text:
    Annie D. Roe, appellant, v. Mayor and Aldermen of Jersey City, respondents.
    [Argued November 25th, 1913.
    Decided November 26th, 1913.]
    On appeal from a decree of the court of chancery advised by Mr. Charles J. Roe, advisory master, who filed the following opinion:

      The bill in this case is filed for'the purpose of removing a cloud on the title of complainant’s land. The allegation is that the complainant bought the land in question in 1887 and is in peaceful possession of the same; that her title is clouded by three deeds made by the collector of Jersey City to Jersey City, and dated August 30th, 1912, and recorded in the Hudson county register’s office; that-these deeds are based upon a pretended tax sale made in 1896, under an alleged adjustment made by commissioners under the Martin act, and she insists that the proceedings of these commissioners were irregular and void, there being no record of the appointment of the commissioners, of the application for the appointment of commissioners, no record of the sale, no proof of the surrender of the certificate.
    The difficulty that I find in this case arises from the fact that the complainant, in 1906, filed a bill against the defendant in this case alleging substantially the same facts as contained in the present bill, and praying that these proceedings may be declared null and void, and asking that if any deed or deeds for the said land have been executed that the same might be decreed null and void and delivered up to be canceled, and that all other proceedings had or taken thereunder should be adjudged null and void, and that the defendants be restrained from taking any steps toward perfecting any supposed claim or-title to said land .and premises.
    This case ivas heard in the court of chancery on pleadings and proof and a decree made by the court dismissing the hill. This decree was affirmed by the court of errors and appeals, and the opinion reported in 79 N. J. Bq. 645; that the reason given by the court of errors and appeals for the dismissal of said bill was “that the relief sought by the complainant was not one which the court of equity could grant, assuming it to be true that the proceedings which were attacked were invalid, her sole remedy was to apply for certiorari to the supreme court,” and! “the fact that the complainant had waited so long before applying to the courts of law as to be barred from her relief by ceW^ iiorouri, could not vest in the court of chancery the jurisdiction to grant her relief which she sought.”
    The deeds which she now’complains of as a cloud upon her title are the deeds delivered under that proceeding after tiie decree dismissing the bill for the complainant was entered.
    This adjudication places the ease before us squarely within the principles established in Jersey City v. Lembeck, 31 N. J. Eq. (4 Stew.) 255, which held that the act of 1870 to “quiet title” was not meant to.be operative when a party in possession of lands has the means by the ordinary proceedings at law of testing the adverse claim that he wished to have settled.
    That the complainant's mode of relief was by certiorari by which he can get adequate relief at law, and, in the language of the court, “if the party in possession of land can throw a hostile claim into a court of law and thus get rid oí a cloud overhanging his estate, why should he not do it? and what reason is there say that this act was designed to help a party who was in no strait but of his own choosings.”
    Under the principles enunciáted by this decision the court of equity is without power to adjudicate on any of the questions leading up to the delivery of the deeds which are now complained of by the complainant as being clouds upon her title, unless it be that the court of equity should acquire a jurisdiction independent of these considerations.
    In this case the application of this principle is further emphasized by the provisions of the act under which the proceedings resulting in these deeds were had was made, Comp. Stat. p. 5213 § 312, where it is expressly enacted that
    “the title shall not fail or be defeated by reason of any irregularity or formal defect in the procedure taken under this act upon which the sale shall have been made or the title conveyed as aforesaid, or by reason of any illegality in affixing and adjusting taxes, assessments and liens to enforce which said sales was made or in any proceeding for collecting the same.”
    In view of the fact that no attack has been made upon the deeds as such, but only upon the facts leading up to the making of the deeds, I fail to see any.equitable grounds for invoking the aid of this court. In other words, there is no independent equitable relief sought other than the state of facts already adjudicated upon by the court of errors and appeals in which they decided that it was out of the power of a court of equity to give relief. •
    If the proceedings complained of had been decided by a court of law to be void and irregular, the deeds now complained of would have been nullities, and I think a court of equity could then have given relief by clearing the complainant’s title of deeds that had been executed and recorded under such illegal proceedings, under the principle laid down in Bogart v. City of Elizabeth, 27 N. J. Eq. (12 C. E. Gr.) 569, but not until the proceedings which are now alleged to be illegal were adjudged to be so by a court of law.
    The deeds of the defendant now complained of must be considered evidences of title as against the complainant for lack of jurisdiction in this court to adjudge upon the legality of the proceedings upon which they are found.
    In view of these considerations, I shall. advise a decree dismissing the bill.

      Mr. Wilbur A. Ileisley, for the appellant.

      Mr. James J. Murphy, for the respondents.
   Per Curiam.

The decree under review will be affirmed. -The .case is controlled by Walton v. American Baptist Publication Society, 78 N. J. Eq. (8 Buch.) 263; Walton v. Taylor, 78 N. J. Eq. (8 Buch.) 266, and our earlier decision between the same parties reported in 79 N. J. Eq. (9 Buch.) (at p. 645).

For affirmance—The Cíiiee-,Tust ice, Garrison, Trenchard, Parker, Bergen, Yoort-iees, Minturn, Kalisch, Bogert, Yredenburgh, Congdon, Wi-tite, Terhune, IIeppen-HEIMER—14.

For reversal—None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Oscar Keen, trustee, complainant, v. A. Gifford Plume et al., defendants.
    [Argued November 26th, 1913.
    Decided March 16th, 1914.]
    On four appeals from a decree of the court of chancery ad-, vised by Vice-Chancellor Howell, whose opinion is reported ante p. 51S6.

      Messrs. McCa/rter & English, for A. Gifford Plume, appellant and respondent.

      Messrs. Guild .& Martin,, for Jolm I. Plume, appellant.

      Messrs. Young & Bigelow, for Edward C. Plume and others, appellants.

      Messrs. Pitney, I-Iardin & Skinner, for the complainant-respondent.

      Mr. Ghauncey G. Parker, for Susan W. Heiser, respondent.

      Mr. Jay Ten Eyck, administrator ad pros., pro se respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court of chancery by Vice-Chancellor Howell. In this opinion the learned vice-chancellor rests his decree in part, or rather in the alternative, upon the proposition that where the real estate of a testator has been in fact turned into personalty under a power of sale contained in the will, the result, as far as the distribution of the estate is concerned, may be the same as if the will contained a direction to' convert. We do not find it necessary to consider this point, being satisfied tliat in the present ease the will directs a conversion, and in this connection we have nothing to add to what was said upon this point by Chancellor Zabrislde in Wurts v. Page, 19 N. J. Eq. (4. C. E. Gr.) 365, 375.

No. 26—

For affirmance—The Chiep-Justice, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Hepbeniieimer—10.

For reversal—None.

No. 30—

For affirmance—Tim Ciiiee- Justice, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, Wi-iite, HbPPENI-I E1MER--10.

For reversal—N.one.

No. 33—

For affirmance—The Citiep-Justice, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, Congdon, White, Heppeni-ieimer—10.

For reversal—None.

No. ?0—

For affirmance—The Ci-iiee-Justice, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Bogert, Vredenburgh, Cong-don, White, Heppeni-ieimer—-11.

For reversal—None.


text:
    Margaret M. E. Phelan et al., appellants, v. Sarah M. Phelan et al., respondents.
    [Argued November 28th, 1913.
    Decided March 16th, 1914.]
    On appeal from a decree of the prerogative court made by the ordinary, whose opinion is reported ante p. S16.

      Mr. William B. Gourley and Mr. Albert Comstoclc, for the appellants.

      Mr. Peter Baches, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, fo.r the reasons stated in the opinion filed in the court below by the ordinary.

For affirmance—Trenchard, Bergen, Minturn, Kalisci-i, Congdon,' White, PIeppenheimer—7.

For reversal—The Chief-Justice, Swayze, Parker, Bo-GERT, VREDENBURGH—5.


text:
    Francis M. Sutton, petitioner and appellant, v. Louise S. Sutton, defendant and respondent.
    [Argued November 28th, 1913.
    Decided March 16th, 1914.]
    On appeal from a decree in chancery advised by Mr. Charles J. Roe, advisory master, who filed the following conclusions:
    The petition in this cause was filed on December 17th, 1912. The petitioner seeks a divorce from his wife, the defendant, for desertion since the month of August, 1908.
    This desertion is based solely on the claim that the defendant, although performing all other wifely and motherly duties, refused to her husband, the petitioner, sexual intercourse.
    The parties were married in 1892, and three children, the youngest being sixteen years of age, is the result of this union. It is admitted that since 1898 the permanent residence of the parties was at Allenhurst, New Jersey, although the defendant says that since January 1st, 1911, she, by advice of counsel, has claimed Brooklyn as her permanent home—Brooklyn being the place where both parties have lived during the winter. In their testimony both parties date their differences from the time of their marriage, but I fail to find any serious trouble between them prior to 1908. There had been disputes between them about minor matters which were afterwards continually revived and exaggerated in subsequent communications with one another. One of the earliest of these disputes arose over the petitioner objecting to having his wife’s mother live with him, but this was early settled, the husband buying a residence in Brooklyn and placing the title to the same in his wife’s name. This property was subject to a mortgage of $10,000. It is admitted that there was an agreement between the parties to occupy separate sleeping rooms—rooms which were accessible to one another when they lived at their Brooklyn home. The summers were passed at Allenhurst.
    In the year 1908, the defendant, wife, had discovered that her husband, the petitioner, had been guilty of infidelity, and she says that he confessed his crime to her. He does not deny this. At all events, as a result of this discovert', it is evident that the petitioner exerted himself to placate his wife. lie gave to his wife at this time $10,000, which was the amount of the mortgage on the Brooklyn residence, and there was a reconciliation between the parties. At ail events the parties resumed for a short time marital relations. Shortly afterwards their relations became more hostile than ever. The cause of this is not evident. It may have been due to the suspicions of the defendant arising out of the old fault of her husband. She says it was because he humiliated her by publicly boasting of her having by sexual intercourse condoned his offence. At all events their cohabitation ceased and their relations became estranged. In the winter of 1908 and 1909 a mutual friend attempted to reconcile them, and this was accomplished in February, 1909, when the petitioner and defendant met and agreed on a. reconciliation. Almost immediately after this was broken because the defendant wanted the petitioner to wait for a period before they should have sexual intercourse. This demand angered the petitioner and he at once broke off any further attempt to reconcile with his wife. In this affair I cannot but think that the petitioner was entirely blamable. His attitude appears to have been that ail he cared for at that time was sexual intercourse with his wife—sexual intercourse following a reconciliation after a season of bitter quarrels and bickerings, without any effort on his part to regain the affection of his wife, but for the simple purpose of using her to gratify his sexual indulgence. After this period I am entirely satisfied, by the evidence, that the petitioner’s conduct towards his wife, living together in the same house a great part of the time, was of such an ugly and disagreeable character that it seemed designed for the purpose of making the situation of the wife unendurable. While the defendant was performing ail the household duties of their home and taking care of petitioner and their children, he would rarely speak to his wife, when in her presence sit and glare at her, accuse her of running after men, and deliberately, both in his actions and his conduct, doing all he could to estrange his wife. In June, 1909, in the presence of a witness, the petitioner came to his house in Brooklyn and packed his trunk, and after showing violence to his wife left the house and went, as his wife learned afterwards, to his home at Allenhurst without inviting her to accompany him. After he had gone to Allenhurst rho wife received a letter from the holder of the mortgage saying that the interest was unpaid upon the mortgage on the Brooklyn residence. The petitioner had theretofore paid the interest upon that mortgage and the assessments upon the property. The wife at this period consulted a lawyer in Brooklyn, and on July 14th of the same year she wrote her husband a letter referring to that subject, and to the effect that she had consulted this lawyer. The petitioner says that the reason that he did not pay interest was that he wanted his wife to convey the property back to him. The petitioner produces a letter written by his wife on July 14th, 1909, which seems to have been an answer written to some letter that the husband had written to his wife on July 9th, which is not produced in evidence, but which evidently had reference to the payment- of the interest upon the mortgage. In this letter the wife speaks about the petitioner being ungenerous in-leaving her in the difficulties in which she, is in, and refers to her lawyer whom she says she had consulted. We have no reply to this letter, but we have a letter written by the defendant bearing date July 27th of the same year, and indicating that it is an answer to certain questions that her husband has proposed.
    In the letter she speaks of her desire for a reconciliation, and says that he will not make one step towards it, and refers to a suggestion that he makes with regard to their having sexual intercourse, and states to him that while her confidence in him is gone it would take time and patience to restore her feeling of affection, but that it could be accomplished again if he would do his duty, and she censures his arbitrary methods with his family and tells him why it is necessary for her to consult a lawyer, and expressly states that she will come to him at Allenhurst. On September 2d, of the same year, the petitioner writes to the defendant a letter in which he indicates that he is pleased at her willingness for a reconciliation. Subsequent to this a correspondence takes place between the lawyers of the petitioner in Brooklyn, in which the differences between the parties are dis- ■ cussed, and which seems to have broken off any attempt on the part of the petitioner to effect a reconciliation with his wife. He returned to the home of his wife in Brooklyn and continued to live in the same house with her. During this period the defendant and petitioner seem to have lived together; but there is very little evidence of the manner in which they lived during this year, but it evidently was, as I take it, of the same character in which they had lived during the preceding years. One of the witnesses says that in 1910 the petitioner talked about his wife being intimate with her brother-in-law, and that his treatment of her was of a very unkind character. In the spring of 1911, the husband went away on a business trip to South Africa, and while he was gone, or just before he went, his wife filed a complaint against him in New York for divorce on the ground of adultery, alleging the adultery to have occurred in 1907. To this complaint he filed an answer alleging that his wife, between the 1st of July, 1907, and the 1st of November, 1908, had condoned the offence. In that suit, which is in evidence, he filed an affidavit which was taken on February 12th, 1912, in which the petitioner swears that since 1907 he had lived in the same house with his wife, except when absent on business trips, or at his country residence in Allenhurst, and during said time cohabitated with his 'wife, and during all of said time, except during his absence, to January 12th, 1912, he had lived in the same house with his wife and children, or some of the children, eating at the table with them and occupying a bedroom with access open between his room and that of his wife, except during a few' nights, not over a week altogether, when the door was locked between her bedroom and his. In December of 1911, the defendant wrote letters to her husband asking him not to come to the Bainbridge street house, Brooklyn, and in fact locked the door upon the.petitioner. This she explains was done under the advice of her counsel and because she had her suit for divorce for adultery pending in New York. This suit was discontinued by mutual consent in May, 1912. After this time, and up until the time of the bringing of this suit, a number of letters passed between the petitioner and defendant. The burden of these letters on the part of the defendant was a request for her husband to return to her, and his answers to these were evasive, filled with recriminations, and he finally expressed a desire that she should leave the house. In fact they were not fair and frank answers to her efforts to conciliate their differences. On November 12th, prior to the bringing of this suit by the petitioner, the defendant had brought a suit for separation in the State of New York.
    I do not think that for the purpose of deciding this case that it is necessary for me to consider the effect of this suit brought by the wife against her husband in the State of New York—• whether it is a bona fide suit or otherwise ; but all that I have to deal with is the evidence which is laid before me in the present cause.
    From this evidence so recited I do not think that I am obliged to decide this ease on the conflicting doctrine of whether the withdrawal of one of the parties from sexual intercourse is of itself alone a cause for desertion. I do not consider that the facts in this case make it necessary to apply that principle.
    It is clear to me from the evidence in this case that the petitioner has failed in his duty as a husband to the defendant. He expressly says that since July, 1909, he has not asked his wdfe to have sexual intercourse with him, for the reason that he believed such request -would be unavailing. The defendant, on her side, says that if he had requested her to have sexual intercourse, that at certain times and on certain occasions, she would have been willing.
    Admitting that the withdrawal of one of the parties from sexual intercourse is in itself a complete desertion under our statutes, the obligations and duties imposed on the other party still remain. The petitioner cannot demand relief on account of a grievance which he has helped to make.
    This is quite a different principle from that embraced in Moores v. Moores, 16 N. J. Eq. (1 C. E. Gr.) 275, which held that conduct which would justify desertion must be such as would constitute a ground for divorce. It comes more properly under the principle of connivance which applies to all suits for divorce on whatever ground instituted.

      2 Bish. Mar. & D., or under the principle laid down in McGean v. McGean, 63 N. J. Eq. (18 Dick.) 285, and Hooper v. Hooper, 34 N. J. Eq. (7 Stew.) 93, and that is that a suit fo|r the cause of adulter)' can only be sustained where the desertion is without the petitioner’s .fault or consent.
    If the defendant refused, in August, 1908, to have sexual intercourse with her husband, although at the time they were living together and sleeping in accessible rooms, and by that refusal we assume desertion began, certain duties then devolved upon the husband to end such assumed desertion. Unless there is evidence of a settled determination on the part of the wife to desert, where the husband has not contributed to the desertion, as laid down in Hall v. Hall, 65 N. J. Eq. (20 Dick.) 709, the duties involving on the husband are the necessary advances to bring an end to the separation.
    As classified in Bid. Div. 84, 85, these advances must be sincere, just, and in fact be real advances to end the desertion.
    It would be a. hard rule to establish that if the wife has refused sexual intercourse to her husband on one or more occasions that the husband can thereafter treat her with repulsion and act towards her with scorn and indignity, and do everything he can to estrange his wife’s affection for him and to estrange himself from her, and then say that it is useless for him to approach her again because her affection towards him being completely gone would make it unavailing. Certainly, it should be unavailing with a virtuous woman, and the petitioner knew it would be; but here again he made it so. His approaches were not just or sincere.
    In January, 1912, the defendant did drive the petitioner from their home in Brooklyn, by the advice of counsel, she says, that it was not proper for them to live together during the pendency of a suit for adultery; but after this suit was settled in the May following she, by letters and communications, again and again solicited his return and was as constantly repulsed by the petitioner*.
    So, that I am satisfied that since May, 1912, and up until the commencement of this suit, the petitioner himself was in fact the deserting party.

      Under all of the circumstances of this case, and in view of the fact that the parties are both past middle age, and in view of the fact that they have children depending upon them, in view of the fact that since May, 1912, the petitioner himself has actually deserted the defendant and refused to return to her, I must find that the petitioner has not sustained his allegation that the defendant, his wife, has willfully, obstinately and continuedly deserted him up until the time of the filing of his petition, and will therefore advise a decree dismissing the petition, with costs..

      Mr. Gilbert, Collins (Messrs. Ilartshorne, Insley & Leake on the brief), for the appellant.

      Mr. Albert I. Drayton (with whom was Mr. Oliver P. Carpenter, of the New York bar), for the respondent.
   Per Curiam.

The decree of the-court of chancery will be affirmed, for the reasons given by the learned advisory master.

There has been some criticism in the argument and brief, of certain details of his findings of fact as unsupported by the evidence. We have examined the evidence in the ease and. find no errors of fact in the conclusions of the master that operate in any way to impair the correctness of the result reached by him, or that call for airy special comment on our part.

The award of a counsel fee below is likewise affirmed.

For affirmance—-The Chief-Justice, Swatze, Trenchard, Parker, Bergen, Mtnturn, Kalisci-i, Bogbrt, Vredenburgh, Congdon, White, Heppenheimer—12.

For reversal—None.


text:
    Adam Campbell et al., executors, respondents, v. Margaret McC. Magie et al., appellants.
    [Argued December 3d. 1913.
    Decided March 16th, 1914.]
    On appeal from a decree of [the court of cbancerj^ advised by Mr. Edward M. Colie, advisory master, who rendered the following opinion:
    This bill is filed to quiet the title of the complainants to property which they purchased pursuant to the eleventh section of the will of Alexander Maitland, as against the claim of the devisee under the will of Mary ,7. Maitland, the wife of said Alexander Maitland.
    The tenth and eleventh sections of the will of Alexander Maitland are the provisions of the will particularly important. They are as follows:

      “Tenth. I give and grant unto my said executors and trustees, and the survivor of them or the one who shall qualify, full power and authority to sell any and all real estate of which I may die seized, wherever the same may be situated, at public or private sale, and at such times and upon such terms as they may deem for the best interests of my estate, and to make, execute and deliver all necessary and proper deeds of conveyance thereof; provided, however, that any property acquired by me for a city or country residence shall not be sold without the consent of my said wife first had and obtained, and to be evidenced by her uniting in the deed of conveyance thereof.

      “Eleventh. Should my residence in either the city or country be sold as above provided, or should I not own such residence at the time of my death, my executors and trustees are hereby expressly authorized and empowered, in their discretion, upon the request of my said wife, to purchase such a residence for her out of the residue of my estate, and I direct my said executors and trustees to pay out of the income of my estate all taxes, assessments, water rents, and all charges and expenses for insurance and ordinary repairs, that may be laid, imposed or become necessary upon any property used by my said wife as a residence.”

      The defendant invokes the rule that the language of a will devising land to a wife is to be construed .liberally.
    The argument for the- defendant is based upon the following propositions:
    ■ First. That the jDower of sale given in the tenth section of the wiil is limited to the property of which the testator died seized, and that therefore there is no power in the executors to make a sale of the property in question, and that this indicates the intent of the testator to give his wife the fee in this property.
    This seems to beg the question, for, if the purchase of a home for Mrs. Maitland was a mere conversion of a part of the residue, there would arise an implied power to reconvert. It also ignores the fact that, under the provisions for the ultimate disposition of Mr. Maitland’s estate, the will requires the conversion of the residuary estate into money, and its investment and distribution as móney, in which event, under well-settled rules! there would necessarily be an implied power of sale.

      Second. That, coupled with the power of sale given the executors in relation to the property of which Mr. Maitland died seized, there is a proviso that any residence of which he died seized shall not be sold without the consent of his wife, and that, when he authorized them to purchase the residence in question, without giving them a power of sale subject to a like provision as to her consent, he indicated that he intended her to have the fee of the property so purchased.
    If wre are right in concluding that the executors had an implied power of sale, this argument loses its force.

      Third. That the language employed authorized the executors to purchase the residence “for her,” and it is not by express terms declared to be “for her use.”
    This language seems to ignore the force of the word “such,” referring back to the residence, to which reference is made in section 10, in which Mrs. Maitland clearly had only a life estate. -

      Fourth. That the language used in section 11 is “to purchase such a residence for her out of the residue of my estate,” so taking the residence “out of -the residue” of his estate, and depleting the residue to the extent of the purchase price.

      The words “out of the residue” do not necessarily, and, under the provisions of this will, do not properly, imply anything more than the source from whence the consideration money is to be paid.

      Fifth. That the testator provides that as to the residence purchased under the provisions of the eleventh section, his executors and trustees “shall pay out of the income of my estate all taxes, assessments, water rents and all charges and expenses for insurance and ordinary repairs that may be laid, imposed or become necessary upon any property used by my said wife as a residence,” and that such express provision was necessary only on the supposition that Mrs. Maitland was the owner in fee of the property so purchased, inasmuch as the testator had, by the seventh section of his will, empowered the executors and trustees to take care of such charges out of the income of his estate by virtue of the direction therein that his wife was to receive the net rents, issues and profits.
    Emphasis is laid upon the fact that this provision calls for the payment of insurance, which is not the ordinary duty of a life tenant, and the payment of assessments, which may be only partially the duty of a life tenant, and that these provisions are. especially applicable in relation to the ownership of the fee.
    It is to be noted that the charges to be paid are to be paid out of the funds given to Mrs. Maitland by the will—“out of the income” of the estate, and that we are dealing with an express provision of the will, coupled with a gift- made and not with an ordinary situation. The one who takes the gift takes it subject to the conditions. The use of these words is entirely in harmony with a purpose on the part of Mr. Maitland to relieve his wife of the burden of these details, and naturally seems to indicate a purpose that the property purchased shall be properly kept up and kept free of encumbrances, and properly protected as to insurance.
    ■ Further, the words used seem to imply that extraordinary re- ' pairs are to be paid out of the corpus of the estate, which would indicate that the property on which such expenditures of the corpus might be made was a part of the corpus.

    The argument seems to lose its force, when consideration is given to the use of the words “any. properly used by my wife as a residence.” This seems to clearly indicate that the provision would apply as well to a residence of which Mr. Maitland died seized as to one acquired under the authority of the eleventh section of his will.
    All these arguments seem to me to be persuasive, but not conclusive, in view of the other provisions of the will.
    A reading of the entire will indicates that the residence to be purchased under the eleventh section is substitutionary for any residence which Mr. Maitland may have owned in his lifetime, and which was sold eithei by him in his lifetime or subsequently by his executors under the power of sale. If that is so, then the conclusion must be that Mrs. Maitland has the same interest in the substituted residence that she would have had in the original residence, and no. more. She admittedly would have only a life estate in any residence of which Mr. Maitland died seized.
    An examination of the will shows that the donative provisions end with the seventh section, and that the remaining sections are directory and empowering sections, and the provisions on which the defendants rely are those found in this latter portion of the will.
    It is not claimed that there is any express gift of the premises in question in explicit language to Mrs. Maitland. Substantially, the argument is that there is necessarily an implied gift.
    The question is settled if there is an express gift of the entire residue to someone other than Mrs. Maitland at her death. The will makes such express gift in section 7. All the rest, residue and remainder of the estate is there given to Mrs. Maitland for life, with power of testamentary disposition of $100,000. In default thereof, a gift of that $100,000 is made to the heirs-at-law of Mrs. Maitland. The will then makes a gift'in the following language: “And upon her death, I give, devise and bequeath the balance of said resi, residue and remainder of my estate as follows:” There are then given, by paragraphs (a) and (b) of that section, directions as to specific trusts to be set up and legacies to be paid out of the “'balance of said rest, residue and remainder.”

      Paragraph (c) provides: “And the remainder, and said rest, residue and remainder of my estate” shall be held in trust. It is subsequently fully and finally disposed of. The provisions of section 7 make an explicit gift of the entire residue in which Mrs. Maitland has the life estate, with the exception only of the $100,000, of which she has the testamentary disposition, as stated.
    With this explicit gift in the will there can arise no implied gift. I, therefore, conclude that Mrs. Maitland had only a life estate in the premises in question, and that complainants are entitled to a decree as prayed.

      Mr. Jerome ID. Gedney, for the complainants-appellees.

      Messrs. McCarter & English, for the defendants-appellants.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Advisory Master Colie.

For affirmance—Ti-ie Chiee-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kaeisci-i, Bogert, Vredenburgh, Congdon, White—-11.

For reversal—None.


text:
    Frederick A. Cooper, appellant, v. Charlotte S. Cooper, respondent.
    [Submitted December 6th, 1913.
    Decided March 16th, 1914.]
    On appeal from a decree of tlie court of chancery advised by Vice-Chancellor Backes, whose opinion is reported ante p. 581.

      Mr. Traverse A. Spraggins, for the appellant.

      Mr. Wilfred B. Wolcott, for the appellee-respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Backes.

For affirmance—The Chief-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Bogert, Vredenburgh, Congdon, White, ITeppeni-ieimer—12.

For reversal—None.


text:
    David Potter, trustee, &c., appellant, v. Mary Alice Nixon, administratrix, et al., respondents.
    [Submitted December 6th, 1913.
    Decided March 16th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 81 N. J. Eq. (11 Buck,.) 888.

      Messrs. Hampton & Fithian, for the appellant.

      Mr. Walter H. Bacon, for Mary Alice Nixon, administratrix, respondent.

      Mr. John B. B. Nixon, for Mary Nixon Everett, executrix, &c., respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Learning.

For affirmance—The Chiee-Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisci-i, Bogert, Vredenburgi-i, Congdon, White, Heppenheimer—13.

For reversal—None.


text:
    Public Service Corporation of New Jersey et al., appellants, v. Town of Westfield, respondent.
    [Submitted December 6th, 1913.
    Decided January 29th, 1914.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Eméry, whose opinion is reported in 80 N. J. Eq. (10 Buck.) 295, and ante p. 43'.

      Mr. Frank Bergen, for the appellants.

      Mr. Paul Q. Oliver, for the respondent.
   Per Curiam.

The order appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Emery.

For affirmance—The Chief-Justice, Garrison, Swayze, Parker, Bergen, Minturn, Kalisoh, Bogert, AUiedenburgh, Congdon, White, Heppenheimbr—12.

For reversal—None.


author: Walker, Chancellor.

text:
    Charles A. McCormick v. The Mayor and Common Council of the City of New Brunswick et al.
    [Decided March 7th, 1914.]
    1. Irregularity in the proceedings of municipal corporations cannot he made a ground for relief in equity; the supreme court is the proper tribunal in which to review th’e action, and correct the errors, of inferior tribunals.

      2. Cases in which chancery will interfere with municipal corporations must be marked by some well-defined principle of equity.
    3. If the price to be paid for a public improvement be so excessive as to shock the conscience, a court of equity may properly interfere by injunction to save the municipality’s money from willful waste or fraudulent diversion.
    On order to show cause why injunction should not issue.

      Mr. Theodore Strong, for the complainant.

      Mr. George S. Silzer, for the defendant J elin, and Mr. Charles E. Tindell, for the defendant New Brunswick.
   Walker, Chancellor.

The hill of complaint prays an injunction restraining the city of New Brunswick from including in its budget of appropriations for the present year and from paying to the defendant Jelin, the sum of $4,500, and restraining him from receiving or collecting it. The sum mentioned was agreed upon between Jelin and the city as the price for land conveyed or dedicated bjr Jelin for the opening of a new street. The bill and accompanying affidavit charges irregularity in the municipal proceedings looking to the opening of the street, and also that the price to be paid for it is exorbitant. On filing the bill an order to show cause why an injunction should not issue pursuant to the prayer was made, with an ad interim, restraint against paying the money only.

The first ground, irregularity in the proceedings to open the street, cannot be successfully invoked in this court. Vice-Chancellor Van Fleet, in McKinley v. Freeholders of Union, 29 N. J. Eq. 164 (at p. 174), said:

“Something more than mere error or irregularity must be shown. * • * * No fraud is charged or shown. In this condition of affairs it is apparent the complainants are in the wrong forum. The supreme court is the proper tribunal to review the action of inferior tribunals, and to correct the errors and irregularities of the subordinate agencies of government. Morris Canal Co. v. Jersey City, 12 N. J. Eq. 252. Cases may arise involving the same questions presented by this case, which it will be the duty of this court to take cognizance of and determine, but to render such action proper they must be marked by some well-defined equity not discoverable in the record of this case as it now stands.”

Other cases illustrative of the doctrine mentioned are: Lewis v. Freeholders of Cumberland, 56 N. J. Law 416, 418, 419; Ferguson v. Passaic, 60 N. J. Law 404, 405; Browning v. Freeholders of Bergen, 78 N. J. Law 289, 290.

If the price to be paid by the city to Jelin is so excessive as to shock the conscience, the court may properly interfere by injunction to save the city’s money from willful waste or fraudulent diversion, but the proofs before me in this case show the contrary to be the fact, that is, they show the land to be worth the price agreed to be paid. In this .posture of the case the defendants 'are entitled to prevail.

The injunction prayed for will be denied and the order to show cause will be dissolved. The defendant Jelin is entitled to costs on the answering affidavits filed by him. Such taxation will extend down to and include the affidavit of John J. Morrison. No taxation will be allowed for the newspaper clippings, or statement annexed to the affidavits.


text:
    Hannah J. Summerill v. Joseph Summerill.
    [Decided July 7th, 1913.]
    1. On a bill for an accounting with respect to all dealings and transactions between the complainant, as widow of a deceased co-partner, and the principal beneficiary and residuary legatee under his will, and who is also the executrix thereof, and the'defendant as surviving partner who is charged with fraud and who died pendente Ute before the hearing, evidence held insufficient to entitle the complainant to relief.
    2. Where business is carried on by partners who have unrestricted access to the books, papers and business of the firm, it becomes the duty of the partners to examine them and complain promptly of' any mistakes therein, and much more so of fraudulent transactions.
    3. To entitle the complainant to an accounting extending over many years, where there was such free access to books and accounts by the partner alleged to have been defrauded, and with both partners now dead, and thus unable to explain their transactions, in order for the complainant to prevail she must adduce clear and convincing evidence of the correctness of her allegations.
    On bill for accounting.

      Messrs. Blealcly & Stockwell, for the complainant.

      Messrs. French & Bicharás, for the defendant.
   Walker, Chancellor.

The bill in this cause was filed against Joseph C. Summerill, individually, and as one of the executors of his brother, John Summerill, deceased. The complainant is the widow of John and is the principal beneficiary and residuary legatee under his will; also executrix thereof. The bill charged that the defendant has refused to account for the proceeds of the partnership business, and particularly for the income and other proceeds of stock, bonds and other investments acquired by the partners during the lifetime of John Summerill.

The defendant answered that all the partnership dealings in stock and other investments between the partners were closed and settled on November 1st, 1899, and thereafter the defendant, Joseph C. Summerill, dealt in stocks and other investments in his own name and with his own funds, an account of which was kept in the books of the partnership, but that John Summerill was not in any way interested therein, nor was the partnership after the date last mentioned; that there were many settlements between the partners after November 1st, 1899, at no one of which was the stock and bond account considered as partnership property.

The defendant died pendente lite and his executor was substituted in his place and stead.

The partners, who were brothers, lived in the same town where their business was carried on, and were in daily, or almost daily, attendance upon the business. Each had access to the books and documents of the concern.

The charge against the deceased defendant is one of fraud. This is a charge which is not lightly to be presumed but must always be proved. It is sometimes said that it is never presumed. Of course, it may be inferred from facts, but the facts must clearly establish the inference.

Where business is carried on by partners who have unrestricted access to the books, papers and business of the firm it becomes the duty of the partners'^ examine them and complain promptly of any mistakes therein, and much more so of fraudulent transactions. 30 Cyc. 448, No. 14; Dobbins v. Tatem, 25 Atl. Rep. 544, 546. It is significant that John never complained of these alleged frauds upon him in his lifetime, and that he continued his business with his brother for so many years, notwithstanding his asserted course of conduct.

On behalf of the defendant twelve witnesses were sworn, who testified to conversations with the complainant’s intestate, the deceased partner, whose testimony when combined, digested and directed to the point, clearly proved that John repeatedly declared in and after 1900 that he had ceased to have any connection with ihe stock and bond business, and that his brother was engaged in that enterprise on his oim account alone. True, witnesses were called who testified that Joseph, after 1900, referred to the stock enterprise as “ours” and said “we bought,” &c., but that may be referred to his habit of speech about film business, of which stock and bond operations were once a part, or may have been directed to deception of the persons spoken to in order to avoid questions or making explanations concerning a change in a portion of the firm’s business.

To entitle the complainant to an accounting extending over so many years, where there was such free access to books and accounts by the partner alleged to have been defrauded, and with both partners now dead and thus unable themselves to explain tlieir transactions, in order for tlie complainant to- prevail she would have to adduce clear and convincing evidence of the correctness of her allegations. At best for her, and at worst for the defendant, the case is one of serious doubt and great difficulty. In such a posture the complainant does not show herself entitled to the relief site seeks.

The accounting prayed for will be denied and the bill dismissed, with costs.


author: Emery, Y. C.

text:
    Louis Windmuller et al. v. The Spirits Distributing Company et al.
    [Decided March 25th, 1914.]
    1. As a rule each of several private trustees is severally liable for loss resulting from a joint breach of trust.
    2. Since judicial trustees acting under the Corporation act and decrees of court, in insolvency and corporate dissolution proceedings, are severally, as well as jointly, liable for defaults in which they have joined, and since the title to the unpaid purchase-money, due from the purchaser of corporate assets in such proceedings, devolved on the surviving trustees, the representatives of a deceased trustee are-not necessary .parties to a suit against the surviving trustees to compel an accounting for trust funds, wrongfully used by them, though they are proper parties in view of the fact that the estate of a deceased trustee is liable for defaults in which he joined.
    3. The rule that all parties liable should be before the court' in proceedings for the distribution of trust funds is one of convenience to prevent further suits for distribution, and not a rule of necessity, and may he dispensed with for sufficient reason, for the purpose of rendering a final decree between the parties in court.
    4. The decree authorizing the sale of corporate assets in insolvency and dissolution proceedings contemplated a sale for cash only, to be paid to trustees appointed by the court for immediate distribution pro rata among the preferred stockholders, but the judicial trustees conveyed the assets to the purchaser without requiring payment in cash of the entire price, and thereafter in effect loaned, without interest, the payments received to the purchaser for the purpose of carrying on the business, subject to be recalled by tbe trustees when the stockholders entitled to the payments applied to the trustees therefor; it being probable at the time that such application would not be made until termination of protracted litigation with a third person involving the payment of dividends by the corporation guaranteed by such third person. — Held, that the trustees were liable to the stockholders entitled to receive the purchase-money from the sale of the corporate assets for interest on the payments which they wrongfully loaned to the purchaser without interest.
    5. Trustees who wrongfully invest or misapply trust funds for purposes of trade are chargeable with interest on such funds, and, if the trusts require annual payment to the beneficiaries, annual rests are made.
    6. If trust funds are wrongfully used by the trustee in his own business, the oestm que trust has the option of either charging the trustee with compound interest on the amount misapplied or of taking the profits realized by the trustee therefrom.
    7. Statutory and judicial trustees or receivers are held to the strictest liability for the improper use of trust funds.
    Heard on petition and affidavits, answer and affidavits. On petition of Nathan Bijur, assignee.
    The Spirits Distributing Company, a corporation of this state, voluntarily dissolved by proceedings under the Corporation act, and by decree in this suit dated July 8th, 1902, the answering defendants, directors of the company at the time of the dissolution, together with James A. Webb and Wm. E. Harrity, since deceased, were continued as trustees on dissolution under the statute. Corporation act, Rev. 1S96 § 56.- By the same decree the trustees were authorized and directed to accept the offer of another corporation, the Distilling Company of America,, for the purchase of assets of the dissolved corporation specified in the offer (including the good will, brands, trade marks and trade names of the corporation), and the trustees were directed to convey these assets to the Distilling Company of America, “upon receiving the sum of $1,243,538.80 as the purchasing price thereof.”
    By the offer of purchase (as will appear by an examination of the same in the record) the purchaser had agreed to assume the payment of liabilities of the corporation amounting to $209,-910.03, and it was further declared by the decree that after de.-. duction of this amount from the purchase price, the sum of $1,-033,628.77 was left for actual distribution among the holders of the first preferred stock of the corporation at the rate of $82.69, for each share of the par value of $100. The decree established the holders of the first preferred stock at the time thereof (the whole number of such shares being twelve thousand five hundred), including among these stockholders the Distilling Company of America, the purchaser, which owned eleven thousand nine hundred and sixty-six shares, Mayer Arnold holding fifty-four shares for petitioner and Walter H. Liebman three hundred and fifty shares for petitioner, and Louis Windmuller ten shares. The decree then further proceeded as a decree of distribution of assets and directed that the trustees “forthwith make distribution of this sum of $1,033,628.77 among said first preferred stockholders,” according to their respective holdings as established by the decree, with the further provision that
    “said payments, however, shall not be required to be made, except to such of the said stockholders as shall present their certificates of first preferred stock and permit the endorsement of the payment of said dividends to be made thereon.”
    If was further provided by the decree that the Distilling Company of America, the purchaser of the assets, in making payment of the purchase-money, might tender to the trustees, and the trustees might accept
    “on account of the purchase-money, and so far as the same shall extend, the receipts of the distilling company for its distributive share of the amount for-distribution, and in such case, the balance of the’ purchase price, after payment of the liabilities aforesaid, to be distributed to the holders of the first preferred stock other than the distilling company.”
    Pursuant to this decree the trustees shortly after the decree, and before July 21st, 1902, conveyed the assets of the corporation to the distilling company, the conveyance being, as appears by the answer, of “the gross assets of the corporation subject to its liabilities,” permitting the purchaser to pay the liabilities in such manner as might best preserve and conserve the assets sold. These liabilities have since been paid, as appears by the answer. The purchaser, as appears by its answer, did not elect to tender receipts for its distributive share of the amount for distribution on account of the purchase-money, under the privilege given by the decree, but upon receiving the conveyance, paid to the trustees the sum of $989,468.54, being the same amount the purchaser would have been entitled to receive in cash- as its pro rata, share had the whole purchase price been paid in cash. The conveyance of the assets was made by the trustees without requiring at the time the further payment to them of the balance of $44,160.23, which was the amount the other stockholders were entitled to receive of the entire purchase-money. This partial payment in cash thus received by tire trustees on the conveyance was not distributed pro rata among all the stockholders entitled, but was at once paid to the purchaser, as if entitled to receive from the trustees the whole of this price thus paid in cash, and not merely its proportionate share thereof. No security for the payment of the balance of the unpaid purchase-money was required, nor does any express agreement appear to have been made by the trustees with the purchaser as to the time or manner of its payment, and the sole arrangement made by the trustees in reference to securing any further portion of the unpaid purchase-money for the payment on these shares, seems to have been the one set out in the answer, viz.,
    “that as and when these shares were presented in accordance with the decree, the trustees applied to the purchaser for the amount necessary to pay the holder, received the amount and paid to the holder, crediting the payment on account of the purchaser’s bid.”
    This was done as to the one hundred and thirty shares not owned by petitioner and 'Windmuller. Neither upon the conveyance of the assets nor upon the payment to the purchaser of the entire cash payment received was any agreement made that the purchaser should pay any interest on the unpaid purchase-money, nor was any interest asked or paid on making the deferred payments aforesaid to pay on the one hundred and thirty shares. On July 21st, 1902, the trustees gave notice to Arnold and Liebman as holders of record of the stock belonging to petitioner, to present their certificates of stock and receive the amount c-oming to them under the decree, a copy of which was enclosed. No formal notice seems to have been sent to the petitioner for whom, according to the decree, the Arnold and Liebman stock was held. 'Whether these notices were received by petitioner does not appear, but it appears by the petition that in March, 1912, Liebman and Arnold assigned to petitioner all tire rights they might have by virtue of the order or decree of July 8th, 1902, and petitioner, under the decree and these assignments, now claims that he was entitled to receive as his distributive share under the decree on these four hundred and four shares thus held for him, the sum of $33,406.76. And on March 19th, 1912, he demanded this sum from the trustees, together with interest thereon, at the rate of six per cent, with annual rests. Defendants by their answer tender themselves ready to pay to petitioner the amount for the payment of which they were liable rmder the decree, and say that the purchaser, since July 21st, 1902, has been, and on March 19th, 1912, was able, ready and willing to pay the petitioner’s distributive share, but that they had not at the time of filing the answer (July 2d, 1912) received from the purchaser any money applicable to the payment of petitioner’s distributive share, nor had they received or earned, nor were they entitled to receive directly or indirectly any interest on any money remaining owing from the purchaser on account of its bid. They further say that the purchaser never in any way promised or undertook to pay, and is not obligated legally or otherwise to pay to defendant any interest whatever on any money remaining unpaid by the purchaser on account of its bid. They deny any liability for interest on their part.
    On the application of the petitioner, and upon the admissions of this answer, an order was made directing that the trustees pay forthwith to the petitioner the principal sum of his distributive shares, without prejudice to the question of liability for interest, and the only substantial question now to be decided is that of the liability of the trustees for payment of interest, petitioner claim'ing that the trustees are liable for six per cent, interest with annual rests, and the trustees claiming that there is no liability whatever.
    In explanation of the delay of the petitioner from 1902 to 1912 in presenting his claim for a distributive share, nothing has been presented on the record of this application, except an allegation in the answer that in September, 1905, the petitioner, as the holder of- these shares of stock of the Spirits Distributing Company now in question, had filed a bill against a certain other corporation called the Standard Distilling and Distributing Company, which had guaranteed the dividends on the preferred stock in the Spirits Distributing Company. This suit against the Standard company and its directors (five of whom were also, the directors and trustees on dissolution of the Spirits Distributing Company) was for the purpose, among other things, of suspending the distribution of the assets of the Standard company on its proceedings for dissolution, until petitioner’s claims against the latter company on this guarantee were determined. Litigation under this bill continued (as appears by the answer) in this court and the court of errors and appeals until June 19th, 1911, when the petitioner’s bill was dismissed. The record of this suit was produced at the hearing and referred to by both parties at the argument and on the briefs, and from this record it will appear that petitioner claimed that the dissolution of the Standard Distilling Company had not terminated its liability on the guaranty of dividends on the Spirits Distributing Company stock, and that litigation on his part against the Standard company founded on this claim for dividends guaranteed had been pending in the courts of New York and of this state from 1902 up to June term, 1911, of the court of errors and appeals. Bijur v. Standard, &c., Co.. 74 N. J. Eq. 546; S. C. on appeal, 78 N. J. Eq. 582.

    The formal objection is made by the answer and urged at the hearing that the petition is defective by reason of not making parties thereto the executors of the deceased trustees, Webb and Harrity. It does not appear, however, that either of these personal representatives has had any connection with the transfer of tho assets or the unpaid purchase price.

      Messrs. Coult & Smith, Mr. Robert II. McCarter and Mr. B. N. Cardozo and G. II. Engelhard (of the New York bar), for the petitioner.

      Messrs. Linddbury, Depue & Faulks and Mr. Levi Meyer (of the Illinois bar) and Mr. II. C. Doming (of the New York bar), for the answering defendants.
   Emery, Y. C.

(after statement of facts and issues).

The objection as to defect in parties, because of omission to join the personal representatives of deceased trustees, is unfounded. The general rule as to trustees under private trusts is that each trustee is severally liable for a loss resulting from a joint breach of trust. 1 Lew. Trusts *767, *772. A fortiori trustees and receivers, acting as judicial trustees, under the Corporation act and decrees of court in insolvency and dissolution proceedings, must be liable severally as well as jointly for defaults in which they have joined. The title to part of the trust property here in question (the unpaid purchase-money due from the purchaser) devolved on the survivors alone, with the right to recover it from the purchaser, and as to all of the trust fund or property, the trusteeship survives on the death of one of several joint trustees. And a-s it is the duty of the survivors to account for the trust fund and place it in a proper position, the representatives of a deceased trustee vare not necessary parties to a suit or proceedings against the surviving trustees to account for the trust fund in their hands. Beattie v. Johnstone (Vice-Chancellor Wigram, 1850), 8 Hare 169. As the estate of the deceased trustee is, however, liable to account for a default in which he joined, the representatives may be joined as proper parties. Wilkinson v. Dodd, 40 N. J. Eq. 123, 141, and cases cited.

London Gas Light Co. v. Spottiswoode (Vice-Chancellor Bird, 1885), 14 Beav. 264. The general rule that all parties liable to a demand should, be before the court, is a rule of convenience in procedure adopted to prevent further suits for contribution, and not a rule of necessity. I Dan. Ch. Pr. (6th Am. ed.) *272. It may therefore be dispensed with for sufficient reason, for the purpose of rendering a final decree between the parties in court.

The defendant trustees in this case were judicial trustees under the- Corporation act and the decree of the court defining their powers and duties relating to the sale of the assets of the corporation, and the distribution of the proceeds of sale among the parties entitled, who were also fixed by the decree. The case as to their liability for interest stands as follows: The decree for sale was based on and contemplated a sale for cash only, with an immediate distribution pro rata of the entire purchase-money available under the decree for that purpose among the preferred stockholders named in the decree. There was therefore a double default of the trustees; first, in conveying the assets, without requiring payment in cash of the entire purchase-money, and second, in immediately distributing or paying back to the purchaser alone the whole cash received upon the conveyance. As the amount of this payment was the purchaser’s entire pro rata share of the whole purchase price fixed by the decree, the distribution was a partial preferential cash payment to this single stockholder to. the extent of about $43,750. The entire assets were conveyed by the trustees for the purpose of continuing the use of them in carrying on the trade of the purchaser who received them for this purpose, without being required by the trustees to pay interest on the deferred purchase-money payment, and who did so use and hold them for over ten years. According to the claim presented in the arguments and briefs on behalf of defendants, the trustees and the purchaser as between themselves seem to have acted upon the idea that they were dealing altogether with unpaid purchase-money, payable by the purchaser to the trustees, and to be credited on its bid when afterwards paid, but without interest. But under the form which the purchase, conveyance and partial payment actually took by the choice of the purchaser, viz., the payment of cash instead of tendering receipts for the purchaser’s distributive share of the entire purchase price, the form as well the legal effect of the transaction was to make the cash received from the purchaser by the trustees, money which was trust funds belonging to the trustees only for distribution pro rata. This transaction made the return of the entire cash payment to the purchaser, instead of merely its distributive share thereof, a misapplication by the trustees of the funds for distribution, to the extent of the over-payment. In either aspect of the case, the trustees are liable to the beneficiaries, whose shares in the purchase price have been wrongfully dealt with for the sole benefit of the purchaser. The principal having been paid over by order of the court, the question now to be decided is, whether 'by reason of these defaults or either of them, the trustees are liable to the shareholders whose share in the purchase price have been thus wrongfully dealt with, for interest, when they have in fact received no interest, and if so, to what extent and how it shall be computed.

. Trustees under private deeds or documents, wrongfully investing or misapplying trust funds for the purposes of. trade, are liable for interest, and if the trusts require annual payments to beneficiaries, annual rests are made. This is done not by way of punishment (which would seem to be beyond the power of a court of equity, whose jurisdiction in this class of cases extends only to the protection of rights of property), but by way of returning to the beneficiaries, in compensation for their loss, that profit or return on the trust funds, which the trustee must be presumed to have made by the wrongful use of trust funds, either in his own trade or that of another. According to usual and ordinary methods of business, upon advances of funds for use in trade, annual rests are made. The trustee is therefore liable for such compound interest, when, according to the usual and ordinary methods in the business for which the loans were made, he would have been entitled to receive interest annually, and therefore must be presumed to have received it. If the funds are used in the trustee’s own trade, the cestui que trust has in addition the option of taking the profits or compound interest. In McKnight v. Walsh (Chancellor Zabriskie, 1872), 23 N. J. Eq. 136, 146; S. C., affirmed on appeal. 24 N. J. Eq. 498 (at pp. 509, &c.); Attorney-General v. Alford, 4 DeG. M. & G. 843, and Burdick v. Garrick (Court of Appeal, 1870), 5 Ch. App. 241; S. C., 39 L. J. Ch. 369 (Lord Chancellor Hatherly, at p. 373); Vyse v. Foster (Court of Appeal, 1872), 8 L. R. Ch. 309, these general principles upon which compound interest is chargeable against such trustees for willful default by the wrongful investment of funds in trade, either of themselves or others, are worked out. In the following case, compound interest was charged against the defaulting trustee, Fowler v. Colt, 25 N. J. Eq. 202; S. C. on appeal, Salisbury v. Colt, 27 N. J. Eq. 492 (1875), where the trustees failed to separate and invest trust funds, but left them in stock of a company, and interest was payable annually. In French v. Armstrong (Vice-Chancellor Stevens, 1912), 79 N. J. Eq. 289, an officer of a building and loan association using funds in his hands for loans, was charged with compound interest for eight years. I think extended reference'to'numerous cases from other courts cited and analyzed by counsel on both sides in their elaborate briefs is unnecessary.

As the statutory and judicial trust was for receiving the purchase price and then holding and distributing, it is insisted that pending the delay in distribution, for which they were not in fault and during which they have received no interest, no interest should be allowed, and certainly not compound interest. These trustees, however, did not in fact retain the funds for distribution without investment, in which case they might either not have been liable at all for interest, or not beyond the amount which the shareholder would have received on money paid into court, but they made the delay of the shareholder the occasion of wrongfully misapplying the funds in their hands solely as judicial trustees, for the purpose of benefiting the purchaser by the use thereof in its trade without interest. This circumstance, in my judgment, makes them liable to the beneficiaries for the money belonging to them in their hands which the trustees loaned out, and for the usual and ordinary interest on money so advanced for trade, which would be interest with annual rests. Eo trustees can retain profits derived by themselves from the use of trust funds in their trade, nor can trustees under private trusts, in my judgment, give away solely for the benefit of a third person’s trade, the ordinary and usual return for the use of the trust money in their hands, without liability therefor. And statutory and judicial trustees or receivers are held to the most stringent rules of liability for the improper use of trust funds in their hands. Such trustees or receivers act under the obligations not only of ordinary trustees, but also a,s the officers of the court, upon whom the court, in protecting all parties interested, must depend for working out and assuring the safety and proper distribution of the corporate assets of which it has assumed control.

The fact that the principal of the trust funds improperly invested or misapplied wras in some sort subject to be repaid on call, cannot in this case at all relax the liability of the trustees for interest with annual rests, and for the plain reason that the trustees, according to their own answer, do not seem to have reserved the right to recall even the principal, except “as and when” the shareholders applied to them for payment of their share of the trust funds. These trustees holding trust funds or property pending distribution were not authorized to invest at all, and if they chose to invest, rather than pay into court, or ask for further instructions, were chargeable themselves with the protection of the cestui que trust’s right to interest on the fund, as well as to the fund itself, and could not by any agreement with the lender, here a participator in the default, make the payment either of interest or principal dependent on the action of the cestui que trust. The shareholder not only had no control over the loan of the trust funds to the purchaser, but does not appear to have had any notice until the receipt of a letter from counsel in December, 1911, that the cash payable by the trustees as his share on dissolution had not been actually paid to the trustees, and had not been actually in their hands since the sale. Their answer in the Standard suit, which is set out in the trustees’ answer to this petition, expressly stated that this fund

“is beld by the trustees * * * and the same has yielded and is yielding no izztez-est and pz-oducizzg no benefit to the distz'ibuting company or its trustees on dissolution or the Standard company or its trustees.”

This statement construed fairly and in the sense in which it was manifestly intended to be taken, is substantially a statement that the money for petitioner’s distributive share was then in the trustees’ hands for payment to him and was so held uninvested. In this sense it was untrue. Had it been true, petitioner might perhaps not have had the right to charge the trustees with interest on a fund which was unproductive by no fault of theirs. But the real reason it was unproductive was their own default in loaning it for the benefit of the purchaser’s trade, without any interest, and subject to call only when the beneficiary applied to the trustees. It was probable that such application would not be made until the close of the protracted litigation against the Standard company, for the reason that the acceptance of the distributive share on the principal sum of the preferred stock might, as against the guarantor of the dividends, be claimed to terminate the guarantee. And the possibility that in petitioner’s suit against the Standard company, this guarantee of dividends on the Spirits Distributing Company stock might be held to continue, may have been a reason for the purchaser paying cash, instead of tendering' its own receipts for its distributive shares on this guaranteed stock.

The result of the arrangement betunen the trustees and the purchaser was to secure the benefit of the use in the purchaser’s trade and without interest, and during a litigation which would probably be prolonged, of the portion of the fund in the hands of these judicial trustees, which belonged to the petitioner under the decree, and without any notice to him of this unauthorized use of the funds.

Under the entire circumstances appearing in the case, the trustees are chargeable with interest at six per cent, and with annual rests.


text:
    Wolf Weidenbaum et al. v. Pauline Raphael.
    [Decided May 13th, 1914.]
    1. A purchaser who, before receipt of his deed or payment of money, except a deposit of $100, had notice of his vendor’s prior contract to sell and convey, was not a T)ona fide purchaser or protected against the previous contract, except as to the $100.
    2. Heirs of a purchaser are entitled to specific performance, and to have the administrator pay the purchase price out of the personal estate, and the fact that such heirs are infants does not of itself prevent specific performance in their favor, if either they or someone in their behalf are able to carry out the conditions of the contract.
    3. A married woman as purchaser, though not as vendor, can be compelled to perform specifically, so that, as between her heirs and the vendor, the remedy is mutual.

      4. A purchaser’s right to specific performance depends on the fulfillment of the conditions to be performed on his part, and his assignee, even when under no disability, cannot substitute his personal liability-on the unperformed conditions against the consent of the vendor, and, where the assignee is a trustee, and the execution of the contract requires covenants, specific performance in his favor cannot be compelled, unless he personally enters into the covenants.
    o. A married woman agreed to purchase land for $12,000 and to pay the purchase-money, and died intestate before the day fixed for passing title, leaving her husband surviving, who was appointed administrator, and three infant heirs-at-law, and a total personal estate not exceeding $2,000, and thereafter the vendor agreed to sell to.defendant for $12,000, of which only $100 was paid before notice of the prior contract, $6,000 by accepting a conveyance subject to a mortgage for that amount, $8,500 by a purchase-money mortgage, and $2,400 in cash at settlement. The administrator individually, and as next friend of the infant heirs, brought a bill for specific performance. — Held, that, although the personal estate was insufficient, and the infants, on receiving a conveyance, could make no valid contract for further payments, or give a bond therefor, or assume payment of the first .mortgage, and the defendant could not be compelled to accept a mortgage for the balance of the purchase-money, without any personal obligation for its payment, yet, as it was manifestly the intention of the contract of sale that the conveyance should be made on payment of the purchase price, there would be a decree for conveyance upon payment thereof, less the $6,000 mortgage.
    On bill for specific performance. Heard on bill, answers, replication and proofs.

      Mr. Nathan II. Berger, for the complainants.

      Mr. William Tyaclc, Jr., for the defendants Raphael.

      Mr. Isaac Bpangenlhal and Mr. Edward B. McGlynn, for the defendants Herzfeld and Dreyfus.
   Emery, Y. C.

This is a bill for specific performance of a written agreement for.sale of land in Newark made between Maley Weidenbaum, the wife of Wolf Weidenbaum, as purchaser, and defendant Pauline Raphael and Morris Raphael, her husband, as vendors, and defendants Herzfeld and Dreyfus, who purchased the land under a subsequent agreement. The purchase price of the land was to be $12,000, which tlie purchaser agreed to pay as follows: $100 on signing the agreement, $6,000 by accepting the conveyance subject to a first mortgage which the purchaser agreed to assume, $4,250 by executing and delivering a purchase-money mortgage as a second lien on the premises, payable $100 every six months with five per cent, interest, and $1,650 in cash on the passing of title. The vendee died intestate before the day fixed for passing title, leaving her husband surviving and three heirs-at-law, infants aged, respectively, twelve, ten and eight years of age. The husband has been appointed administrator of his wife. jSTo inventoir or account has been filed, hut it is proved that the total personal estate does not exceed $2,000.

After the death of the vendee the vendors entered into another agreement to sell the premises to the defendants Herzfeld and Dreyfus for the sum of $12,000, $100 paid in cash on the date of tlie agreement, $6,000 by accepting a eonve3rance subject to a mortgage of that amount, $3,500 by a purchase-money mortgage and $2,400 in cash at the settlement. Subsequently, the conveyance was made under this second agreement and the second mortgage for $3,500 was given to the vendors, and the balance of the purchase-money (due after deduction of liens) was paid.

Before the receipt of the deed or- the payment of any sum except the $100 deposit the second purchasers had notice of the prior contract, aiid are therefore not bona fide pm chasers except as to the amount previously paid, $100, and are protected only to that extent against tlie previous contract. Haughwout v. Murphy (Court of Errors and Appeals, 1871), 22 N. J. Eq. 531; Brinton v. Scull (Vice-Chancellor Grey, 1897), 55 N. J. Eq. 747. The bill is filed by complainant, individually, as administra lor of the estate and next friend of the infant heirs.

The general rule is that heirs of a vendee are entitled to specific performance, and to have the administrator pa3r the purchase price out of the personal estate. Fry Spec. Perf. (4th ed.) §§ 211, 217.

The married woman as vendee can be compelled to perform specifically (though not as vendor), and as to her the remedy is therefore mutual, as between her heirs and the vendor. Moore v. Baker (1903), 65 N. J. Eq. 104.

The fact that the heirs of the vendee are infants does not of itself prevent the specific performance of the contract in their favor as vendees,, if either they or someone in their behalf are able to carry out the conditions of the contract on the purchaser’s part. It is not a case of disability of the infants in the making of a contract of sale which could not be enforced because of such disability.

But the vendee’s right to specific performance is dependent on the fulfillment of the conditions to be performed on his part, and the assignee of a vendee, even when under no disability, is not permitted to substitute his personal liability on the unperformed conditions against the consent of the vendor. 26 Am. & Eng. Encycl. L. (2d ed.) 126; Pom. Spec. Ferf. § 820. Where the assignees of the vendee are trustees, and the execution of the contract requires covenants, specific performance in their favor cannot be compelled unless they personally enter into the covenants. Ibid. §§ 881, 882. In this case the personal estate of the wife is sufficient (if there be no debts) to make llie payment on jjassing title, but not to make any further payments. The infants on receiving the conveyance cannot make any valid contract for further payments, nor assume the payment of the first mortgage, nor can the vendors (or their assignee, the second purchaser) be compelled against their will to accept a mortgage for the, balance of tire unpaid purchase-money, without any personal obligation for its payment. It is contended on behalf of complainant that the agreement of sale does not expressly provide that a bond shall accompany the mortgage or that there shall be any personal liability of the vendee for the unpaid purchase-money. But there is no equity in this claim, for the agreement of sale contains an express agreement by the vendee to pay the purchase-money, and were she herself claiming performance, it could only be upon condition of continuing by the usual bond this personal obligation to pay the purchase price, made in the agreement itself. It is impossible, therefore, to carry out formally this provision for the securing of the future payment o£ the purchase-money by installments, but as it was manifestly the primary purpose of the agreement of sale that the conveyance should be made upon the. payment of the purchase price, my conclusion is, that while the vendors cannot be compelled to convey on receiving a mortgage for the unpaid purchase-money, a decree may be made for conveyance upon payment to them of the entire purchase-money less the amount of the prior mortgage. If complainant, on behalf of the infant, desires to take decree on this condition, I will hear application to settle decree, fixing time and settling the terms of the conveyance.


author: Stevens, Y. C.

text:
    John Shields et al. v. John Shields Construction Company.
    [Decided February 16th, 1914.]
    The insolvent corporation borrowed money from a bank on two notes, one of which matured the day after it was adjudged insolvent and the other subsequently. The insolvent’s balance on deposit was set off by the bank against the notes, and the bank proved its claim for the balance due. Corporation act (8 Gomp. Stat. 1910 p. 1643 § 66) directs the receiver, in case of mutual dealings between a corporation and any person, to allow just set-offs in all cases in which the same ought to be allowed according to law. — Eeld, that, as the act is essentially a bankrupt act, and its provisions ought to be construed accordingly, the bank was entitled to set off the balance due the insolvent corporation and prove for the remainder of the debts, even though one of the notes was not then due. McManus-Kelly Co. v. Pope Hamtfacturing Co., 70 Atl. Rep. 297, disapproved.

      Mr. Conover English, for the Metropolitan Bank.

      Mr. Chauncey G. Parker, for the receiver.
   Stevens, Y. C.

In the settlement of the affairs of the defendant, an insolvent corporation, a question has arisen growing out of the following facts:

On September 30th, 1905, the construction company applied to the Metropolitan Bank for a loan of $5,000. This loan was granted and the company gave its note of that date payable three months thereafter. At the time of the application, its president, John Shields, made a statement signed on behalf of the company containing, among other things, the following stipulation :

“In consideration of granting any credit by said bank, the undersigned agree that in case of failure or insolvency on the part of the undersigned, * * * all or any of the claims or demands against the undersigned, held by said bank, shall at the option thereof, immediately become due and payable.”

On October 16th the company applied for and obtained a further loan of $20,000, evidenced by a four months note. The proceeds of both notes were credited to its account with the bank and it made, in addition, two deposits, one on October 5th, of $7,200 and the other on November 17th of $5,604.08.

On December 29th, 1.905, the company was adjudged insolvent and a temporary receiver appointed. On January 2d, 1906, the bank, having received notice of the adjudication, set oil against the notes, one of which had matured on December 30th, the balance of $.2,422.50, then on deposit, and thereafter proved its claim for the balance due. The question is, had it a right to malee the set-off and then to prove for the difference. The contention of the receiver is that he is entitled to the balance on deposit; and that the bank is entitled only to such dividends on the whole sum due on the notes as might be payable out of the assets.

The question, as I view it, must be resolved by reference to the provisions of our Corporation act. Section 66 directs the receiver

“in the case of mutual dealings between the corporation and any person to allow just set-offs in favor of such person in all cases in which the same ought to be allowed according to law or equity.”

Speaking of this provision. Judge Elmer, in Receivers v. Paterson Gas Light Co., 23 N. J. Law (on p. 299), says: “I cannot doubt that it was the intention of the legislature to give a right of set-off in the case of insolvent corporations at least to the same extent that it had been previously done between individual debtors. Indeed'there is much reason to believe that it was intended to go farther, and although it is not necessary now to decide that point, I should be disposed to hold, that if the defendants had been, at the time the bank failed, the bona fide holder of its obligation, not yet due when this suit ivas commenced, they would have been entitled to set it off against their liability on the bill declared on. According to the legal meaning of the expression, these parties would have been mutual dealers, previous to the failure and to the action brought, although they would not have been mutually indebted, and no set-off could have been allowed under the statute of set-off. That statute requires the parties not only to have been mutual dealers but to be ‘indebted to each other/ whereas the section requiring receivers of insolvent incorporations to allow just set-offs omits words implying mutual indebtedness, and gives the set-off to all who hold the relation of mutual dealers. The English statutes of bankruptcy allow the set-off where there have been ‘mutual credits given/ a phrase which seems to have the same meaning as ‘mutual dealing/ for in legal effect, where there has been ‘mutual credit1 there lias been ‘mutual dealing.’ Under those statutes it is well settled that debts not duo may be set off against the assignees, as well as those that are.”

In the case from which this extract is taken it was the defendant’s obligation that had not matured at the time the receiver was appointed, whereas here it was the insolvent company’s. A distinction has been taken, under the statute allowing set-offs, between the case of a note or other obligation due to the debtor claiming the right of set-off and a note due by him. In the latter case, it has been held that he may elect to treat his own debt as presently due and so become entitled to the set-off, while in the former, it is said, that as he cannot accelerate the maturity of the debt due to him, he cannot claim the right. Fera v. Wickham, 135 N. Y. 223. But the statute allowing set-off in general, as Judge Elmer points out in the above-quoted passage, mentions only “debts or demands which may be due and owing.” The language of the Corporation act is broader.

The court of errors and appeals has very recently, in the case of Butler v. Commonwealth Tobacco Co., 74 N. J. Eq. 423, held that our statute, in so far as it deals with insolvent corporations, is essentially a bankrupt act and that its provisions should be construed accordingly. The Bankrupt act (section G8) provides that

“in all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor, the account shall be stated and one debt shall be set off against the other and the balance only shall be allowed or paid.”

The act not only uses the expression “mutual debts” but the broader phrase, “mutual credits.” The expression in our Corporation act, “mutual dealings” is, as Judge Elmer points out, broad enough to include them both. It is well settled that in bankruptcy proceedings debts not yet due are the subject of set-off. A late case, in which the law and the reasons for it are clearly stated is Matter of Philip Semmer Glass Co., 11 Amer. B. R. 665. A still later case is Frank v. Mercantile Nat. Bank, 182 N. Y. 264, in which Chief-Justice Cullen holds the same way. He says: “Tf the defendant’s rights depended on the equitable rule of set-off as it obtains in. this state, it is clear that the notes held b}r it (the company) which had not matured at the time of the transfer of the title from the bankrupt to his assignee could not be set off against the plaintiff’s claim.” But, he adds, tire defendant’s claim is not based upon the rule in equity but on the provisions of the bankrupt law. As to that he says the uniform current of authority in the district and circuit courts of the United States and, he thinks, in the supreme court, is to the effect that as unmatured claims are provable against the bankrupt’s estate, they are necessarily the subject of set-off under the provisions of section 68 of the Bankrupt act. Not only does our act respecting insolvent corporations say that set-off is allowable where the dealings are mutual but, like the Bankrupt act, in section 86, it declares that “the creditors shall be entitled to distribution on debts not due, making in such case a rebate of interest when interest is not accruing on the same.” For the purpose of the winding up proceedings this section matures the debt at the time of the receiver’s appointment. As soon as he is appointed claims become provable. As our act has been held by the court of errors and appeals to be a bankruptcy act and as it contains provisions certainly as broad as the Federal Bankruptcy act, there is every reason why the decisions of the federal courts should be followed. 'Uniformity in this regard is as desirable as it is in other cases where the state and federal courts exercise a concurrent or at least a very similar jurisdiction.

McManus-Kelly Co. v. Pope Manufacturing Co., 70 Atl. Rep. 297, is relied upon in opposition to the view here expressed. At the time the opinion in that case was written the Butler Case had not been reported. Neither it nor the provisions of the Corporation act are referred to. The case was regarded as one of equitable set-off and, so considered, was undoubtedly decided in accordance with the authorities. But to follow the case now, would, I think, be to run counter to the principle laid down by the court of errors and appeals. The case must be decided by the statutory rule applicable to insolvent companies and not by the ordinary rule of equitable set-off.

There is force in the view that the mutual dealings' between the Shields company and the bank were so tied together by the agreement entered into when the first note was discounted, that even under the Pope Case, insolvency having supervened, the one claim may be set off against the other, but the other ground is conclusive.


text:
    Samuel Gordon, administrator, v. Ella R. Toler.
    [Decided March 2d, 1914.]
    1. A depositor signed a printed form directing the bank to add her sister’s name to the account, giving joint rights therein, and to pay the deposit to either or to the survivor. A by-law printed in the pass-book provided that no one should have the right to receive any sum without producing the pass-book. Thereafter the original depositor stated that she did not wish her sister to have the money, and drew certain sums and retained the book in her possession until her death. — Held, that such form was made only to facilitate the drawing, of the money, and. that the original depositor intended to retain and, in fact, did retain control of the deposit during her lifetime, so that there -was no completed gift inter vivos.

    2. Statute of wills, prescribing the manner in which a testamentary act shall be executed, was not impliedly repealed by Savings Bank act (4 Gbmp. Siat. 1910 p. 4708 § 27), providing that a deposit made in the name of two persons payable to either or to the survivor may be paid to either, whether the other be living or not, since the later act was intended only to protect savings banks, and the two statutes may stand together; and hence a depositor’s act in making the deposit payable to her sister or to the survivor, but intending to retain and retaining the pass-book and control of the fund during her lifetime, did not operate as a testamentary disposition of what remained at her death.
    8. Such acts of the depositor did not have the effect to give any beneficial interest to a joint depositor as survivor, since the gift was never completed, and an incomplete gift will never be perfected in a court of equity.

      Mr. Edwin B. Goodell, for the complainant.

      Mr. Charles II. Halfpenny, for the defendant.
   Stevens, Y. C.

Matilda Gordon, complainant’s testatrix, had an account in the Bloomfield Savings Institution. On July 8th, 1912, and about eight months before her death, she went to the bank with her sister, Ella R. Toler, and there signed the following paper:

“Bloomfield, N. J., July 8th, 1912.
“The Bloomfield Savings Institution is hereby authorized and directed to add the name of my sister, Ella R. Toler, to my account No. 10,884, giving equal and joint rights and privileges in said account and make the funds now on deposit or hereafter deposited payable to either of us or to the survivor.
“Matilda Gokdon.
“Witness, I-Iowakd Biddulph.”

The authority thus signed was on the printed slip the bank was accustomed to use. “The intent,” says Mr. Biddulph, the treasurer, “was to make the account payable to either (sister) or to the survivor.” Having this authority, he wrote under the name “Matilda Gordon” in the pass-book, the words “or Ella R. Toler” and stamped under both names the further words “payable to either and to the survivor.” We have no evidence of what Mrs. Gordon said at the time, nor any evidence as to what she, in fact, intended, except her subsequent declaration and acts. Sarah Gordon, a cousin of her husband, testifies as follows:

“I asked her ‘why did you have the name put to the bank book.’ She said, because I have this asthma and sometimes I might be so that I couldn’t talk and she could draw the money out of the bank, because the children couldn't draw it, because they weren’t of age. And I said, I asked her, if she wanted her to have the money. She said no, not a bit of it.”

The undisputed evidence is that the bank pass-book remained in her possession up to the time of her death and the entries therein show that on eight occasions, between November, 1912, and December, 1913, she drew out sums varying from $10 to $65.

Article 7 of the by-laws, as printed in the pass-book provides, that “no person shall have the right to demand or receive any sum as principal or interest without producing his pass-book; that the amount demanded and paid may be entered therein.”

The contract made by the bank was therefore in effect “I will pay the sum deposited or any part thereof to Matilda Gordon or Ella R. Toler and the survivor, on production of the pass-book.”

The only reasonable inference to be drawn from the above facts is that Mrs. Gordon intended to retain and did in fact retain, control of the fund during her lifetime; and that the above entry was made only to facilitate the drawing of the money. There was no completed gift of it inter vivos. The case of Skillman v. Wiegand, 54 N. J. Eq. 198, and the other eases cited by counsel are conclusive on this head.

The question then arises was there a gift of what remained at her death. The effect of the word “survivor” was considered in Stevenson v. Earl, 65 N. J. Eq. 721. It was there held by the court of errors and appeals that an act essentially testamentary could not be effectuated by a paper like that in controversy, because not made in the manner prescribed by the statute of wills. This decision would undoubtedly rule the present controversy, as lar as the question of gift to take effect at death is concerned, were it not for section 27 of the act concerning savings banks, enacted since it was decided. The section reads as follows:

“When a deposit has been or shall hereafter be made in the name of two persons, payable to either or payable to either or the survivor, such deposit or any part thereof or interest or dividend thereon, may be paid to either of said persons, whether the other be living or not and the receipt or acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.”

The question is whether this section was intended to do anything more than protect savings banks. It certainly was not designed to make that a gift, which according to the evidence was not a gift, present or future, but only a convenient way of drawing money, and it ought not to be construed as an implied repealer, fro tanio, of the Wills act if the two statutes may stand together. It is manifest that they may. The survivor may hold in trust for the estate of the deceased depositor, and the bank, taking the receipt of the surviving depositor, may be discharged from liability for what it pays out. It is not to be presumed that the legislature, under an act entitled “An act concerning savings banks,” intended, if it could constitutionally intend, to repeal the Wills act in part and thus to dispense with those safeguards which have so long been deemed essential to protect the estate of a decedent. No such construction is necessary. Garrick v. Taylor, 4 DeG. F. & J. 159, 165.

But even if the act should be held to have a wider scope, it cannot be held to have had the effect of giving a beneficial interest to Mrs. Toler if the evidence does not show a donative purpose. Giving to the word “survivor” its fullest effect, the intent to make a gift is inconsistent with the repeated acts of Mrs. Gordon in drawing out money and especially with her failure at any time to deliver the pass-book to Mrs. Toler. Not only is there no proof of its delivery, animo donandi, but no proof of its delivery for any purpose whatever. As the contract was to pay on the production of the book, delivery of it was, under the circumstances, essential to the completion of the gift. An incomplete gift is never perfected by a court of equity.

The complainant is entitled to a decree.