author: Fort, J. Swayze, J.

text:
    In the matter of the estate of Susan M. Folwell, deceased.
    [Argued March 23d, 1905.
    Decided November 20th, 1905.]
    The will of a married woman, who, under our statute, has power to dispose of her personal property absolutely, even as against her husband, which devises and bequeaths all her estate, real and personal, to another, subject to the legal rights of her husband, if he survives her, and which appoints another than her husband as executor, does not give to the husband, in the case of his survival, any right to the personalty so bequeathed, as such a right is purely equitable and is not one of his legal rights in his wife’s estate.
    On appeal of Elsie M. Folwell, executrix and residuary legatee, from a decree of the prerogative court. The opinion of Magie, ordinary, is reported in 67 N. J. Eq. 570.

      Mr. Norman Grey, for the appellant.

      Mr. John F. Harned, for the respondent.
   The opinion of the court was delivered by

Fort, J.

This is an appeal from the prerogative court, and there is but a single question for decision, namely: Does the last will and testament of Susan M. Folwell bequeath her personal estate to her daughter, Elsie, absolutely?

The following is the will:

“Know all men by these presents, that I, Susan M. Folwell, of Atlantic City, New Jersey, being- of sound and disposing mind and memory, do make and publish this my last will and testament, hereby revoking all former wills made by me.
“I direct that all my just debts and funeral expenses be paid as soon as convenient after my decease.
“I give and bequeath to my son, Robert Lincoln Folwell, my white trotting horse, ‘Eagle,’ with his harness and spindle wagon.
“I give, devise and bequeath unto my daughter, Elsie Maynard Folwell {subject to the legal rights of my husband, Thomas G. Folwell, should he survive me), all the rest, residue and remainder of my estate absolutely.
“I nominate, constitute and appoint my said daughter, Elsie Maynard Folwell, sole executrix of this, my last will and testament.
“In witness whereof, I have hereunto set my hand and seal, this 18th day of March, a. d. 1895.
“Susan M. Folwell. [seal.]”

Thomas G. Folwell, the husband of the testatrix, survived her.

The will was duly probated and letters testamentary thereon granted to Elsie M. Folwell, as executrix, on October 23d, 1902. The grant of these letters stands unrevoked and unappealed from.

All the personal estate passed into the hands of the executrix, and she claims the right to retain it under the residuary clause of the will, except as to that specifically bequeathed to others.

The executrix has never filed an inventory of the estate, and the husband filed a petition in the Atlantic county orphans court for an order to require her to so do. The orphans court made the order and it was affirmed in the prerogative court.

If, under the will of the testatrix, Elsie took absolutely all the-personalty not specially bequeathed, she is not required -to Mean inventory. P. L. 1898 p. 759 § 120.

The opinion of the ordinary in this case correctly construes our statute as to the right of a married woman to bequeath her personal property and to deprive her husband by her will of all interest therein, and it is not necessary to further discuss that question. The revised act of March 27th, 1874, is clear upon that point. 2 Gen. Stat. p. 2014 § 9.

Did the parenthetical clause in the residuary item of the wilL of Susan. M. Folwell defeat the right of Elsie to the personal estate owing to the survival.of the husband?

This clause gave the whole of the residue of the estate of the testatrix-to her daughter, Elsie, “subject to the legal rights of my husband, "Thomas G-. Folwell, should he survive me.”

What did he take under this clause ?

By the plain words of the will he was to get only such rights-as were “legal rights.”

It is clear that under this will all legal rights in the personalty of the testatrix passed to the executrix. She holds the legal title and the jus disponendi.

The executor, once appointed under the will of a wife duly probated, takes the legal title to her personalty, and the husband cannot be appointed administrator except and until after the probate and order appointing the executor have been set aside by appeal. If he be appointed administrator after such probate and appointment the proceeding is void. Ryno’s Executor v. Ryno’s Administrator, 27 N. J. Eq. (12 C. E. Gr.) 522.

An executor is a trustee required to account for funds coming to his hands. He cannot be sued at law for an alleged beneficial interest which may be claimed by one in the estate of his testator. He may be required to account in equity, or in the manner pointed out by the Orphans court act. P. L. 1898 p. 757 §§ 116, 168.

A right to an accounting by an executor is. an equitable right only.

The party holding the legal title to property only has the right to seek a remedy at law, even though he have no beneficial interest therein. The equitable owner is he who has not the legal-estate, but is entitled to the beneficial interest- 2 Bouv. Dict. 24, tit. “Legal Estate

The effect of a general probate of the will of a deceased married woman is only to enable the executor to get in all the assets-of the wife, whether she have power "to dispose of them or notr and it does not affect the beneficial title to them. 1 Wms. Ex. 465.

Where a wife makes a will giving all her personal estate toiler husband, but appoints another than her husband as executor, the executor takes the legal title and the equitable or beneficial, estate only is in the husband under the will. When,' therefore, a wife declares by her will that it is her purpose to give all of her estate to a named person, “subject only to the legal rights” of her husband therein should he survive her, and where by a statute she has full power to- bequeath her personal property absolutety, even 'as against her husband, as she may by our statute, she, by such a will, cuts off all the equitable or beneficial interest of her husband in her personal estate and leaves to him only such rights in her estate as are purely legal and enforceable by suit at law. All beneficial or equitable interests are cut off by such a will.

A legal right is a claim recognizable and enforceable at law-Eng. L. Dec. 700; Avery v. Dufrees, 9 Ohio 147.

“Legal” is defined as according to the principles of law; according to the method required by statute; by means of judicial proceedings; not equitable. 18 Am. & Eng. Encycl. L. (2d ed.) 807.

The right of the husband to an accounting by the executrix is-purely an equitable one to have the amount due him settled and fixed, and, when it is ascertained, that it be decreed that the fund be paid to him.

In suits affecting funds in the hands of executors the executor only is a necessary party. He represents the legatees under the will. It is unnecessary to join the persons to whom the funds may go. Sweet v. Parker, 22 N. J. Eq. (7 C. E. Gr.) 456.

This rule could not exist but for the fact that the executor holds the “legal title” to the personal property coming into his hands. It may be, as it no doubt is, a naked legal title, but it is the legal title nevertheless. Legatees under the will can only claim as equitable owners, not legal. Their rights are all equitable, and can only be enforced in the manner pointed out by statute or under equitable rules. There is no “legal right” in a legacy under a will.

We think the will of Susan M. Folwell cut of£ all equitable or beixefieial interests or rights which her husband had in her estate, and that he had therefore no equitable interest in the personal estate which entitled him to call upon the executrix for an accounting.

I shall vote for the reversal of the decree of the prerogative court and of the Atlantic county orphans court, and to remit the record, with directions that the petition filed by Thomas G. Folwell in the Atlantic county orphans court for an accounting by the executrix of Susan M. Folwell be dismissed.

Swayze, J.

(dissenting).

I am not able to agree with the result in this case. The testatrix intended to reserve something for her husband, and therefore made the devise and bequest to her daughter subject to the legal rights of her husband. To hold that this clause related only to his right of curtesy makes it entirely superfluous, for she could not dispose of that, and it was unixecessary for.her to say that the gift to the daughter was subject to that, right. The construction adopted by this court also ignores the fact that the bequest, as well as the devise, was subject to the legal rights of the husband. In a will using terms of art in a technically correct sense, as this will does, the use of the word, “bequeath,” in connection with the words “subject to the legal rights of my husband,” seems to me of some significance. The constructioix adapted by the ordinary gives a meaning to all the words of the will; that adopted by this court, I think, fails in this l’espect.

Again, the opinion defines a legal right as a claim recognizable and enforceable at law. Bveix if we ignore the right of the husband to his wife’s chattels, and look only to his right to her choses in action on which he must administer in ease of intestacy, this right is, I think, a legal right. An action at law can be maintained tinder our statute for a legacy (2 Gen. Stat. p. 1938 § 1, tit. “Legacies”), and for a distributive share (Orphans Court act, P. L. 1898 p. 778 § 168). The fact that proceedings may also be taken before other tribunals does not prevent the right from being a legal right within the definition of the opinion.

The words seem to have been used^ by one familiar with legal 'terms. At. the date of this will two cases had been decided in the court of chancery in' which the words were used in connection with wills of married women. In Vreeland’s Executors v. Ryno’s Executor, 26 N. J. Eq. (11 C. E. Gr.) 160, 162, 163, they were used by Chancellor Runyon in discussing the power given by tire act of 1864 to married women to make ' wills, and he used them as applying to both real and personal property. And in Beal’s Executor v. Storm, 26 N. J. Eq. (11 C. E. Gr.) 372, 378, he used them in the same sense. I think the draughtsman of this will followed these judicial precedents.

The husband’s right is more than a mere right to administer or to call an executor to account; it is a right to sue at law for a legacy in case of a will, or for the personal estate after-payment of debts and costs of administration in a case of intestacy where someone else administers.

I think the decree should be affirmed.

Judges Pitney, Vredenburgh and Green concur in this view.

For affirmance—Pitney, Swayze, Vredenburgh, Green—4.

For reversal—The Chief-Justice, Dixon, Garrtson, Fort, Garretson, Bogert, Vroom—7.


source: Caselaw Access Project

author: Fort, J.

license: Public Domain

text:
    Henry W. Stover, appellant, v. Josiah Hellyer et al., respondents.
    [Argued March 27th, 1905.
    Decided November 20th, 1905.]
    A mortgage made by a grantee of lands to the grantor thereof, and which recites that it is a purchase-money mortgage and contains a. clause that certain judgments against the grantee which are mentioned therein -shall have priority in lien over the lien of the mortgage, is by such clause rendered subject to the lien of the judgments.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported ante p. %JG.

      Mr. Benjamin W. Ellicott, for the appellant.

      Mr. James Buchanan, for the respondents.
   The opinion of the court was delivered by

Fort, J.

The bill in this case is filed for the foreclosure of a mort■gage and for an injunction to restrain the three defendants, who are the executors of the late Samuel K. Wilson, from further prosecuting a certain action of ejectment to recover the mort-gaged premises pending the foreclosure. The executors of Samuel K. Wilson claim title to the property under a deed •made by the sheriff of Mercer county upon a sale of the mort•gaged premises under three separate judgments held by them against the defendant Hellyer, the mortgagor, and which judgments were so held at the time the mortgage was made, and. -which'are expressly referred to in the mortgage.

The facts as to the making of the mortgage, and the circum.stances under which, it was made, are sufficiently stated in the opinion of the learned vice-chancellor in the court below.

There is, as it seems to us, but a single question for decision, viz., does the complainant’s mortgage, which is concededly a purchase-money mortgage by its terms, give priority of lien upon the mortgaged premises to the Wilson judgments over the mortgage itself?

The mortgage contains this clause:

“It is understood and agreed by and between the parties hereto that the lien of three judgments recovered in the New Jersey Supreme Court .against said Josiah Hellyer, and now held by Samuel K. Wilson, shall have priority over the lien of this mortgage, together with all and singular the profits, privileges and advantages, with the appurtenances to the same belonging or in anywise appertaining.”

Upon the margin of the mortgage, after the above clause and near the end of -the mortgage, this clause is written, viz.: “It is hereby understood by the parties herein interested that this mortgage is given to secure so much of the purchase-money.”

This latter clause was inserted in the mortgage at the time it was executed upon the requirement of the mortgagee. Such, .at least, is the proof.

. Both these clauses appearing, it is the duty of the court, if it can do so, to so construe the mortgage that both may stand.

In my view, the mortgage is upon its face free from ambiguity. Both these clauses can be given full force without ■producing conflict or uncertainty.

The clause above quoted, giving priority to the Wilson judgments over the lien of the mortgage, is too clear for construction. There is no contention that if it stood alone in the mortgage it would not give the judgments priority.

Does the inserted clause, declaring the mortgage to be a purchasemoney mortgage, nullify the priority given the Wil.son judgments ?

We are unable to so construe it. It seems to us that the two clauses may stand together in the mortgage and both be ■enforced.

Where the parties have -expressed the agreement in plain words there is nothing to- construe, and the only thing the court can do is to enforce the agreement. Bower v. Hadden Blue Stone Co., 30 N. J. Eq. (3 Stew.) 171.

A mortgage may well he a purchase-money mortgage and be by agreement postponed in priority to other liens. The statement that it is a purchase-money mortgage is merely the statement of a fact. Whether the ordinary consequences shall follow from that fact may be regulated by agreement.' Here it is done by the plain terms of the mortgage itself. There is no difficulty to give force to both clauses so that both may stand. By its terms the mortgage is-a purchase-money mortgage, but expressly made subject to the lien of the Wilson judgments.

. We have not considered the other questions raised or passed upon in the opinion below.

On the ground here stated, we think the decree of tire court of chancery should be affirmed.

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Green, Gray—11.

For reversal—None.


author: Garretson, J.

text:
    Mary Chamberlain, respondent, v. Stroud H. Chamberlain, appellant.
    [Argued March 29th, 1905.
    Decided November 27th, 1905.]
    When a man and a woman intend to marry and live together as husband and wife, but their intent is frustrated by the existence of some unknown impediment, when the impediment is removed and it is shown, that the same intent continues, their relations are lawful.

      On appeal from a decree in chancery advised by Yice-Chancellor Stevenson,, whose opinion is reported ante p. 414.

      Mr. Elmer King, for the appellant.

      Mr. Peter J. McGinnis and Mr. John M. Ward, for the respondent.
   The opinion of the court was delivered by

Garretson, J.

The complainant filed her bill against the defendant under the twentieth section of the Divorce act, alleging that her husband has left her and refuses to support her, and praying for support and maintenance.

The only defence which it is necessary to consider is, that the defendant is not the husband of the complainant, and therefore is not liable to support her.

The complainant, under her maiden name of Mary Walsh, married William Tissell March 29th, 1871.

William Tissell left Mary Tissell March 12th or 15th, 1877, and went to St. Louis and thence to Oak Grove, Texas.

About July, 1877, a letter was received by Mary Tissell from William Tissell. Mary Tissell, under the name of Mary Walsh, was married to Stroud H. Chamberlain April 4th, 1880, by a clergyman in the city of Brooklyn.

On May 8th, 1880, the complainant, under the name of Mary Tissell, filed a petition for divorce, upon the ground of desertion, against William Tissell, and decree was granted-thereon June 30th, 1881.

Prior to the marriage of the complainant and defendant in 1880 they both believed that William Tissell was dead, and they continued in that belief until after the present suit was instituted, when there was evidence to show that he was still alive. If William Tissell was alive in April, 1880, when the complainant was married to the defendant, that marriage was invalid.

When the impediment of her former marriage was removed by the decree of divorce, then the complainant might legally become the wife of the defendant.

The complainant testified that, while she believed Tissell was dead when she married Chamberlain, she procured the divorce from Tissell for the reason that she and Chamberlain talked of getting a little property, and she was afraid that something might occur that might do harm in that way.

After the complainant and defendant were married in 1880 they lived together as husband and wife until the separation, which occurred shortly before the commencement of this suit; each supposed that the relationship between them was lawful, and that of husband and wife; he addressed her and introduced her as his wife; she addressed him and introduced him as her husband; they gave a mortgage upon property of the defendant June 25th, 1885, in which she is described as his wife and which she acknowledged as his wife.

From the time of the marriage in 1880 to the commencement of the suit it was the intention of both the complainant and the defendant, as they state, that their relations should be lawful and not meretricious; they were by law meretricious, however, down to the time of the divorce' of Tissell, because of Tissell living, but the impediment which rendered them meretricious having been removed, and the lawful intent still continuing, it would be unjust not to give that intent effect if possible.

In connection with the intent of both parties, as admitted by them, we have evidence to show that they manifested that intent to others after the divorce in such way as to fully establish the legality of their relationship.

Emily J. Campbell testifies that the defendant on one occasion, in presence of his wife, said: “Here is Mary’s divorce from her first husband. I would not have shown it to you, but you knew her first husband, and I want you to know she is my. legal wife.” Mary Booth testified to an occasion when both were present and she had been told by one 'of the neighbors that Mrs. Chamberlain had been divorced, and says “she felt so badly, they came down and said they had the divorce papers and were willing for us to see them, because father made the lease; they were anxious for us to know they were married.” and Mr. Cham■berlain “said she was his wife, and she felt bad and cried, and he told her not to worry.”

This evidence was a manifestation of an intent to live together as husband and wife, and with' the intention and the .actual so living, an actual marriage is established.

In Collins v. Voorhees, 47 N. J. Eq. (2 Dick.) 555, Chief-Justice Beasley, in an opinion denying a motion for a reargument, speaking of the opinion of Lord Westbury in the Breadalbane Case, said: “The doctrine of that case is supported by nothing that preceded or that has followed it, and is altogether .anomalous, and, as it seems to me, it was properly rejected by this court. In that case the court acted upon the principle that if a man and a woman agreed to live together adulterously with n simulation of marriage, 'that there should be an inference of a subsequent valid marriage from the fact that such simulation had been continued after the death of the husband of the .adulteress. Why such an inference is to be thus deduced is not apparent, unless it be for the promotion of adultery. By its prevalence the adulterous purpose is converted- into a matrimonial purpose without a particle of reasonable evidence in .support, of the alleged change of intention. * * * Lord Westbury strangely compares the ease before him with those instances where the parties intended, originally, to marry, and not to commit adultery, their intent being frustrated by the existence of some unknown obstacle. And yet it is presumed that no one who will look with any care into the subject will have the slightest doubt that these two classes of cases, with respect to the methods of their proof, respectively rest upon entirely different foundations, for when the parties have intended marriage, being ignorant of an existing impediment, all that is to be established by cohabitation apparently matrimonial, subsequent to the removal of such impediment, is the carrying into effect by the parties of their original purpose; but when the original purpose was to live in adultery, the evidence, under similar circumstances, must be sufficient to show an abandonment of such purpose and the execution of a new one. These lines of cases can be confounded only by want of careful observation of the principles upon which they rest.” We think that this reasoning of the chief-justice abundantly sustains the complainant’s contention in this case.

The decree below is affirmed.

For affirmance—The Chief-Justice, Dixon, Garrison, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green—10.

For reversal—None.


author: Pitney, J.

text:
    Martin Beckhard v. James Rudolph et al.
    [Submitted March 27th, 1905.
    Decided November 20th, 1905.]
    1. Under section 3 of the Mechanics’ Lien law (P. L. 189S p. C>38), the remedy by stop notice is open to a party who, under employment by or contract with the contractor, has installed fixtures and other materials in the building, and his claim may include the work of installation as a part of the cost of the materials in situ.

    2. A stop notice which declares that certain materials were furnished to the contractor “for and in the erection” of a building, sufficiently shows that the materials were actually used in the building.
    3. A stop notice which sets forth that a certain sum of money is due from the contractor to the claimant for materials used in the erection of a building, and that the contractor has refused to pay the money so due, need not more explicitly state that payment has been demanded of the contractor. The term “refusal” naturally imports a previous demand or request for payment.
    Appeal of Robert C. Aclamson & Son. On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. SIS.

      Mr. John W. Slocum, for the appellant, Robert C. Adamson & Son.

      Mr. Thomas P. McKenna, for the respondents Chandler & Maps and Otto H. Wickliffe.
   The opinion of the court was delivered by

Pitney, J.

This was an interpleader suit. The complainant, Beckhard, is the owner of a building upon which certain repairs and alterations were done pursuant to written contract made between him and the defendant Rudolph. This contract having been duly filed in such manner' as to cut off all other parties than the contractor from having a mechanics’ lien (P. L. 1898 p. 538 §§ 1, 2), and there being a balance of moneys owing_ by Beckhard to Rudolph at the completion of the work, the defendants Adamson & Son, Chandler & Maps, Poole and Wickliffe, successively served stop notices upon Beckhard, pursuant to section 3 of the Mechanics’ Lien law. Upon the hearing of the interpleader suit instituted by Beckhard against Rudolph and the several claimants under stop notices, a decree was made discharging the complainant upon his paying into court the sum of $824, which was the balance owing by him, and directing that the defendants interplead and file statements of their respective claims pursuant to chancery rule 221. Rudolph filed no statement and did not dispute the right of the claimants to the fund. The controversy as between the several claimants raised questions whether their claims were of such a character as to entitle them, to detain the mone3r in the owner’s hands by stop notices pursuant to section 3 of the Mechanics’ Lien law, and whether the notices given were in due form to comply with that section.

The first notice served was that of Adamson & Son, who, under emplo3'ment by Rudolph, had put into the building the entire plumbing work called for by Rudolph’s contract with the owner, including bathroom, toilet and pantry fixtures, and the work of' installing them. The amount due from Rudolph to these claimants was $665. Payment of this amount was duly demanded by Messrs. Adamson of Rudolph and by him refused, whereupon notice in writing was served by Messrs. Adamson upon the owner, setting forth that they had done work and furnished materials for and in the erection, altering and remodeling of his building (describing it); that Rudolph was indebted to them for such labor and materials in the sum of $665; that he had refused to pay the said sum of money to' them and that the owner was thereby required to retain out of the moneys due or to become due from him to Rudolph the said sum of $665, and to pay the same to the Messrs. Adamson.

Next in order was a stop- notice served by Chandler & Maps, lumber merchants, for $551.59, the amount indisputably due at the time from Rudolph to-them for lumber and other building materials, which amount was subsequently reduced by payments made by the owner so as to leave a balance of $265 due.

Next in order were two claims, one being that of Poole, the contracting mason, for $619.28, due from Rudolph to him for doing the mason work and furnishing the necessary materials for the same, and the other being the claim of ’Wickliffe, a contracting painter, for $460.50.

The learned vice-chancellor decided against the validity of ihe Adamson claim — first) on the ground that section 3 of the Mechanics’ Lien law gives a lien upon the fund in the hands of the owner only to materialmen strictly so called, and to journeymen or laborers employed by the contractor, and not to persons who furnish both labor and materials, or who install materials in the building under contract with the contractor; and secondly, on the ground that the Adamson notice was defective (a) because it did not show that the materials were actually used in the building; (6) because it did not distinguish between materials and labor and show how much was clue for materials, which the learned vice-chancellor held was the limit of Adam-son & Son’s lawful claim, and (c) because it did not expressly state that demand had been made upon the contractor for -payment.

The vice-chancellor decided in favor of the Chandler & Maps claim because this was for materials solety, and their stop notice was iii clue form in the respects mentioned, as well as in other respects. No question is made here about the validity of this claim, beyond the insistment of Messrs. Adamson that their own claim is valid and is entitled to priority of payment.

If the Adamson claim is valid, it, taken together with the admitted claim of Chandler & Maps, will exhaust the fund and render it unnecessary to consider the claims of Messrs. Poole and Wickliife. The vice-chancellor decided against these latter claims, with the result that he advised a decree that the claim of Chandler & Maps be first paid out of the fund and the balance of the fund be held subject to the order of Rudolph.

The pertinent language of section 3 of the Mechanics’ Lien law is as follows:

“Whenever any master workman or contractor shall, upon demand, refuse to pay any person who may have furnished materials used in the erection of any such house or other building, or any journeyman or laborer employed by him in the erecting or constructing any building, the money or wages clue to him, it shall be the duty of such journeyman or laborer, or materialman, to give notice in writing to the owner or owners of such building of such refusal, and of the amount due to him or them .and so demanded, and the owner or owners of such building shall thereupon be authorized to retain the amount so clue and claimed by any such journeyman, laborer.or materialman out of the amount owing by him or them on the contract, or that may thereafter become clue from him or them on such' contract for labor or materials used in the erection of such building, giving the master workman or contractor written notice of such notice and demand; and if the same be not paid or settled by said master workman or contractor, such owner or owners, on being satisfied of the correctness of said demand, shall pay the same,” &c. P. L. 1898 p. 538.

The learned vice-chaneellor rejected the suggestion that the words “any person who may have furnished materials used in the erection of any such house or other building” might be deemed to cover the case of a plumber who furnishes fixtures set up and installed in the building, including as well the cost of the work of installation as the cost of the fixtures themselves, deeming that the force of the word “materialman,” as used in the latter part of the section, prevented the adoption of such a construction, and that this term, as used in the section, practically means one who has furnished materials only; that is, one who simply supplies to the building, or for use in the build-mg, materials which someone else is to incorporate in the building by his labor.

In our opinion, this is too narrow a reading of the letter of the section, and fails to give due effect to the spirit of the act and to the antithesis that exists between the first and third sections. The first section gives a lien upon the building itself in ordinary cases (there being no filed contract) for any debt contracted and owing to any person for labor performed or materials furnished for the erection and construction of the building. The second section denies the benefit of the lien upon the building to all others than the contractor, wher,e the building is erected by contract and the contract is filed. The third section supplies an alternative remedy where the contract is in writing and is filed, this remedy being by lien upon the fund in the hands of the owner owing by him to the contractor.

It has been repeated^ held that the remedy by stop notice under the third section is confined to those who are prevented from having a lien upon the building'by reason of the filing of the contract. So it was held 'by the supreme court in Summerman v. Knowles, 33 N. J. Law (4 Vr.) 202; approved in Frank v. Freeholders of Hudson, 39 N. J. Law (10 Vr.) 350, 353; so held, also, in Weaver v. Atlantia Roofing Co., 57 N. J. Eq. (12 Dick.) 547, and so declared in this court in Carlisle v. Knapp, 51 N. J. Law (22 Vr.) 330.

Now, while the lien upon the building granted by the first section is for “labor performed or materials furnished,” it has never been held that one who furnished labor and materials combined, or who furnished materials installed in tire building, including the labor of installation, had no lien. On the contrary, mechanics’ liens are very frequently filed by claimants whose claims arc of precisely such a character as that of Messrs. Adamson & Son, so far as the nature "of the service performed is concerned. In our view, this construction of section 1 throws some light upon the proper construction of sections 2 and 3. Section 2 declares that when the building is erected by contract in writing the building shall be liable to the contractor alone for “work done or materials furnished in pursuance of such contract,” provided the contract be filed. Would it be seriously argued that the building- is liable in such a ease to parties other than the contractor for work, combined with materials, furnished in pursuance of the contract, or for materials installed in the building, where the claim includes the work of installation? We think not. Yet it is manifest that section 3 is intended to take care of persons who are debarred by section 2 from t-hcir lien on the building. By this it is not meant that all persons thus debarred are within the benefit of section 3. For instance, those who furnish materials or perform labor for a subcontractor would be entitled to a lien if not debarred by ihe filing of the principal contract as provided by section 2. So held by this court at the present term, in Gardner & Meeks Company v. New York Central and Hudson River Railroad Co., 72 N. J. Law (43 Vr.) 257. Yet such parties are not entitled to employ the stop notice, because section 3 limits that remedy to those who have claims immediately against the principal contractor. Carlisle v. Knapp, 51 N. J. Law (22 Vr.) 329.

So, also, we may concede, for the purposes of. tire argument, that the vice-chancellor is correct in his view that not all claims for labor are the proper subject-matter of a stop notice under section 3. His view is that one who should furnish the labor of others for the construction of a building under employment by the contractor would have no right to employ the stop notice, and that a skilled engineer or other professional gentleman who might do work for the contractor would be in a similar plight, although in either case they would be entitled to a lien upon the building were the contract not filed. But this must be on the ground that, with respect to claims for mere labor performed, the benefit of section 3 is by its terms restricted to “any journeyman or laborer employed by him [the contractor] in the erecting or constructing any building.”

But, so far as claims for materials furnished to the contractor are concerned, it is plain that section 3 of the act is intended to be the complement of section 2, for it declares that when the master workman or contractor shall upon demand refuse to pay “any person who may have furnished materials used in the erection of the building,” the stop notice may be employed. In our opinion, a party who has furnished materials in a finished form (such, for instance, as mouldings, windows, doors, mantels and the like) is as much entitled to the benefit of section 3 as a part]' who has furnished raw materials only, and one who has furnished materials completely installed in and ' forming a part of the building is as much entitled to employ the stop notice as he who has deposited the like materials outside of the building, leaving them to be installed by the contractor.

That such was the legislative intent is not negatived, we think, by the use of the somewhat technical word “materialman” in other parts of the section. The legislative history of the section was pointed out by this court in Carlisle v. Knapp, 51 N. J. Law (22 Vr.) 331, 332, and the loose origin of the legislation was given as a reason for not following the language of the enactment so closely as to defeat the obvious intention of the lawmaker.

So far as we have observed, section 3 has, until the decision of the learned vice-chancellor in the present case, been uniformly construed to allow the benefit of a stop notice to one who has installed finished materials in a building, including the cost of installation as well as the cost of materials. The question does not seem to have been disputed in any reported decision, but in Bayonne Building Association v. Williams, 57 N. J. Eq. (12 Dick.) 503; 59 N. J. Eq. (14 Dick.) 617, the claim of Cooney & Gilbertson was for mason work and malcriáis furnished; the claim of Beardsley was for labor and materials done and furnished in erecting the stairs, and the claim of Oliver, a plumber, was likewise for work and materials. All these claims were held good both by the court of chancery and by this court. In Donnelly v. Johnes, 58 N. J. Eq. (13 Dic5.) 453, Vice-Chancellor Grey allowed the claims of Leuekel, Pridham and Pullen & White, all of which were for work and materials. In South End Improvement Co. v. Darden, 52 Atl. Rep. 1127, Vice-Chancellor Reed seems to have allowed stop notice claims for work and materials combined, not distinguishable in principle from the claim now under consideration.

Upon the whole, therefore, we axe of the opinion that the entire claim of the Messrs. Adamson, being for materials in finished form and installed in the building, including the work of installation as a part of' tlie cost of tlie materials in siiu, wastlie proper subject of a stop notice under section 3 of the Mechanics’ Lien law. This disposes, at the same time, of one of the objections taken by the learned vice-chancellor' to the form of the notice, which was that it failed to distinguish between the amount due to the claimants for materials and the amount due for labor. The entire claim being lienable, there was no occasion for thus separating it.

Another objection raised to the form of the Adamson stop notice is that it did not set forth that the materials were actually used in the building. This was not much relied upon by the vice-chancellor, and is not, in our view, tenable. The notice-sets forth that the claimants had “done work and furnished materials for and in the erection,” &c., of the building. This,, we think, amounts, in effect, to an averment that tlie materials-were used in the building.

The sole remaining objection to the Adamsbn claim is that their stop notice did not expressly state that demand had been made by them upon the contractor for payment. The case shows-that in fact tlie contractor, Rudolph, refused to pay the claim of Messrs. Adamson upon demand of payment duly made. The notice given to the owner by Messrs. Adamson mentions the-refusal, but does not explicitly mention tlie demand. Section 3 of the Mechanics’ Lien law expressly requires the claimant to-give notice to the owner of the refusal of the master workman or' contractor to pay the claim, but does not in terms require that the notice should set forth that a demand of payment had been made. The reason is obvious. The term “refusal,” naturally, if not necessarily, imports a previous demand or request for payment. Webster’s definition of “refusal” is “denial of anything" demanded,, solicited,” &c., and he defines the verb “refuse” as meaning “to deny a request, demand, invitation or command; to decline to do what is solicited, claimed or commanded.” In. Hall v. Baldwin, 45 N. J. Eq. (18 Stew.) 863, Advisory Master Williams said, with reference to the statutory language now under consideration: “Refusal implies some request; it is more than omission or neglect.” In State v. Valentina, 71 N. J. Law (42 Vr.) 552, this court, in construing section 136 of the Criminal Procedure act (P. L. 1898 p. 915), held that in the phrase “the denial of any matter by the court which was a matter of discretion,” the word “denial” implies request.

We are referred to no reported case clearly holding that the notice to the owner must in terms mention the demand made upon the contractor. Reeve r. Elmendorf, 38 N. J. Law (9 Vr.) 182; Kirtland v. Moore, 40 N. J. Eq. (13 Stew.) 109; Hall v. Baldwin, 45 N. J. Eq. (18 Stew.) 863; Building and Loan Association v. Williams, 57 N. J. Eq. (12 Dick.) 505, and Adams v. Wells, 64 N. J. Eq. (19 Dick.) 211, show the importance of a demand made in fact of the contractor before notice given to the owner, but do not hold that the notice must mention the demand as distinct from the contractor’s refusal. In Donnelly v. Johnes, 58 N. J. Eq. (13 Dick.) 450, Vice-Chancellor Grey said, with respect to the form of the notice: “It must be in writing and must notify the owner of such demand and refusal.” But the notices he had to deal with were held defective because they did not assert either demand or refusal. On the other hand, the same vice-chancellor, in the later case of Fehling v. Goings, 67 N. J. Eq. 375, distinctly held that the statute does not require the notice to express that the claimant has demanded pajunent from the contractor, but only that the contractor has refused to pay, he holding that the refusal to pay usually implies a previous demand made upon the party refusing. In our view, this is the correct construction of the act.

We having thus determined that the claim of Messrs. Adam-son is the proper subject of a stop notice, and that the notice given by them was in proper form, and all other facts necessary to establish their claim being indisputably shown, it follows that the decree of the court of chancery should be reversed and the cause remitted, with directions to make a decree for the payment first out of the fund of the claim of Messrs. Adamson, including their costs below and in this court, and for the payment of the residue of the fund to Messrs. Chandler & Maps.

For affirmance—None.

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


text:
    Martin Beckhard v. James Rudolph et al.
    [Submitted March 27th, 1905.
    Decided November 20th, 1905.]
    Relief by appeal from chancery is only for persons aggrieved by the order or decree in question.
    On appeal of Monroe V. Poole, defendant. On appeal from a decree of the court of ehancei^' advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. SIS.

      Messrs. Parker & Van Gelder, for the appellant, Monroe V. Poole.

      Mr. Thomas P. McKenna, for the respondents Chandler & Maps and Otto H. Wickliffe.
   The opinion of the court was delivered by

Pitney, J.

This appeal was argued together with the appeal taken by Robert C. Adamson & Son from the same decree. Upon their appeal the decree has been reversed because it failed to provide payment of their claim, out of the fund in court. The facts are sufficiently recited in the opinion just deliverecl upon the Adam-son appeal.

The Messrs. Adamson, the respondents Chandler & Maps, and the appellant, Poole, in that order, were successive claimants upon the fund in dispute. The claims of Adamson and of Chandler & Maps aggregate more than the amount of the fund. The vice-chancellor decided against the Adamson and Poole claims and allowed that of Chandler & Maps. The decision of this court upon the Adamson appeal allows the Adamson and Chandler & Maps claims, thereby exhausting the fund.

Poole’s petition of appeal set forth that he was aggrieved by the decree below in that it ordered payment of the claim of Chandler & Maps and did not allow payment of the claims of Adamson, Poole and Wicldiife. It is obvious that the disallo w.ance of tire claims of Adamson and Wicldiife was not detrimental to Poole. The only respects in which the decree under review could constitute a grievance to him are that it disallowed his claim and allowed the admittedly prior claim of Chandler .& Maps.

While Poole’s petition of appeal asserts that the claim of Chandler & Maps ought to have been disallowed, it was conceded upon the argument here that the only criticism made upon it is untenable in view of the proofs.

This court having allowed claims that are prior in point of time to that of the present appellant, and sufficient in amount to exhaust the entire fund in court, the result is a denial of relief to Poole, not because his stop notice was invalid, but because at the time his notice was served the moneys in the hands of the owner, due from him to the contractor, had been exhausted by prior valid stop notices.

Relief by appeal from chancery is only for “persons aggrieved” by the order or decree in question. Chancery act § 111; P. L. 1902 p. 545; Attorney-General v. Paterson, 9 N. J. Eq. (1 .Stock.) 624; Coryell v. Holcombe, 9 N. J. Eq. (1 Stock.) 650 Green v. Blackwell, 32. N. J. Eq. (5 Stew.) 768; 2 Cyc. 633.

There being nothing in the decree under review by which the .appellant is legally aggrieved, it follows that, so far as challenged by his appeal, the decree must be affirmed.

For affirmance—The Csiee-Justice, Dixon, Garrison, Fort, Garrbtson, Pitney, Swayze, Bogert, Veedenburgh, Vroom, Green, Gray—12.

For reversal—None.


author: Swayze, J.

text:
    In re assignment of Browning & Brothers. Isaac Doughten, executor of Maurice Browning, appellant, v. George G. Browning et al., respondents; Edward Lawrence, appellant, George G. Browning et al., respondents.
    [Argued March 9th, 1905.
    Decided June 19th, 1905.]
    1. It is discretionary with the orphans court, under section 8 of the ■“Act concerning general assignments” (P. L. 1899 p.11/9), whether to order a partial distribution of the assets in the hands of the assignee, and an order refusing to make such partial distribution, is not appealable.
    2. A deed of assignment for the benefit of creditors was executed in Philadelphia by two partners engaged in business in that city, one of whom resided in Pennsylvania and the other in New Jersey; it was acknowledged as required by the Pennsylvania statute, the trust was accepted in Philadelphia by the assignee, and the deed was there recorded ; subsequently it was acknowledged as required by the New Jersey statute, and recorded in New Jersey; the assignors did not annex to the deed an inventory and list of creditors, as required by the New Jersey statute; the assignee filed a complete inventory and gave bond in Pennsylvania for an amount sufficient to cover the whole estate; subsequently he filed a partial inventory and gave bond in New Jersey for an amount less than the appraised value of the New Jersey assets; thereafter he proceeded for more than a year in the New Jersey court alone.— Held, that the assignors and assignee had elected to have the estate administered in Pennsylvania; that the assignee could not, after such election, divide the administration of the assets between the courts of the two states, and that the orphans court in New Jersey had no jurisdiction of the matter.

      On appeals from a decree of the prerogative court advised by Vice-Ordinary Reed, whose opinion is reported in 66 N. J. Eq. (21 Diclc.) sm.

    On November 7th, 1900, Maurice Browning, a resident of New Jersev', and George G. Browning, a' resident of Pennsylvania, who were then engaged in business in Philadelphia as copartners, executed an assignment of the firm’s assets to Henry B. Hanford, of Philadelphia. The deed was drawn, executed and delivered in Philadelphia, and Plañíord there accepted in writing tiro position of assignee. The deed was acknowledged in accordance with the law of- Pennsylvania on the same day, and recorded in Philadelphia, and also in Camden, New Jersejr, November 19th, 1900. The acknowledgment did not comply with the law of New Jersey, and on November 20th the deed was reacknowledged and rerecorded in Camden. On November 21st, 1900, appraisers were appointed by the Philadelphia court, all the assets, both in New Jersey and Pennsylvania, were appraised, and an inventory was filed in Philadelphia on December 7th. The assignee’s affidavit to the inventory states that it is a full and complete inventory of all the estate and effects assigned to him.
    On December 12th, the assignee gave bond in Philadelphia in the sum of $253,000, a -little more than twice the amount of the appraisement. On December 21st, the assignee filed an inventory' and appraisement with the surrogate of Camden county. This inventory contains only the New Jersey assets and the appraisement is the same as the appraisement in the inventory previous^ filed in Philadelphia. It is verified only by the assignee, who states in his affidavit that it is a true inventory of the estate, but does not state that it is full and complete and includes all tire assets. On the day he filed the inventory in Camden the assignee gave bond in this state for >1565,000, an amount considerably less than the appraised value of the New Jersey assets.
    Shortly after filing the inventory in C'amden, the assignee gave-notice to creditors to present their claims pursuant to our statute, and on May 31st, 1901, filed a list of claims, and on June 29tli, exceptions to several claims. Thereafter, until 1902, the assignee’s proceedings were all in the Camden orphans court. Nothing seems to have been done by the assignee in the Philadelphia court after the, filing of the inventory. The testi-mony shows that the Pennsylvania statute does not require that the assignee should notify creditors to present their claims; that creditors are not required to present their claims until an auditor is appointed, which cannot be done until a year has expired and an account has been filed, and was not done in this case until July 11th, 1902.
    In the meantime, soon after the Camden orphans court had directed a sale of the remaining assets, a petition was filed in the Philadelphia common pleas by two creditors for the removal of the assignee and to compel him to account.
    On June 9th, 1902, the Philadelphia court granted a rule, oh application of creditors, requiring the assignee to show cause why all proceedings by him, as to accounting and distribution in New Jerse3r, should not be stayed; and on-June 11th, on application of the assignee, a rule to show cause why he should not be directed to file his account in Camden, and on compliance should not be discharged from his trust in Pennsylvania.
    On Juty 1st, 1902, the Philadelphia common pleas discharged the last rule, made the first rule absolute and directed the assignee to file an account in ten days. This account was filed and included onty the Pennsylvania assets.
    Meantime, proceedings were pending in New Jersey for distribution. May 19th, 1902, the assignee filed a petition for an order directing him to file an intermediate account, and to make a partial distribution. An order to file an intermediate account was made the same day and the account was filed June 6th, 1902, three’ days before the rule to show cause was issued against the assignee in Philadelphiá. This account includes all the assets of the estate, showing debits of $227,339 and credits of $165,467.06, and a balance of $61,871.94, but sets forth three items of debits ($20,927.71) and three of credits ($2,032.97) and a balance of $18,894.74, to be accounted for in Pennsylvania. The account does not appear to have been confirmed.

      On June 26th, 1902, George G. Browning, one of the assignors, a resident of Philadelphia, filed a petition in the Camden orphans court, praying that the orders made by the court on the representation that the deed of assignment was created under the -laws of New Jersey (by which the petitioner evidently meant all the orders made by. the orphans court) might be revoked and declared void and expunged from tire record; that all the acts of the assignee under those orders might be declared null and void, and that the assignee might be restrained from paying out or distributing the mone3rs in his hands under the assignment laws of New Jersey.
    On July 11th, 1902, the very day the auditor was appointed in Philadelphia, Lehman S. Browning, a creditor, filed a petition in the Camden orphans court praying that the moneys in the possession of the assignee might be at once distributed by the order and decree of that court.
    Subsequently Maurice Browning, one of the assignors, and several creditors came in by petitions, in opposition to the petition of George G. Browning, and asked for a distribution in New Jersey.
    On July 28th, 1902, the orphans court denied the prayer of George G. Browning’s petition in so far ás it prayed that the orders theretofore made be vacated and feet aside, and directed the assignee to retain in his possession in New Jersey the moneys arising from the sale of personal property in New Jersey and .continued the question of distribution to a later day.
    On August 21st Lehman S. Browning filed a new petition in the nature of a supplementary petition for himself and all other unsatisfied creditors who might come in and contribute, in which he prayed for an immediate partial distribution of all the balance of-$61,138.34 (including, apparently, the balance of $18,894.74 for which the assignee proposed to account in Pennsylvania), and for a decree that the assignment was a general assignment under the New Jersey statute, and that the petition of George G. Browning be dismissed.
    Answers were filed and a hearing had before the orphans court, which, on March 14th, 1903, made three separate orders. One dismissed the petition of the assignee, one dismissed the ^petition of Lehman S. Browning and the third vacated so much ■of the order of July 28th, made on George G. Browning’s petition, as directed the assignee to retain in his possession the moneys arising from the sale of personal property in New ■Jersey, and further directed that the prayers of the George G. Browning petition, not theretofore denied, be denied, and that the petition be dismissed. All of the orders recited that the ■court was of opinion that the assignment was an assignment under and subject to tire control of the laws of Pennsylvania, .and that the court ought not to take further jurisdiction in the premises.
    Prom these orders appeals were taken to • the prerogative ■court. Prom each of the three decrees of that court affirming ■the several orders two appeals were taken to this court.

      Mr. Herbert A. Drake, Mr. Joseph H. Gaskill and Mr. Normari Grey, for the appellants.

      Mr. Martin V. Bergen, for the respondents.
   The opinion of the court was delivered by

Swayze, J.

A consideration of the orders of the orphans court shows that what that court actually did was to leave undisturbed the orders it had previously made with reference to the administration of the estate, including the order directing the assignee to file an intermediate account; to refuse to direct a partial distribution ■of the assets, and to leave the assignee free to distribute all the moneys in his hands' under the orders of the Pennsylvania courts, if he chose. The court did not direct a transfer of the .assets to Pennsylvania.

The section of the statute authorizing the court to direct a partial distribution is section 8. P. L. 1899 pp. 149, 150. Its express language is that the court “may in its discretion direct such partial distribution.” Since it was discretionary with the court to make the order or not, and the ultimate rights of the creditors and the assignee were not affected, the orders made on the petitions of the assignee and the creditors are not appealable. In re Anderson, 17 N. J. Eq. (2 C. E. Gr.) 536; National Bank of Metropolis v. Sprague, 21 N. J. Eq. (6 C. E. Gr.) 458; Camden and Amboy Railroad Co. v. Stewart, 21 N. J. Eq. (6 C. E. Gr.) 484; Read v. Huff, 40 N. J. Eq. (13 Stew.) 229.

This very ease illustrates the importance of the statutory provision making a partial distribution a discretionary matter.

Whether this assignment be regarded as a New' Jersey assignment or as a Pennsylvania assignment, there were assets in both states, arid proceedings had been taken in both. The time within which creditors might file claims in Pennsylvania had not expired. It was therefore quite impossible for the orphans court to determine wdiat dividend would secure that equality among the creditors which the statute contemplates, and even if an advantage might be gained by Now Jersey creditors who had filed their claims within the three months, that advantage could not fairly be claimed by the Pennsjdvania creditors, who' constituted the majority. The orphans court was therefore clearly right in refusing to order a partial distribution. Although the order was not appealable, no motion was made to dismiss the appeal, and the prerogative court was right in affirming these two orders.

The order on George G. Browning’s petition amounted only to a refusal to take the action prayed for, and as the present appellants opposed such action they are not aggrieved by the court’s denial of this petition. That denial left the matter just where it stood before the petition was filed. In the absence of a motion to dismiss the appeal upon the gound that the appellants were not aggrieved, the prerogative court -was right in affirming this order also.

Although we think the decree must be affirmed on the narrow grounds just stated, we have considered the question of jurisdiction, since it is apparent from the argument that what is really complained of by the appellants is not the action actually taken by the orphans court, and set forth in the petitions of appeal, but the reason for that action, stated in the recitals of the orders appealed from, but not referred to in the petitions of appeal; the argument in this court was addressed to the question whether the proper forum in which to distribute this estate is Pennsylvania or New Jersey.

The deed of assignment as such is sufficient to pass title in both states. Frazier v. Fredericks, 24 N. J. Law (4. Zab.) 162 Bentley v. Whittemore, 19 N. J. Eq. (4 C. E. Gr.) 462. The controversy which usually arises in cases of this character between those claiming rights under the deed of assignment and those claiming under legal proceedings in another jurisdiction, is not present in this case. All the parties claim their rights under the same deed, and have by their' acts assented thereto.

Nor is any question involved as to the jurisdiction of the courts of New Jersey over assets within this state. The case presents the narrower question of the jurisdiction of the Camden orphans court. That jurisdiction is statutory aucl depends upon the act concerning general assignments. P. L. 1899 p. 146. The object of that act is to secure an equal distribution of the estate of the assignor among such of his creditors as may choose, to present their claims, and to release the assignor from further liability to them. To that end it contemplates an administration of the whole estate and a distribution among all the creditors. The assignee is required to exhibit an inventory and valuation of the estate as far as has come to his knowledge; to tile a list of all creditors who have proved their claims; and to render a final account after the determination of all claims; preferences within two months of the general assignment are made void, and creditors who come in and exhibit their demands under the assignment for a dividend are barred from having afterwards any action or suit against the assignor or his representatives. The object of this act cannot be secured by a partial assignment; no one would contend that creditors exhibiting their demands to a New Jersey assignee for a dividend out of the New Jersey assets would be barred from having a dividend out of assets in another jurisdiction. The very scheme of the act makes a single administration necessary.

The case differs, also, from a case where- resort must be had to an ancillary administration. For the deed passes title as a common law conveyance subject only to such rights as may be-acquired by creditors in a foreign jurisdiction adversely to the deed of assignment. This court held, in Bentley v. Whittemore, that such a deed, executed under the laws of another state, passed title to real estate in New Jersey, which title was good as-against creditors not resident in New Jersey, even though the deed contained preferences in contravention of our. statute. The supreme court of the United States has adopted the same rule in a case where possession was actually taken by the assigneeuncler the foreign assignment. Barnett v. Kinney, 147 U. S. 476. Security Trust Co. v. Dodd, Mead & Co., 173 U. S. 624 is not applicable-; no claim is here made adversely to the deed,, but all parties claim thereunder.

We have, then, a case of a deed of assignment sufficient to-pass title in New Jersey and under which the orphans court, might acquire jurisdiction pursuant to the statute, but a case in which it.is not-necessary to invoke that jurisdiction. We think the jurisdiction of the orphans court in such a case depends upon its ability to administer the whole estate, and to-accomplish the object of the act. That jurisdiction fails in this-case.because when the first proceeding was taken in Newr Jersey the jurisdiction of the Pennsylvania court had already attached. When, the deed was recorded in Philadelphia, on November 19th, it was not acknowledged as required by the second section of our act concerning general assignments, and this- defect ivas not supplied until the following day. Title had already passed to the assignee before the attempt was made to have the deed comply with our lawr, and even that attempt was not successful, for the deed fails to have annexed an inventory and list of creditors. It is true that this failure would not render the deed invalid of exclude it from the operation of the act (section 2), but if willful — and it could hardly be otherwise — the assignors co-uld not receive any of tire benefits of the act. -We ought not to give such an effect to the deed.

The deed was not such a deed as required by our act, and the conduct of the assignors and the assignee indicates that they clid not, originally at least, intend that it should he operative as a deed of assignment under the New Jersey act. The principal place of business of the partners was Philadelphia; most of their creditors were Pennsylvania creditors; the deed was executed and delivered in Philadelphia, and the trust -was accepted there by the assignee; the assignee had the deed recorded, first, in Philadelphia; he filed his inventory there two weeks before he filed an inventory in New Jersey; the inventory in Pennsylvania was complete; that in New Jersey was partial and included only the assets in New Jersey, and was not a true inventory, as the statute requires; he gave bond in Pennsylvania for the whole, estate, and in New Jersey for a part only even of the New Jersey assets; he took no further step looking to New Jersey''as the proper forum until May 10th, 1901, six months after the assignment, and he has never treated the Camden orphans court as having jurisdiction over all the assets. We think the assignee cannot in this way divide the administration of the assets to -which he acquired title under a single deed of conveyance. While the assignors and assignee might have had this estate administered by the Camden orphans court, they elected to have it administered by the Philadelphia common pleas, and by that election the parties to this litigation are bound.

The decrees of the prerogative court in each case should be affirmed, with costs.

For affirmance—The Chief-Justice, Garrison, Fort, Garretson, Swayze, Bogert, Vredenburgh, Green—8.

For reversal—Dixon, Vroom—2.


text:
    James M. Butler, respondent, v. Edward Farry et al., appellants.
    [Submitted March 27th, 1005.
    Decided March 5th, 1906.]
    1. A deed, absolute on its face, was given by a husband and wife to a trustee, to secure him. and others who were liable on a note of the husband. On a bill to foreclose the deed as a mortgage — Held, that the wife’s inchoate right of dower was subject to lien only to the extent that the amount to be secured was made known to her at the time the deed was executed.
    2. Where a deed in the nature of a mortgage is made to a trustee, the eestms que trustent are necessary parties to a bill to foreclose the deed as a mortgage, at least if they are known, and are not so numerous as to make it impossible or highly inconvenient to include them as parties.
    On appeal from a decree of the court of chancery.

      Mr. Warren Dixon, for the appellants.

      Mr. Frank P. McDermott and Mr. Edmund Wilson for the respondent.
   The opinion of the court was delivered by

Swayze, J.

The complainant seeks to foreclose a deed in the nature of a mortgage made to him as trustee. The controversy is as to the amount of the indebtedness secured by the deed. The defendant claims that it was given to secure $3,000 only, cf which $1,500 has been paid; the complainant that it was to secure additional advances to a large amount. The vice-chancellor sustained the claim of the complainant.

As far as the interest of the defendant Edward Earry is concerned, we agree with the vice-chancellor, but we think he went too far in subjecting the inchoate right of dower of Louise Farry to the whole amount of her husband’s debt.

Since it is conceded that the deed was only a mortgage, it was incumbent upon the complainant to prove, not only the execution of the deed by Mrs. Farry, but also that the amount to be secured thereby was made known to her. There is no evidence upon this point except that of Mr. and Mrs. Farry. The master who took the acknowledgment testified only that he informed them that the instrument was a deed to James M. Butler, trustee. Mr. Farry testified that he said to his wife that it was given as security for $3,000. Mrs. Farry testified that when the master asked her if she understood the contents of the deed she answered that she did; that it was a deed made by Mr. Farry and herself to James M. Butler and others as security for a note of $3,000.

Me think that Mrs. Farry’s inchoate right of dower is subject to lien only to the extent of the amount remaining unpaid of this $3,000.

In case of a sale of the land under the decree ihis amount, with interest and costs, must be first paid out of the proceeds of sale. The balance is subject to Mrs. Farry’s right of dower. The decree must be reversed for this reason.

There is another difficulty as tire case now stands. The deed Avas made to Butler as trustee for himself and others, Avho Avere liable upon the $3,000 note intended to be secured. At the time the bill Avas filed a balance still remained due upon this note, Aidiich was then held by the Citizens’ National Bank of Long Branch. A feAv months after the bill Avas filed the bank recovered a judgment against Butler, Farry and four other persons who were parties to the note, and this judgment Avas assigned by the bank to Butler. The answer set up a defect of parties by reason of the failure to join Butler’s cestuis que trustent as parties. The vice-chancellor thought this point was not well taken, for the reason that the debt as to them had been paid. But the fact is, as already stated, that the debt had been reduced to judgment, Avhich, as far as appears, is uncancelcd, and iioav belongs to Butler himself, and which gives him an equitable, if not a legal, claim against the other defendants.

It has been decided by this court that to a bill to foreclose a mortgage made to a trustee the cestuis que trustent, as well as the trustee, should be made parties, when they are known, and are not so numerous as to make it impossible or highly inconvenient to include them as parties. Tyson v. Applegate, 40 N. J. Eq. (13 Stew.) 305.

In the present case there is the greater necessity for bringing-in the cesiuis que trustent, because the' instrument sought to be foreclosed as a mortgage is upon its face an absolute deed. The1 trustee concedes that it is in the nature of a mortgage, but the cestuis que trustent may contend to the contrary, and they are-entitled to be heard upon that point. They may be brought in by proper proceedings in the court of chancery. Smith v. Gaines, 39 N. J. Eq. (12 Stew.) 545, 550.

The decree must be reversed and the record remitted for further proceedings in conformity, with this opinion.

For affirmance—None.

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


text:
    In the matter of the estate of Charles A. Woolsey, deceased. Alice M. Woolsey and Virginia M. Woolsey, appellants, v. Frank Woolsey and James P. Northrop, executors, respondents.
    [Argued March 28th, 1905.
    Decided December 6th, 1905.]
    A testator, after bequeathing two pecuniary legacies, devised and bequeathed the residue of his estate to his executors in trust, (1) to set apart a fund and pay the income to his daughter during her life; (2) out of the income derived from the remaining portion of his estate to pay annuities to his daughter and daughter-in-law,, and apply a sum for the use of his grandson during minority. There was no income to pay the annuities or the sum allowed for the grandson, but the executors paid, moneys as annuities, and as an allowance for the grandson, and sought in their account to charge these payments against the corpus of the-estate, which was needed to pay the legacies and meet the trust 'fund for the daughter. — Held, that they are estopped from denying that they had received income from which to make these payments, and are not entitled-to an allowance for the payments as against the corpus of the estate.
    On appeals from decrees of tbe prerogative court advised by Vice-Ordinary Bergen, whose opinion is reported in 67 N. J, Eq. S7A

      Mr. Randolph Perkins and Mr. Richard 7. Lindabury, for the appellants.

      Mr. Charles L. Carrick (Mr. Robert L. Lawrence, on the brief), for the respondents.
   The opinion of the court was delivered by

Swayze, J.

Charles A. Woolsey died July 4th, 1895. By his will he bequeathed $5,000 to Sarah A. Newell and $10,000 to Virginia M. Woolsey. He devised and bequeathed the residue of his estate to his executors in trust, (1) h> set apart $20,000 and pay the income therefrom to his daughter, Alice, during her life; (2) out of the income derived from the remaining portion of his estate to pay therefrom to his daughter, Alice, $1,000 per year, and to his daughter-in-law, Virginia' M. Woolsey, $2,000 per year, and to pay and apply for the use of his grandson, Herbert W. Woolsey, during his minoritjq a sum not exceeding $1,000 per annum. Other provisions as to the disposition of the estate are not material to the present case.

A large part of the apparent assets of the estate was invested in the C. A. Woolsey Paint and Color Company. The testator, in view of this fact, made the following provisions:

“It is my will, and I do hereby direct that, with the exception oí the funds necessary to pay legacies and create the trust estates hereby made, all surplus dividends and other moneys belonging to me and left by me at my death in the C. A. Woolsey Paint and Color Company shall be and remain therein as a surplus fund for the benefit of said business until the division of my estate in the manner herein provided..
“I direct that the amount to be paid to my daughter, daughter-in-law and grajidson, annually, as herein specified, shall, so far as practicable, be paid out of the income of my estate other than that derived from the C. A. Woolsey Paint and Color Company, and that only so much shall be taken from said company as may be necessary to make up the deficiency ; and that all surplus accruing shall be and remain in said business for the purpose of increasing the surplus moneys or working capital thereof. In the event of the income of my estate being insufficient for any current year to pay such annual amounts, I direct that the deficiency be drawn from the accumulation of surplus income left by me or my executors in said company.
“It is my will, and I direct, that during the minority of my grandson, Herbert W. Woolsey, and in case he shall so long live, the shares of stock ■owned by me in the C. A. Woolsey Paint and Color Company be not disposed of, but held by my executors and trustees as part of my estate, and that such of my executors as are individual stockholders therein be elected to positions of trust and equal profit therein.
“And I further direct that my executors and trustees shall not be held to account for any diminution in my estate by reason of continuing my investments in and holding the stock of said corporation as a portion of their trust property and of my estate.”

No inventory of the estate was ever filed by the executors. The paint company became insolvent in January, 1903, and one of the executors who had been active in its management died about the same time. Thereupon, on July 30th, 1903, the surviving executors filed an account, to which Alice Woolsey and Virginia M. Woolsey excepted. Some of these exceptions were sustained by the orphans court, and an order was made requiring the executors to give security in the sum of $30,000 for the faithful performance of their duties under the will. Upon an appeal to the prerogative court the vice-ordinary advised the reversal of both decree and order. From tire decrees of the prerogative court, these appeals were taken by the exceptants.

, The exceptions to the account which were sustained by the orphans court and disallowed by the prerogative court were to the following claims for allowances to the executors:

1. For $507.37, for money paid by the executors to the paint company on September 25th, 1895.

2. For $14,832.82, paid to Virginia M. Woolsey on account of annuity.

3. For $7,499.72, paid to Alice Woolsey on account of annuity.

4. For $4,450, paid to Virginia M. Woolsey, guardian of Herbert W. Woolsey.

By an answer to the petition of appeal in the prerogative court, the exceptants sought to question the adverse action of the orphans court on certain exceptions, as is permitted by the rules of the prerogative court on appeal from a decree of an orphans court on the' settlement of accounts (rule 2). The petition of appeal in this court complains of the action of the prerogative court upon these exceptions, and they must therefore be considered. They are:

1. The allowance to the executors of $500 paid R. A. Simpson, December 23d, 1896.

2. The failure to charge the executors with a dividend of December 1st, 1895, on the paint company stock.

3. The failure to charge the executors with a similar dividend of December 1st, 1896.

To deal, first, with the four items which the orphans court refused to allow as a credit to the executors, the item of $507.37 arose in the following way: Several small debts of the testator, amounting in all to the sum mentioned, were paid by the paint company and charged to Mr. Woolsey’s account, and the amount was repaid to the company by the executors -as soon as they were in funds. We think the orphans court was right in refusing •to allow this payment. The paint company was at the time heavily in debt to the estate, and there was no reason why the .amount paid by it and charged against Mr. Woolsejr’s account .should be repaid. By taking this course, the executors ultimately lost this amount unnecessarily.

The other three items may be disposed of together. In considering the propriety of the action of the orphans court, it is to be borne in mind that these items concern only the allowance side of the account. The executors have not been charged with assets which they failed to collect, nor with any loss by reason of a continuance of the testator’s investments in the paint com•pairy, nor with interest which they failed to receive through mismanagement. They were charged by the orphans court only with the sums which by their own account they admitted having received. The case does not therefore involve a construction of the clauses of the will authorizing a continuance of tire testator’s investments in the paint company, nor does it involve the jurisdiction of the orphans court to charge executors with assets which they may have failed to receive through negligence. The only question is as to the propriety of the- claim for allowance of the items above specified.

To understand the controversy it is necessary to set forth the •state of the account between the testator and the corporation at the time of his death, and subsequent dividends and pay■ments. There was standing to his credit on the company’s books at his death $14.,049.61. On August 1st, 1895, a dividend was credited amounting to $6,599.20, and on November 30th, 1895, .a further divdend of $2,282.20. Beginning with'October, 1896, payments were made by the company from time to time and ■charged to this account. At the time of the insolvency the balance of the account was $5,192.26. The 'executors proved a ■claim for this amount with the receiver and were paid a dividend of $2,336.52. As the payments were made from time to time by the companjq they were paid to Virginia M. Woolsey, individually and as guardian for her son, and to Alice Woolsey, as payments on account of the annuities provided by the will. If these payments are allowed as claimed by the executors, the assets in their hands will fall short of meeting the amount required for the legacies to Mrs. Newell (who has had no interest on her legacy) and Virginia M. Woolsey, and nothing will be left to make up the trust fund of $20,000 for the testator’s daughter, Alice. By the method of accounting adopted by the prerogative -court, large sums will have been paid for the annuities which by the will were subject to the legacies, and these payments will have been made at the expense of the legacy to Virginia M. Woolsey and the trust fund provided for Alice Woolsey. It is not to the point that most of the moneys will have been received by the legatees. The testator was careful to distinguish between the legacies and the trust fund, on the one hand, and the annuities on the other. The legacies and the trust fund were to be first provided for. The annuities were 'to be paid out of the income from the remaining portion of his estate. It is manifestly to the disadvantage of Virginia M. Woolsey and Alice Woolsey to have the legacy and the trust fund depleted by the payment of moneys which were paid and received on account of the annuities.

As was said by the chief-justice in Appleton v. American Malting Co., 65 N. J. Eq. (20 Dick.) 375, 381, it is absurd to say that a person suffers no wrong who has been unwittingly induced to exhaust his principal by the mistaken or fraudulent representation of those to whom he had entrusted it that what has been paid to him is income. The annuities.were payable only out of income derived from the estate after setting aside enough money to pay the legacies. By paying tíre annuities the executors represented to the annuitants that they had income out of which to make these payments after paying the legacies. Having led the .annuitants to act on this belief, the executors are estopped from asserting the contrary.

Since the executors are estopped from denying that they had1 income available for the annuities, after payment of the legacies, it can make no difference whether they are surcharged with this amount and allowed for the payments on account of annuities, or whether they are disallowed these payments as a credit against the corpus of the estate, which is needed to pay the legacies.

The sum of $14,049.61 due the testator from the company at the time of his death was clearly a part of the corpus; the dividend of $6,599.20 declared within a month of his death must also have been a part of the corpus. Lang v. Lang’s Executor, 57 N. J. Eq. (12 Dick.) 325.

Although the dividend of November, 1895, may have been treated as earnings of the company after the testator’s death, and applicable to annuities, that dividend has never been paid, for all the payments have been treated by the corporation by the method of keeping the account, and by the executors by filing a claim with the receiver for the balance only, as having been made upon the open account, and therefore applicable to the earliest items of the account, and the balance still due after crediting the amount paid by the receiver exceeds the amount of the November dividend.

Although the dividend paid by the receiver was based in part upon this November dividend, and may therefore be regarded as income to that extent, the executors are not entitled to the allowance as claimed, for they were allowed by the orphans court $4,959.74 for moneys paid Alice and "Virginia Woolsey as interest on the legacies, as distinguished from the sums paid as annuities. This sum was allowed, although the executors failed to charge themselves with any income on the securities or cash actually in hand, and it far exceeds the total dividend paid by the receiver. They have therefore actually had allowance for the amount received from the company so far as it can be called income.

The testator did indeed provide that the amount to be paid to his daughter, daughter-in-law and grandson annually should, as far as practicable, be paid out of the income of his estate other than that derived from the paint company; but this provision related only to the annuities, or, as the testator said, “the amount to be paid annually,” and this provision of the will became of no importance in the actual situation, as there never was an income out of which the annuities could be paid.

If the executors had followed the directions of the will, the assets actually received by them would have sufficed for the legacies and the Alice Woolsey trust fund. They chose instead to assume to pay annuities which they had no income to meet. They are not entitled to reimburse themselves at the expense of the legacies which the testator said should be paid before the annuities. We think, therefore, that the orphans court was right in not allowing the executors for these payments.

Of the exceptions to the account which were disallowed by the orphans court, three only were complained of in the answer to the petition of appeal. Two of these were to the failure of the executors to charge themselves with certain dividends of the paint company; these exceptions are not sustained by the proofs and the action of the orphans court was right. The third complained of an allowance for $500 paid to Simpson, one of the executors. The claim of the executors is that the money had been paid by Simpson to Alice Woolsey, and that he was entitled to be reimbursed therefor. The testimony as to this payment is unsatisfactory, and no voucher from Alice Woolsey is produced. One of the executors testified that Simpson advanced the money in some way or other; that he must have paid the $500; that tire witness never signed an estate check unless he was morally certain that it was all right. The other executor testified.that he never signed an estate check without being thoroughly satisfied that the amount was correct; that,Virginia was being paid $250 interest; that Alice was looking to Simpson and he was taking care of her; that the witness must have known at the time; that it was a good while ago to recall. In the absence of a voucher from Alice Woolsey, we think the evidence insufficient to warrant a credit of $500 for money paid to the deceased executor. This exception should have been sustained.

The prerogative court also reversed the order of the orphans court requiring the executors to give security. This order was made under section 140 of the Orphans Court act (P. L. 1898, p. 767), which authorizes the court to require security whenever proof is made to its satisfaction that the property in the hands of the executor is unsafe, insecure, or in danger of being wasted.

We think that the conduct of the executors in using money which should have been paid to the legatees or invested to secure the trust fund for the testator’s daughter to pay annuities which should have been paid out of income received after paying the legacies and setting apart the trust fund justified the conclusion that the property was unsafe in the hands of the executors. The amount of assets actually admitted to be still in their hands is a little less than $6,000. The additional amount with which they are chargeable is over $27,000. We think a bond of $30,000 is not excessive.

The decrees of the prerogative court should be reversed. The decree of the orphans court upon the accounting should be reversed and the account restated in accordance with the views herein expressed. The order of the orphans court requiring security should be affirmed. The exceptants are entitled to costs in both courts.

On appeal from decree on accounting:

For affirmance—None.

For reversal—The Chief Justice, Dixon, Garrison, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green, Gray—11.

On appeal from order that executors need not give security:

For affirmance—Garrison—1.

For reversal—The Chief Justice, Dixon, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green, Gray—10.


author: Per Curiam. Fort, J.

text:
    James D. Carton, trustee, &c., respondent, v. Ellsworth Booze and Catharine Thorne, appellants.
    [Submitted March 27th, 1905.
    Decided November 20th, 1905.]
    In an action by the trustee of a bankrupt to set aside a conveyance of land by the bankrupt to his sister more than four months prior to the filing of the petition, evidence examined, and held sufficient to sustain the conveyance as a mortgage to secure a part of the moneys claimed to have been loaned by the sister to the bankrupt, but insufficient to support it as an absolute deed.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Reed, who filed the following conclusions:
    This is a suit brought by a trustee in bankruptcy of Ellsworth Booze, a voluntary bankrupt, to set aside a deed made by the bankrupt to his sister.
    The petition upon which Ellsworth Booze was adjudicated a bankrupt was filed by him on August 22d, 1902.
    The deed attacked was executed on January 24th, 1902, more than four months before the petition was filed. The deed was made to Catharine Thorne, for the expressed consideration of one dollar and other valuable consideration.
    Both Catharine and Ellsworth claim that the deed was made in consideration of the sum of $4,800 and interest, the $4,800 being money loaned by her to him and unpaid at the time of the execution of the deed. They both swear that she loaned him $1,000, in 1882, to pay his way through the college of pharmacy for that year; that she loaned him another $1,000 in 1883 to pay for his second year’s course in the same institution; that she loaned him $2,500 in 1884 to set him up in the drug business in .Trenton, and that finally she loaned him $300, in September, 1901, for his personal use, when the bottling com-party, in which lie was interested, and in which he had put $2,500 in cash, which he had raised by mortgage upon his property, became embarrassed. ' ■
    Catharine produces a memorandum on which she says she entered the time and amounts of the loans at the date upon which they were made. This memorandum, however, has no evidential value .whatever. It appears that at the time when Ellsworth concluded to study pharmacy he was employed in his father’s grocery store in the city of Trenton.' Catharine assigns as the reason why Ellsworth did not apply to his father for the money he needed was that the father did not wish Ellsworth to study pharmacy, but instead wished him to remain in the grocery business. Therefore, because of his father’s attitude, Ellsworth applied to her for the money to carry out his purpose. Catharine says that she got $1,0'00 from her father without telling him the purpose for which she wished it, and loaned that sum to Ellsworth in 1882. That she repeated this act in 1883 and in 1884 she got the $2,500. This sum she says her father owed her; that he owed her exactly $4,500.
    Her account of the manner in which her f ather became indebted to her in this sum of $4,500 is quite curious. She says that her father gave her $4,500 about twenty or twenty-three years ago. She says, “He felt that he had done for the others a great deal; my older brother and this one — I had an older brother — he had done so much for him; given him so much money that I knew nothing about, he gave it to me as a present.” She says that he gave her $4,500 all at one time in bank notes. She says that she kept it in her pocketbook at home. She says that not a great while after this her father wanted it back again — wanted to pay some debts that he owed and that he borrowed the whole $4,500 for that purpose, and that she gave him the same notes which she had received from him.
    It is true that Herman Booze appears to have been illiterate; he signed his will, as well as mortgages, by his mark. He also appears to have been in the habit of keeping considerable sums of money concealed about the house. His widow, an old lady now seventy-nine years of age, testifies to this, and says that he was distrustful of banks and only put his money in bank when lie had several thousand dollars. All this is, of course, important in judging of the probability of his having $4,500 in his possession at one time and passing this sum over to his daughter, and then, almost immediately, receiving it back again. There is, however, nothing to show the source of so large a sum. It is not shown that about this time he was concerned in any transaction by which he realized a large amount of money. His widow says that, he received money from the sale of lands to one Buckley, but that this was after he gave the money to Catharine. He undoubtedly received money from the city of Trenton from land taken by condemnation in the opening of Willow street, but when this occurred, or how much he received, does not appear.
    If he gave this money to Catharine the gift must, have been made in 1882, for she saj^s that she loaned the first $1,000 to Ellsworth in September of that year, and the gift to her and the return of the money to her father took place not long before.
    Now, it appears that on October 5th, 1881, Mr. Booze had paid off a mortgage of $1,600 which had been in existence from 1872; there still remained a mortgage of $700, which had been in existence since 1880. This mortgage he afterwards paid, on January 11th, 1883. If he had in his possession, in 1882, $4,500, it is certainly remarkable that a man SO' thrifty should have left this mortgage standing, accumulating interest, until the following year. •
    Again, according to Catharine’s testimony, he told her that he wished the money returned because he wished to pay off some debts. The only debt he appears to have paid is the mortgage of $700, paid in 1883. Nor does he appear to have purchased any property about that time.
    Again, she says that the reason he gave for making this gift to her was “that he done so much for the boys.” It does not appear that he had done anything for Ellsworth, who was working in his father’s grocery store, beyond what he had done for his other children, especially for Catharine, who, as I gather from the remark of the widow, was, although married, still living at home with her parents in 1882.

      It may be that the father did give Catharine some money about that time. The widow says he did so and told Catharine to buy a home. If he did so, he changed his mind and resumed possession soon after. Her return of this money to him is as likely to have been a gift to him as a loan.
    Another theory, quite as probable, I think, is that he handed the money to her to keep, as a member of his household, and asked for the money' afterwards, not as a loan, but as his own property.
    Again, the will of Herman Booze, so far as appears, left Catharine and Ellsworth about the same amount of property. If he had given her $4,500 and Ellsworth nothing, it is strange he did not adjust this in making his will.
    I have no doubt that by the understanding of all the parties the money which Ellsworth received was, in great part at least, regarded as an advancement by the father. Some of it, I think, passed through the hands of Catharine. She says that her father did not wish Ellsworth to abandon the grocery business and embark in the drug business. She very likely interceded with her father and procured from him the-money for Ellsworth’s education. It is, however, impossible to believe that the father did not know for what purpose the money was used, at least after Ellsworth had left the store and begun his studies. He knew that Ellsworth had no money of Ms own, and that some one was furnishing the money for him. He might not have known the purpose, when the first $1,000 was obtained, but thereafter he must have known, and perhaps not desiring to recognize directly the conduct of his son, paid the expenses of the second year and the expense of equipping the drug store indirectly. That he furnished the money for the latter purpose was evidently the understanding in the family, for the widow saj^s “he governed the drug store,” and she thinks the father furnished the money for it. Now, the father may have given the first $1,000 to Catharine to do as she chose with it, but I am confident the other sums were paid to her, if at all, for the purpose of paying his son’s expenses, and not in repayment of any money he owed her.

      With some hesitation, I am inclined to- allow the deed to stand as a mortgage for the payment of the first $1,000, with interest, from September, 1882, and for the payment of the $300, with interest, from September, 1901. Even this claim is so stale and unevidenced by any note or due-bill, made at the time of the alleged loans, with no effort to get a later acknowledgment, when Ellsworth started his store, and when, two years afterwards, he failed in business, or any effort to get any security for it, after the death of the father, ten years ago-, when Ells-worth came into possession of his property under the will, that, as I have already observed, it is with hesitation that I have concluded to recognize it. The defendant being a woman and trusting her brother, may account for this conduct.
    I will advise a decree as above indicated.

      Mr. Wesley B. Stout and Mr. Alan H. Strong, for the appellants.

      Messrs. Guild .& Martin, for the respondent.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons set forth in the opinion filed in the court of chancery by Yice-Chancello-r Eeed.

Fort, J.

(dissenting).

In this ease I vote to reverse, not because the vice-chancellor has allowed the defendant too much in the decree below, but because he has not allowed her the entire claim which she made by her answer.

The evidence of the defendant and her witnesses was unimpeached, and I am unable to see why they should be discredited. To me there is nothing unreasonable or improbable in the story the defendant tells; when you take into account, the circumstances surrounding the alleged gift by her father and her loan to her brother.

I think, under the proof, a decree in accordance with her claim should have been made.

The decree below only allows her some $1,300 of the $4,800 of money due her and secured by the deed which the complainant’s bill seeks to avoid. I think the deed should have been allowed to stand as security for the whole amount claimed by the defendant.

For affirmance—The Chief-Justice, Garrison, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Green, Gray—9.

For reversal—Dixon, Fort—2.