author: G-ummbre, Chief-Justice.

text:
    Aaron Appleton and William M. Bennett, appellants, v. American Malting Company et al., respondents.
    [Filed March 11th, 1903.]
    1. Every corporation, organized under the laws of this state, is required by statute to elect directors annually, and to file, each year, in the office of the secretary of state, within thirty days after the election, a statement containing the. name and address of each of such directors. Directors, when elected, hold office for one year, and until their successors are elected and have qualified. — Held, that the failure of a corporation to file in the office of the secretary of state, in a given year, a statement containing the names and addresses of the directors who were required to be elected that year, raises the presumption that no election was held during that year, and that the directors whose names appear on the statement last filed in the office of the secretary of-state have held over, and still remain in office.
    2. By the true construction of the thirtieth section of the Corporation act each member of a board of directors, under whose administration dividends are declared and paid out of the capital stock of the company, is jointly and severally liable, to the corporation, at any time within six years thereafter, to the full amount of such dividend. But any director who was absent when the same was done, or who dissented from the act or resolution by which it was done, may exonerate himself from such liability by complying with the requirements contained in the proviso of the section.
    On appeal from a decree advised by Yicc-Chancellor Pitney, whose opinion is reported in 18 Dick. Ch. Rep. 422.

      Mr. James B. Sowell, and with him Mr. John A. Garver, Mr. Vidor K. McBlheny, Jr., and. Mr. William M. Bennell (of the New York bar), for the appellants.

      Messrs. Corbin & Corbin and Mr. A. B. Thacher (of the New York bar.), for the respondents.
   The opinion of the court was delivered by

G-ummbre, Chief-Justice.

The appellants, who are stockholders of the defendant company, filed their bill to compel the directors of the company, who held office as such from the time of the organization of the company, in September, 1897, up to and including the 3rear 1899, to pay back into the treasury of the company certain dividends paid out by them, during the period named, from the capital stock of the company, in violation of the provisions of section 30 of the Corporation act. The bill was filed by the complainants, not in the assertion of any individual right, but on behalf of the company.

■ Each of the defendants filed a demurrer to the bill, and, upon a hearing in the court below, a, decree was entered sustaining the demurrers and dismissing the bill. From that decree this appeal was taken.

Two questions are raised by the demurrers:

: First. Do the facts exhibited in the bill justify the complainants in instituting this suit without first making demand upon the directors to do so ?

Second. Does the thirtieth section of the Corporation act impose any liability upon directors who have paid dividends out of capital, except-in the event of the dissolution or the insolvency of the company?

' In determining the first question, the following facts are material: The bill was filed in March, 1901. The illegal declaration and payment of unearned dividends is alleged to have occurred prior to the 1st day of January, 1900. As an excuse for not, in the first instance, applying to the present board of. directors to prosecute, it is stated in the bill that, according to the last report made by the corporation • to the secretary of state, in compliance with section 43 of the Corporation act (and filed in his office in the year 1899), a majority of the board, as then constituted, were and are among the individual .defendants, against whom.relief is sought by the bill. By section 12 of the Corporation act, directors are required to be chosen annually, and are authorized to hold office for one year, and until others are chosen and qualified in their stead. The forty-third section of the act requires every corporation to file in the office of the secretary of state, annually, within thirty days after the election of directors, a statement containing the name and address of each of such directors, with the date of their election and of their term of office. P. L. of 1896 ■pp. 2-81, 291. The fact that the defendant corporation has not filed in the office of the secretary of state any report of election of directors since the year 1899, justifies the conclusion that since then no election has been held by its stockholders, and that those directors who were then chosen held over, under the provision of section 12 of the statute, and were in office at the time of the institution of the suit.

The statement that a majority of the present board of directors were, and are, among the persons against whom relief is sought by the bill, discloses a situation which relieved the complainants from the duty of applying to them to bring suit in the name of the corporation. It is settled, in this state, that such application need not be made when the interest, or bias, of the directors makes it certain that, if it was made, it would be denied; or, if granted, that the litigation following would necessarily be under the direction of persons opposed to its success. Knoop v. Bomrich, 4 Dick. Ch. Rep. 82, 84; S. C. on appeal, 5 Dick. Ch. Rep. 485.

Another ground upon which the right of the complainant to maintain this action is attacked, is that either they, or those from whom they purchased their stock, participated in the distribution of the illegal dividends, and are for that reason (as it is contended) disqualified■ from maintaining this suit, unless and until they return into the treasury of the company so much of the illegal dividends as was paid upon the stock which they hold. But 'this contention is based upon a misconception of the real situation. The complainants do not bring the suit to establish any right- of their own, or because they are personally entitled to the relief sought. They are permitted to sue ex necessitate rei, because the interests of those in control of the corporation are hostile to the interests of the corporation itself. Although, on the record, the corporation is a party defendant, yet, in reality, the complainants represent it. Except in name, the suit is an action brought by the corporation; it is maintained solely for its benefit, and the final relief, when obtained, belongs to it and not to the complainants. Willoughby v. Chicago Junction Railway Co., 5 Dick. Ch. Rep. 656, 666. The fact that tin? complainants, or those from whom they purchased their stock, participated in the distribution of the illegal dividends, -is no bar to the right of the corporation to obtain the relief sought.

Concluding that the facts stated in the bill sufficiently show the right of the complainants to maintain this suit upon behalf of the corporation, we reach the meritorious question raised by the demurrer, and that is whether, by virtue of the provisions of the thirtieth section of the Corporation act, the directors who have participated in the declaration and-payment of a dividend out of capital, are liable to the corporation for so doing, except in case of the dissolution or insolvency of the company.

The language of the statute is as follows:

“No corporation shall make dividends, except from the surplus or net profits arising from its business, nor divide, withdraw, or in any way pay to the stockholders, or any of them, any part of its capital stock, or reduce- its capital stock, except according to this act, and in case of any violation of the provisions of this section, the directors under whose administration the same may happen shall he jointly and severally Uahle, at any time ivithm six years after paymg such dividend, to the corporation and to its creditors, in the event of its dissolution or insolvencyr to the full amount of the dividend made or capital stock so divided, withdrawn, paid out or reduced, with interest on the same from the time such liability accrued; provided, that any director who may have been absent when- the same was done, or who may have dissented from the act or resolution by which the same was done, may exonerate himself from such liability by causing his dissent to be entered at large on the minutes of the directors, at the time the same was done, or forthwith after he shall have notice of the same, and by causing a true copy of said dissent to be published, within two weeks after the same shall have been so entered, in a newspaper published in the county where the corporation has its principal office.”

The contention, of the demurrants, which was sustained by the court of chancery, is that the remedy provided by the statute is solely for the benefit of creditors, and that it can only be availed of in case of the insolvency of the corporation. The argument is that the punctuation, (the insertion of a comma after the word “creditors”) shows clearly that this was intended by the legislature to be a winding-up provision, creating a fund for the payment of debts; and that, even if the location of the comma is not to- be accepted as controlling, nevertheless a construction which would enable the corporation to compel the directors, for the benefit of its stockholders, to make good a deficit in the capital stock when the stockholders themselves already had in their pockets the whole amount of that deficit, is so unreasonable and inequitable as to require its rejection.

Punctuation, - although usually considered in discovering the purpose of a statute, is never decisive in determining it; on the contrary, it will be entirely disregarded if it be necessary to do so in order to arrive at the real meaning and intent of the lawmakers. Hammock v. Farmer’s Loan and Trust Co., 105 U. S. 77; Kinkele v. Wilson, 151 N. Y. 277; Cushing v. Worrick, 9 Gray 382. If controlling force be given t the punctuation, and the location of the comma be considered decisive of the legislative intent that the liability should arise only in the event of dissolution or insolvency, still it is not perceived how the statute is to be limited in its scope so as to impose that liability only so far as it is necessary to provide a fund for the payment of debts. The liability is created for the benefit of the corporation as well as its creditors. It arises in case of dissolution or insolvency, i. e., where there is a voluntary winding up of a solvent corporation as well as when the corporation is wound up in invitum, on account of insolvency: If punctuation is to govern in the construction of this statutory provision, therefore, the situation is this: although the ' directors are answerable to the corporation for the injury inflicted upon it by the impairment of its capital, yet, the corporation cannot compel them to make good the loss which it has sustained by their illegal act, unless it elects to abandon its business and go into liquidation. A construction which imputes to the legislature the intent to force a solvent corporation into liquidation as a condition of enabling it to recover from its directors the money necessary to make good the impairment of its capital by them, should not be adopted unless such intent is manifest.

If the words of the act/rather than the punctuation, are looked to, the intention of the legislature would seem to be the reverse of that contended for by the demurrants. Reading the statute without regard to punctuation, the legislature has declared that, for the impairment of the capital of the company,

■“the directors shall be jointly and severally liable at any time within six years to the corporation and to its creditors in the event of its dissolution or insolvency to the full amount of the capital stock so divided withdrawn paid out or reduced.”

The apparent object of the provision is to afford protection equally to the corporation and to its creditors against loss by reason of the illegal act. But the creditors can suffer no injury from it, unless the capital is so impaired as to render the company insolvent. Not so with the corporation. Any impairment of its capital is harmful to it in some degree; the seriousness of the injury depending upon the extent of the impairment. For the full protection, of the company the liability of the directors must be absolute; no liability on the part of the 'directors is required for . the full protection of creditors, except in case of the insolvency of the corporation, or possibly in the event of its voluntary liquidation.

The words of the statute give this full measure of protection. For disobedience of its mandate, “the directors shall be jointly and severally liable to the corporation and to its creditors in the event of its dissolution or insolvency;” to the corporation, in any event; to the creditors, in the event expressed in the statute. In our judgment, the legislature intended, by this provision, to afford the full measure of protection which the words-provide.

It is argued by the demurrants, as has been already stated, that the statute, so construed, is grossly unjust and inequitable, in that it requires the directors to pay- into the treasury of the corporation, for the benefit of the stockholders, the amount of the deficit, although the stockholders, not the directors, -have in their pockets "the portion of the capital which has been withdrawn. The argument assumes that there will be no transfer of the stock of the company during the period of the liability of the directors. The assumption is unwarranted. The very declaration of the dividend, evidencing, as it does, the apparent prosperity of the company, creates a desire on the part of outsiders to become holders of the stock. It, at' the same time, decreases the actual, while increasing the apparent, value of the stock. The result is to afford unscrupulous directors, and stockholders who are cognizant of the illegal action of the board, an opportunity to unload their holdings upon innocent purchasers at fraudulently inflated prices. It is eminently just that the persons, whose wrongful act has caused loss to those who have been induced by- it to- become stockholders, • should make good that loss. Nor is it inequitable that stockholders who have-innocently participated in the distribution of the illegal divi.dends should have their stock restored to its normal value by contribution from the directors who have impaired the capital, without being first required to pay back the dividend so paid to them. The ordinary purchaser of corporate stock holds it as an investment. He rightly considers and treats the dividends paid upon it as income. In many instances the income is required to'meet the expenses of living, and is entirely expended for that purpose. To say that a person who has been unwittingly induced to exhaust hip principal, by the mistaken or fraudulent representation of those to whom he has entrusted it that what has been paid to him as income, suffers no injury, is absurd. To refuse him redress, except upon condition that he return the-moneys which he has expended in the belief that his capital was intact — notwithstanding that by such expenditure he is rendered penniless — is to put a premium upon fraud in corporate management.

The learned vice-chancellor, who heard the case in the court below, considered that if the statute fixed liability upon the directors without regard to the financial condition or needs of the corporation, then it was highly penal in its character, and that for this reason a court of equity should refuse to entertain a suit for its enforcement. In our opinion, the liability imposed by the statute is not penal in its character. Its sole purpose is, not to punish, but to provide for the making of compensation by wrong-doers for the injury sustained by their wrongful act.

The decree appealed from should be reversed.

For reversal — The Chief-Jus tice, Van Syckel, Dixon, Garrison, Fort, Garretson, Hendrickson, ' Vredenburgh, VOORHEES, VROOM — 10.

For affirmance — None.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Abraham J. Goldstein et al., respondents, v. Jeremiah Curtis and Kate Curtis, appellants.
    [Filed April 8th, 1903.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 18 Dick. Ch. Rep. 454.

      Mr. William R. BarricMo, for the appellants.’
   Per Curiam.

The complainants in the court below, the respondents here, filed their bill to compel the appellants, who are husband and wife, to specifically perform a contract under seal for the conveyance of lands, duly executed and acknowledged by each of them. The decree appealed from directed a specific performance. It should be affirmed, and -for the reasons stated in the opinion delivered by Vice-Chancellor Pitney, who advised it. We do not understand the learned vice-chancellor to hold (as was contended by counsel for the appellants, on the argument before us) nor is it the view of this court, that the court of chancery will, in enforcing a contract for the sale of lands, made by a married woman, compel her to acknowledge that the conveyance, made by her in pursuance of the mandate of the decree, was signed, sealed and delivered by her as her voluntary act and deed, and freely. As was said by the same learned jurist in his opinion delivered in the case of Fee v. Sharkey, 14 Dick. Ch. Rep. 292, afterward adopted as the opinion of this court (15 Dick. Ch. Rep. 446), "it is not essential to the validity of a deed made by a married woman in pursuance of a decree of this court, that she should make the statutory acknowledgment. * * . * necessary that she should make any conveyance at all, for the decree for conveyance executes itself under the statute. Gen. Stat. p. 383 § 63 (Chancery act). The strength of the complainants’ • title does not rest in any deed of conveyance executed by the defendant, but in the declaration and decree of this court establishing his right in equity.”

For affirmance — The Chiee-Justice, Van Syckbl, Dixon, Fort, Garretson, Hendrickson, Vredenburgi-i, Vooriiees, Vroom — 9.

For reversal — None.


text:
    Pauline E. Mullaney, respondent, v. George W. Mullaney et al., appellants.
    [Filed March 4th, 1903.]
    1. The orphans court has no original jurisdiction to determine whether a wife’s release of her interest in her husband’s estate has been obtained by fraud. Its decision on the question was coram non judice, and its determination worked no estoppel.
    2. In a proceeding by a wife for appointment as her husband’s administratrix, under a statute providing that administration shall be committed to the widow or next of kin, the issue whether her release of her interest in the estate was procured by fraud was, if at all, only incidentally cognizable, and its decision thereon was therefore not res judAcada.

    3. Evidence in a suit by a widow to set aside, as procured by fraud, her release of all interest in her husband’s estate, examined, and held, to sustain complainant’s contention, and to show that th‘e person perpetrating the fraud, though previously her agent, was at the time acting for heirs adversely interested.
    On appeal from a decree advised by Vice-Chancellor Stevens, who delivered the following opinion:
    This is a suit to set aside a release given by the complainant, who claims to- be the widow of Michael Mullaney, to defendants, who- are his next of kin and heirs-at-law. That the case may be understood, it will be necessary to state the situation as it was prior to the giving of the release. Michael Mullaney died intestate, at Bayonne, December 2d, 1899. He left personal property estimated at $7,297.29 and real estate estimated at $6,400. At the time of his death Mrs. Mullaney was not living with him. She says that on July 4th, 1862, it was agreed, in the city of New York, that they should become man and wife. There was no marriage ceremony, but the undisputed fact is that after that time they lived together for about twenty years, and, most of the time, in Bayonne. Then she left him, as she alleges, because of his cruel treatment, and went to Newark, where she has since resided. For nearly twenty years she has been, supporting herself at domestic service or by working out by the day.
    When Michael died she applied for letters of administration. This was resisted by Michael’s next of kin, on the ground that she was not in fact his widow. The case was heard by the Hudson county orphans court. A large number of witnesses were sworn on both sides.- On February 2d, 1900, the last witnesses were called and the case summed up. The court reserved its decision. Three days thereafter the release in controversy was procured. On February 9th, application was made to the orphans court to open the ease in order that the release might be put in for the purpose of showing that Mrs. Mullaney had no further interest in the estate, and that consequently she was not a proper person to administer. The paper did not, in terms, contain any waiver of her right to do so. It only released her right, title and interest in and to the estate, real and personal, of her late husband. The application was resisted, but the court granted it, and then counsel for the widow asked to be permitted to show that the release was obtained by fraud. The co-urt granted the request, and thereupon evidence was given on both sides on this new issue. The decision, as appears by the judge’s opinion, but not by the order or decree, was that there was no fraud, and that this being so it was unnecessary to decide any other question. • The order was that the prayer of the petitioner asking for administration be denied. Then Mrs. Mullaney filed this bill, and the case coming on to be heard it was stipulated that the evidence taken in the orphans court should be used here. No additional evidence, either on the question of marriage or of fraud in procuring the release, was taken in this court.
    I shall deal with the first of these questions very briefly. It seems to me very plain that while there was no ceremonial marriage, the connection was matrimonial, and not meretricious. In addition to the evidence of Mrs. Mullaney that there was a verbal agreement of marriage, the following facts appear: Michael Mullaney kept a grocery and liquor store in Bayonne. He was also for many years postmaster. During the twenty years that he and Mrs. Mullaney lived together they regarded each other and were treated by their customers and by their . friends and relatives as man and wife. In their correspondence, some of which is in evidence, they recognized each other as such. There was one child born to them — a son, who died when about eight years old. The inscription over his grave was as follows:
    “Our little Simey — Simon K., son of Michael ancl Pauline Mullaney, died March 23, ’73, age 8 years, 3 mos. and 10 days. Sleep on my babe and take thy rest. God called thee home. He thought it best. Selected by his grandmother.”
    ' After the separation he told the witness, Frank Hovell, that he could not sell the'lots because he could not get his wife to sign off. The defendant’s witnesses, in so far as they do not corroborate complainant’s witnesses, apparently draw their conclusion that the cohabitation was illicit only from the admitted fact that there was no ceremonial marriage. The evidence shows that there was an interchange of consent and that this was followed by cohabitation, accompanied with matrimonial habit and repute.
    The important question to be determined is whether this court should avoid the release for fraud.
    An objection was made in limine that this question, having been decided by the orphans court, became res adjudicada and not re-examinable here. I think there are two answers to this objection- — first, the orphans court had no jurisdiction to decide the question; second, ■ if it had, its decision thereon was not conclusive for the reason that the point decided was only incidentally cognizable.
    The jurisdiction of the orphans court is limited to those matters which have by statute been confided to it. It has no inherent jurisdiction to decide whether a release of lands or personal property is voidable for fraud. The utmost that can be claimed is it may determine questions of law and equitj, the decision of which is necessary to the decision of some other matter expressly committed to it' {Dunham v. Marsh, 7 Dick. Ch. Bep. 261), just as this court may decide legal questions when they arise incidentally and collaterally in a suit rightly instituted for equitable relief. Kean v. Union Water Co., 7 Dick. Ch. Bep. 818. The orphans court had power to decide the question whether Mrs. Mullaney was in fact the widow of Michael Mullaney, for letters of administration could only be granted to her on this foundation; and if the question were in doubt it would, necessarily, hear proof on the subject. But if that court could perform its statutory duty without trying questions properly cognizable by some other tribunal, it would be without jurisdiction to pass upon'them. Thus it has been held in several cases, that when an administrator makes application to sell lands to pay debts, the estate not being insolvent, the orphans court has no power to determine the validity of the claims in respect of which the administrator bases his application. The determination under our system belongs to other courts. Miller v. Pettit, 1 Harr. p21; Vreeland v. Schoonmaker, 1 G. E. Or. 51.2; Smith v. Smith's Administrator, 12 G. E. Gr. Ijlf5; Middleton v. Middleton, 8 Stew. Eq. 115. It has 'also been held that where the estate is not insolvent the orphans court has no power to adjudge that a creditor has, by inequitable conduct, discharged it from liability ’ to him. Partridge v. Partridge, 1 Dick. Ch. Bep. A84-; 2 Dick. Ch. Bep. 601. Now, there is no more reason why the orphans court should have assumed jurisdiction to try the validity of the release under consideration than there would be for a court of law, in an action of ejectment, to adjudge whether the deed under which grantee claimed was obtained by fraudulent misrepresentation. The law court would adjudge in accordance with the legal title and would leave the grantor, in the case supposed, to his remedy in equity, and so, in like manner, the orphans court should have assumed that the release was valid until it was decreed by this court to be fraudulent and void. It was proper for it to have- received the release as a valid instrument and to have given it such weight as it was entitled to in determining the question of administration.. The orphans court had before it the evidence on which to decide whether Mrs. Mullaney was or was not Michael’s widow. It had proof of who were next of kin. It had, too, Mrs. Mullaney’s release. It was therefore in a position to decide to whom, under the then existing circumstances, administration should be committed. It is true that subsequent litigation in another tribunal might have varied the rights of the parties as they then appeared to be, but this was only a not uncommon instance of a right ascertained by one tribunal, acting within its sphere, being subsequently modified by the decision of another tribunal acting also within its sphere. In other words, the mischief, if mischief it was, arose out of the fact that, such is the complexity of human affairs, it has been found convenient, if not necessary, to apportion the judicial work of the state among the several courts instead of giving to any one unlimited jurisdiction to deal with every phase of every subject that might come before it. The proceeding-to determine the fraudulent character of the release was therefore coram non judice and the determination worked no estoppel.
    If I had come to the conclusion that the court had jurisdiction to determine the question of fraud, I should still have thought that its determination would not have been conclusive. Lord Chief-Justice DeGrey thus expresses himself in the leading case of the Duchess of Kingston: “From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true — first, that the judgment of a court of concurrent jurisdiction directly upon the point is as a plea, a bar and as evidence conclusive between the same parties upon the same matter directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction directly upon the point is in like manner conclusive upon the same question between the same parties coming incidentally in question in another court for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came col-

      laterally in question, though within their jurisdiction, nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” ■
    It seems to me that the question resolved by the orphans court, if cognizable at all, was only incidentally cognizable, and only to be inferred by argument from the order actually made. The statute says the administration shall "be committed to the widow or next of kin of the intestate.” Under ordinary circumstances, it is usually confided to the widow. Wms. Ex. *868. Had the question been only whether Mrs. Mullaney' was tire lawful wife of Michael Mullaney, its adjudication would, according to most of the cases, have bound this court. Lord Lyndhurst so held, in Barrs v. Jaclcson, 1 Phil. 582, with respect to the analogous question of who was next of kin, reversing the contrary decision of Vice-Chancellor Ivnight Bruce, reported in 1 Youngs & C. 587. Tire weight of English and American authority is said to be in favor of the view taken by Lord Lyndhurst. Duchess of Kingston’s Case, 2 Sm. Lead. Cas. (6th Am. ed.) *681. The present case does not call for a decision on the point. The question whether Mrs. Mullaney was or was not Michael Mullaney’s wife, would, under ordinary circumstances, have gone to the very heart of the controversy. An issue could have been framed upon it; but the question of release or no release could never have become an issue in the proper sense of that term. If her allegation was, “I am widow,” and this was proved, then the allegation by way of confession and avoidance would be, not "you have executed a release,” but "you, though widow, are without interest,” and so not entitled to your statutory right. Want of interest would be the issue, and of this the release would be evidence. It would have been quite beyond the power of the orphans court to have decreed that the release should be avoided for fraud. The judgment in the case at bar was only "that the application of Pauline E. Mullaney for her appointment as administratrix be and the same is denied, and her petition be dismissed, with costs.”
    It seems to me clear, therefore, that the question of fraud or no fraud, bad the court been competent to try it, would have been collateral. It would be strange, indeed, if this court could be estopped by the inference of an adjudication which the court neither actually made nor was competent to make. Hibshmcm v. Dulleben, 1¡. Wails 188, is a case in point. It was there held that a decision by the orphans court that a legatee was precluded from excepting to an account filed by an executor by a release of the legacy did not debar him from proving that the release was procured by fraud in a suit for the legacy. A judgment is not conclusive and is no evidence as to facts not in issue in the action, but proof of which is given therein to establish facts in issue. Belden v. Stale, 108 N. Y. 1.

    Suppose Mrs. Mullánéy, instead of assigning her interest to the heirs and next of kin, who happened to be parties to the orphans court proceeding and to the present proceeding, had assigned to a stranger? Her lack of interest would be the same. Could the question of fraud have' been tried by the orphans court in the absence of the assignee? Certainly, it would not be asserted that that court could have brought him in by process and made a decree which would have bound him.
    I now proceed to a consideration of the merits. On this branch of the case the material facts are these: On the day of Mr. Mullaney’s funeral, at which his wife attended, she had a conversation with one Alexander Martin, who describes himself as a general auctioneer and collector. As the result of it he took her to William Salter, an attorney practicing in Jersey City. Salter made application in her behalf for letters of administration, and conducted the proceedings on the caveat. Evidence was taken in open court, on January 5th, 1900, and on several days thereafter up to and including February 2d. Great diligence in procuring witnesses seems to have been displayed on both sides, and during all this time Martin acted as a messenger and process server for Salter, and appears to have had, by arrangement with him, a contingent interest in the result. Salter himself, it is said, was to have had one-half the proceeds of the. recovery. The case was argued and submitted to the court on the 2d of February. Mrs. Mullaney was present. Now, I think that all who- heard the evidence must have been greatly impressed with the strength of Mrs. Mullaney’s case. That Martin must have great confidence in it cannot be doubted, and, in fact, he himself admits it. Notwithstanding, what he did, was this; The argument had taken place on Friday. On Sunday afternoon he started for Newark to see a man named Erwin, who wanted to buy a horse. I shall give his version of what took place in some detail, for I think its inherent improbability will be apparent from his own statements. After he reached Newark it occurred to him, as he testifies, that it was his duty to go and see Mrs. Mullaney. Somewhat incongruously he adds, “I 'went to see her for no purpose whatever.” As the trolley car had carried him one or two blocks from Erwin’s place, he decided not to go there, although he had expected to make money by the trade he fvas contemplating, but to go direct to Mrs. Mullaney’s. He went there and found her “in a horrible condition.” She told him that the neighbors were shouting at her — that a Mrs. Brown was telling her that she was trying to be a white man’s wife; that the.Farrell people were around the streets nights trying to get evidence; that she wanted to move and that she said to him, “Aleck, you have got mo in all this trouble; get me $100 and you will never hear from me again.” He says that he told her he did not see how he could get any money for her; but that she kept at him all that afternoon, so that he neglected to see Erwin about the horse! Then he says:
    “I made up my mind before I left the house that I would settle the case, no matter what I got, and I told her I would go over to Bayonne and ask a man named Smith, who is a brother-in-law of Mullaney’s, for $300. She said ‘the d-entire Mullaney family has not $300.’ I said I would just as leave ask them for $300 as I would for $100, and I’ll do it; and she says if I get $300, I will give you one.”
    Ho then told her that if he got the money he would telegraph for her to meet him at the corner of Broad and Market streets, Newark, and she said, “I will not go to Market and Broad streets; I don’t want to meet those Farrells.” She then suggested the Elizabeth depot, in Elizabeth, and he said all right as to the place and that he would telegraph her. On cross-examination, he says that he thinks that it was he who mentioned the Central railroad depot, and not .she. He then went to Smith’s house, in Bayonne, reaching there after eight that same Sunday evening. On the way it occurred to him that he might as well ask Smith for $400. Accordingly he asked Smith for that amount, and said, “I wanted the money early to-morrow morning.” Smith told him that they should go to George W. Mullaney, as he was an heir indirectly only, and Martin replied that he would not go to him. Then Martin said to Smith, “I’ll give you an hour and a half to let me know what you will do.” Smith thereupon proceeded to see Mullaney, and Mullaney- at once agreed to the $400. After that Smith went to a Dr. Forman, who agreed to go to Elizabeth the next morning with the money. After seeing these two gentlemen, Smith went to Martin’s house and told him that they would pay $400. Less than two hours elapsed from the time Martin first saw Smith to the time when the arrangement was completed. Next morning Martin went back to Mrs. Mullaney, without communicating with Mr. Salter, her solicitor, or Mr. Linn, her counsel. He reached her house between seven and eight o’clock, and took her from Newark to the Central railroad depot in Elizabeth. In the meantime For-man had received from Smith, at Bayonne, $400, $300 of which was made up of three $100 bills, and reached the Elizabeth depot between nine and ten o’clock.' From there, Forman, Martin and Mrs. Mullaney proceeded to the office of Frederick Marsh. Mr. Marsh had had nothing whatever to do with the case, but, under Dr. Forman’s instructions, he prepared a release, expressed to be for the consideration of $1, which Mrs. Mullaney signed.
    It may be remarked, in passing, that this release is noticeable, not only because it fails to express the true consideration, but because it contains no less than fourteen grantees, whose names, including their middle names, are given in full, with their respective places of residence in New Jersey and in different towns in the State of New York. Dr. Forman’s version of how he executed his errand is that he received the $400 from Smith, who said that he was to go to Elizabeth and procure a good lawyer and get a release from the woman, and that he was to use the money to get the job done. When asked to whom he •was to give the $400, his reply was, “I suppose to whom it belonged.” When asked “Who was that?” he says, “I suppose this woman, for she signed that release.” Notwithstanding this supposition, he says he gave her $300,- paid the fee of Mr. Marsh ($10) and gave Martin the balance ($90). “I supposed if the woman got that $300, Martin was entitled to the balance.” It does not appear that from the beginning to the close of this transaction Mrs. Mullaney was directly informed of the precise amount of the settlement. The paper, which Mr. Marsh read over and explained the effect of to Mrs. Mullaney, was delivered to Dr. Forman. It is a complete release of all Mrs. Mullaney’s right, title and interest in all her husband’s lands and personal property, said to be worth over $13,000. One or two days afterwards Mr. Salter was notified that application would be made to reopen the case, for the purpose of introducing in it evidence. This was the first notice that Mrs. Mullaney’s counsel had of its execution.
    Mrs. Mullaney’s account of her meetings with Martin differs essentially from his. She says that he came to her house on Sunday afternoon, and told her that he had good news for her; that the case had been settled and that her lawyer, Salter, had sent word to her that she should go to Elizabeth and sign a paper .; that she asked him how much she was to get and that he said about $300; that her reply was that that was very little for her to get; that her lawyer had said that she would get ten times that, and that he answered that Salter had done the best, he could and she should be satisfied; that Mullaney had drunk up and used up his money with women, and that his relatives had robbed him to such an extent that the estate had all gone down; that he told her that the other heirs would only get $98 apiece. Mrs. Mullaney is corroborated in this version of the interview by a colored man named Holmes, who lives in the same house with her, and was present at the conversation. It is, oil its face, so much more probable than Martin’s version that I have no cloubt of its substantial accuracy. To suppose that Martin, a horse-dealer and auctioneer, was so moved by Mrs. Mullanoy’s tears and entreaties that he was compelled to take a course which he knew was contrary to her pecuniary interest and his own, in a case which he admits he believed to be a good one, and to take this action so hastily that he did not find time to consult her own counsel, whu lived in the same town with him, quite transcends belief. There must be another explanation of his conduct. That he is unscrupulous, appears from his own evidence; that he is unworthy of belief, appears from the testimony of his neighbors. I have no doubt that he went to Newark that Sunday afternoon because of some understanding with some one representing the interests of the heirs. He had shortly before discovered that Salter, in the written agreement which he had made with his client in reference to his contingent fee, had not mentioned him, and he doubtless thought that because he would not have hesitated to take an unfair advantage of Salter, as in fact he did, Salter might be willing to take an unfair advantage of him. He no doubt came to the conclusion that it would be more certainly profitable to him to go over to the other side. This, of course, is largely conjecture, but conjecture not only resting on its inherent probability, but also on evidence. He afterwards said to Salter’s clerk/ Spofford, in explanation of his conduct, he could not see an}r money on Salter’s side and so he went over to the other side, and he said to Salter, if Salter is to be believed, “1 guess I am the best heir now; you get your $1,400 first [alluding to an offer of settlement which Salter had made to the heirs] and I will show you dollar for dollar.”
    I have said that it is probable that Martin went to Newark in consequence of some understanding between himself and some one representing the interest of the heirs. Smith and George Mullaney both deny that they had airy such understanding. Their testimony may be, and very probably is, literally true; but they are only two of the fourteen persons interested. Martin’s testimony is that when he started to go to Newark on that Sunday afternoon he' intended to see Erwin about a horse and did not intend to go to Mrs. Mullaney’s. He is diverted from this purpose only because the trolley ear had carried him a block or two beyond Erwin’s house. He goes to Mrs. Mullaney’s “for no purpose whatever.” He finds her “in a horrible condition,” notwithstanding the fact that the excitement of the trial was over and the evidence appeared to be very favorable to her. He reaches Smith’s house, in Bayonne, after eight o’clock in the evening. Between that and ten he not only concludes the bargain, but Smith sees George Mullaney and gets his consent to it, and Mullaney or Smith gets Dr. Forman’s consent to go to Elizabeth early' the next morning. There is no bargaining over terms; the $400, $300 of which were in $100 bills, are in readiness for the consummation of the affair before the banks opened on Monday morning. Where this money came from, or how Smith happened to have so much money at hand in such large notes, does not appear. The most singular fact of all is that no one, on either side, suggested that the transaction should be consummated with the assistance of the counsel engaged in the case. In this regard the only explanation that suggests itself is that the representatives of the heirs were unwilling to let the high-minded gentlemen who were conducting their case in court know what was going on. They doubtless feared that if they were informed of it they would insist that the settlement should be made by Mrs. Mullaney under the advice of her own counsel and that this would defeat their purpose, and so it was arranged that the settlement should be made in another town, in the office of a lawyer who was ignorant of all the important facts. If the transaction was an honest transaction, there was absolutely no reason why it should not, and would not, have been consummated in the office of Mr. Hughes or Judge Hudspeth. There was every reason why it should.
    Again, why all this haste? A¥as it not feared that even if the consummation of the plan were delayed for a few hours, it might become impossible? Another significant circumstance, indicative of collusion, was the place of meeting, viz., the Central railroad depot in Elizabeth. Martin, in his direct evidence, swore that this place was suggested by Mrs. Mullaney, but on cross-examination this must have appeared to him so unlikely that he finally said that he had himself suggested it. Why he did so is obvious. It was accessible from Bayonne and it was out of the way. That he would have fixed that place and that early hour on the morning of the next day unless there had been some previous understanding, is not probable.
    The rule of law applicable is clearly stated by Mr. Justice Magie, in delivering the opinion of the court of appeals in Dundee Chemical Works v. Connor, 1 Dick. Ch. Rep. 582. He says: “Courts will not weigh the relative skill of parties to contracts and merely from a disparity between them avoid a contract obtained from the less skillful party. It is only when the contract is got from the illiterate, the weak-minded or distressed party under circumstances which indicate that it was procured by artifice or deception, or by' undue pressure and importunity inducing action without advice or time for deliberation, or by advantage taken of distress, or for no or an inadequate consideration, or is otherwise inequitable, that it will come Under condemnation. Therefore, when a disparity of capacity appears courts should scrutinize the transaction with extreme care. But if, when so examined, there is disclosed no ground of objection, except such disparity, the contract cannot be impeached."
    Every element mentioned by Justice Magie as ground for avoidance seems to be present in this case. The artifice of Martin in representing himself as coming from Salter; the deception which lie practiced when he told her that her case had been settled; that the estate had been found to be dissipated, and that it was Salter’s advice to her to sign the release; his importunity, inducing action without advice or deliberation, and an inadequate consideration, are all obvious. It is said, however, that conceding this to be so, Martin was Mrs. Mullaney’s agent, and the heirs are not responsible for his misconduct. I do not so read the facts. I think the evidence shows, not only that the heirs are seeking to hold an advantage which Martin’s fraud has given them, but that their representatives, or one or more of them, took some part in promoting the scheme. Martin, in this transaction, appears to have acted for himself and for them, and not for Mrs. Mullaney. She still has the money and offers to return it.
    There is some evidence tending to show that since she left her husband she has been living with two colored men. This evidence is controverted and the matter is left in doubt. As I view the ease, it has little to do with the decision, of the present controversy. It may become of consequence hereafter, when she sues for her dower.

      Mr. Charles L. Corbin, for the appellants.

      Mr. Clarence Linn, for the respondent.
   Per Curiam.

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

For affirmance — The Ci-iiee-Justice, Van Syckel, Garrison, Fort, Garretson, Hendrickson, Pitney, Bogert, Vre-DENBURGH, VOORHEES, VROOM — 11.

For reversal — Dixon—1.


text:
    George C. Ward, appellant, v. S. Thomas Wilcox and Lizzie Dow, respondents.
    [Filed March 4th, 1903.]
    On appeal from a decree of the ordinary, whose opinion is reported in 19 Dick. Ch. Rep. 303.

   Per Curiam.

The decree appealed, from is affirmed, for the reasons stated in the opinion of the ordinary in the court below.

For affirmance — The Ci-iiee-Justice, Van Syckel, Dixon, Garrison, Garretson, Hendrickson, Pitney, Bogert, Vre-DBNBURGH, VOORIIEES-10.

For reversal — Fort, Vroom- — 2.


text:
    Philip Weigel, Jr., respondent, v. Alice Weigel, appellant.
    [Filed March 4th, 1903.]
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 18 Dick. Ch. Rep. 677.

   Per Curiam.

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

For affirmance — The Chief-Justice, Van Syckel, Fort, Garretson, Hendrickson, Pitney, Bogert, Vredenburgi-i, Voori-iees — 9.

For reversal — Dixon, Vroom — 2.


text:
    Frank M. Riley, trustee, respondent, v. Francis R. Fithian, appellant.
    [Filed March 11th, 1903.]
    On appeal from an order advised by Vice-Chancellor Grey, whose opinion is reported in 19 Dick. Ch. Rep. 259.

   Per Curiam.

The order appealed from is affirmed, for the reasons given in the opinion of Vice-Chancellor Gre]r, rendered in the court below.

For affirmance — The Ci-iiee-Justioe, Van' Syckel, Dixon, Garrison, Fort, Garretson, Hendrickson; Pitney, Swayze, Vredenburgi-i, Vroom; Green — 12.

For reversal — None.


text:
    Josephine H. Murray et al., appellants, v. Rachel A. Lynch et al., respondents.
    [Filed March 4th, 1903.]
    On-appeal from a decree of the ordinary, whose opinion is reported in 19 Dick. Ch. Rep. 290.

   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion of the ordinary in the court below.

For affirmance — Ti-ie Chief-Justice, Yan Syckel, Dixon, Garrison, Fort, Garrets on, Hendrickson, Pitney, Bogert, Yredenburgi-i, Yoorhees, Yroom — 12.

For reversal — None.


text:
    Edwin W. Thorp, respondent, v. Isabella T. Smith et al., appellants.
    [Filed March 4th, 1903.]
    On appeal from a decree advised by Yice-Chaneellor Pitnc3r, whose opinion is reported in 18 Dick. Ch. Rep. 70.

      Mr. Joseph Anderson, for the appellants.

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

Ezekiel Thorp, the father of Isabella T. Smith, the appellant, and of Edwin W. Thorp, the respondent, died intestate, seized of certain lands and premises in the city of Jersey City. A few weeks before his death he executed and delivered to his daughter, Isabella, without any valuable consideration being paid by her therefor, a mortgage for $3,000 upon these lands. The respondent (the complainant below) seeks, by his bill of complaint, to have this mortgage declared to be void and of no effect as to the undivided one-half part of the lands and premises which descended to him on the death of his father, the grounds of relief being that it was the product of undue influence exercised by the daughter, and that the father was mentally incapable of appreciating the legal effect of his act. The opinion of the learned vice-chancellor who heard the case,'after a very full recital of the facts proved before him, thus summarizes those which led him to the conclusion that the complainant was entitled to the relief prayed by him: “The mortgagor was advanced in yeans, in feeble health, naturally of weak will, with mental powers weakened by cerebral disease so that he did not appreciate his' pecuniary circumstances -and moral obligations, and was unable ‘clearly to discern and discreetly to judge of all those things and all those circumstances which enter into the nature of a rational, fair and just disposition of his property/ While in that condition he was subjected to the influence of the defendant, and executed the mortgage without having the benefit of the advice of independent and disinterested counsel, given in the absence of the mortgagee, to make him fully understand, realize and appreciate the full effect and consequences of the instrument in all its bearings. It does not appear that he understood that, by its execution, he put himself in the power of his daughter without anything in writing to protect him. It does not appear that he fully appreciated his obligations to his son,, the complainant. The burthen is on the defendant to establish the affirmative of these propositions, and, in my opinion, she has failed therein.”'

An examination of the testimony proves the accuracy of this summary; the facts set out therein justify the conclusion reached by the vice-chancellor:

The decree below should be affirmed.

For affirmance — The Ciiiee-Justice, Van Syckel, Dixon, Garrison, Fort, Garretson, Hendrickson, Bogert, Vreden-BURGI-I, VOORHEES, VROOM — 11.

For reversal — None.


text:
    Henry W. Leeds et al., respondents, v. Bohemian Art Glass Works, appellant.
    [Filed March 4th, 1903.]
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 18 Dick. Ch. Rep. 619.

   Per Curiam.

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

For affirmance — The Chief-Justice, Van Syckel, Dixon, Garrison, Fort, Garrets on, Hendrickson, Pitney, Bogert, Vredenburgi-i, Voori-iees, Vroom — 12.

For reversal — None.


text:
    Frederick Menzenhauer, respondent, v. Oscar Schmidt, appellant.
    [Filed March 4th, 1903.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 18 Dick. Ch. Rep. 463.

   Per Curiam.

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

For affirmance — The Chiee-Justice, Van Syckel, Dixon, Fort, Garretson, Hendrickson, Bogert, Vredenburgi-i, VOORHEES, VROÓM — 10.

For reversal — None.


text:
    William F. Ballinger et al., complainants and respondents, v. John O. Wilson, appellant.
    [Filed March 11th, 1903.]
    On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in 53 Atl. Rep. 488.

      Mr. William Early and Mr. Lewis Starr, for the appellant.

      Mr. William T. Boyle and Mr. Henry S. Scovel, for the respondents.
   Per Curiam.

In the making of the decree appealed from there was no error which was prejudicial to the appellant. Upon the proofs submitted the respondents were entitled to recover from the appellant, at the very least, the $50 ordered to be paid by him. to the respondents.

The decree should be affirmed.

For affirmance — The Chief-Justice, Van Syckel, Dixon, Garrison, Fort, Garretson, Hendrickson, Pitney, Swayze, Bogert, Yredenburgh, Yoorhees, Yroom, Green- — -14.

For reversal — None.


text:
    Peter Schlicker, appellant, v. Catharine Whyte, respondent.
    [Filed March 4th, 1903.]
    On appeal from a decree advised by Yice-Chancellor Reed, whose opinion is reported in 47 Atl. Rep. 448.

   Per Curiam.

Decree affirmed, for the reasons given in the opinion in the court below.

For affirmance — -The Chief-Justice, Yan Syckel, Dixon, Garrison, Fort, Hendrickson, Pitney, Bogert, Yredenburgh, Yoorhees — 10.

For reversal — -Garretson, Yroom — 2.


text:
    Mame H. Ryon, appellant, v. Mary J. Loveless and Isabella S. Fishblatt, respondents.
    [Filed March 4th, 1903.]
    On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in 51 Atl. Rep. 1094.

   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion in the court below.

For affirmance — The Chiee-Justice, Van Syckel, Dixon, Garrison, Fort, Garretson, Hendrickson, Pitney, Bogert, Veedenburgh, Voorhees — 11.

For reversal — Vroom—1.


author: Pee Curiam.

text:
    Isabella S. Fishblatt, appellant, v. Mame H. Ryon, respondent.
    [Filed March 4th, 1903.]
    On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in 51 Atl. Rep. 1094.

   Pee Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinion in the court below. •

For affirmance — The Chiee-Justice, Yan Syokel, Dixon, Garrison, Fort, Garretson, Hendrickson, Pitney, Bogert, Yredenburgh, Yooriiees — 11.

For reversal — Yroom—1;


author: Magie, Chancellor.

text:
    William J. Magib, Chancellor.
    Henry C. Pitney, John R. Emery, Alfred Reed, Frederic W. Stevens, Martin P. Grey and Eugene Stevenson, Vice-Chancellors.
    Charles Hoagland, substituted administrator, &c., and Charles Cooper v. Cornelia S. Cooper et al.
    [Filed December 22d, 1903.]
    1. The jurisdiction of the court of chancery to construe a will can only be invoked when such construction involves some equitable relief sought. It will not be exercised in construing a will in respect to the devolution of title to real estate, where no equitable relief as to such real estate is sought.

      2. The distinction between the powers formerly conferred on an administrator de bonis non cum testamento annetso and those now conferred on a substituted administrator, under the provisions of the supplement to the Executors and Administrators’ act of March ’22d, 1901 (P. L. of 1901 ¶. 80S), pointed out.
    3. Where a substituted administrator with the will annexed seeks an accounting of the personal estate of testator from the executors of a deceased executrix of said will, and it appears that upon the true construction of the will there was an interest in said personal estate vested thereby in a deceased daughter of testator, of whom there is no representative made party, and it further appears in the case that upon the death of the daughter her interest became vested in the executrix from whose executors the accounting is sought, a case for decree is not disclosed.

      Mr. L. De Witt Taylor, for the complainant.

      Mr. George A. Angle, for the defendants.
   Magie, Chancellor.

This case was brought to a hearing upon a bill, an answer of some of the defendants, and a statement of facts agreed upon by the solicitors of the ¡complainants and the answering defendants.

The bill is died by two complainants, viz., Charles Hoagland, substituted administrator of the last will and testament of Benjamin B. Cooper, deceased, and Charles Cooper, claiming an interest under said will and as one of the next of kin of said testator.

It appears by the case as presented that Benjamin B. Cooper, who died in July, 1868, left a last will and codicils, which were proved in the countjr of Warren, where the deceased resided at the time of his death, and that letters testamentary were issued to Benjamin Lodor, Cornelius Stewart and Jemima Cooper, all of whom have died — Jemima Cooper, the survivor of the three, having died in March, 1903. The complainant Hoagland, the substituted administrator, was appointed after the death of Jemima Cooper, and his official character is that of an administrator cum testamento annexo.

The bill makes parties defendant the executors of Jemima Cooper, deceased, and various persons representing Harrison Cooper and David Heston Cooper, who were named in the will of the testator, and other persons who are next of kin or heirs-at-law of said testator. The only defendants who have answered are the executors of Jemima Cooper, deceased.

The avowed purpose of the hill is to obtain a construction of the will of Benjamin B. Cooper, deceased, in various respects. Upon the briefs first filed it seemed to be assumed that this court possessed jurisdiction to construe the will of the deceased in all the particulars set out in the pleadings without regard to the relief prayed for. Having doubts as to the extent of the jurisdiction in respect to the matters disclosed in the bill and the relief sought by its prayers, I requested further ¿rgument. By the supplemental briefs, submitted upon my request, I am urged by the counsel of the complainants and of the answering defendants to construe the will in all its aspects. They consent that the court should thus declare its opinion upon the various questions raised respecting the meaning of testator’s will.

Counsel have fallen into an obvious misconception of the powers and duties of the court in tins ease. The court of ehancerjq when called upon to exercise its judicial functions in determining whether the relief sought by a suitor should be granted, and when the question whether such relief should be granted involves the construction of a will, has undoubted power and it is its duty to construe tire will. The peculiar jurisdiction of this court over trusts and over those charged with trusts frequently requires it, upon the instance of such trustees or those interested, to give directions for the conduct of such trustees in the administration of the trust, and when the trust is created by will incidentally the exercise of'this jurisdiction to direct involves the construction of the will. Mr. Pomeroy, indeed, declares that the doctrine in harmony with principle and sustained by the weight of authority in this country is that the special equitable jurisdiction to construe wills is a mere incident of the general jurisdiction over trusts, and that a court of equity will never entertain a suit brought solely for the purpose of interpreting the provisions of a will without any further relief. 3 Pom. Eq. Jur. § 116. The courts of New York adopt this doctrine. Chipman v. Montgomery, 63 N. Y. 221; Monarque v. Monarque, 80 N. Y. 320; Dill v. Wisner, 88 N. Y. 153; Wager v. Wager, 89 N. Y. 161.

The eases in which this court has exercised jurisdiction to construe wills are very numerous. Most of them are cases in which the trustee, or one charged with duties of a fiduciary character, has sought the aid of the court to direct him with respect to his official duty as trustee and in which the determination as to what direction should be given is involved with the construction of the will. Youmans v. Youmans, 11 C. E. Gr. 149; Drummond v. Drummond, 11 C. E. Gr. 234; Dildine v. Dildine, 5 Stew. Eq. 78; Stevens v. Dewey, 10 Dick. Ch. Rep. 232; Robeson v. Shotwell, 10 Dick. Ch. Rep. 318; S. C., 10 Dick. Ch. Rep. 824; Casperson v. Dunn, 15 Stew. Eq. 87; Torrey v. Torrey, 10 Dick. Ch. Rep. 410; Bird v. Hawkins, 13 Dick. Ch. Rep. 229; Palmer v. Sinnickson, 14 Dick. Ch. Rep. 530; Miller v. Worrall, 14 Dick. Ch. Rep. 134; S. C., 17 Dick. Ch. Rep. 776; Wooster v. Cooper, 14 Dick. Ch. Rep. 204; Stewart v. Stewart, 16 Dick. Ch. Rep. 25.

There are other cases in which this court, under its general equitable jurisdiction, construes wills and other writings in determining whether the particular relief sought by the bill is proper to be given, as upon bills for injunction, interpleader, &c. Benham v. Hendrickson, 5 Stew. Eq. 441; Dusenberry v. Johnson, 14 Dick. Ch. Rep. 336.

In no case has it been asserted that the court may be asked and compelled to construe a will except as incident to> some relief which may be afforded by a decree. It has been expressly held that the court will not construe wills for the sake of giving counsel and advice to the parties, but only for the purpose of giving positive directions for the action of the trustee. Stewart v. Stewart, ubi supra; Bonnell v. Bonnell, 2 Dick. Ch. Rep. 540; Griggs v. Veghte, 2 Dick. Ch. Rep. 179; House v. Ewen, 10 Stew. Eq. 368.

In Benham v. Hendrickson, ubi supra, Chancellor Runyon made a statement which is claimed to indicate that the jurisdiction of the court in the construction of wills has been recognized as more extensive, but that statement of the learned chancellor must be considered to have been made with reference to the facts presented in the case then under consideration. The case was one in which relief by injunction was prayed, and it is evident from an examination of it that the application for an injunction depended for its success upon-the construction of certain conveyances and a will. The expression was entirely proper as applicable to the case before the court. Its broad language was not intended to apply to other eases than such as was the one then sub judice, and in Casperson v. Dunn, ubi supra, the same chancellor recognized the true rule.

It follows that I am neither required nor permitted to express an opinion upon the will of the testator laid before me in this case except so far as my construction of the will may justify me in granting some relief equitable in its character and within the prayers of this bill, or some cognate relief falling within the general prayer for further relief.

' In searching this case to discover ground for equitable relief within the jurisdiction of this court, it is proper to say that I have considered the case both with reference to the claim for relief on the part of the complainant, who is the substituted administrator, and on the part of the complainant whose attitude in the case is that of a person interested in the estate of the testator either under the will or by reason of his relation to the deceased as next of kin or heir-at-law. The conjunction of these diverse remedies,, perhaps, makes the bill multifarious, but that point has not been raised and I have not thought it necessary to consider it.

My examination has not indicated any equitable relief that can be asked by the substituted administrator except in one particular. Two of the defendants are the executors of Jemima Cooper, who was the sole surviving executrix of Benjamin B. Cooper. By section 118 of the Orphans Court act of 1898 (P. L. of 1898 ¶. 758) they may settle the account of their testatrix as surviving executrix of Benjamin B. Cooper in that court.

The substituted administrator, by this bill, asserts that the executors of Benjamin B. Cooper, on September 9th, 1869, filed ah account of the estate of that testator, which was allowed and passed by the orphans court of Warren, county, whereby it appeared that they had on hand of the personal estate of the testator $5,943.17, not including articles of personal property of the value of $1,026.30, which had been taken possession of by Jemima Cooper, the widow and executrix under the provisions of the will. He further asserts that no other or further account has been since presented by any of the executors or allowed by the court. The claim of the substituted administrator is, and it seems to be within the prayer of the bill, that the executors of Jemima Cooper should settle her account as surviving executrix of Benjamin B. Cooper in this court, and account to him, the substituted administrator, for whatever of Benjamin B. Cooper’s estate came to her hands and has not been properly distributed.

The jurisdiction of this court over the settlement of the accounts of executors was declared to be well established in the leading case of Salter v. Williamson, 1 Gr. Ch. 489, and it has been frequently exercised since that time, as evinced by decisions too well known to require citation.

If the substituted administrator possessed only the power formerly conferred upon an administrator cle bonis non cum testamento, .1 think that the case would not show ground for such relief, for it was well settled doctrine that such an administrator could only demand the possession of so much of the estate of the testator as had not been administered, except in case of removal under the statute. Bradway v. Holmes, 5 Dick. Ch. Rep. 311; Carrick v. Carrick, 8 C. E. Gr. 364; McDonald v. O'Connell, 10 Vr. 317. The facts in this case show that the only unadministered assets of Benjamin B. Cooper consisted of three shares of certain bank stock standing in the name of the estate of said Cooper, the certificate for which had been delivered by the executors of Jemima Cooper to the substituted administrator.

But -the power conferred upon a substituted administrator under the provisions of the act entitled "A further supplement to an act entitled ‘An act concerning executors and the administration of intestates’ estates, approved March 24th, 1874,’” which supplement was approved March 22d, 1901 (P. L. of 1901 p. 80S), is much more extensive.

By the fourth ■ section of this supplement administration de bonis non is no more to he granted in-this state. By the third section the administrator appointed under the act is styled substituted administrator and is entitled to demand and receive the whole of the personal estate of his decedent except such portion as shall have been properly paid out and distributed, and he is expressly given power to sue and recover at law or in equity all the assets from any persons or from the heirs-at-law, or personal representatives chargeable, or their equivalent in value. As the bill asserts that Jemima Cooper, the executrix, by surviving her co-executors, became possessed of all the personal estate of the deceased Benjamin B. Cooper and has not paid out or distributed the same, it is obvious that the substituted administrator may call upon the executors of Jemima Cooper to account for and pay over the same except the shares of stock, the certificate of which they have already delivered.

While the bill thus presents a prima facie case for an accounting, the substituted administrator will not be entitled to such a decree, or to impose such a burden upon the estate, if the accounting can be of no practical value to the parties concerned, and this question involves the construction of the will of Benjamin B. Cooper. Such a construction must, however, be confined to such parts of the will as deal with the personal estate of the testator. The substituted administrator is invested with no power and charged with no duty except with respect to the personal estate of the testator of whom he has been made administrator.

An examination of the will of the deceased discloses that after some specific bequests to his widow, Jemima, he bequeathed to her one-third of the annual interest of his remaining personal estate. He proceeds afterwards to bequeath to his daughter, Mary,Ellen, all the rest, residue and remainder of the personal estate, to her, her heirs and assigns forever, subject, however, to the rights and interest of his wife therein. If the testator had made no further provisions, it is perfectly obvious that his daughter, Mary Ellen, would have taken a vested interest in all his personal estate not previously disposed of by tbe specific legacies, subject to the right of her mother to the income of one-third thereof for her life. But the testator was not content with that provision and followed it with a clause which should be quoted in full:

“Item. In case, however, my said daughter, Mary Ellen, shall depart this life without heirs of her body before she arrives ■ to the age of twenty-one years, and during the lifetime of her mother, then I do devise, give and bequeath to my wife, as long as she shall remain, my widow, out of the proceeds of the legacies bequeathed to my daughter, the sum of one hundred dollars, to be paid to her annually by my executors, and as much more as my said executors in their discretion may think necessary for the comfortable support of my said widow, in addition to the legacies heretofore bequeathed to her, and the balance of the legacies bequeathed to my daughter, in case she departs this life without issue before she arrives to the age of twenty-one years, I do devise, give and bequeath to my two nephews, Harrison Cooper and David Heston Cooper, the sons of my brother, Levi Cooper, share and share alike, to them, their heirs and assigns forever, subject to the rights and interests therein heretofore bequeathed to my said wife.”

The particular clause in this item involved in this case is the. latter part, providing how, what testator calls “the balance of the legacies,” should be disposed of. As we have seen, the previous provision vested in Mary Ellen, the daughter, the personal estate of the deceased, subject to her mother’s use of the income of one-third for her life. By the provision now under consideration it is obvious that the testator proposed that, under certain conditions, the vested interest of his daughter should be divested in favor of other parties. The conditions upon which the vested interest were to be divested were two: (1) death without issue, and (2) death before arriving at the age of twenty-one years. The case shows that one-of the conditions happened, for she died without issue, but it also shows that she survived beyond the period of her twenty-first year and died prior to her mother. Both of the conditions, upon the happening of which the estate was to be divested, did not happen. The true construction of the will is that the interest vested in her never became divested. A testamentary disposition divesting a previously vested estate upon the happening of two contingencies will not operate except upon the conjunction of the happening of both contingencies. Groves v. Cox, 11 Vr. 40; Dusenberry v. Johnson, 14 Dick. Ch. Rep. 336.

• This construction becomes pertinent in this case in this way. The case shows that the daughter, Mary Ellen, died without issue and without brothers or sisters, leaving her mother surviving her. Whatever interest of a personal character the daughter had at her death could have been administered upon, as she left no will, and under our statute of distributions the whole thereof would have been paid to her mother. These facts render it clear that it would be inequitable to require the executors of the mother to account with the present substituted administrator. If such accounting took place, the estate found to have been in the hands of Jemima Cooper at her death would be payable to the administrator of Mary Ellen, the daughter, and no person representing the deceased daughter is a party to this suit. Besides if such a representative of the daughter were in this suit, and the substituted administrator should pay any sum acquired by him under the accounting and the decree for payment by the executors of Jemima Cooper, it would be the duty of such representative to immediately pay whatever he had thus received back to the executors of the mother as the distributee entitled by the statute to have all the property of her deceased daughter.

The result is that the relief which the substituted administrator might otherwise claim, viz., an accounting and a decree for payment, ought not to be granted, because it would be inequitable to do so.

It is further claimed that the court should pronounce its opinion in respect to the rents, issues and profits of certain of the real estate of the testator, with which the substituted administrator seeks to charge the executors of Jemima Cooper, deceased. By the will of Benjamin B. Cooper, his executors were empowered and required to take the rents, issues and profits of certain of his real estate, and a life interest was given to the widow in one-third thereof. In the management and control of these rents, issues and profits, the executors of the testator were trustees. If the surviving executrix was accountable therefor, she and her executors would owe that accounting to a new or- substituted trustee. The functions of a substituted administrator are confined to the personal estate of the testator, and no opinion should be expressed upon this part of the will.

It is further urged that the court should declare its opinion as to the effect, of the will upon the real estate of which Benjamin B. Cooper died seized, it being asserted that upon the language of the will it is uncertain whether the real estate passed therebjq and if so, who now is entitled thereto. But the determination as to the ownership of real estate is within the particular province of law courts. In the absence of some specific equitable relief which this court can give, it would be impertinent for it to express an opinion which would not be binding upon a law court in an action of ejectment and which could not be enforced by any decree of the court. Torrey v. Torrey, 10 Dick. Ch. Rep. 410.

It is lastly urged in behalf of the complainant, who claims to be one of the next of kin and heirs-at-law of Benjamin B. Cooper, that he is entitled to an accounting from the executors of Jemima Cooper for the rents of the real estate of the testator, said to have been collected by her after the death of her daughter, Mary Ellen. If, upon the true construction of the will, this complainant is entitled to such rents, it is impossible to perceive why he could not have recovered them from Jemima Cooper in her lifetime by an action at law, or why he may not now recover them from her representatives by an action at law.

I, therefore, find no ground for affording any relief to either of the complainants under this bill and it must be dismissed. As the answering defendants have acquiesced in the presentation of the case upon the bill, I think that the dismissal should be without costs.


author: Pitney, V. C.

text:
    Lucy A. Wiggins v. William Wiggins.
    [Submitted October 17th, 1903.
    Decided November 2, 1903.
    Filed January 20th, 1904.]
    1. The fundamental rule in the construction of wills is the ascertainment of the intention of the testator — first, by carefully considering the force of every word of the language used by him, and second, in case of difficulty and ambiguity, by considering therewith his pecuniary circumstances and his family and social relations.
    2. Since, in the absence of anything to the contrary in a will, the personal estate should be first applied to the payment -of debts, the burden is on the legatee of the personalty to show from, the will or the circumstances of testator’s estate that the personalty should not pay either the whole or any part of the debts.
    3. A will provided — “First. After all my lawful debts are paid, I give and bequeath to my sow all my real estate; * * * second, I give * * * to my wife all my personal property of any and all kinds of which I may die seized.” — Held, that testator’s intention was that the debts should be paid by the son.
    4. Where a testator devised all his personalty to his wife and his realty to his son, after payment of his debts, and the only substantial debt was the balance due on a mortgage, held by the son, on the land devised to him, such debt should be paid by him.
    5. Where a bequest of personalty to testator’s wife is in lieu of dower, and is so accepted by her, she is a legatee for value, and the devisee of mortgaged realty cannot call on her to contribute to the payment of the mortgage, especially where, if she were forced so to contribute, she would lose not only her dower, but all that she received under the will.
    6. An executor is personally chargeable with costs of litigation instituted against him by a legatee to' establish her fund free from the testator’s debts, where his resistance is not justified by any ambiguity in the will, and he is the only other beneficiary.
    On final bearing on bill and answer.
    Tbe complainant, Lucy A. Wiggins, is the widow and the defendant, William Wiggins, is tbe son of Del H. Wiggins, deceased, who died October 29th, 1902, testate of a will, presently to be stated, and seized of about six hundred acres of land in Morris county and two town lots in the village of Warwick, Orange county, New York.
    The lands in Morris county were subject to a balance of $1,000, with alleged arrears of interest, due on a bond and mortgage for $3,000, given by testator in his lifetime and which had been assigned to and Held, by his son, William Wiggins. Pie was also possessed of personal property, principally money in bank, amounting to $2,377.78.
    On the 17th of December, 1900, he made a will, the material parts óf which are as follows:

      “First. After all my lawful debts are paid, I give and bequeath to my son William Wiggins all my real estate whatever the same may be and wherever situated; to him and his heirs forever.

      “Second,. I give, devise and bequeath unto my beloved wife, Lucy A. Wiggins, all my personal property of any and all kinds of which I may die seised to have hold use and dispose of as she shall chose and if any part of the same shall remain at her death, I then direct that the part or balance be it more or less shall go to my son William Wiggins.

      “Third. The above bequest to my wife Lucy A. Wiggins is hereby made and to- be accepted in leue of her dower in my said real estate.

      “Lastly. And I hereby nominate constitute and appoint my beloved son William my executor of this my last will and testament.”
    The defendant proved the will, filed an inventory and advertised for claims against the estate; the result showing the following items:
    Premiums on fire insurance, due prior to the death of testator ......'......................... $20 64
    J. L. Spencer, book account........'............ 26 33
    Taxes on real estate, due prior to the death of the testator and subject to interest at twelve per cent, and costs if not-paid.................. 82 07
    The defendant, by his answer herein, claims also to be a creditor for the balance of $1,000 besides interest for seventeen 3rears due on the bond and mortgage held by him.

      The complainant demanded from the defendant all the.personal property, which the defendant refused to give her, claiming, both before she filed her bill and in his answer thereto, that the same was liable to be applied to the payment of the debts of the testator, including the bond and mortgage, besides costs of the' administration of his estate.
    The object of the bill is to establish the right of complainant to the fund free of the debts and subject to the costs of administration.

      Mr. Benjamin W. Ellicotl, for the complainant.

      Mr. George Biller, for the defendant.
   Pitney, V. C.

The. well-established fundamental rule in construing wills is to ascertain the 'intention of the testator — first, by carefully considering the force of every word of the language he has used, and second, in cases of difficulty or ambiguity, by considering therewith his pecuniary circumstances and his family and social relations.

The great number of wills, which, in bygone years, have been the subject of judicial construction, are so variant in their language that it has been found that little assistance is derived from the recorded judicial results, except where certain words and phrases have acquired by long use and judicial construction a certain definite meaning.

The use of such words in a modem will have led the court sometimes to give them the force due to precedent in cases where individual judges have doubted whether such deference to authority has not resulted in contravening the testator’s actual intention.

In other cases judges have frankly admitted that they were unable to ascertain the real intention of the testator and have fallen back on certain so-called general rules of construction to aid in their determination. Such a case is In re Ovey, Broadbent v. Barrow, reported in L. R. 20 Ch. Div. (1882) 676, and again on appeal to the house of lords. L. R. 8 App. Cas. 812.

In the present case we have a testator possessed of considerable real estate and a considerable personalty, substantially free from indebtedness except a mortgage on his land for a sum quite trifling in comparison with its probable present value.

We have him first giving all his real estate to his son, and, second, all his personalty to his wife. The language of the bequest to his wife is peculiar. It is: “All my personal property of any and all kinds of which I may die seized,” &c.

Here is a plain intention to give all his landed property to his son and all his personal property of which he may die seized or possessed to his wife.

Nothing would seem plainer than this. The two classes of property so given to two several beneficiaries are easily distinguished and perfectly well defined. There is no room for confusion or doubt. The testator’s will is clear. His intention that his wife should have one class of property is just as clear and unequivocal as that his son should have the other. Both stand on the same footing.

The gift to complainant cannot, perhaps, be classed strictly as a specific legacy since it has not the quality of giving a particular specified part of a whole, as a certain horse, or a sum of money described as on deposit in a certain bank, or the like— being a part of the whole personal estate.

But, in my-opinion, it has all the qualities of a specific legacy in that while it does not give a specific part of the whole, it gives by express terms the whole, which includes every part. It is distinguished from what is called a general legacy in that it is not the gift of a particular sum of money which tire testator may have supposed could be raised by a sale of his personal assets.

So if it were necessary, for the solution of this case, to hold that the gift is a specific legacy, I should be ready to do so. But, by the law of the land, all of testator’s property, both personal and real, was subject to the payment of Iris debts — the personalty first.

The existence of .debts raises the question in the case. It is to be here observed that the- will is not prefaced by the usual formal declaration or direction for the pajunent of all his just debts and funeral expenses, nor is there any devise or bequest of any residue. Nor, indeed, is there any occasion for any.

Now, as I have said, by the law of the land, the personal estate, in the absence of anything to the -contrary in the will, should be first applied to the payment of his debts; hence the burden is on the complainant, the legatee of the personalty, to point out something in the will, or in the circumstances of the testator’s estate, or both, to show that the personalty should not pay either the whole or any part of the debts.

The complainant relies on three matters:

First, what she alleges is a condition annexed to the devise of the land, viz., the words, “after all my just debts are paid.” She argues that those words show clear intention of the testator that the debts should be paid by the son, to whom the land was devised.

It seems to me that the argument is sound and unanswerable and the result such as would be adopted by any intelligent person not learned in the law and not familiar with the reluctance with which our English ancestors gave up, little by little, the immunity from debts with which land by the feudal law was invested.

It-seems to me clear enough that the testator meant that the debts should be paid by the person to whom the land was given. That is the natural construction of the sentence.

In the, second place, she points out the fact that substantially the only debt owing by the testator at his decease was the balance due on his mortgage, held by his son, on the very lands devised to that son.

The history of judicial action shows that there was for a long time, and still is, a strong feeling among equity judges against the old rule which entitled the heir or devisee of land to claim the right to have any mortgages, which may have been placed thereon by the ancestor or devisor, > discharged out of the. personalty. And so strong was that feeling that in England, many years ago, it was abolished by parliament. See 3 Jarm. Wills (R. & T. ed.) 485; 2 Jarm. Wills (4th London ed.) 646. Some of the states of the union have done the same.

So strong is this natural equity that the courts have made many exceptions to the old rule. Thus it was held by lord chancellor Lord Loughborough, afterwards Earl of Rosslyn, in Hamilton v. Worley, 2 Ves. Jr. 62, that as between an heir-at-law and a general legatee the heir does not have an equity to have a lien on land discharged out of the personalty. At p. 65 he uses this language:

“The foundation of it is the equity the court affords to a person entitled to real estate by devise to have the encumbrances upon it discharged as a debt out of the personal estate. That can go no farther than this: as between the heir or devisee of the estate and the residuary legatee, it cannot interfere with the disposition of other parts, as specific or general legacies, much less with the interests of creditors.” And see 3 Wms. Ex. (7lh Am. ed., R. & T.) 149; 3 Wms. Ex. (9th Eng. ed.) 1563.

And in this connection sec Thomas v. Thomas, 2 C. E. Gr. 356, decided by Chief-Justice Beasley, sitting as a master. The points decided were these:

“1. When a decedent leaves a. debt due by specialty and the residuary fund has been exhausted,, there being neither lands descended nor lands charged with debts, the general rule is that the specific legacies and the land devised must contribute ratably to discharge such debt.

“2. But in -case the decedent has secured such debt by way of mortgage on any part of the land devised, after the exhaustion of the general residuary fund, the devisee of the mortgaged land cannot call for contribution either on the general or specific legatees.”

At p. 358, in distinguishing between the case in hand and that of Shreve v. Shreve, 2 C. E. Gr. 487, the learned chief-justice says:

“But the distinction is between the mere general right of the holder of a specialty debt to le^y it at his pleasure on the real or personal estate, and the lien growing out of such debt imposed by the testator himself upon the land. In such event the doctrine has .been long established that, after the application of the general residue of the estate, the land thus encumbered must solely bear the burden. By force of such a testamentary disposition the devisee of the encumbered land cannot disappoint either the specific or general legatees.

“The early decisions in which this rule is propounded and applied are those of Lutkins v. Leigh, Cas. t. Talb. 53, and Forrester v. Leigh, Amb. 171. And in more -modern times the rule has often been received as of unquestionable obligation both by text-writers and in judicial opinions. 2 Rop. Leg 957; 2 Wms. Ex. 1453; 2 Jarm. Wills 428, and the cases cited.”

The cases referred to by the learned chief-justice and others are collected by Mr. Eoper in the second volume of his work on Legacies p. 957 et seq. • >

The author (at p. 959) states the rule to be:

“That, although the natural fund for the payment of debts is the personal estate, and the heir or devisee of the real is in general entitled to have the personal estate applied in exoneration of encumbrances affecting the former, yet the court of chancery will not permit such arrangement to take place when it would defeat legatees of then-legacies.”

And see the case of Rider v. Wager, 2 P. Wms. 329 (at p. 335), where the lord chancellor held:

“It was contended that this mortgage, being a debt, must be paid out of the personal estate, nay that it should be paid out of the personal estate prior to the specific legacies, at least before the pecuniary legacies. * * * However, it was afterwards admitted by counsel on both sides that the land being made by the testator himself a fund for the payment of the mortgage-money, though the same should be eased against an administrator or residuary legatee, yet it should not be eased so as to disappoint any of the debts or even legacies given by the will, either specific or pecuniary.”

And in Tipping v. Tipping, 1 P. Wms. 729 (at p. 730), we find the following:

' “So the lord chancellor denied it to be a rule that in all cases the personal is applicable in ease of the real estate, for it shall not be applied if thereby the payment of any legacy will loe prevented, much less where it will deprive the widow of her bona paraphernalia

And in Oneal v. Mead, 1 P. Wms. 694, we have a case almost on all fours with the present.

“One seized of a real estate in fee, which he had mortgaged for £500, and was possessed of a leasehold, devised the former to his eldest son in fee and gave the latter to his wife, and died, leaving unsecured debts which would exhaust all his personal estate except the leasehold given to his wife.

“The question was whether there being (as usual) a covenant to pay tire mortgage-moneys, the leasehold premises devised to the wife should be liable to discharge the mortgage?”

It was argued that the mortgage debt should be discharged out of the leasehold, which was personalty.

“But the master of the rolls, after taking time to consider of it' and being attended with precedents, decreed that as the testator had charged his real estate by this mortgage and, on the other hand, specifically bequeathed the leasehold to his wife, the heir should not disappoint her legacy by laying the mortgage debt upon it, as he might have done had it not been specifically devised; and though the mortgaged premises were also specifically given to the heir, yet he, to whom they were thus devised, must take them cum onere, as probably they were intended. That by such construction each devise would take effect (viz.) tire leasehold estate go- to the devisee thereof and the heir enjoy the freehold, though subject to the burden with which the testator in his lifetime had charged it.”

And in Davis v. Gardiner, 2 P. Wms. 187, it is said by the reporter (at p. 190) :

“So if the testator had owed a debt for which his real and leasehold estates were mortgaged, equity would in this case have charged all this debt on the real estate in order to have enlarged the fund for the payment of the legacies as well as debts.”

The complainant might well rest her case on this point alone; but there still remains her third point, which is that the be-, quest to her in this case is in lieu of her dower in the real estate.

It sufficiently appears by the pleading and the time which has elapsed between the probate of the will and the filing of the bill that the widow has not filed her dissent. The claim found in the bill is a distinct assent. This places her in the commanding position of a legatee for value, and, as between her and the other beneficiaries, gives her immunity from liability to contribute toward the payment of debts.

It was so distinctly held by Chancellor Runyon in Howard v. Francis, 3 Stew. Eq. 444 (at p. 447), and it is sustained by the authorities he cites, viz., 1 Rop. Leg. 431, and the cases there cited, viz., Burridge v. Bradyl, 1 P. Wms. 127; Blower v. Morret, 2 Ves. Sr. 420; Heath v. Dendy, 1 Russ. 543.

In accord with these decisions are Williamson v. Williamson, 6 Paige 298; Borden v. Jenks, 140 Mass. 562, and Lord v. Lord, 23 Conn. 327.

This result is in strict accord with the demands of justice and equity.

It is especially true in the present case; for, if the defendant’s contention prevails, the widow will receive nothing under the will and the intention of the testator in that behalf will be frustrated entirely, and, in addition, the widow will lose, by her acquiescence in the will, her right of dower in a valuable real estate.

I cannot help but remark on the improbability of the testator realizing that his son was holding for sixteen or seventeen years a mortgage for one thousand dollars on his lands, on which mortgage interest had been accumulating all the time, while, at and before the time of his death, testator had money in bank sufficient to discharge it.

There will be a decree establishing the complainant’s right to all the personal property with its accumulations from the time of the death of the testator, subject only to the payment of the costs of administration and a share of the funeral expenses, which share shall be in the proportion which the personal bears to the real property in value.

' I have not considered the question, indeed, it has not been raised in the pleadings, or argued, whether, under the language of the will, the complainant’s estate in this personalty is absolute or simply a life estate with a power of disposition.

Some of the authorities on this subject will be found collected , in Cox v. Wills, 4 Dick. Ch. Rep. 135, and in Bryan v. Bryan, 16 Dick. Ch. Rep. 45.

I will hear counsel on that topic if they desire.

I think the .decree, should be in favor of the complainant, with costs, against the defendant personally.

It is substantially a contest between two individuals. I think there is no such doubt upon the construction of the will as justified the defendant in resisting, as he has done, the claims of the complainant.

He cannot claim to occupy the position of a disinterested executor, asking the protection of the court in the administration of an estate, that is, he is not helped by the fact that he is named as executor.

I also think the complainant is entitled to a counsel fee if she asks it.