercised in good faith, is binding upon all persons interested in the fund. The time to inquire into the trustee’s good faith is after he has exercised his discretion, and not before he has taken action.

Reference is made to the following decisions bearing upon the question of the powers and duty of the trustee: Hardenburgh v. Blair, 30 N. J. Eq. 645; Pedrick v. Pedrick, 48 N. J. Eq. 313; reversed, 60 N. J. Eq. 479; Larkin v. Wikoff, 75 N. J. Eq. 462; affirmed, 77 N. J. Eq. 589; O’Gorman v. Crowley, 80 N. J. Eq. 101; affirmed, 81 N. J. Eq. 520; Turnure v. Turnure, 89 N. J. Eq. 197.