author: Per Curiam. Dixon, J.

text:
    National Council of Junior Order of United American Mechanics of the United States of America, appellant, v. State Council of Junior Order of United American Mechanics of New Jersey, respondent.
    [Argued November 24th, 1903.
    Decided February 29th, 1904.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 19 Rich. Oh. Rep.

      Mr. Charles L. Gorlin, for the appellant.
    ' Mr. Alan.il. Strong, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Pitney filed in the court of chancery.

Dixon, J.

(dissenting).

•I think it clear that of the forty cents per head collected by the state council ini 1900 under its resolution of October, 1899, twenty-five cents per head was collected to meet the levy directed by the national council, in June, 1899. This would not be disputed, and the trust thus created in favor of the national council would be upheld, if no effect were given to the resolution of the state council directing its officers not to pay any tax to the national council until certain laws of that council were rescinded.

In my view that resolution can have no effect, for it was contrary to the order of the national council passed in June, 1899, which was unquestionably valid; and, according to the constitutions of both councils, in case of such a conflict, the proceedings of the state council were to he of no force. So long as the state council remained subordinate to the national council, the former could not impair the legal efficacy of the authorized acts of the latter.

Hence, I conclude that the twenty-five cents per head came into the treasury of the state council impressed with the same trust as would have attached to it if this invalid resolution had not been passed, and, therefore, that the national council is entitled to the relief sought.

For affirmance — The Ciiiee-Justice, Port, Pitney, Swayze, Bogert, Vredenburgii, Vroom, Green, Gray- — 9.

For reversal — Dixon—1.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Mary Collins (by next friend), respondent, v. Annie Toppin, appellant.
    [Argued December 2d, 1903.
    Decided February 29th, 1904.
    Filed March 1st, 1904.]
    On appeal from a decree of Vice-Chancellor Pitney, whose opinion is reported in 20 Dick.' Ch. Rep. J¡:39.

      Mr. George T. Werts, for the appellant.

      Mr. Charles L. Corbin, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Pitney filed in the court of chancery.

For affirmance — The Chief-Justice, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green, Gray — 12.

For reversal — None.


text:
    Mary C. Barrett, respondent, v. The Bloomfield Savings Institution et al., appellants.
    [Argued December 3d, 1903.
    Decided February 29th, 1904.
    Filed March 1st, 1904.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 19 Dich. Gh. Rep. J¡25.

      Mr. Gilbert Oollins and Mr. 'Edward Oahes, for the appellants.

      Mr. Halsey M. Barrett, for the respondent.
   Per Curiam.

The order appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Pitney filed in • the court of chancery.

For affirmance — The Chief-Justice, Dixon, Garrison, Fort, Hendrickson, Pitney,.Swayze, Bogert, Vredenburgh, Vroom, Green, Gray — -12.

For reversal — Hone.


text:
    Lizzie H. Harter, respondent, v. The Capital City Brewing Company, appellant.
    [Submitted December 8th, 1903.
    Decided February 29th, 1904.
    Filed March 1st, 1904.]
    .On appeal from a decree of Vice-Chancellor Reed, whose opinion is reported in 19 Diclc. Gh. Rep. 155.

      Mr. James Buchanan, for the appellant.

      Mr. R. M. J. Smith, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Reed died in the court of chancery.

For affirmance — Ti-ie Chief-Justice, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgh, Green, Gray — 11.

For reversal — None.


text:
    Abraham Demarest et al., executors, &c., respondents, v. Robert S. Demarest et al., appellants.
    [Argued November 27th, 1903.
    Decided February 29th, 1904.
    Filed March 1st, 1904.]
    On appeal from a decree advised by Vice-Chancellor Emery.

      Mr. William II. Corbin, for the appellants.

      Mr. Christopher Christie, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Emery filed in the court of chancery.

For affirmance — Dixon, Hendrickson, Pitney, Swayze, Vredenburgh, Green — 6.

For reversal — The Chief-Justice, Garrison, Fort, Bogert, Vroom, Gray — 6.


text:
    Emma K. Lister, respondent, v. Robert P. Lister, appellant.
    [Argued December 2d, 1903.
    Decided February 29th, 1904.
    Filed March 1st, 1904.]
    On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in 20 Dick. Gh. Rep. 109.

      Mr. Samuel Kalisch and Mr. Frank M. McDermit, for the appellant.

      Mr. Elvin W. Grane, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Emery filed in the court of chancery.

For affirmance — Ti-ie Chief-Jus tice, Dixon, Garrison, Port, Hendrickson, Pitney, Swayze, Bogert, Vredenburgi-i, Vroom, Green — 11.

For reversal — None.


text:
    James R. Mott, respondent, v. Rosa E. Rutter, appellant.
    [Argued December 1st, 1903.
    Decided February 29th, 1904.
    Filed March 1st, 1904.]
    On appeal from a decree advised by Vice-Chancellor Grey.

      Mr. John J. Crandall and Mr. Charles A. Baalce, for the appellant.

      Mr. Charles E. Merritt and Mr. John B. Black, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of Vice-Chancellor Grey rendered in the court of chancery.

For affirmance — The Chief-Justice, Dixok, Garrisok, Port, Hekdricksok, Pitkey, Swayze, Bogert, Vredekburgh, Vroom, Greek, Gray — 12.

For reversal — None.


text:
    Edward L. Miller, respondent, v. Mary Elizabeth Miller, appellant.
    [Submitted December 8th, 1903.
    Filed May 13th, 1904.]
    On appeal from a decree advised bj' Vice-Chancellor Reed.

      Mr. Samuel W. Beldon, for the appellant.

      Mr. Walter IJ. Bacon, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated ini the opinion of Vice-Chancellor Reed in the court below.

For affirmance — The Chief-Justice, Dixon, Garretson, Hendrickson, Pitney, Swayze, Bogert, Vredenburgh — 8.

For reversal — Fort, Vroom, Green, Gray — 4.


author: Fort, J.

text:
    Adam Eckert et al., petitioners and respondents, v. The Perth Amboy and Woodbridge Railroad Company, defendant and appellant.
    [Argued June Term, 1903.
    Decided November Term, 1903.]
    1. It is not necessary that the extra hazardous condition existing at a ■crossing shall have been caused by the railroad company to justify the ■court of chancery in making the decree authorized by the act entitled ■“An act for the protection of railroad crossings,” approved March 16th, 1898. It is only necessary that conditions exist at a crossing, at the time the petition is filed by the governing body of a municipality under said act, which make it reasonable and necessary for the security of human life or the protection of the public, that gates or bars', or other reasonable provision for protecting such crossing, shall be erected and maintained.
    2. The act of March 16th, 1898, is not unconstitutional under article 3 of tlie state constitution. It does not confer upon the judiciary powers which belong exclusively to the legislative department of government.
    On appeal from a final decree of the court of chancery ad-wised by Vice-Chancellor Pitney.

      Mr. Alan II. Strong, for the appellant.

      Mr. Charles G. Hommann, for the respondents.
   The opinion of the court was delivered by

Fort, J.

The petition in this case was filed by the governing body of the ■city of Perth Amboy, praying that an order be made by the ■court of chancerj7, directing the defendant company to protect "by gates, bars, or a flagman, the crossing at Hall avenue and Washington, William and Broad streets in that city. Testimony was taken on the petition, and the court, having fonnd that some protection was necessary at said crossing for the security of human life and the protection of the public, ordered that gates or bars, which may be raised or lowered as occasion may require, shall be erected and maintained across Broad, Washington and William streets and Hall avenue within three months of the date of the service of the decree upon the defendant company, and it was further ordered that the defendant company pay the costs of the application.

Under the proofs in the cause the court of chancery was justified in finding that the erection of gates or bars, or the placing of a flagman at the several crossings in question, was necessary for the security of human life and the protection of the public.

It was contended, on behalf of the appellant, that to justify an order of the nature of that made in this case, it must not only appear that the crossing is a dangerous one, but that the danger is in consequence of some action of the railroad company and not 'the result of other causes, such as the growth of the population, or the erection of obstructions adjacent to-the railroad track by others than the railroád company.

These proceedings are entirely statutory. The petition was filed and the order was made pursuant to the power conferred upon the court of chancery by the act entitled “An act for the protection of railroad crossings,” approved March 16th, 1898.. P. L of 1898 p. 110.

By the terms of the statute, whenever a condition arises which makes it appear to the satisfaction of the chancellor, after a hearing, upon a petition filed by the governing body of any municipality, that it is reasonable and necessary for the security of human life, or the protection of the public, that gates or bars should be erected or maintained, or a flagman should be stationed at a crossing, the court shall make an order or decree to that effect.

Before the governing body shall make such application it is-required to adopt an ordinance directing such application to-be made.

The statute, as we construe it, operates upon the situation as it exists at the time of the filing of the petition under the-act. If then, from any cause, a condition exists which makes it reasonable and necessary for the security of human life, or the protection of the public, that the safeguards authorized by the statute be decreed to be erected and maintained, the court may so order.

The principle of the decision in Matthews v. Pennsylvania Railroad Co., 7 Vr. 531, has no application to this proceeding. This proceeding is not based upon any question of negligence-in the railroad company. It is not a question between an individual and the railroad company. It is simply one as to the regulation of the railroad company by the state in the interests of the safety of the public.

Railway corporations, without any express reservation of the powers over them by the legislature in their charter, are subject, like individuals, to be restrained, limited and controlled in the exercise of their powers by such laws as the legislature may pass, based on the principles of safety to the public. State v. Noyes, 47 Me. 189; Railroad Company v. Riblet, 66 Pa. St. 81, 164; Boston C. & M. R. R. Co. v. State, 32 N. H. 215; Thorpe v. Rutland Railroad Co., 27 Vt. 140; People v. B. & A. R. R. Co., 70 N. Y. 569.

Our own supreme court has held it within the power of the legislature to confer upon municipalities authority to require a railroad company to place a flagman at a crossing. Delaware, Lackawanna and Western Railroad Co. v. East Orange, 12 Vr. 127. Indiana and Georgia have likewise so held. Western Railroad Co. v. Young, 81 Ga. 397; Pennsylvania Railroad Co. v. Stegemeier, 118 Ind. 305.

The case of Matthews v. Pennsylvania Railroad Co., supra, was clearly differentiated by Vice-Chancellor Grey in Palmyra v. Pennsylvania Railroad Co., 17 Dick. Ch. Rep. 611, from proceedings in chancery under the statute of 1898.

The opinion of the learned vice-chancellor in that case was approved in this court and declared to contain its reasons for affirmance here. Palmyra v. Pennsylvania Railroad Co., 18 Dick. Ch. Rep. 799.

The other ground assigned for reversal is- that the act of March 16th, 1898, supra, is unconstitutional in that it is in conflict with article 3 of the state constitution, which declares:

“The powers of government shall be divided into three distinct departments — -the legislative, executive and judicial — and no person or persons belonging to or exercising one of these departments, shall exercise any of the powers properly belonging to either of the others, except as herein expressly provided.”

The full force and scope to be given to this clause will he found lucidly discussed by Mr. Justice Dixon in Ross v. Freeholders of Essex, 55 Atl. Rep. 310. That learned justice declares: ““It should be noted that the force of this clause is not to confine the legislature to powers which are legislative, the governor to powers which are executive, and the courts to powers which are judicial, but merely to forbid each department to encroach upon the powers properly belonging to another. The powers property belonging to each of these departments, and therefore forbidden to the others, are those assigned under the general terms “legislative power/ “executive power’ and “judicial power/ and also those specifically delegated by the constitution to the senate and general assembly or to the governor or to the courts.”

Mr. Justice Van Syckel, in Paul v. Gloucester County, 21 Vr. 610, says that ““this constitutional clause relates only to those powers which by the constitution itself are assigned to, or which, in their nature, pertain to one of these departments exclusively. * * * But there is a multitude of governmental duties which have never been and cannot possibly be performed either by the legislature or the governor, and which are certainty not prescribed by the constitution to the judiciary.” We deem the act of 1898 entirety unobjectionable on the constitutional ground stated. It is a statute restrictive in its operation. We have seen that it has been held by our supreme court to be within the power of the legislature to confer upon a local municipalit}r, acting upon reasonable cause, power to require a railroad company to station a flagman at a dangerous crossing. It would be equally within its authority to confer the power to require the erection of gates or bars at such a crossing. These powers are within the police power of the state for the protection of the lives or safety of its citizens.

Is it possible to construct a theory upon which it can be said that the legislature, in granting to a municipality this right, may not require of it that the railroad company shall be entitled to a judicial hearing before its duty to safeguard the crossing shall become imperative?

Tinder the act of 1898 the legislature has enacted that before the municipal body shall petition the court it shall be of opinion that it is necessary for the safety of human life, or the protection of the public, that gates shall be erected or some other reasonable provision made for protecting the crossing, and that before making such application it shall pass an ordinance directing such an application to be made.

The state itself could, by statute, take into its own hands, without using the municipal agency, the protection of railway crossings, and when it confers this power upon its agent it can condition or limit it, as it chooses. By the act of 1898 it has only conferred the initiative upon the municipal bodies of the state and vested in the court of chancery, after hearing, the right to finally order whether the petition of the municipality, authorized by its ordinance, shall be granted.

The enforcement of police regulations has from time immemorial been through the courts.

To us it seems that the procedure pointed out in the act of 1898 is clearly judicial in character and strictly within judicial cognizance, and upon this' branch of the case we adopt the language of Vice-Chancellor Grey in Palmyra v. Pennsylvania Railroad Co., supra, wherein he says:

“General legislative regulations could not possibly provide for the special emergencies arising at particular crossings calling for appliances to make each crossing safe which are peculiar to that spot. In some cases one method would fitly afford relief, in other cases another.
“Remedies for these exigencies must be provided. The functions to be exercised in providing them cannot be deemed to be legislative. The legislature has no means of investigating and determining the questions which these conditions raise, or of directing the installing of the additional safeguard which each particular crossing may require, because of its own peculiarities. If it attempted to hear and determine disputes between-municipalities and railroad companies as to their respective rights and duties at each particular crossing, the parties must be noticed, a hearing must be had, evidence must be produced and its admissibility ruled upon,. argument must be heard and considered and a judgment must be pronounced.
“These incidents are inherently necessary to the accomplishment of the desired result, i. e., the ascertainment whether at a particular crossing it is the duty of a particular railroad company to provide additional safeguards, because of the situation of affairs there existing. Such a procedure by the legislative department, in any mode of its action, would certainly go much further to intrude upon powers properly belonging to the judicial department than the exercise of the powers conferred by the statute of March 16th, 1898, upon this court — would be an intrusion upon the legislative field.”

The decree of the court of chancery is affirmed.

For affirmance — The Chief-Justice, Dixon, Garrison, Fort, Garretson, Hendrickson, Pitney, Sivayze, Bogert, Yoorhees, Yroom, Green — 12.

For reversal — None.


author: Garrison, J.

text:
    William W. Varrick, administrator of Augusta A. Thompson, deceased, complainant and respondent, v. Adrian Hitt, defendant and appellant.
    [Argued November 24th, 1903.
    Decided February 29th, 1904.
    Filed February 29th, 1904.]
    A court of equity, having jurisdiction of the case made by the bill of complaint, may, notwithstanding its capacity to grant the relief prayed for, of its own motion, dismiss the bill at any stage of the cause upon the ground that the complainant has an adequate remedy at law. When, however, no objection upon this ground is raised by the defendant, the court may, in the exercise of a sound discretion, retain the cause.

      Mr. Robert L. Lawrence and Mr. Andrew Gilhooley (of the New York bar), for the appellant.

      Mr. Isaac 8. Taylor and Mr. James B. Vredenburgh, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

We concur in the conclusions of fact reached in the court of chancery, one of which was that a note for $32,00Q, made by the complainant’s intestate to the defendant, was without consideration. The decree below directed, inter alia, that the defendant deliver up this note for cancellation. The defendant appealed from the whole of this decree. After the argument of this' appeal upon its merits, this court requested counsel to submit their views as to the jurisdiction of the court of chancery to decree the cancellation of an overdue promissory note upon the sole ground that it was without consideration, a matter that had not been argued in this court and had not been raised by the parties in the court below. Dpon a re-examination of the case with reference to this question we find the situation to have been this: The complainant, as administrator of the estate of Augusta A. Thompson, filed a bill against the defendant, Adrian Hitt, alleging with respect to the $32,000 note in question, that, if not a forgery, it was obtained by fraud or undue influence and without any consideration other than the pretension that it represented a partnership accounting, and that, together with a claim that a certain $10,000 note was a gift causa mortis, constituted a fraudulent scheme to acquire the entire estate in the hands of the complainant as administrator. The defendant answered all of these charges in extenso, submitting, however, by his answer as to all of them, that the complainant had an adequate remedy at law.

If the allegations of the hill had, at this stage, been admitted by a demurrer, it is obvious that the jurisdiction of the court must have been sustained. Ho demurrer was, however, interposed, and the cause proceeded with the taking of the complainant’s, testimony, which occupied twenty-six days before the vice-chancellor and covered all of the issues raised by the bill and answer. At the close of the complainant’s case the defendant’s counsel, before entering upon the examination of his witnesses, moved for leave to amend his answer by striking out the reference to the existence of an adequate remedy at law, stating that, especially as to the $32,000 note and the questions of genuineness, undue influence or lack of consideration, he desired “to withdraw that plea and unreservedly submit to this court the jurisdiction to .pass upon every issue presented by the pleadings, to the end that its determination may be a final adjudication of these issues both in this court and in all other courts.” At this stage of the cause the issues referred to were, all of them, open and somewhat interdependent questions, the first two of which were clearly of equitable cognizance and the last not without that scintilla of jurisdiction sustained by this court in Palys v. Jewett, 5 Stew. Eq. 302.

The defendant’s motion was not an attempt by consent to confer jurisdiction upon the court, for that it already had; it was, at most, a voluntary stipulation, possibly superfluous, that if, upon any of the issues about to be litigated by the defendant, the court should reach a result conclusive of the defendant’s right to enforce the note for $32,000, no objection to such decree would be made upon the ground of the adequacy of the complainant’s remedy at law. This attitude of the defendant’s counsel, and the withdrawal of his challenge of jurisdiction, did not prevent the court, of its own motion, from dismissing the complainant’s bill at any stage of the cause upon the ground of the adequacy of the remedy at law. It simply transformed a question of right into one of discretion. The situation was similar to that presented by the case of Lehigh Zinc Co. v. Trotter, 16 Stew. Eq. 204, in which Mr. Justice Depue, writing the opinion of this court, said: “The court, of its own motion, may dismiss a bill at any stage of the cause on the ground that the complainant has an adequate remedy at law, but where the defendant has not raised the objection until after testimony on the merits has been taken, the court, in its discretion, will retain the cause if the court is competent to grant tire relief prayed and has jurisdiction of the subject-matter.”

In the case before us it was not until the termination of the elaborate defence put in by the defendant, following his stipulation and relying upon the amendment of his answer, that the learned vice-chancellor reached the conclusion that, aside from the issues of forgery and fraud, the note for $32,003 was not a valid obligation of the said Augusta A. Thompson, and that her administrator was entitled to have the defendant restrained from transferring it or from taking proceedings at law for its enforcement and to have the note itself delivered up to be canceled. No right of the defendant’s being involved, because none was raised, it was solely within the sound discretion of the court itself whether it should, of its own motion, at this stage of the cause, dismiss the bill and remit the parties to a relitigation of the same issue in a court of law. Testimony, covering over seventeen hundred printed pages, had been taken at a great expenditure of time and money; both parties had tried out fully the issues upon which the court proposed to base its decree; the defendant had expressly requested that such issues be considered and had stipulated that, if decided adversely to him, a decree might be entered without reference to any other remedy the complainant might have. The result that was reached rested, in a measure, upon the finding that the claim to the $10,000 note was fraudulent and part of a common scheme against the intestate’s estate. With these circumstances, among others, before him, the learned vice-chancellor exercised the discretion that vested in him after the withdrawal by the defendant of his objection to the equitable cognizance of the cause. It is apparent, therefore, that the question of jurisdiction, in any broad sense of the term, was not involved, but rather the mere propriety of the mode in which a judicial discretion, arising during the progress of a cause, should be exercised, as to which, in the present case, the appellate tribunal; after full examination, is entirety satisfied.

The decree below is therefore affirmed, without reference to the question of the jurisdiction of equity to entertain a suit solely for the cancellation of an overdue note given without consideration.

I am not- unmindful that in the opinion delivered in this court in the case of Metler v. Metler, 4 C. E. Gr. 457, there is an expression to the effect that equity will decree the cancellation of a promissory note merely because it was given without consideration, and that this opinion has been cited in the court of chancery as authority for such proposition. A reading of the opinion referred to shows that a significant fact in that case was an express agreement of the defendant to deliver up the note in question upon the happening of a determinate event, and that the specific performance of this agreement formed the basis of the decree of the chancellor and of the affirmation of such decree by this court. It is therefore, to say the least, doubtful whether the remark in question was intended to be more than the individual view of the writer of the opinion, as it was entirety apart from and unnecessary to the decision of the state of the case given in the opinion itself. It furthermore confuses negotiability with transferability in a way that greatly impairs its value as an authoritative statement of the law. It is not, however, necessary now to decide what force is to be given to this language, or to express any opinion as to the soundness of the doctrine enunciated, inasmuch as, without reference to the question to which it refers, we have reached the conclusion that upon its own circumstances the decree before us should be affirmed. ■ ■ ■

For affirmance — The Chief-Justice, Dixon, Garrison, Fort, Hendrickson, Pitney, Swayze, Bogert, Vredenburgt-i, Vroom, Green, Gray — 12.

For reversal — None.


author: Gummere, Chief-Justice.

text:
    George W. Slack et al., appellant, v. Eliza E. Rees, respondent.
    [Submitted December 8th, 1903.
    Decided November 14th, 1904.
    Filed November 15th, 1904.]
    1. A gift, made by a father of advanced years and in infirm health, to a daughter who is furnishing him care and service, made neces'sary by his physical condition, is, presumptively, the result of undue influence; and, in a suit brought to have a gift, made under such conditions, declared invalid for this reason, the burden of proving absence of undue influence rests upon the donee.
    2. The rule that a deed of gift containing no power of revocation will be set aside where a relation of trust and confidence exists between donor and donee, and the donor has had no independent advice as to the effect of the deed upon his own interest in the subject-matter of the gift, applies to an irrevocable conveyance made by an aged and infirm father, without independent and competent advice, to a daughter with whom he lives and upon whose care his well being depends.
    On appeal from a decree in chancery advised by Yice-Chancellor Eeed.

      Mr. Aaron V. Dawes, for the appellants.

      Mr. Edwin R. Walker, for the respondent.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The two complainants and the defendant are the only children and heirs-at-law of George H. Slack, deceased, who died on the 13th day of August, 1902, at the age of sixty-eight years. On the day before his death he executed a deed to his daughter, Mrs. Eees, conveying to her two houses and lots in the city of Trenton. lie owned no other real estate, and his personal-estate was insufficient for the payment of his debts. His sons seek to have the conveyance set aside and declared void upon the following grounds: That their father lacked mental capacity to make the deed; that it was the product of undue influence exercised by their sister upon him; and that, in making the deed, he did not have the benefit of competent and independent advice.

The deceased, for a number of years before his death, suffered from the disease known as locomotor ataxia. By the progress of the disease his physical powers became gradually weakened, and his mental powers also were somewhat affected. But although his mind was somewhat weakened, we fully concur in the conclusion of the learned vice-chancellor who heard the ease below, that he retained sufficient mental capacity to dispose of his property.

The second ground of attack upon the conveyance — that it was the product of undue influence — presents a more difficult question. For a period of nearly three months prior to his death he was an inmate of his daughter’s home. He was, during all that time, dependent upon her for the care and service which a man in his weakened physical and mental condition constantly requires. The normal relation of parent and child, as it had existed in earlier years, had been reversed, and the daughter had become the guardian of the father. In this situation the law presumes that a gift made by the parent to the child is the product of undue influence, and casts upon the latter the burden of proving the contrary. It was considered by the vice-chancellor before whom the ease was tried, that she had discharged this burden. After a careful review of the testimony we are not one as to the soundness of this conclusion. A decision upon this point in the case, however, is rendered unnecessary, as we conclude that the conveyance must be set aside, because, in making it, the donor did not have the benefit of competent and independent advice as to its effect.

That the absence of such advice will invalidate a deed of gift, which contains no power of revocation, where a relation of trust and confidence exists between the donor and donee, is not denied, and, indeed, it was so held by the vice-chancellor. He seems to have considered, however, that such relationship was not shown, unless it was made to appear that the donee occupied such a dominant position toward the donor as to raise the presumption that the latter was without power to assert his will in opposition to that of the donee. But this is not the situation. The rule has a much broader sweep. Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee as it is to afford him protection against the consequences of voluntary action on his part, induced by the existence of the relationship between them, the effect of which, upon his own interests, he may only partially understand or appreciate. The following-citations from our own decisions make this plain: “In all transactions between parties occupying relations,, whether legal, natural or conventional in their origin, in which confidence is naturally inspired, or, in fact, reasonably exists, the burden of proof is thrown upon the person in whom the confidence is reposed, and who has acquired an advantage, to show affirmatively not only that no deception was practiced therein, no undue influence used, and that all was fair, open and voluntary, but that it was well understood.” Hall v. Otterson, 7 Dick. Ch. Rep. 528; S. C., on appeal, 8 Dick. Ch. Rep. 695. “Where parties hold positions in which one is more or less dependent upon the other, courts of equity hold that the weaker party must be protected, and they set aside his gifts if he had not proper advice, independently of the other.” Haydock v. Haydock, 7 Stew. Eq. 575. “The rule to be gathered from the English and American eases is that the burden of proof is east upon the donee to establish that the donor fully appreciated what he was doing, or, at all events, in the doing had the benefit of disinterested and competent advice.” Coffey v. Sullivan, 18 Dick. Ch. Rep. 302.

The present case is a marked example of the wisdom of the rule. The deed was made by Mr. Slack almost’ immediately after a prostrating attack, which was a phase of the disease from which he was suffering. Neither of the physicians who were in attendance upon him expected the attack to be fatal. As soon as he was sufficiently recovered from its violence to permit it, an attorney, who had previously been employed by him in other matters, was sent for, and, upon his arrival, Mr. Slack stated to him that he wished him to draw a deed, conveying to Mrs. Rees certain property which he owned in Trenton, and asked the attorney whether he had better make a will or a deed. Pie was advised by the attorney that it would be better to make a deed, and did so. No power of revocation was reserved in the deed, and its effect, if valid, was to practically strip him of his whole estate, for his personal property, as has already been stated, was insufficient to pay his debts. If the opinion of his physicians, as to the effect of the attack upon him, had turned out to be accurate, he would, for the rest of his life, have been a dependent upon the charity of others, except so far as a pension which he received from the national government would have sufficed to support him. From his inquiry made of the attorney, whether it would be better for him to make a will or a deed, it seems quite probable that he considered the one would be no more effective than the other to presently deprive him of all further interest in the estate to be embraced in the instrument which he proposed to execute. It is difficult to understand the failure of the attorney to advise Mr. Slack as to the effect of such a deed as was executed. He not only should have done this, but, in the language of Vice-Chancellor Malins, in Coutts v. Ackworth, L. R. 8 Eq. Cas. 558, he should have insisted upon inserting in it the reservation to the donor of the power to revoke the gift, unless Mr. Slack had distinctly refused to have it done.

The decree will be reversed, and the record remitted to the court of chancery, with instructions to that court to enter a decree setting aside the conveyance in question and declaring it to be null and void.

For reversal — The Chief-Justice, Dixon, Garrison, Fort, Pitney, Swayze, Bogert, Vredenburgii, Green, Gray — 10.

For affirmance — Vroom—1.


text:
    Aaron E. Johnston, executor of Mary E. Throckmorton, deceased, respondent, v. Patrick I. Reilly et al., appellants.
    [Filed May 13th, 1904.]
    A constructive trust will arise against a person who, by falsely representing to B that he is acting in the interest of 0, obtains from B property which B intended to give to C, and that trust may be enforced by C irrespective of the question whether 0 had an enforceable claim against B.
    On demurrer to bill.

      Mr. Aaron E. Johnston, pro se.

      Mr. Charles J. Roe, for the appellants.
   Per Curiam.

According to the allegations in this bill, Yan Note intended to convey to Mary E. Throckmorton his legal title to the property, subject to the defendants5 encumbrances, and the defendants, by representing to Yan Note that they were acting in the' interest and for the benefit of Mrs. Throckmorton, so as to secure for her the surplus arising from the sale of the property on the foreclosure of their encumbrances, induced Yan Note to convey his title to them.

These circumstances would establish against the defendants, in favor of Mrs. Throckmorton, a constructive trust arising ex maleficio, co-extensive with the representations so made (2 Pom. Eq. Jur. § 1055), without regard to the question whether there was any enforceable arrangement between her and Yan Note.

The order overruling the demurrer to the bill is affirmed.

For affirmance — The Chief-Justice, Dixon, Garrison, Port, Hendrickson, Pitney, Swayze, Bogert, Yredenburgh, Yroom, Green, Gbay — 12.

For reversal — None.


text:
    Edwin C. Swift et al., appellants, v. Delaware, Lackawanna and Western Railroad Company et al., respondents.
    [Filed September 30th, 1904.]
    On appeal from a decree advised by Yice-Chancellor Emery, whose opinion is reported ante p. SJ.

      Mr. Chandler W. Biker, for the appellants.

      Mr. Henry Young and Mr. Robert H. McCarter, for the respondents.
   Per Curiam.

We concur in that part of the opinion delivered in.this cause by the learned vice-chancellor which holds that the' alleged contract between the defendant railroad company and private persons for the permanent maintenance of grade crossings over certain streets in the city of Newark must, so far at least as the right to specific performance is concerned, be deemed subject to the public duty of that company and to the police power of the legislature vested by the act of 1893 (P. L. of 1898 p. 167) in the municipal authorities of the city to secure the safety of public highways. The authorities of the city and of the railroad company having both determined that those crossings unnecessarily endangered public travel, we think, on that ground, an injunction «forbidding their removal was rightly refused.

This being our conclusion, we refrain from expressing either concurrence in, or dissent from, the other propositions set forth in that opinion.

For affirmance — Dixon, Garrison, Fort, Swayze, Bogert, Wredenburgii, Vroom, Green, Gray — 9.

For reversal — None.


text:
    J. Warren Vreeland, respondent, v. Wallace N. Vreeland et al., appellants.
    [Filed November 14th, 1904.]
    On appeal from a decree advised by Yiee-Chancellor Stevenson, whose opinion is reported in 20 Dick. Gh. Rep. 668.

      Mr. John Griffin, for the appellants.

      Mr. James A. Gordon, for the respondent.
   Per Curiam.

We agree with the opinion of Yiee-Chancellor Stevenson in this ease to the effect that the memorandum, dated December 28th, 1893, amounted to an agreement between the testator and his two sons; that, in dividing his estate at his death, the advancement of land then made to each of them should be treated as the advancement of money — so many dollars; that this agreement is one of the circumstances in the light of which the testator’s will should be interpreted, and that in this light the reference in the will to “sums of money advanced” appears to have been intended to include those advances of land.

The decree below should be affirmed.

For affirmance — The Ci-iiee-Justice, Dixon, Garrison, Fort, Pitney, Swayze, Bogert, Yredenburgh, Yroom, Green, Gray — 11.

For reversal — None.


author: Swayze, J.

text:
    Garret E. Winants, complainant and respondent, v. Henry Traphagen et al., defendants and appellants.
    [Filed November 14th, 1904.]
    A mortgagor purchased the mortgaged premises at a foreclosure sale, and deposited with the sheriff ten per cent, of the amount of his bid. Upon his failure to complete the purchase, complainant’s solicitors procured an order directing the sheriff to retain the deposit to meet any deficiency on a resale. Subsequently, the mortgagor, at the request of complainant’s solicitors, gave them an order upon the sheriff for the money. The sheriff refused to pay because of the outstanding order to retain it. — Held, that it was the duty of complainant’s solicitors to secure a revocation of the order, and that the mortgagor was entitled to a credit upon the decree as of the date of his order upon the sheriff.
    On appeal from an order of the chancellor.

      Messrs. Collins & Corbin, for the appellants.

      Messrs. Vredenburgh, Wall & Van Winkle, for the respondent.
   The opinion of the court was delivered by

Swayze, J.

The controversy in this case is over the amount now due upon a decree for foreclosure of a mortgage. Pursuant to the decree an execution was issued and the mortgaged premises were advertised for sale. Payments on account were made by the defendants and frequent adjournments had. The property was sold February 5th, 1891, to Henry Traphagen, the mortgagor, who deposited with the sheriff $752, being ten per cent, of the amount of his bid. Hpon his failure to complete the sale, the solicitors of the complainant, on September 1st, 1891, procured an order that the property be resold. This order directed the sheriff to retain in his hands the deposit made by Traphagen on the former -sale to meet any deficiency on the resale until the further order of the court. On October 15th, 1891, Traphagen, at the request of the complainant’s solicitors, gave them a letter to the sheriff, requesting him to credit the $753 on the execution, and pay the same loss his fees to the complainant’s solicitors. This letter was delivered to the sheriff and .produced by him from among his papers. It is endorsed: “Hold previous ten per cent, for Yredenburgh & Garrctson (solicitors of complainant) and not for Traphagen.” It does not clearly appear whether this endorsement was made by the representative of Yredenburgh & Garretson or the representative of the sheriff. The sheriff did not pay the money, for the reason that the order .of September 1st, 1891, directing him to retain it, was still outstanding, and the money now remains in his hands.

The claim of the defendant is that he is entitled to credit for this sum as of October 15th, 1891. This claim was rejected by the master to whom it was referred to ascertain and report the amount due on -the decree. Upon exceptions to the master’s report it was confirmed by the chancellor, and thereupon this appeal was taken.

It was a disputed question of fact whether Traphagen knew of the terms of the order of September 1st, 1891, or of the •refusal of the sheriff to pay over the money, but the .chancellor did not find it necessary to decide this question, nor is it necessary to decide it in the view we take of the case.

The only obstacle to the payment of the money by the sheriff on October 15th, 1891, was the order of September 1st. This order had been procured for the protection of the complainant by his solicitors. It was intended to enable the complainant to realize the full amount of his decree if, upon a resale, the property should bring $753 less than upon the former sale. The money was impounded solely for the benefit of the complainant, and, upon a resale of the property for a smaller sum, he would have been able to secure an order directing the payment of the money to him. Nor can there be an}r doubt that, even before a resale, he could, upon the production of Traphagen’s order of October 15th, 1891, have obtained an order for the immediate payment to him of the money. It was in the power of the complainant to remove the obstacle in the way of payment. It was not in Traphagen’s power even had he known the facts. We think that when Traphagen, at the request of the complainant’s solicitors, gave them the order on the sheriff, it became their duty to take such steps as were necessary tó secure the money; and if a revocation of the order was necessary, it was as much their duty to procure such revocation as it was to deliver Traphagen’s order.to the sheriff.

The order should be reversed and the record remitted to the court -of chancery for further proceedings in conformity with this opinion.

For reversal — Dikon, Garrison, Port, Pitney, Swayze, Bogert, Vredenburgi-i, Vroom, Green, Gray — 10.

For affirmance — Done.


author: Pitney, J.

text:
    Frank C. Hollins, complainant and appellant, v. The American Union Electric Company, defendant, and Frederick K. Day, receiver, respondent.
    [Submitted July, 1904.
    Decided March 6th, 1905.
    Filed March 13th, 1905.]
    Upon the evidence in this case — Held, that certain advances made by Hollins to the American Union Electric Company were made not as loans to- the company, but in performance or part performance of certain promises made by him to his associates in the enterprise, and substantially as payments for his stock in the company.
    On appeal from an order of the chancellor advised by Vice-Chancellor Stevenson, whose opinion is reported in 56 Ail. Rep. 10J/.1.

      Mr. Alan II. Strong, for the appellant,

      Mr. Robert II. McCarter, attorney-general, for the respondent.
   The opinion of the court was delivered by

Pitney, J.

This is an appeal from an order of the chancellor, affirming the action of the receiver in disallowing a claim of Iiollins, the appellant, against the insolvent corporation, based upon a promissory note for $25,459.29, made by the corporation on the eve of appellant’s application for appointment of a receiver. The claim, as originally presented to the receiver, included not only the note in question, but also two additional notes, one for $1,000 and one for $987.01, all three dated October 24th, 1902, and alleged to have been authorized by the directors of the company on October 20th. After presentation of the claim to the receiver,-the appellant withdrew from his .consideration the two smaller notes, admitting that they did not represent indebtednesses of the company to him. Upon the hearing before the vice-chancellor the evidence had the effect of limiting his claim to certain advances made by him to the company, aggregating $24,000, and said' to be included in the note for $25,459.29.

Hollins appears to have made sundry advances to the defendant corporation at different times, from its organization in June, 1902, down to and including October 21st in the same year. The company had an ostensible capital of $7,000,000, which was issued in exchange for ninety per cent, of the shares of another company, known as the Union Railway Power and Electric Company, that was incorporated in the spring of the same year with an ostensible capital of $6,000,000. Mr. Hollins, acting through others as his figure-heads, was the actual organizer and chief promoter of both companies, and was at all times in practical control of the officers and directors of both. Our examination of the evidence leads us to agree with the learned vice-chancellor that neither the promissory note, nor the action of the board of directors of October 20th, 1902, has any evidentiary value in support of the claim of Mr. Hollins against the American Hnion Company, and that the burden rested upon him to show that the moneys claimed were in fact advanced as loans to that company. That burden, in our opinion, he has not sustained.

The capital stock of the American Hnion Company, like that of its predecessor, was enormously inflated, and as the result of certain remarkable financial operations, sufficiently detailed in the vice-chancellor’s opinion, and all conducted under the guidance of Mr. Hollins, he secured upwards of $1,000,000 par value of American Hnion stock, for which he had paid a comparatively insignificant consideration. Even treating all the advances on which his present claim is based as a part of his payments for that stock, its cost to him was only a small fraction of its par value. While in form he did not receive this stock from the treasury of the company, in effect he did so receive it, the intermediaries being manifestly his mere “dummies.” • His purpose, as disclosed by the evidence, was to make a profit out of the flotation of the stock; that is, that the small manufacturing concerns of which the company was the owner should be operated simply for the purpose of lending color of value to the enormous stock issues, and that the stock should be sold out “on the curb” for prices exceeding its cost to Mr. Hollins and his associates.

In furtherance of this purpose Mr. Hollins agreed with his associates to furnish whatever money was needed in the operations of the company, and to receive as his recompense the profits he could make by sales of the stock. We are satisfied that all of the advances included in the claim in controversy were made pursuant to this ■ arrangement. The circumstance that-he received his stock (if he did receive it) prior to the date of the advances is not convincing to the contrary, since the proceedings that eventuated in placing him in control of the stock certificates were manifestly contrived for the purpose of giving his stock the status of “full-paid” stock and were not deemed by him a satisfaction of his agreement with his associates as to “financing” the company. We are not called upon to adjudge that he remained legally liable as upon an unpaid subscription for stock, but merely to decide (as we do) that the payments in question were made by him to the company in performance, or part performance, of his promises to his associates in the enterprise, substantially as payments for stock of the company and not as loans.

It is strongly insisted that this view cannot reasonably be entertained with respect to the last advance of $1,000, which was made on October 21st, only five days before his application for appointment of a receiver. The evidence shows, however, that even after this sum was advanced, and on the very eve of the receivership, he made declarations to one of his associates inconsistent with the notion that he intended to repudiate his arrangement with them.

However, we are not here particularly concerned with the $1,000 advanced on October 21st, since we are satisfied from the evidence that that sum was not included in the note for $25,459.29, but was evidenced by the note for $1,000, the claim for which was abandoned below.

Counsel for the appellant argued that, upon the hearing before the vice-chancellor, the receiver based his defence to the appellant’s claim on the ground that the $24,000 in question were paid by Hollins to the American Hnion Company as proceeds of the sale, “when issued,” of stock in a proposed concern called the Federal, &e., company, intended as an off-shoot of the American Hnion Company; a ground inconsistent, as is claimed, with the defence eventually sustained by the vice-chancellor and by us approved. Our examination of the evidence convinces us that the appellant’s point is not well taken; that the testimony introduced by the receiver was intended to demonstrate that the monej^s in question were paid by Hollins in performance of his agreement with his associates with respect to the American Hnion stock; and that this must have been understood by Hollins and the counsel who represented him in the , court of chancery. The vice-chancellor’s intimation to the contrary, at one stage in the protracted hearings before him, was based upon a misapprehension that was subsequently corrected by his review of the testimony.

The order of the chancellor should be affirmed, with costs.

For affirmance — The Chief-Justice, Dison, G-abrison, Eort, Pitney, Swayze, Bogert, Vredenburgi-i, Vroom, Green, Gray — 11.

For reversal — Rone.


author: Magie, Chancellor.

text:
    William W. Varick, administrator, &c., et al. v. Ethel V. Smith.
    [Submitted May 10th, 1904.
    Filed June 7th, 1904.]
    The act entitled “A supplement to an act entitled ‘An act concerning executors and the administration of intestates’ estates’ (Revision), approved March twenty-seventh, one thousand eight hundred and seventy-four, regulating the sale of lands by administrators with the will annexed, and defining their powers,” approved April Oth, 1888 (Q-en. Stat. p. 17/29), does not confer upon an administrator with the will annexed power to make sale of real estate which by the will was devised to the executors, upon trusts to be performed by them, not as executors, but as trustees.
    On bill, answer and stipulated facts.

      Mr. Isaac 8. Taylor, for the complainant.

      Messrs. Collins & Corbin, for the defendant.
   Magie, Chancellor.

The bill in this cause was filed by William W. Yarick, administrator with the will annexed of Augusta Almeda Thompson, deceased, and others, who are interested under the provisions of said will. The purpose of the bill is to obtain a construction of some of the provisions of the will, and instructions and directions to the complainant, the administrator with the will annexed, and for other relief.

The sole defendant is the child of a nephew of the testatrix and is made a party as claiming an interest in the estate of the deceased. She is an infant and appears by a guardian ad litem.

There are many questions raised in respect to the construction of parts of the testatrix’s will, but as preliminary to their consideration there are other questions which must be disposed of.

The first question relates to the power of the administrator with the will annexed over the sale of certain real estate of which the testatrix died seized. It is made to appear that the testatrix died on July 15th, 1900. She left a last will executed by her on October 27th, 1879. By that will she appointed Erancis W. Raymond and Henry W. Johns executors and trustees, and in the event of the death, disability or refusal of either of them to qualify or act, she appointed in his place Thompson Kingsforcl. Both Raymond and Johns had died before the testatrix. Iiingsford survived testatrix, but renounced and declined to act as executor or trustee. The complainant Yarick was duly appointed administrator with the will annexed.

The testatrix left property botli real and personal. After making some specific legacies and dispositions, the fourth clause of the said will was in the following words:

“Fourth. — All the rest, residue and remainder of my estate of which I may die seized or possessed, of whatsoever kind and wheresoever situated, I do hereby give, devise and bequeath to my executors hereinafter named.
“In Trust : To divide into five equal shares, and to pay over one of the said shares to each of my said brothers, Francis W. Raymond and Henry A. Raymond, if living, but if either shall have died, then his issue to take the share which his, her or their parent would be entitled to, if living; and to hold, invest and manage one of said remaining three shares for each of my said sisters, Mary Louisa Raymond, Catherine J. Smith and Emma E. Langwith, and to invest their said respective shares in the securities allowed by law only, and receive the rents, profits and income thereof, and to pay over the same quarterly to my said sisters, respectively, for each of their sole and separate uses and benefit, during their natural lives, respectively, and free from the control and debts or engagements of either of their present or any future husbands either of them may marry, and after the death of either of them, then to pay the principal of the personal estate and convey the real estate, if any, to and amongst her child or children in such shares and proportions as she shall by deed or by her last will and testament direct and appoint, and in default of issue my said sisters to have the power by appointment to leave their respective shares to such persons as they shall think proper; and in default of any such appointment said respective shares to go to their said respective children in equal shares upon attaining the age of twenty-one years, respectively, with power to said trustees to apply the income and such part of the principal as they in their discretion shall think proper towards the education, maintenance and support of such child or children during his, her or their minority, and in case there shall not be any child who shall attain the age of twenty-one years, and default of issue and any appointment, then the said share of either one of my said sisters so dying shall go to her next of kin as provided by law, in any state where I may be residing at the time of my death, excepting, howevei', that it be in the same mañuelas if she had died unmarried.”

It is obvious that by this disposition of the rest and residue of all her property, real ap.d personal, testatrix intended to invest her executors with the legal title to her real estate and the legal interest in her personal estate which should remain after payment of debts and expenses of administration and after the specific dispositions previously contained in her will had been made. The legal estate and interest thus conferred was to be taken and held by them upon the trusts declared. The preliminary duty imposed on them was to divide what was thus given into live equal shares. Two of the shares were intended to be immediately paid to her brothers or to the issue of either who had died. Of the three other shares, one was to be held by them during the life of each of her sisters.

If the performance by the trustees of the duty to divide the residue into five equal shares required the conversion of real estate into money, they doubtless had power to sell real estate. Testatrix, however, contemplated that a division of real estate might be made so that any share allotted to a sister for life might include a portion of real estate, for although she- directs the investment of such a share in securities allowed by law, she also directs the trustees, upon the death of the life tenant, to pay the principal of the personal estate and convey the real estate, if any, of such share to the persons designated as the ultimate beneficiaries.

The sale of real estate thus permitted by implication is plainly to be made, not by the executors in that capacity, but by them as trustees holding the real estate as devisees in trust.

• The question presented, then, is whether a sale of real estate thus provided for may be made by an administrator with the will annexed.

It was necessarily conceded in the argument that such an administrator possesses power to sell real estate of a testator only by virtue of the provisions of some statute.

By the provisions of section 20 of the “Act concerning executors and the distribution of intestates’ estates,” approved April 16th, 1846 (Rev. 1846 p. 350), it was provided that a deed made by any administrator with the will annexed for any lands sold pursuant to any power or direction in the will given to or vested in the executor named therein, should be as good, valid and effectual as if made and executed by such executor. It was further provided that such administrator should have the same power and authority as was given to or vested in the executor named in the will, unless where otherwise expressly provided in the same.

The provisions of section 20 above cited were substantially re-enacted as section 11 of the “Act concerning executors and the administration of intestates’ estates” (Ee,vision), approved March 27th, 1874.

By an act entitled “A supplement to an act entitled ‘An act concerning executors and the administration of 'intestates’ estates’ (Bevision), approved March twenty-seventh, one thousand eight hundred and seventy-four, regulating the 'sale of lands by administrators with the will annexed, or by administrators do 'bonis non with the will annexed, and defining their powers,” approved April 6th, 1888 (P. L. of 1888 p. 395; Gen. Stat. p. 1429), the provisions of section 11, above cited were repealed.

By section 1 of the act of 1888 the same force was given to any deed made by an administrator with the will annexed pursuant to a power in the will given to, or vested in, the executor, and it was provided that such an administrator should have the same powers and authority with respect to the sale of lands of the testator as were given to, or vested in, the executor or executors named in said will,

'■whether such powers and authority constitute or shall constitute a naked power to sell lands, or constitute or shall constitute a special continuing trust, and whether the discharge of the duties of such trust involves or shall involve the exercise by said executors or executor of any discretion, either in point of time or method, or not.”

The legislation existing prior to the passage of the act of 1888, above cited, has been frequently before the courts. It has been uniformly held that it conferred power on the administrator with the will annexed to exercise powers of sale conferred by the will upon executors cjua executors, but not where the power devolved on the executors as trustees with trust duties to perform. Griggs v. Veghte, 47 N. J. Eq. (2 Dick.) 179; Brush v. Young, 28 N. J. Law (4 Dutch.) 237; Zabriskie’s Executors v. Wetmore, 26 N. J. Eq. (11 C. E. Gr.) 22; Weiland v. Townsend, 33 N. J. Eq. (6 Stew.) 393; Lanning v. Sisters, &c., 35 N. J. Eq. (8 Stew.) 392; Sloutenburgh v. Moore, 37 N. J. Eq. (10 Stew.) 63; S. C., 38 N. J. Eq. (11 Stew.) 281; Naundorf v. Schumann, 41 N. J. Eq. (14 Stew.) 15; Joralemon v. Van Riper, 44 N. J. Eq. (17 Stew.) 299; Giberson v. Giberson, 43 N. J. Eq. (16 Stew.) 116.

In Griggs v. Veghte, ubi supra, it was intimated that the act of 1888 enlarged the statutory powers of an administrator with the will annexed over the sale of lands of the testator, but the case did not call for any determination of the extent of the power which was thereby conferred. The provisions of the act are not easy to construe, and its language is not happily chosen to make clear what powers were intended to be conferred. It is, however, clear that the powers conferred respect a sale of lands. The act does not expressly confer upon an administrator with the will annexed any power to act as trustee under the will. The express power granted is limited to the sale of lands, and the legislative purpose is itself limited by the title of the act, which declares that it regulates the sale of lands by an administrator with the will annexed. Nor can there lie any such power implied, for such an implication would make the act inconsistent with its title.

If, therefore, the complainant in this cause should be held to possess power to sell testatrix’s real estate included in the residue, it would still be requisite to administer the trust created, and, in the absence of a consenting trustee under the will, a trustee or trustees must necessarily be appointed.

But I do not find it possible to discover in the statute of 1888 any grant of power to an' administrator with the will annexed to sell lands which are the subject of an express devise in trust. Had the devise in this case been made to strangers instead of to ■the executors, it does not admit of question that the administrator would have no power of sale under the statute.

The fact that the devise in the case before us is to persons named as executors will not alter the situation. The act, therefore, must be held to be limited in the powers conferred on administrators with the will annexed to powers conferred on executors to sell land as executors, and not when they acquire by a devise an absolute title for the purpose of a trust. In that case they sell, if a sale is necessary, not as executors but as devisees with absolute title. It also results that if there be no trustee in.being to manage this trust, a trustee or trustees should be appointed for that purpose. No construction of the will for the direction of a trustee could bo properly made before such appointment.

One of the prayers of the bill is for the appointment of a trustee. Counsel may be heard on the question of whether such an appointment may be made upon the case now before the court, and without.an amendment of the bill, and the presence of some person representing Ivingsford, the executor and trustee who survived testatrix. When a trustee is appointed, he may seek the aid of the court either in this case or by an original proceeding on his part.


text:
    Benjamin C. Gregory v. Lillian L. Gregory.
    [Filed June 7th, 1904.]
    1. The purpose of the legislation permitting the appointment of vice-chancellors to hear matters and causes referred to them and advise the chancellor what decree should be made therein, was to enable the court of chancery to dispose of its business, which had become too great to be disposed of by the chancellor alone.
    2. Since that purpose could not be effectuated if the chancellor was required to revievr a vice-chancellor’s acts and his report and advice thereon in all cases, on demand of a party, it was the plain intent to permit the chancellor, in all ordinary cases, to decline to make such review, and to leave the objecting party to obtain relief by appeal.
    . 3. Yet there may be cases in which it is the duty of the chancellor not to refuse such a review, but to exercise his power to make the decrees of the coui't as, e. g., when necessary to prevent discordant adjudications, or to prevent an injury resulting from a refusal of a rehearing, when such injury cannot be redressed upon an appeal.

      4. A petition for divorce on the ground of adultery was met by an answer denying the charge, with a cross-petition for divorce on the ground of desertion, which was met by an answer denying desertion. The cause was referred to a vice-chancellor. He tried the issue made on the original petition first, and reached the conclusion that the charge therein made was proved, and he advised a decree thereon. A day had been fixed for the hearing of the issue on the cross-petition, but the conclusion upon the other issue had been announced before the arrival of that day. The cross-petitioner then moved the vice-chancellor to proceed to the trial of the other issue. This was practically a motion for rehearing. It was refused.

      —Held, that the circumstances disclose no injury which may not be relieved on an appeal and present no ground for the intervention of the chancellor.
    On motion, &c.

      Mr. Jay Ten Eyck, for the petitioner.
    iIZV. Warren Dixon, for the defendant.
   Magie, Chancellor.

Gounsel for the defendant moves, upon notice and accompanying affidavits, for relief of various sorts. Briefly stated, he seeks to have the chancellor refrain from signing a decree advised by a vice-chancellor and direct the further trial of the issue presented in the cause before the same, or another vice-chancellor, or by the chancellor himself.

In order to an understanding of the cause and the conclusions I have reached, a brief statement of the pleadings and issues presented before the vice-chancellor who advised the decree seems necessary.

The petition filed by the petitioner sought a divorce from the defendant on the ground of adultery. The defendant filed an answer denying the adultery, but not setting up any other defence. She included with the answer what is called an answer by way of cross-bill.

Upon a hill of complaint in a suit for divorce a cross-bill may be included in the answer, and the cross-causes may be tried together, and the relief may be granted under the cross-bill. Osborn v. Osborn, 44 N. J. Eq. (17 Stew.) 257; McGrail v. McGrail, 51. N. J. Eq. (6 Dick.) 537: Harrison v. Harrison, 46 N. J. Eq. (1 Dick.) 75; Rooney v. Rooney, 54 N. J. Eq. (9 Dick.) 231.

II -would soom that a like practice may be resorted, to in a cause in which, the right to relief by a decree of divorce is presented by petition, because all suits for divorce in the court of chancery, by the provisions of section 7 of the Divorce act of 1902 (P. L. of 1902 p. 504), may bo commenced by the filing of a petition. A suit thus commenced is then a suit in the court of chancery, and 1 can perceive no reason why a party cited and appearing may not present a defence and combine therewith a complaint against the petitioner in cases where such complaint might he presented by cross-bill in suits for divorce commenced by bill. Indeed, if a defendant filed an independent petition against the original petitioner for relief by a decree of divorce, I think it would be within the power, and would be the duty of the court, to consolidate the causes and try them together. It seems to me, therefore, that, without regard to what it is called in the defendant’s answer, the pleading is in effect a cross-petition.

The cross-petition states (1) that the petitioner, at the time of his marriage with the defendant, was impotent and has so continued to the present time, and that his impotency is incurable; and (2) that the petitioner had deserted the defendant, and that such desertion had continued for a period of time sufficient to justify a decree of divorce, notwithstanding these diverse statements, the prayer of the cross-petition was for a decree in favor of the defendant only upon the ground of the desertion alleged.

The petitioner filed an answer to the cross-petition, denying both of the charges contained therein. lie also objected to the cross-petition, on the grounds (1) that it was included in the defendant’s answer to the original petition, and (2) that it was multifarious, and he asks that both of these objections should he considered as if he had, for these reasons, demurred to the cross-petition.

In this state of the pleadings the cause was referred to a vice-chancellor and came to trial before him. It appears that, upon the case being called, petitioner’s counsel moved to strike out from the cross-petition the charge of impotence, and that the vice-chancellor, without objection from counsel, declared that'he would not then decide the motion, but would hold it under advisement and afterward act thereon.

The vice-chancellor thereupon proceeded to try the issue raised by the original petition and the answer thereto. This course seems to have been taken without objection on the part of counsel. That issue was tried. Many witnesses were called and counsel were heard in summing up the evidence upon that issue. It also appears that a day was tiren fixed for taking testimony with respect to the issue presented by the cross-petition and the answer to that. Before that day arrived the vice-chancellor filed a memorandum, expressing his conclusion that, upon the evidence on the issue already tried, the defendant was guilty of adultery, as charged in the original petition,- and advising a decree for divorce. However, he withheld the advice at the remonstrance of defendant’s counsel, and permitted counsel for both sides to be heard, upon notice, with’ respect to whether he should proceed to try the issue which’was left undisposed of, before presenting his advised decree. He declined to proceed further in the trial of that issue. His advised decree is now before me for signature.

The .contention of defendant’s counsel is that this course is irregular and tends to the injury of the defendant, which injury cannot be redressed by appeal.

This application and others of similar nature seem to require me to express my views upon the proper practice and tire power and duty of the chancellor to intervene and to decline to act upon the advice of vice-chancellors.

The introduction of vice-chancellors into our system of chancery jurisprudence arose from legislation based on the ancient right of the chancellor to call upon the masters of his court for their advice as to his action in causes and proceedings pending-before him. When that legislation was first adopted, the business of the court had outgrown the power of the chancellor to dispose of it alone. Eor the purpose of enabling the court to deal with the increasing business therein, the legislature gave authority to the chancellor to appoint an officer, to be called a vice-chancellor, to whom he might refer causes for trial, and who might try the causes thus referred upon evidence orally taken, and Avas required to report to the chancellor his opinion and advise what decree should be made therein. As the business of the court still further increased the legislature, with wise liberality, from time to' time has authorized the appointment of additional vice-chancellors, and by this system the court of chancery has practically been enabled to keep pace with its business. The utility of the system has been established in its existence of over thirty years, and its recognition by all departments of the state government, executive, legislative and judicial, has given it a sanction beyond dispute or question.

The legislation on this subject has not attempted to deprive, and it could not constitutionally deprive, the chancellor of his right to make the decrees of his court. Obviously, however, the purpose of this legislation could not, at the time it Avas originally adopted, and certainly cannot uoav, be made effective and useful in conducting the business of the court if the chancellor should deem himself compelled to review the opinion and advice of every vice-chancellor in every case on the mere demand of a party thereto. In all ordinary cases it is essential to the conduct of the business of the court that the chancellor should decline to revise the opinion of a vice-chancellor or to refuse to follow his advice, and this, in my judgment, was the plain intent of the legislation. Parties may well, in such eases, be left to obtain relief by review of the decree by appeal.

Yet I deem it equally obvious that there are, or may be, exceptional cases in Avhich it Avould be the duty of the chancellor to revieAV the conclusions reached by a vice-chancellor and to consider whether or not his advice should be folloAved. I can conceive of only two classes of such eases. One class, I think, would be composed of cases in which the decree advised is based upon a principle, or the conclusion reached is by a course of practice in direct opposition to previous decisions of the chancellor or of some vice-chancellor AA'hose advice has been acted upon by the chancellor. .The obvious reason is that the court of chancery must speak Avith one voice and not discordantly.

Another class would be composed of certain cases in which a rehearing has been applied for. Before the introduction of vice-chancellors such an application was made directly to the chancellor and was dealt with by him on equitable principles, and the practice was regulated by rules of the court. Since vice-chancellors have been made trial judges, the practice on application for the rehearing of causes in which decrees have been signed on the advice of a vice-chancellor was pointed out by a rule of court, which was promulgated in 1871 and is now rule 148. This rule was construed by Chancellor Runyon in Bus-ling, Administrator, v. Bray, 38 N. J. Eq. (11 Stew.) 398, and held to require an application for rehearing in such cases to be made to the vice-chancellor who had advised the decree in all ordinary cases, and that such an application should be made to or entertained by the chancellor onfy in exceptional cases.

In Swallow v. Swallow's Administrator, 27 N. J. Eq. (12 C. E. Gr.) 278, the chancellor heard an application in a cause in which the decree had been advised by Vice-Chancellor Dodd, who had resigned. In Rusling v. Bray, supra, special reasons were held to justify the chancellor in hearing the application.

Tf it is made-to appear to the chancellor that a rehearing has been practically denied by a vice-chancellor, and that such denial deprives a party of the opportunity of presenting the case on an issue made by the pleadings, and thereby produces an injurjr which cannot be relieved by an appeal, it would seem that the chancellor ought to intervene to the extent of protecting the objecting party from the consequence.

There may lie other cases in which the chancellor ought to act, but I cannot discover any.

The cross-petition stated two grounds of complaint, but based its prayer for relief upon a single one of those grounds. On application it would have been proper to have permitted an amendment of the prayer and to have proceeded with the cause. Divorce act of 1902, section 15, ubi supra. Whether such an amendment would have enabled defendant’s counsel to present the contention he desired to make may be doubtful. Perhaps an amendment o£ the answer to the original petition might have been required.

But if such amendments as were required had been applied for and. allowed, it is obvious that two questions, both of which are novel and important, would have been presented, viz.:

First. Whether or not relief by a decree of divorce can be asked for in a petition upon two distinct and unconnected causes where the decree is identical, and this question would be raised by the answer in the nature of a demurrer of the petitioner; and

Second. Whether a decree for divorce based upon impotence is, under our revised Divorce act, a decree which avoids and nullifies the marriage ab initio. It is in respect to this latter question that defendant claims she was injured by the course of the trial. Her contention is that if she had been permitted to go to a trial upon her cross-petition,, and had established the fact of such' impotence as was alleged therein, there would have been no ground to dissolve the marriage for a matrimonial offence.

These important questions were never presented to the vice-chancellor so as to require his action thereon. Ho amendment was asked, and the vice-chancellor struck out the statements of the cross-petition on the motion of the petitioner’s counsel, which he was justified in doing if they were superfluous, and presented no matter of fact on which the relief prayed for by the cross-petition could be founded.

The result is that I am unable to discover any injury to defendant in the course the trial took which may not be remedied on appeal. The conclusion of the vice-chancellor on the issue tried I will not review, but must assume that to be correct.

The issue presented by the cross-petition when the matter of impotence was excised was upon the charge of desertion. The relief obtainable under the original petition and the cross-petition was plainly identical, viz., the dissolution of the marriage tie.

Under such circumstances I can perceive no injury to the defendant in declining to hear and determine the sole issue presented by the cross-petition after trying and determining the issue presented by the original petition. It is suggested that it would be more convenient for the defendant, if she takes an appeal, to have both cases before the court of appeals at the same time. This may be so, and both issues could have been tried together, as was done in Osborn v. Osborn, ubi supra,, but 1 do not think that any inconvenience which may result is an injury to the defendant that may not.be redressed by an appeal, for if the defendant appeals, and is successful, the cause will be remitted and the undisposed of issue will be tried.

The motion will be denied, and the decree advised will be signed.