author: Lewis, V. O.

text:
    Richard Outwater v. John O. Benson and Jacob DeLazier, executors of last will of John O. Turhune, deceased.
    [Decided November 21st, 1912.]
    The court of chancery should not interfere in the settlement of accounts of executors and administrators if any progress has been made in the cause in the orphans court, unless some good cause is shown.

      Mr. Francis Scott, for the complainant.

      Mr. John O. Benson, for the defendants.
   Lewis, V. O.

John O. Terlxune died on or about the 16th day of April, 1911, leaving a will dated April 14th, 1911, in which, after making certain bequests, he proceeded as follows:

“The residue of my estate I give, devise and bequeath to my relatives as the law in such cases provide.”

The testator was a bachelor and his nearest relatives were first cousins and the descendants thereof, and altogether the collateral heirs who are entitled to a share in said estate number not less than one hundred persons.

The said will and testament, after contest, was sustained by the Passaic orphans court, and said executors duly qualified and are now acting as such, and there is no appeal from the decision of the Passaic orphans court upon said will.

The complainant sets up that he is a second cousin to the testator and that he is entitled to a share of the estate, and prays that said clause of said will above quoted may be construed so that the complainant will be determined to be one of the collateral heirs of .the testator and entitled to a portion of his estate, and to the end that a reference be made whereby it can be ascertained who are the heirs of the testator, and upon what principle the order of distribution can be made, and that' this court take jurisdiction in this case for the purpose of doing justice in said matter among all parties legally entitled and concerned.

The complainant further says that the executors are disposed to recognize his claim, but that a number of persons, who are remote relatives of the testator, have sent in claims to said executors, which claims the executors are disposed to pay, but which claimants the complainant denies are entitled to any share of such estate.

The complainant claims his right under the statute of distribution, and particularly under the act of 1899. P. L. 1899 p. 20P He sets forth his relationship to the deceased, and declares under that statute that he is related, and wants a decree of the court of chancery to direct the executors to recognize him in the distribution of the estate.

The executors answering, say that they think he is entitled to a share in the estate under that act. They admit also, as stated by the bill, that numerous other collateral heirs are claiming under 'the same act to have a share in said estate. They also state, by way of cross-bill, that they have settled up said estate, are now ready to file their final account, but are in the dark as to who the heirs are under the provision of the will of the testator.

There is a request, not only by the claimant, but by the defendants, who, in their cross-bill, become complainants, as to how to distribute an estate which they are ready to distribute.

I fail to see any reason why the court of chancery should be asked to take jurisdiction in this cause, for it is well established that a court of equity will not interfere with the ordinary jurisdiction of the orphans court in the settlement of the accounts of executors or administrators, unless for some special cause, if any progress has been made in the orphans court; and the court of chancery cannot be compelled to construe a will except as incident to some relief which may be afforded b3r a final decree; nor can it be induced to give counsel and advice to the parties generally.

The masters and examiners of the court of chancery are ex-officio masters and examiners of the orphans court, and the orphans court may refer to a master and examiner any matter upon which it may be necessary to have the report of a master, who performs the same duties as in proceedings in the court of chancery.

“Except for some special reason the court of chancery will not interfere with the ordinary jurisdiction of the probate court in the settlement of the accounts of executors and administrators.” Rutherford v. Alyea, 54 N. J. Eq. (9 Dick.) 411; Frey v. Demarest, 16 N. J. Eq. (1 C. E. Gr.) 236.

“Where there are no special reasons for going into equit3r, the orphans court is the proper tribunal and should be selected by all parties for settling the accounts of executors and administrators.” Salter v. Williamson, 2 N. J. Eq. (1 Gr. Ch.) 480.

See also Clark v. Johnston, 10 N. J. Eq. (2 Stock.) 287. Hougland v. Cooper, 65 N. J. Eq. (20 Dick.) 407; Frey v. Demarest, 16 N. J. Eq. (1 C. E. Cr.) 236; Search v. Search, 27 N. J. Eq. (12 C. E. Cr.) 137; Baxter v. Baxter, 43 N. J. Eq. (16 Stew.) 82; Smith v. McDonald, 69 N. J. Eq. (3 Robb.) 765.

The language of the testator in the-clause above quoted is clear, and, under the Orphans Court act of 1898 and 1899, there should be no difficulty in readily ascertaining who are the' distributees.

I cannot see that this is a case which calls for the interposition of the court of chancery.

Eor these reasons I shall advise a decree of dismissal.


source: Caselaw Access Project

author: Lewis, Y. C.

license: Public Domain

text:
    The Singer Manufacturing Company et al. v. Roland C. Bowne, Sr., Roland C. Bowne, Jr., and Singer Sewing Machine Company.
    [Decided December 17th, 1912.]
    Wherever letters or papers are evidential in a cause, and are in the possession of either party, and are clearly relevant, the court of equity has the inherent power to order the production of such papers for inspection by the other party.

      Messrs. Lindabury, Depue & Faulks, for the complainants.

      Mr. Frederick A. Rex, for the defendants.
   Lewis, Y. C.

The application in the above cause is for an order requiring, the defendants to produce for the inspection of the complainants certain letters and papers. The claim of the complainants is that the letters and papers sought to be inspected are evidential in' this cause. There is no dispute raised upon argument by r.he defendants as to the control of the letters and papers. It is admitted that they are in the custody and under the control of the defendants. They resist the application, however, of the complainants on the ground that it is not a request for evidence, but is made for the purpose of ascertaining the names of the defendants5 witnesses and embarrassing the defendants in tire preparation of their defence. At the hearing, and upon their brief, the defendants urge that the rulings laid down in the case of Dodd v. Public Service Corporation, 29 N. J. L. J. 22, support their position. As contended by the complainants, the ease in question does not seem relevant to our investigation. It is to be observed that the court in the Dodd Case does not attempt to deal with equitable jurisdiction in the matter of inspection of letters and papers. . It disposes of an application questioning the propriety of the interrogatories in cases at law. While the general proposition as„ laid down by Mr. Justice Eort in the case is that: “It is not the proper provision of an interrogatory to seek information as 'to the' name or names of persons from whom evidence may be obtained, but interrogatories may only be asked when the answers 'thereto will make evidence for the party who asks them,55 yet the interrogatory sought to be stricken out under the application was held to be a proper one and the defendant was required to answer it.

The question asked at the trial was the number of the ear and the names, respectively, of the conductor and motorman in charge thereof at the time of the collision, and the court held in its decision that the admission of the company that the motorman and conductor were its employes and that the car in collision was its car is an acknowledgment of its ability to secure an answer to the question by one who has the requisite knowledge.

The case is important and suggestive in the present inquiry in showing the length to which a court of law will go under an application of this character, although the statutory authority is not very broad. Upon the argument in the matter in hand the question as to the extent of the power of this coprt to direct inspection was raised. This question is well settled. There is an inherent power in the court of equity wherever letters or papers are evidential in a cause and are in the possession of either party to the proceedings to order an inspection. “The power to direct either party to give to the other an inspection and permission to take copies of anjr books or papers in his possession, is inherent in a court of equity, and can be exercised in the absence of any statute conferring such right.” Lawless v. Fleming, 56 N. J. Eq. (11 Dick.) 815. By further decisions of our courts it has been firmly established that where letters or papers in the possession of either party are relevant to the matters in question in a suit in the court of equity, their inspection-can be obtained upon petition of the opposing party. Fuller v. Hollander & Co., 61 N. J. Eq. (16 Dick.) 651; Copper King v. Robert, 76 N. J. Eq. (6 Buch.) 251, 253.

It was evident on this application that the letters and papers sought to be inspected were relevant to the matter in litigation. The argument at the hearing clearly disclosed this fact. Their production at this time it seemed manifest would tend toward a clarification of the matters in controversy, and were not demanded in the opinion of this court for the purpose of ascertaining the names of witnesses for the defence. That the case was ready for trial was indicated by argument upon both sides, and the preparation of the defence could not be hindered by the inspection sought. The application for inspection should be granted and an order is accordingly directed for the same.


author: Gasbisoiv, J.

text:
    Board of Education of the Borough of Riverton, &c., v Peter Tait et al.
    [Argued November 21st, 1912.
    Decided March 3d, 1913.]
    1. When a general rule is provided by the legislature to cover an entire subject-matter all earlier and different legislative rules touching such matter are to be discarded in favor of such later rule.
    2. The amendment of the Municipal Lien law in 1909 (P. L. 1909 p. 260) renders the remedy provided by the third section of the Mechanics’ Lien act inapplicable to the enforcement of a lien under the Municipal Lien law.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in SO N. J. Eq. {10 Buch.) 91/..

      Mr. Joseph Beck Tyler, for the appellant.

      Mr. William D. Lippincoti, for the respondents.
   The opinion of the court was delivered by

Gasbisoiv, J.

The facts of this ease and the grounds of decision are fully set forth in the opinion filed in the court of chancery.

We think that the decree should be affirmed upon one of the grounds stated in the court below, although not precisely for the reasons that are given. The Municipal Lien law was amended in 1909. P. L. 1909 p. @60. The learned vice-chancellor was of opinion that this amendment repealed the third section of the Mechanics’ Lien act on the ground of an inconsistency that, he thought, must arise in the application of the two statutes. Hence, he based his opinion as to the repeal of the earlier act, pro tmlo, upon the final section of the act of 1909 which provided that “all acts and parts of acts inconsistent with the terms of this act are hereby repealed.” We are not so sure that the inconsistency relied upon by the vice-chancellor in fact exists, but reach the same result by force of the immediately preceding clause of the act of 1909, which provides “that all the proceedings to enforce any such claims or liens (that is, municipal liens) shall be subject to the provisions of this act so far as the same may be applicable.”

This indicates a legislative intent to cover in one statute the entire subject-matter of municipal liens. Gottuso v. Baker, 80 N. J. Law (51 Vr.) 520.

By force of this legislative declaration the provisions of section 3 of the Mechanics’ Lien act are to be discarded, not upon the ground of repeal or because of inconsistency, but by way of substitution. DeGinther v. New Jersey Home, &c., 58 N. J. Law (29 Vr.) 354; Cortelyou v. Anderson, 73 N. J. Law (44 Vr.) 427.

The doctrine in question is that when a general rule is provided by the legislature to cover an entire subject-matter, all earlier and different legislative rules touching such matter are to be discarded in favor of such later rule. Harrington v. Jersey City, 78 N. J. Law (49 Vr.) 610.

As to this doctrine we care to add nothing to what has been said in these eases and in the more recent one of Eldridge v. Philadelphia and Reading Railroad Co., 80 N. J. Law (51 Vr.) 478.

Inasmuch as the amendment of 1909 was after the decision of our supreme court in Arzonico v. Board of Education, 75 N. J. Lam (46 Vr.) 21, and as that case admittedly involved no conflict between the two lien acts, any discussion of it would be quite aside from the decision of the present case.

'Opon the ground stated, the decree of the court of chancery is affirmed.

For affirmance — The Chiee-Justice, Garrison, Swatze, Trencharp, Bergen, Minturn, ICalisch, Bogert, Vreden-BTJRGII, TrEACT^-10.

For reversal — None.


author: Swathe, J.

text:
    Philip J. Bowers, appellant, v. Town of Bloomfield, respondent.
    [Argued November 21st, 1912.
    Decided March 3d, 1913.]
    In condemnation proceedings where the lands are liable at the time the petition is filed to future assessments for municipal improvements already made, and the assessments are in fact made before the final award and payment for the land, the court of chancery may upon the money being paid into court, pursuant to the statute, order the amount of the assessments paid to the municipality.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion ig-reported in 80 N. J. Eq. (10 Buck.) 1. .

      Mr. Bcilph. E..Lum (Messrs. Lum, Tamblyn & Colyer on the brief), for the appellant.

      Mr. Charles F. K ocher, for the town of Bloomfield, respondent.
   The opinion of the court was delivered by

Swathe, J.

Lands of the appellant were condemned at the instance of the Essex .county park commission. At the time of filing the petition, certain improvements had been made by the town of Bloomfield and the city of East Orange npon the petition of the appellant; some wore then complete; others were completed the day after. The land was-liable to a- special assessment for benefits therefor. There was an appeal from the award of the commissioners, and while the proceedings were pending, assessments were made and confirmed. Thereafter, upon the verdict of a jury ascertaining the value of the land,- the park commission obtained an order for the payment of the money into the court of chancery pursuant to the statute. It was then agreed between the parties that $6,000 should he paid into court, the balance of the award paid to the appellant, and that he should forthwith file his petition against tire city of East Orange (which was interested in the same way as Bloomfield) and the present respondent, to the end that the rights of the appellant and the municipalities to tire fund might be determined. The vice-chancellor advised a decree that the assessments for benefits be paid to the municipalities.

The view taken by the court of chancery was that the title did not pass until the park, commission paid the amount awarded by the jury, and that in the meantime the assessments had become liens upon the land. We think it unnecessary to consider this question. The real question is whether the park commission had the right to have the liens, assuming that they existed, discharged out of the fund. That question is not determined by the situation at the time of payment of the award. In Sherwin v. Wigglesworth, 129 Mass. 64, it was held that the owner was not chargeable with taxes and betterments assessed upon the land while the proceedings were pending where the taxes were assessed and the betterments begun after the petition was filed. The same result has been reached in Yew York by allowing an award, in addition to the value of the land when the proceedings are begun, of subsequent taxes and assessments for improvements authorized thereafter. In re Mayor, &c., of City of New York, 58 N. Y. Supp. 58.

The decision of the special term to the contrary in a contemporaneous case was subsequently reversed, and the judgment of reversal affirmed by tire court of appeals. In re Riverside Park Extension, 58 N. Y. Supp. 963, In re Mayor, &c., of City of New York, 69 N. Y. Supp. 742; 60 N. E. Rep. 1116. This result is manifestly equitable. The landowner can get only the value of his land at the elate of filing the petition to condemn; he ought not to be assessed for subsequent betterments which cannot profit him. The present case is, however, different. Here the improvements were made at the time the petition was filed; the increased value of the land therefrom had already accrued and must be presumed to have been embraced in the award; there is no suggestion that the value due to the betterments had increased between that date and the date of the assessments, nor that the amount of the assessments exceeded the amount of the accrued benefit at the elate of filing the petition in condemnation. The improvements had been made upon the petition of the landowner himself, and if he is to be free of paying the municipalities for the value they have added to his property, he will receive the benefit of that increased value at the expense of the municipalities. The case is one of first impression, as far as we have been able to ascertain, and we are referred to no case precisely in point. We must, therefore, rely upon the application of reason to the legal situation. What the landowner is entitled to by the statute and under the constitutional provision is just compensation for what is taken from him. He is to be made whole for the loss of his land, but he is not to gain by reason of the condemnation at the expense of his neighbors. The amount awarded by the commissioners or the jury is not always or necessarily, perhaps not often, the same as the just compensation of the owner of the fee. The award represents in a lump sum the total value of the land, including the interest of everyone therein, and where there are diverse interests the statute provides that the money may be paid into the court of chancery, to be distributed according to law. The duty thus imposed upon the chancellor makes it necessary for him to ascertain the amount of the just compensation for each interest. In case of a mortgage, as in Bright v. Platt, 32 N. J. Eq. (5 Stew.) 362, or of existing tax liens, as in the case of In re Sleeper, 62 N. J. Eq. (17 Dick.) 67, the matter is simply one of calculation. In case of a leasehold, which may arise (Pennsylvania Railroad Co. v. National Docks, &c., Co., 57 N. J. Law (28 Vr.) 86; Zimmerman v. Hudson and Manhattan Railroad Co., 76 N. J. Law (47 Vr.) 251; Daab v. Hudson County Park Commission, 77 N. J. Law (48 Vr.) 36), the matter would be more difficult. Tf we can regard the right to enforce restrictive covenants as a property right (Herr v. Board of Education, 82 N. J. Law (53 Vr.) 610), the difficulty would be still greater. However difficult the task may be, the legislature has imposed it upon the court of chancery and the task must be performed before the award which represents the whole value of the land can be distributed. The present case is not exactly the ease of a subsisting mortgage or tax lien,' but approximates those cases. The just compensation to which the appellant is entitled is the sum which would have been paid him if he was willing but not compelled to sell by a buyer who desired but was not compelled to buy. We think there can be no doubt that such a buyer and seller would in fixing a price have taken into account the certainty of a speedy assessment for the improvements. The buyer would give less because he would soon have to pay for the improvements; the seller would take less because he would thereby escape the impending pecuniary liability. In view of the actual situation — improvements within twenty-four hours of completion, and the certainty of an assessment within a few months — it is reasonable to fix the diminution in price attributable thereto at the amount of the assessments. After just compensation thus ascertained is paid to the landowner a balance remains. To whom does it belong? To award it to the landowner would be to give him the value of improvements made by the municipalities for which he had petitioned and was under an obligation to pay implied from the statutory liability to assessment. Tiie right of the municipalities to levy the assessment is none the less a property right because it is in tire nature of a chose in action not yet reduced to possession; it is a claim upon ihe iand of which every well-advised buyer and seller would take notice and for which both would allow in the purchase price. It is a claim that must either be lost to the municipalities whose expenditure has produced the added value, or paid by the condemning agency in addition to the value of the land at the time of filing the petition, or paid out of the fund which has been made that much larger. To adopt the first view is to deprive the municipalities of a right without compensation, and although the legislature has control of municipalities as public agencies, we cannot think it was the legislative intent to do so in cases like the present; the whole scheme of assessments for benefits is an argument to the contrary. To. adopt the second view is to compel a condemning agency exercising by legislative authority the sovereign power of eminent domain, to pay twice for the same items of value: we cannot think that was the intent; the statutory provision authorizing the payment of the award into court is an argument against thus subjecting the land to a lien in addition. There remains the third view. To adopt it is no more than to treat the fund as representing the land, as in fact it does, and as subject to the liens to which the land would be subject. This result does no injustice to the appellant since the assessments cannot in theory of law have exceeded the added value of his lands and may have been less. It is no more than just to the municipalities thus receiving compensation for the assessments which became liens before the title actually passed, and for the right to acquire liens for future installments, liens and rights which were in effect foreclosed by the condemnation proceedings. Finally, this result is just to the park commission which thus acquires a clear title to the land free of liens, by pajdng its value at the tune of filing the petition as the statute intends it shall.

The decree is therefore affirmed, with costs.

For affirmance — The Ci-iiee-Justice, Garrison, Swayize, Trenchard, Bergen, Minturn, Kalisci-i, Bogert, Vreden-BURGI-I, CONGDON, TEEACY — 11.

For reversal — None.


author: Swatze, J.

text:
    Frank Burns, complainant-respondent, v. Charles Thomas, defendant-appellant.
    [Submitted June 8th, 1912.
    Decided March 3d, 1913.]
    Complainant agreed to buy and defendant to sell a lot in Jersey City, particularly described as “being- part of Plot 19 B in Block 1827, situated on the northerly side of Duncan avenue easterly from West Side avenue, being twenty-five feet in width in front and rear and one hundred and twenty-five feet in depth on both sides, together with a four-story brick apartment dwelling situated thereon.” A deed was subsequently delivered describing the westerly line of the lot as running “through the centre of a party wall standing partly on the premises hereby conveyed and partly on the premises next adjoining westerly thereto.” — Held, that the deed should not be reformed so as to convey the whole wall.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison.
    'The defendant agreed in writing to convey to complainant a lot in Jersey City, particularly described as
    “being part of Plot 19 B in Block '1827, situated on the northerly side of Duncan avenue easterly from West Side avenue, being twenty-five feet in width in front and rear and one hundred and twenty-five feet in depth on both sides, together with the four-story brick apartment dwelling situated thereon.”
    The building was then in course of construction and nearly completed. At the request of Lippman, who conducted the negotiations as Burns’s agent, a clause was inserted binding the defendant, Thomas, to complete the building in compliance with the plans and specifications and to do certain work and furnish certain things not material to the purpose of this litigation. The plans showed a party wall twelve inches thick on the west side of the lot, and a building twenty-five feet in width from the easterly side to the centre of the party wall. It is denied that Lippman. to whom Burns says he left everything, saw the plans. He and Bums went through the building before making the contract, and the list of things to be provided inserted at Lippman’s request indicates a very careful examination of what was lacking. A chimney on the westerly side of the building projected four inches. Thereafter a deed was drawn describing the property by metes and bounds, twenty-five feet front and rear, one hundred and twenty-one and fifty hundredths feet on the westerly side and one hundred and twenty-two and seventeen hundredths feet on the easterly side; the westerly line is described as running “through the centre of a party wall standing partly on the premises hereby conveyed and partly on the premises next adjoining westerly thereto.” Burns executed a purchase-money mortgage conveying the property by the same description as in the deed. These papers were prepared under the supervision of counsel acting for both vendor and vendee. Ample opportunity was given Lippman and Burns to examine them; the extent to which they did so is disputed. At the time the title passed, there was a map made according to a recent survey in counsel’s office accessible to Lippman; whether he examined it is disputed, but he had the opportunity to do so. This map showed the westerly boundary of the. lot as the “centre of 12" wall.” A few months after the title passed, Thomas began building upon the adjoining lot and inserted his timbers in the wall. Burns filed this bill for an injunction, substantially claiming a reformation of the deed to make it accord with the written contract. There is no allegation or proof of fraud; the charge is that through the mistake of counsel, the deed does not correspond with the agreement. The vice-chancellor decreed a reformation of the deed by'substituting for the four lines of the lot as described an elaborate description of twelve courses and distances following the exterior lines of the building, and enjoined the defendant from breaking into the westerly wall or placing ends of beams therein.

      Mr. J.ohn Francis Gough, for the respondent.

      Mr. Citarles D. Thompson, for the appellant.
   The opinion of the court was delivered by

Swatze, J.

The complainant does not seek rescission but relies upon the contention that the deed is not in accordance with the written agreement. The elaborate description in the decree is itself unlike anything in the agreement, and the decree can only be sustained upon the theory that the agreement was, if properly construed, to convey a building with the exterior lines set forth in the decree, and not merely to convey a lot particularly described with the dwelling thereon. If the complainant’s contention is correct, there is a latent ambiguity in the agreement; it describes, first, a lot twenty-five feet in front and rear, and secondly, a building twenty-five and four-tenths feet in front on a lot of' that frontage, and a width of twenty-five and fifty hundredths feet in the rear. In view of that ambiguity, we could not, after litigation has arisen, say that the practical construction by the parties when the defendant made the deed and the complainant made the mortgage was erroneous. There was no mutual mistake since each construction was equally open; the defendant might well think he was agreeing to sell only the lot particularly described, and the complainant that he was agreeing to buy the building by its exterior lines regardless of the land on which it stood. Their minds upon that theory never met. The complainant might indeed be entitled to rescind for the mistake, but that he does not ask, and has not put himself in shape to ask, by the necessary offer to restore the property to the defendant. In view of the ambiguity and the construction by the .parties, the complainant fails to establish his case for reformation by that clear and convincing proof and that unexceptionable testimony both with regard to the agreement actually made by the parties and the mutuality of the mistake through which a different agreement was put in the deed, which we have said is necessary to justify the reformation of a deed executed, delivered, accepted and acted upon. Green v. Stone, 54 N. J. Eq. (9 Dick.) 387, 399. The case is even stronger against the complainant. The alleged ambiguity does not in fact exist. The agreement is to convey “all that lot, tract or parcel of land and premises hereinafter particularly described.” The particular description is of a lot twenty-five feet in width front and rear. This particular description seems to negative the idea of a wider lot: Then follows the language, “together with the four-story brick apartment dwelling situated thereon.” The' building is not particularly described by exterior lines as in the decree; the use of the word “thereon” is a plain indication that the building to be conveyed is a building on a lot twenty-five feet in width, not a lot twenty-five feet and four-tenths feet in width. There might be an ambiguity if it could be said that a building having on one side only six inches of wall of its own with.an easement of support by another six inches-on the adjoining lot, was not, properly speaking, a building. That, however, is not the fact. The case is the ordinary case that occurs in our compactly built cities, of a building with party walls. A building is none the less a complete building because one of its side walls requires, or is strengthened by, a supporting wall of an adjoining building.' The-right of mutual easements in such cases is well recognized, and each building is regarded as complete in itself. The language used by Chief-Baron Pollock, in Richards v. Rose, 9 Exch. 218, by the Yew York court of appeals, in Rogers v. Sinsheimer, 50 N. Y. 646, and the supreme court of Massachusetts, in Carlton v. Blake (Mass.), 25 N. E. Rep. 83, sufficiently vindicates this definition of a building.

The complainant in this case took title by his deed to a complete house, although he acquired also an easement of support by the defendant’s wall; but this easement of support does not differ in kind from the ordinary easement of support of a man’s land in its natural state by his neighbor’s land. That houses built in this manner are separate buildings sufficiently appears from tlie practice in this state in cases arising under the Mechanics’ Lien act. In Johnson v. Algor, 65 N. J. Law (36 Vr.) 363, the plaintiff claimed a lien on a continuous row of brick dwelling-houses, divided by party walls into sixteen dwelling-houses. It was not questioned that the plaintiff, was obliged to apportion his claim among, the sixteen houses; the supreme court held that separate suits should have been brought against those interested in each house; upon this point we subsequently took a different view, but did not intimate a doubt as to the duty to apportion. Culver v. Lieberman, 69 N. J. Law (40 Vr.) 341. With this recognition by the courts that a building bounded by party walls is a distinct building, we must conclude that the complainant by his deed took title to all that the agreement gave him a right to claim — the lot twenty-five feet wide and the building thereon, and that he cannot claim an additional four-tenths oí a foot merely because his grantor has given him also as an incident an easement in a brick wall on the grantor’s remaining land. The case differs from Gough v. Williamson, 62 N. J. Eq. (17 Dick.) 526, where the agreement was to convey the "choice business corner — property known as PTo. 368 Grove street,” and the dimensions were-given not as a particular description of what was to be conveyed, but as an addendum by way of explanation. This case would have resembled that if the agreement had been to convejr the four-story brick apartment dwelling, instead of a lot particularly described by certain dimensions. The case differs also from Naughion v. Elliott, 68 N. J. Eq. (2 Robb.) 259; affirmed, 70 N. J. Eq. (4 Robb.) 805. In that case the original option mentioned no dimensions, and the second option did not limit the length of the line in question, but used the language "at least 101- feet;” the important question was from what point that distance should be measured.

The decree must be reversed, to the end that the bill be dismissed. The defendant is entitled to costs in both courts.

For affirmance — PTone.

For reversal. — The Chtee-Jtjstice' Garrison, Swayze, Tkencitard, Bergen, Minturn, Kalisck, Bogert, YbedenBURGH, CoNGDON, WHITE, TREACY — IS.


author: Swayze, J.

text:
    William T. Day, trustee, complainant, v. Angelina E. Faulks et al., defendants-appellants, Walter H. Faulks et al., defendants-respondents.
    [Argued March 13th, 1912.
    Decided November 27th, 1912.]
    1. It would be inequitable to award the whole of a stock dividend upon stock held for a trust fund to the life tenants, for two reasons — -first, because stock dividends are not dividends set aside as earnings by the corporation ; second, because to permit the new stock to go to the life tenant would lessen the proportionate interest of the estate in the corporation, a result that cannot have been contemplated by the testator.
    2. Ashlmrst v. Potter, 29 N. J. Bq. {2 Stew.) 625, 635, distinguished.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported'in 79 N. J. Eq. (9 Buck.) 66.

      Mr. Edward A. Day, for the appellants.
    ill?'. Clark McK. Wh-ittemore, for the respondents.
   The opinion of the court was delivered by

Swayze, J.

We agree with the reasoning and the conclusion of the vice-chancellor, and would add nothing but for a suggestion in his opinion as to the state of the authorities and the fact that our attention has been .directed to a remark of the master in Ashhurst v. Potter. 29 N. J. Eq. (2 Stew.) 625, 635.

The case as it comes to this court does not present the general question whether a stock dividend, strictly so called, upon stock held for a trust fund, is to be apportioned between the tenant for life and the remainderman. The vice-chancellor felt constrained by the authorities to apportion the dividend, and the remaindermen have not appealed. The life tenants only appeal and the question presented is whether they are entitled to the whole stock dividend as they claim. There is language in the opinion of the master, in Ashhurst v. Potter, which sustains this view. The question, however, was evidently not considered by him since the controversy was not between life tenant and remaindermen, but between the testator’s daughters and their children (life tenants and remaindermen) on one side and the testator’s sons on the other. That the children of the daughters were not actually interested adversely to their mothers, appears from the fact that they took no appeal, and the question as between them was not before this court nor considered by us. We agree with the vice-chancellor that it would be inequitable to award the whole stock dividend to the life tenants, and that for two reasons — first, because stock dividends are not dividends set aside as earnings by the corporation; second, because to permit the new stock to go to the life tenant would lessen the proportionate interest of the estate-in the corporation, a result that cannot have been contemplated by the testator. The difficulties which courts of the highest standing have found in apportioning a stock dividend apply with increased force against a claim of the life tenant to the whole. The decree is affirmed.

. For affirmance — The Chiee-Justioe, Garrison, Swayze, Trenchard, Bergen, Voorhees, Kalisch, Bogert, Vreden-J3URGH, CONGDON, WHITE, TREACY — 12.

For reversal — None.


author: Treno piard, J.

text:
    Henry S. Howland, complainant-respondent, v. Pauline F. Andrus, defendant-appellant.
    [Submitted December 9th, 1912.
    Decided March 3d, 1913.]
    1. Complainant purchased an interior lot fronting on Wildwood avenue by deed containing a covenant that the building to be erected thereon should “be so located that the front line thereof shall not be nearer than sixty feet to the street line measured at right angles thereto,” and his grantor covenanted that he would “not convey any of the adjoining lots except by deed containing the same restrictions as above recited.” Defendant, with actual notice of such covenants, purchased from the same grantor two lots at the corner of Wildwood avenue and Park street, fronting on Park street, and abutting in the rear on complainant’s lot. Complainant knew, and the map, which was a part of the public records affecting the whole tract, showed that defendant’s lots fronted on Park street. — Seld, that the question whether or not the covenant was violated by defendant by the erection of a building nearer than sixty feet to Wildwood avenue is not so clear that a court of equity will aid in its enforcement.
    2. In cases where the right of a complainant to relief by the enforcement of a restrictive covenant is doubtful, to doubt is to deny.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 80 N. J. Eq. {10 Buch.) 276.

      Mr. Edwin B. Good,all and Mr. John B. Hardin, for the appellant.

      Sommer, Colby & Whiting {Mr. Frank H. Sommer on the brief), for the respondent.
   The opinion of the court was delivered by

Treno piard, J.

The hill in this case was filed by Henry S. Howland against Pauline E. Andrus, to enjoin- an alleged violation of a building line restriction. The court of chancery awarded an injunction and the defendant appeals.

It appears by the pleadings and evidence that Joseph Bardslev was the owner of a tract of land in the town of Montclair, lying between Park street on the east and Valley road and North View avenue on the west, being about nine hundred feet in length by five hundred feet in width. He laid out the land in building lots, with a street called Wildwood avenue through the middle of the tract from east to west. On June 1st, 1903, Bardsley conveyed Wildwood avenue to the town by a deed dedicating it as a public street. This deed, duly recorded, referred to a map attached, which showed the lots located on both sides of the avenue. The map also showed that these lots mostly fronted one hundred feet on Wildwood avenue, and were about two hundred and twenty feet in depth. Some of them, however, fronted on Park street, and some on Valley road and North View avenue. South of Wildwood avenue two lots fronted on Park street and abutted on the adjoining Wildwood avenue lot. These two lots were each about one hundred and twelve feet in width and about two hundred and eight feet in depth. There was a similar arrangement of the lots on Park street north of Wildwood avenue and a somewhat similar arrangement of lots on the other end of the tract.

Complainant and defendant own adjoining lots which they purchased from Bardsley. Complainant purchased March 15th, 1906. His lot is on the southerly side of Wildwood avenue two hundred and eight feet two inches west of Park street. The defendant purchased October 31st, 1910. She purchased two lots on Park street having their rear abutting on complainant's land.

The map attached to and made a part of the deed to the town of Montclair was recorded June 4th, 1903, and was a matter of record at the time complainant bought his lot. The complainant testified that he had not seen the map but knew of its existence and knew that defendant’s lots fronted on Park street. Complainant’s deed contained the following restrictions:

“This convejiance is made, delivered and accepted under and with the express stipulation and agreement, and the party of the second part, for himself, his heirs and assigns, does covenant and agree to and with the parties of the first part, their heirs, executors, administrators and assigns, that the property hereby conveyed shall be used for residential purposes only; that not more than one dwelling to cost not less than nine thousand dollars when erected, shall be erected on said lot, and to be so located that the front line thereof shall not be nearer than sixty feet to the street line measured at right angles thereto; that no outbuilding shall be erected thereon whose front line shall be nearer the street than is the -rear line of the dwelling, and further, that this agreement shall run with the land and be in full force and effect for the term of twenty-five years from the date hereof.”

Tlie deed also contained the following agreement on the part of the grantor:

“And the parties of the first part hereby agree that they will not convey any of the adjoining lots except by deed containing the same restrictions as above recited.”

The deed to the defendant contained the following restrictions :

“No more than two orie-family private dwellings costing no less than nine thousand dollars each when erected, together with suitable outbuildings to be placed on said tract. The said houses to face on Park street on lots having a frontage of not less than one hundred feet, the front foundation wall of said dwelling to be at least fifty feet from the westerly side of Park street, the said outbuildings to be next to the southerly line of each lot and no nearer Park street than the rear line of the dwellings that may be placed on the several lots.”

Before commencement of this action complainant had built upon his lot a residence conforming to his restrictions in respect to size and cost, but the actual front line of the house is only fifty-six feet from the street line measured at right angles thereto.

In April. 1911, the defendant commenced the erection of a residence on the northerly one of her two lots. It fronts on Park street as required by her deed. Its front line is seventy-five feet from Park street. The north side line of the house is forty feet from Wildwood avenue at the front corner and thirty-six feet from Wildwood avenue at the rear corner. The house was designed'to cost approximately $18,000.

On April 10th, 1911, defendant’s husband learned that complain ant objected to the erection of tire house. He called bn the complainant in the afternoon and they then showed each other their respective deeds. He testified that this was the first actual knowledge that he had of the agreement 'in the complainant’s deed. The work of excavation was accordingly suspended pending an investigation. Later the work was resumed, and in June, 1911, the complainant gave formal notice of his claim, and on July 5th, 1911, filed the bill which resulted in the injunction now under review.

We are of opinion that the injunction was improperly granted.

The defendant contends with much force that the complainant is not entitled to the aid of a court of equity because, first, he has himself violated the covenant which he seeks to enforce by the erection of his building within the restricted line; and second, because of laches in his application for relief; but we are ■ not inclined to rest our decision upon either of these grounds.

We hold that if both these contentions are determined against the defendant, as they were in the court below, she was still within her rights.

The learned vice-chancellor properly found that there was no general plan of restricted building line which affected the bouses and lots fronting upon Park street, and with knowledge of which the defendant was charged.

It is, therefore, quite evident that the complainant must rely upon the express covenant in ’his own deed.

We have not stopped to consider the propriety of the vice-chancellor’s conclusion that the defendant had constructive notice of the complainant’s deed by force of the statute.

Assuming for the purpose of this case that the defendant1 had actual knowledge of the covenant in the compainant’s deed, we still think that this action cannot be maintained.

The complainant testified that when he contemplated purchasing in the locality in question his original purpose was to buy these two corner lots fronting on Park street instead of the one which he actually did purchase, and that during the negotiations on this basis, he was informed by Mr. Bardsley that the buildings to be erected on the corner lots, like those to be erected on Wildwood avenue, would be required to be sixty feet back from that avenue. As we have pointed out, upon purchasing the lot which he owns he required a provision to be inserted in his deed by Bardsley in the following words:- “And the parties of the first part hereby agree that they will not convey any of the adjoining lots except by deed containing the same restrictions as above recited.”' The pertinent restriction “above recited” was that the building to be erected thereon should “be so located that the front line thereof shall not be nearer than sixty feet to the street line measured at right angles thereto.”

A reference to the description of the property and tire map seems to plainly show that the street line referred to was that upon which the property fronted. The map, which was a part of the public records affecting the property, showed that these lots which the defendant purchased fronted on Park street. Moreover, the complainant knew that they fronted on Park street.

It seems to us that the restriction cannot be construed to forbid the erection of a house on defendant’s lot within sixty feet of Wildwood avenue without doing violence to the plain meaning of common English words.

The language under consideration refers to the relative positions of the front line of the house and the street line, without naming the street.

The words “'the street line,” used in complainant’s deed, mean the Wildwood avenue line; but both parties to the covenant knew.that any house to be built upon the corner lot would have a front facing Park street, and that a covenant regulating the distance of that front line from the street could relate only to. Park street.

The vice-chancellor solves this difficulty by applying the restriction to Wildwood avenue and to the side of the house which is toward Wildwood avenue. That seems to give no consideration to the ordinary meaning of the words “the front line of the house.” His language is:

“If the same restrictions as to distance of the front line from Wildwood avenue are to apply, then no part of fhis front line can be nearer than sixty feet, and this without regard to the street on which the house itself on the corner lots may front. Complainant’s deed would not, as I take it, prevent his building a house on his lot which fronted toward Park street, but no part of the line of his dwelling which ‘fronts’ to Wildwood avenue can. be nearer than sixty feet. For the purpose of the covenant the line of the dwelling ‘fronting’ toward the street from which the measurements are to be taken is to be considered as the ‘front line’ intended by the covenant, although this line might be in fact the side line of the dwelling.”

In this quotation it will be observed that the words “front” and “front line” are used in two distinct senses. When he speaks of -a house which fronts toward Park street, he uses the word in its correct and only sense. When'he speaks of the side line of the house as fronting towards Wildwood avenue, he uses the word ■ in a sense which, -we believe, cannot be justified. ' Every man knows in an instant what is meant by the “front line” of a house. It is not the “side line;” and in order to make this covenant mean what the court of'chancery saj^s it means, the language must be radically changed. Cent. Diet. tit. "Front;” Stand. Diet. tit. "Front.”

The word “side” may be used in a generic sense so as 'to include the “front,” but it also has a specific meaning, which distinguishes it from “front.” The word “front” as applied to a house is always specific.

We are, therefore, inclined to think that the plain meaning of the additional restriction which was inserted in complainant’s deed at his insistence was that the purchasers of lands fronting on streets other than Wildwood avenue should not be permitted to erect buildings on those lots nearer to the line of the street upon which they fronted than sixty feet. It is to be remembered that there were two lots abutting on complainant’s tract and fronting on Park street. Each of them was one hundred and twelve f.eot and nine inches in front and a little less on the rear. It would, of course, be impossible for the purchaser of the interior lot (if his purchase was restricted to that lot) to put a house on it nearer than one hundred and twelve feet from Wild-wood avenue. If it was intended to affect the purchaser of the corner lot which had its-side line on Wildwood avenue,.he would be compelled to build his house entirely on the southerly half of his lot. So that both the natural construction of the language and the situation of the several lots would lead anybody contemplating purchasing either one of the Park street lots, and who was familiar with the restriction in the complainant’s deed, to believe that its purpose was to require buildings to be sixty feet back from Park street. So construed, the defendant has not violated the covenant, for, as we have seen, her dwelling-house was located seventy-five feet back from Park street.

But even if this is not perfectly clear it certainly cannot be said that the construction contended for by the complainant- is any more certain, particularly in view of the fact that it is entirely settled that every doubt and ambiguity in the language of a covenant restricting an owner’s use of his property must be resolved in favor of the owner’s right.

Courts of equity do not aid one man to restrict another in the uses-to which he may lawfully put his property unless the right to such aid is clear. Fortesque v. Carroll, 76 N. J. Eq. (6 Buch.) 583.

In that case Mr. Justice Garrison, speaking for this court, said that “it is well settled that in cases where the right of a complainant to relief by the enforcement of a restrictive covenant is doubtful, % doubt is to deny.’ ” The reasons for the rule, as pointed out in the opinion, are — first, because restrictions of the lawful uses of property are against common right, and 'second, because restrictions, in the framing of which a subsequent purchaser has had no voice, ought to be so clear that by the acceptance of'tlie deed that declares them he may reasonably be deemed to have understood and acceded to them.

Since the complainant’s right to relief is at most doubtful, the decree below will be reversed.

A remittitur to that effect may be éntered, to the end that the complainant’s bill may be dismissed.

For affirmance — Hone.

For reversal — Ti-ie Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kaeisci-i, Bogert, ■ Vredenburgh, Congdon, Treacy — 12.


author: Parker, J.

text:
    William B. Reed, appellant, v. Benzine-ated Soap Company et al., respondents.
    [Submitted December 9th, 1912.
    Decided March 3d, 1913.]
    A party having the election to rescind a contract or rely on it must exercise such election promptly and before the other party has materially changed his position; and failure so to rescind will be evidential of his election to stand on the contract.
    On appeal from a decree advised by Vice-Chancellor Walker, who filed the following memorandum:
    The original bill was filed .to restrain the dissolution of the corporate defendant pending an opportunity for the complainant, who was a stockholder, to inspect the books. The defendants Smith and Lowry filed an answer and cross-bill. -A motion was made to strike out the cross-bill on the ground that the relief it sought was not relevant, pertinent or germane to the matters in issue raised by the bill of complaint. The motion was overruled and the application denied. A decree pro confesso ■ was then entered against the complainant on cross-bill, and, on depositions taken ex parle, a final decree was made in favor of the defendants on the cross-bill. Afterwards the complainant, on notice, secured an order opening the default and permitting him to file an answer or replication. Complainant then filed a replication traversing the cross-bill, and afterwards, by permission of the court, filed a supplemental bill.
    The Benzine-ated Soap Company was incorporated by Reed (complainant), Smith and Lowry (defendants). Each contributed $8,000 to the capital stock. Reed’s $8,000 was borrowed from Smith and Lowry to secure which Reed left with them, as collateral security, his certificates of stock and also assigned to them a life insurance policy and a mortgage covering lots in Pennsylvania.
    The complainant’s contention is, that the cross-bill tendered a rescission of the contract (of June 10th, 190.2), under which the parties agreed to and actually did form and cause to be incorporated ihe defendant company, and claims that by the supplemental bill he accepted the rescission, and is therefore entitled to have released and delivered to him the collateral security which he pledged for the payment of the loan for the purchase of the stock at the time the corporation was formed.
    The defendants on the other hand contend that the cross-bill does not amount to a rescission of the contract, at least not in an unqualified sense, whereby the complainant would be entitled to a return of his collateral, but that the pleading in effect is one for the annulment of the contract on the ground of the complainant’s fraud, and that he is not entitled to a restoration of the status quo ante because the defendants 'have suffered loss in the transaction at his hands.
    It is certainly significant that the complainant when first confronted with the cross-bill did not obtain leave to file a supplemental bill that he might be able to accept the alleged rescission of the contract, but first moved to strike out the cross-bill as not germane to the original bill, then filed a replication, and then, after tire situation materially changed, filed his supplemental bill. That change was this: In the meantime the company had been dissolved under the terms of the agreement of June 10th, 1902, and its affairs liquidated,' leaving the sum of $173.17 as a dividend on the shares of stock pledged as collateral by Reed for the loan of $á,000 by Smith and Lowry to enable him to purchase that stock. The investment in the stock of the company by, the three parties was practically a total loss.' The collateral pledged by Reed was realized on and produced far less than the balance of his indebtedness on the $8,000 block of stock; but, notwithstanding, Reed wants the collateral ox its value returned to him, in which event Smith and LowTy will not only lose their own stock investments but will be obliged to shoulder Reed’s loss as well; and this upon the theory of a rescission which he himself did not treat as such until it became his interest and only refuge to do so, having before taken two inconsistent positions with reference to the matter.
    In my judgment equity and good conscience require the denial of the relief sought by the complainant under his supplemental bill, and I will so advise the chancellor.

      Mr. Thomas B. Sail and Mr. Gilbert Gollins, for the appellant.
    . Mr. Lewis Starr, for the respondents.
   The opinion of the court 'was delivered by

Parker, J.

We conclude that the decree below should be affirmed, and have little to add to the views expressed as above by the present chancellor. When the complainant as a stockholder prayed an. injunction to restrain the dissolution .proceedings, his claim as a stockholder was met by a cross-bill alleging that defendants Smith and Lowry were induced to go into the corporate venture by fraudulent statements of complainant; that after the incorporation he falsified the expense accounts and employed incompetent and extravagant salesmen so as to depreciate the company as a business venture and induce -defendants to sell out at a low figure; and praying that the contract of June 10th, 1902, be set aside, that complainant be decreed to be not entitled to any rights thereunder and not a stockholder of the company, and that such stock as stood in his name be decreed,.to belong to Smith and Lowry as the actual-subscribers therefor. This is the ■“rescission” that complainant says in his supplemental bill was tendered and which he by that bill wished to accept. There can be little doubt that if he had “accepted” it by joining promptly in the prayer of the cross-bill, he should have had his collateral back. That -was the object of his contention below under the supplemental bill and is the object of this appeal. The acceptance had to be prompt because when the cross-bill was filed on April 7th, 1905, dissolution proceedings were then pending; the certificate of dissolution was filed on May 24th and the property of the company sold in July. During all this time he was treated, except in the chancery suit, as though he was a legal stockholder. About the "same time, viz., July, 1905, the defendants realized on his collateral to meet the amount due them for advances to pay for his stock. It is thus evident that by the complainant’s failure to accede promptly to the claim that he was not a stockholder, the position of affairs has changed so that the status quo cannot be .restored. But complainant not only did not accede to tire prayer -of the cross-bill but resisted it, by moving to strike it out; and during months of litigation maintained the claim that the cross-bill should not be considered by the court.

It is well settled in this court that where a party has an election to rescind he must elect promptly, and having elected must abide by his decision; and that failure to rescind within a reasonable time, is plenary evidence of his election not to do so. Dennis v. Jones, 44 N. J. Eq. (17 Stew.) 513; Clampitt v. Doyle, 73 N. J. Eq. (3 Buch.) 678; Faulkner v. Wassmer, 77 N. J. Eq. (7 Buch.) 537. These were all cases of rescission by act of the defrauded party, and it is not clear who was defrauded in- the present case, fraud being claimed on both sides; but the rule is equally applicable where rescission is tendered or offered by one party to the other and an election thus given to accept or refuse it. Such was the case here. Complainant, claiming as a stockholder and threatened with dissolution of the company and sale of his collateral, was put by the act of defendants in a position where by resigning his claim to the stock he could cancel his indebtedness and have liis money,back. Clearly he was not entitled to both stock and collateral. He elected to maintain his claim on the stock, and must abide the result of his choice.

For affirmance — The Chiee-Justioe, Garrison, Swayze, Trenchard,■ Parker, Bergen, Minturn, Kalisoi-i, Bogert, Yredenburgi-i, Oongdon, Treacy — 12.

-For reversal — None.


author: Pabeeb, J.

text:
    Benjamin Thomas, Jr., et al., complainants and appellants, v. The Board of Education of the City of Paterson et al., defendant, Thomas J. Brogan, respondent.
    [Submitted July 8th, 1912.
    Decided March 3d, 1913.]
    1. An assignment should be construed liberally against the assignor, but if its language be plain and definite, especially as to describing the subject-matter assigned, there is no need for extending its effect by construction.
    2. An assignment purported to cover the retained fifteen per cent, of the contract price of a building, specifying the amount of such percentage as a gross sum. The contract contained provisions as to extras and the fifteen per cent, clause was applicable thereto. — Held, that the assignment was limited to the gross sum named therein as assigned.
    3. Sullivan v. Visconti, 68 N. J. Law (39 Vr.), SJ/S, distinguished.
    On appeal from a decree of the court of chancery advised by ALce-Chancellor Stevenson, whose opinion is reported ante ¶. 9'4-

    The litigation arose under the act.of 1892, relating to liens on moneys, growing due on municipal contracts for public improvements (P. L. p. 869; Comp. Slat. p. 8815), and the controversy brought up by this appeal was between the complainants as claimants under a stop notice, and the respondent claiming under assignment from Maloney, the original contractor, to one Farnon, and- further assignment from Farnon to respondent, Brogan. The fund available amounted to $589.59, and the stop notice called for $806.10, but claimants at the hearing limited their claims to $400, being the amount awarded for extra work in excavation, conceding that the claim of Brogan under the assignments, which was prior in time, was superior to theirs as against the $189.59 remainder of the fund; but asserting that the assignment from the contractor to Farnon which controlled the claim of Brogan, diet not cover the allowance of $400 for extras. The vice-chancellor decided that it did, and awarded the whole fund to Brogan'. Erom this decision complainants appeal.

      Mr. William B. Gourley, for the appellants.

      Mr. J61m J. Fallon, for the respondent.
   The opinion of the court was delivered by

Pabeeb, J.

The decision of this case turns on the operation and effect of the assignment from the contractor, Maloney, to Earnon. Maloney- had a contract with the board of education for the building of a school house at á lump figure of $33,886, payable monthly on the basis of eighty-fivé per cent, of work done as certified by the architect, the other fifteen per cent, to be retained as a guarantee until the final completion of the building. The contract contained provisions that if the board should request alterations, &c., during the work they should not void the contract, but be added or deducted from the contract price as the case might be, by a fair and reasonable valuation; that no extra work should be done without a written order from the architect and an express agreement in writing not only as to the altera■tion itself but as to the cost; also a provision that the written consent of the board through its architect should be the only authority to vary, alter, amend or change the contract or any of the plans or specifications. Maloney defaulted and abandoned the work, which was taken up and completed by his bondsmen, and on a final adjustment of all matters under the contract the sum of $589.59 remained as a balancé to meet claims under the act and otherwise, after satisfying the bondsmen.

With these facts in mind we turn to the assignment to Earnon. It recites that Maloney has made his note to Earnon at six months for $2,200, and that Brogan has endorsed it; that Maloney has the school contract above mentioned; that fifteen per cent, of the contract price is to be retained until thirty days after completion; that such fifteen per cent, of the contract price amounts to the sum of $6,082.90; and continues as follows:

“Now therefore, as collateral security for the payment of the said note hereinbefore mentioned, and the renewals thereof, I do hereby assign and set over and transfer, unto the said Thomas Farnon, Jr., the said payment of the said sum of Five Thousand Eighty two dollars and ninety cents according to the terms of this assignment, and the conditions of the specifications of, and the said contract, and all my right, title and interest therein; and X do hereby constitute and appoint the said Thomas Farnon, Jr., imy true and lawful attorney, in my name but at his own cost and charges, to take all legal measures which may be necessary to enforce the payment of the said Five Thousand Eighty two dollars and ninety cents, according to the térms and stipulations of the said specifications and the said contract.
“Upon conditions, however, if the Said certain promissory note made by me, hereinbefore first above mentioned, bearing even date herewith, or the renewals thereof, is well and truly paid, according to the terms thereof, then this assignment is to be void, and of none effect.”

The subsequent assignment' from Farnon to Brogan recites the assignment to Farnon to secure the note; that the note was not paid; that Farnon recovered judgment on it against Maloney as maker and Brogan as endorser, and that Brogan has paid the judgment; assigns the rights of Farnon in the "said sum of money in the aforesaid assignment mentioned” with a power of attorney to take legal means

“to enforce the payment of the said sum of $5,082.90 according to the terms and stipulations of the said contract and specifications or so much thereof as may be required for the payment of the said judgment.”

The vice-chancellor held that the first assignment "must be deemed an equitable assignment from Maloney to Farnoii of the-entire fifteen per cent., which under the terms of the contract was to be reserved by the board of education and was to become » payable upon a certain condition thirty days after the completion of the work.” Accordingly, and apparently on the assumption that the entire balance of $589.59 was comprised within the reserved fifteen' per cent, he adjudged it to have passed under the assignments. We find little, if any, proof that this sum was wholly made up of retained money; on the eontrary there is good ground for holding that of it $400 is the claim for extra excavation, allowed after the contractor had defaulted and the work was taken up for completion by his bondsmen, so that .on the vice-chancellor’s own construction of the assignment but' fifteen per cent, of this $400 could pass to Brogan. But apart from this wé are of opinion that he gave too broad an effect to the Maloney assignment. It does recite that fifteen per cent, of the “contract price” is retained; but in express terms it declares that said fifteen per cent, amounts to the sum of $5,082.90 and assigns the payment of that specific sum and nothing else. Earnon’s understanding of what he took is shown by his assignment to Brogan and his power of attorney to sue, not for fifteen per cent, whatever it may amount to, but for the sum of $5,082.90, or such part thereof as may be required to satisfy the judgment. Under such circumstances, to say that the assignment covered more than fifteen per cent, of tide lump price fixed by the contract is to give it an effect beyond its clearly expressed language and unwarranted by any reasonable construction thereof. At best it was ineffective to transfer to the assignee more than sufficient to meet the note, with interest and costs, and so rvas really an equitable assignment of part of a designated fund, and confined to that fund as rigidly as the order in McMurray v. Sisters of Charity, 68 N. J. Law (39 Vr.) 312, was confined to the eighth payment under the contract in that case; and the assignment in the case at bar having specifically designated the sum of $5,082.90, being fifteen per cent, of ,the contract price, as the fund from which the debt was payable, it does not affect the allowance of $400 for extras. ’

The case of Sullivan v. Visconti, 68 N. J. Law (39 Vr.) 543, is not opposed to this view. In that case an assignment by one of a firm of a contract described as being his, but shown to be that of his firm,_was upheld as against a subsequent assignment’ by the other partner in the name of the firm. But it clearly appeared that there was only one such contract and if the earlier assignment did not pass the contract rights there ivas nothing on which it could operate. But in this case there was just such a fund as precisely answered the description; and while ah assignment should be construed liberally as against the assignor, if its language is plain and definite there is no need for extending its effect by construction. 4 Oyc. 74-

The decree brought up should be reversed with directions to enter a decree awarding to complainants below, the sum of $100 of the fund. Appellants are entitled to costs in this court.

For affirmance — Hone.

For reversal — Ti-ie Chancellor, Chief-Justice, - Garrison, Swayze, Trenci-iard, Parker-, Bergen, Minturn, Kalisci-i, Bogert, Vredenburgh, Congdon, White, Treacy — 14.


author: BergejST, J.

text:
    Henry McGee, complainant-respondent, v. Mary J. McGee et al., defendants-appellants.
    [Submitted July 8th, 1912.
    Decided March 3d, 1913.]
    Where a husband procures -real estate to be conveyed to his wife, he paying the consideration, a presumption arises that he intended to settle the property on her, and while such presumption may be rebutted, the proof offered to accomplish it must be certain, definite, reliable and convincing, leaving no reasonable doubt of the intention of the parties.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 78 N. J. Fq. (8 Buch.) 480.

      Mr. H. Starr Biddings and Mr. William J. Kraft, for the a]3pellants.

      Messrs. Gaslcill & Gaslcill and Mr. James F. 'Campbell (of the Philadelphia bar), for the respondent.
   The opinion of tlie court was delivered by

BergejST, J.

The bill in this case was filed by complainant against his insane wife, and tlie prayer is that certain real estate held by the wife by virtue of duly executed conveyances be decreed to have been conveyed to .her in trust for the complainant, and that it be conveyed to him, or the convej^ances reformed by striking out her name as grantee and inserting that of complainant in its stead. The learned vice-chancellor determined that the land had been purchased with the money of the complainant given by him to his wife to hold' as trustee for him, and that while the title to the land was vested in his wife with the complainant’s knowledge and by his direction, it was upon a trust to hold it for him and that there was no intention on his part to make a gift to his wife.

Based upon these conclusions a decree granting the relief prayed for was advised, and it was adjudged that the wife held the land as trustee for complainant; that the deed to her be reformed by inserting complainant’s name as grantee in the place of the wife, and that complainant have the quiet possession of, and income from, the property, and this decree is challenged by this appeal.

A considerable portion of the testimony, as well as the arguments advanced in support of the decree relate to the question whether the money used to purchase the disputed property was earned by the complainant and turned over to his wife to be held by her as his money, subject to his disposition and control. But in applying the principles which we think must control the disposition of the case, it may be assumed that until the land was conveyed to the wife the funds remained subject to the control and under the dominion of the complainant, the wife being a mere depository.

It is not denied that the land was conveyed to the wife, with the husband’s consent and by his direction, by two deeds made by different grantors, and in his bill of complaint he admits that he procured it to be done, nor is there any proof of fraud or connivance on the part of the wife, and therefore an intention on the part of the husband to make a settlement on his wife would exist as a legal presumption from his conduct' in procuring the conveyances to be made to his wife, if nothing to the contrary appeared.

While it is true that lands purchased with the money of one, but conveyed to another, who is a stranger, are impressed with a trust in favor of the party who pays the consideration money, the rule is otherwise where, the conveyance is made to the wife, for in such case the presumption arising therefrom is that a settlement has been made on the wife. Duvale v. Duvale, 56 N. J. Eq. (11 Dick.) 375, 383, and cases there cited. In the present case, the vesting of the title in the wife having raised the presumption that complainant intended to confer' on his wife a gift or settlement, it becomes necessary to determine whether this presumption has been rebutted or overcome by proof of facts showing it was the intention of the parties to create a'trust in favor of the husband, as insisted by the complainant, arid none appearing in the deeds or by any other declaration in writing, the complainant is required to rest upon oral proof.

It is not disputed that the property involved was conveyed to the wife by separate deeds, one delivered in 1893, and the other ¿n 1894, or that, since 1895 until the present, the wife has been confined in a hospital for the insane, excepting about two months in 1896 when she was sent home to be delivered of a child.

The complainant sought to establish the alleged trust through admissions made by the wife between 1893 and 1895, and for this purpose called his daughter, Mary I. McGee, who testified that she had heard her mother say that the properties “were papa’s.” She testified to other admissions by her mother not giving the precise language, but her remembrance of the substance of what her. mother said.

Another witness, Mary F. Keariens, testified that she -heard Mrs. McGee, in speaking of these lots, say “that they.had got a property, and they had bought some lots,” and when asked why Mrs. McGee talked to her about the property, she said, “Well she was just so proud to think what a good husband she had that he made this money and bought her these properties.”

Another witness, John Small, testified that Mrs. McGee told him that she was buying property in Atlantic City and taking a deed “jointly, in her husband’s name and her own.” This he testified she told him seven or eight years before she was sent to the'insane asylum. As this happened about two years after the deeds were delivered, this witness could not have referred to the property in controversy, or his recollection was not accurate. It will be observed that none of these witnesses fix the time of these statements by Mrs. McGee with any certainty, and it is impossible to say when they were made with reference to the conveyances, and therefore the proof does not.meet the standard required to rebut the presumption of a gift or settlement in the case of a wife which “must be of facts antecedent to or contemporaneous with the* purchase, or else immediately afterwards, so as to be in fact, part of the same transaction” (Read v. Huff, 40 N. J. Eq. (13 Stew.) 229), and in this connection it must be borne in mind that the bill in this ease was filed in 1909, and these witnesses were testifying subsequently, to desultory conversations which happened at least fifteen years prior, and if accepted as true, are not sufficiently clear and cogent to overthrow the presumption of a settlement arising from the deeds which have, so fár as it appears, stood unchallenged for at least seventeen years.

The defendant also produced as a witness Mr. Bruckmann, the agent of the vendor of the property conveyed in 1893, and while he testified that when the first payment was made on account. of the purchase price by Mrs. McGee the receipt was made out to the husband, he also said that when the deed was to be prepared the complainant said, “You had better make that deed out in my wife’s name,” to which the wife assented. We find nothing in this act of the parties from which a resulting trust can be raised; on the contrary it is quite consistent with an intention to make a settlement on the wife. In support of the presumption, arising from the deeds, that a settlement was intended, and in addition to the fact that no contrary intention is expressed in the deeds and that no attempt was made by the complainant to have a trust in his favor declared during the two years that his wife was sane after the conveyances, or during the years that have since elapsed, a period altogether of about seventeen years, we have the circumstance that at the June term, 1909, of the court of common pleas of the county of Philadelphia, in the State of Pennsylvania, the grantor filed a petition, duly verified by his oath, praying that he be appointed committee of the person of his lunatic wife and of her property within tire jurisdiction of that court, in the place of West End Trust Company, which had acted as such committee from October 13th, 1902, and then desired to be relieved. This petition, among other matters, after setting out that his wife was seized of property in the city of • Philadelphia, assessed for $33,300, subject to mortgages amounting to $14,500, continued as follows: “Eourth — That the said lunatic, Mary J. McGee, is also seized of the following real estate situated at Atlantic City, State of New Jersey, and assessed in the aggregate of $18,500," and then follows a list of her real estate in which is included the property in dispute showing that in 1909 the complainant treated this property as belonging to his wife’s estate, of which he was seeking to'be appointed a committee in lunacy; and it further appears by complainant’s bill that since his wife was adjudged a lunatic in 1902, the property, and income therefrom, has been administered by a committee in lunacy as the estate of his wife, without any assertion or claim by him that he was entitled to it, and when, after seventeen years of acquiescence, he now undertakes to rebut the presumption arising from his conduct, the proofs should be convincing, and dispel all doubt.

The rule in this state is well settled that where a husband procures real estate to be conveyed to his wife, he paying the consideration, a presumption arises that he intends to settle the property on her, and while such presumption may be rebutted, the proof offered to accomplish it must be certain, definite, reliable and convincing, leaving no reasonable doubt of the intention of the parties. Midmer v. Midmer’s Executors, 26 N. J. Eq. (11 C. E. Gr.) 299; S. C., 27 N. J. Eq. (12 C. E. Gr.) 548; Lister v. Lister, 35 N. J. Eq. (8 Stew.) 49; Beck v. Beck, 78 N. J. Eq. (8 Buch.) 544; Read v. Huff, supra; Duvale v. Duvale, supra.

The legal presumption that settlement on his wife was intended by the husband, which arises from the conveyances to her, lias not been met by the proof made by the complainant in this canse; on the contrary it falls much below the measure required in such cases.

The decree below is reversed, with costs, and the record remanded to the court of chancery in order that the bill of complaint be dismissed.

For affirmance — None.

For reversal — The Chancellor, Chief-Justice, Garrison, Swayze, Trenoi-iard, Bergen, Minturn, Kalisci-i, Bogert, Vredenburgh, Congdon, White, Treacy — 13.


author: Ivalisch, J.

text:
    Carrie S. Beam, complainant-respondent, v. The Paterson Safe Deposit and Trust Company et al., defendants-appellants.
    [Submitted December 9th, 1912.
    Decided March 3d, 1913.]
    1. In a suit for an accounting against a testamentary trustee for the loss sustained by the complainant and her fellow cestui que trust, a bill alleging that securities which have come to the hands of the defendant trustees from the estate of their testator have steadily depreciated in value from the beginning of the trust until the shrinkage amounts to nine-tenths of that value, makes it a prima facie case of lack of good faith, or a failure to exercise reasonable discretion on the part of the trustees, and such a bill will not be stricken out.
    2. Such dealing with trust funds calls for an explanation by the trustees of their action in holding on to securities which were steadily, declining until they had shrunk to one-tenth of their value, at the time they became a part of the trust estate, such conduct being inconsistent with the exercise of reasonable care, good faith or reasonable discretion exercised by the ordinary prudent person.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson, whose opinion is reported ante p. 88.

      Messrs. Griggs & Harding, for the appellants.

      Mr. Pierre P. Gook¿ for the respondent.
   The opinion of the court was delivered by

Ivalisch, J.

The complainant’s bill sets forth that the defendant the Paterson Safe Deposit and Trust Company holds as trustee for the complainant and others certain bonds and stock under the provisions of a will by Sarah A. Cooke, deceased; that these securities were investments made by the testatrix in her lifetime and after her death in May, 1905, they passed to the defendant in trust as aforesaid.

The bill then alleges that these securities have with some little fluctuations steadily declined in market value from the date of the death of the testatrix down to the time of the filing of the bill; that the percentage of loss from this depreciation is very greát, certain of the bonds having lost over nine-tenths of their value, others having lost about three-fourths of their value, and that some of the stocks held in trust have lost nineteen-twentieths of their value, and that this loss has been a steadily increasing one during the whole period of the trusteeship. The bill then charges that the defendant corporation continued these investments of the testatrix, “negligently and not in the exercise of good faith and reasonable discretion,” and seeks to compel the defendant to account for the loss sustained by the complainant and her fellow cestui que trust by reason of the aforesaid depreciation.

The defendant corporation in the court below moved to strike out the bill upon the ground that “it does not make or state a case entitling the complainant to a decree and that the defendant corporation is not bound to answer the same.” The essence of the defendant’s claim is that the act of 1899 (P. L. 1S8& p. 236) authorized a trustee under the will of a testator “in the exercise of good faith and reasonable discretion” to continue investments made by a testator in his lifetime, without being accountable for any loss by reason of such continuance, and that in order to show cause against a trustee so acting the complainant is bound 'to' set forth facts which will justify a conclusion that the action of the trustee in continuing investments of his testator was not in good faith and in the exercise of a reasonable discretion.

The vice-chancellor in refusing the motion to strike out the bill based such refusal on the ground that the objection to the bill specified in the notice does not relate to the substance of the charge made by the complainant, but to. the form in which it is made — to a mere matter of pleading, and that the character of the charge is not indicated in the notice.

We prefer to dispose of the question raised on its merits.

The sole essential inquiry presented by the bill is: Does the fact that securities which have come to the hands of a trustee from the estate of his testator, which have steadily depreciated in value from the beginning of the trust until the shrinkage amounting to nine-tenths of that value, make it a prima facie case of lack of good faith or a failure to exercise reasonable discretion on the part of the trustees? We think it does. Such dealing with trust funds calls for an explanation by the trustees of their action in holding on to securities which were steadily declining until they had shrunk to one-tenth of'their value, at the time they became a. part of the trust estate. Such conduct is inconsistent with the exercise of reasonable care, good faith or reasonable discretion exercised by the ordinary prudent person. The bare recital of the facts in the bill bespeaks a lack of good faith and of a failure to exercise reasonable discretion on the part of the trustees.

The mere fact that there was a shrinkage in the securities would not have given rise to any inference of lack of good faith or of the failure to exercise a reasonable discretion on the part of the trustees; it is the extraordinary shrinkage of these securities, talcing place under the eyes of the trustees, not sudden in their decline, but gradual, until some of them had lost ninety per cent, of their value, still held by the trustees when they might have disposed of them to great advantage of the estate, which calls for an explanation.

The order of the court below will be affirmed.

For affirmance- — The Chief-Justice, Garrison, Swayze, Trencitard, Parker, Bergen, Minturn, Kalisoh, Bogekt, Vredenburgit, Treaoy — 11.

For reversal — None.


author: Kalisci-i, J.

text:
    Scharff Construction and Realty Company, complainant-respondent, v. Philip J. Bowers, defendant-appellant.
    [Submitted December 9th, 1912.
    Decided March 3d, 1913.]
    1. No legal or equitable right can be founded on an oral agreement made contemporaneously with the execution and delivery of a written agreement for the sale of lands and modifying it, there being no allegation of fraud or mistake in.the bill, which is one filed for specific performance.
    2. Undoubtedly a written agreement may be modified or altered by a parol agreement, if the parol is made subsequent to the written, but if they are made contemporaneously, the written must be taken in the absence of fraud or mistake, to be the sole repository of the intention of the parties, and the only competent evidence of their agreement.
    On appeal from an order of the chancellor overruling defendant’s demurrer.

      Mr. Egbert J. Tamblyn, for the appellant.

      Mr. Samuel Boessler, for the respondent.
   The opinion of the court was delivered by

Kalisci-i, J.

The appellant appeals from an order made by the chancellor overruling a demurrer filed by defendant to a hill filed by complainant for specific performance.

The bill recites that by a written agreement entered into between the complainant and defendant, May 24th, 1900, the latter agreed to convey to the former, for the sum of $10,500, a tract of land in the city of Newark fronting on Orange street; that it was expressly provided in the agreement that the land should be conveyed subject to certain restrictions contained in the agreement between one Hermann and Gould, recorded in Book of Deeds 15 for Essex county; that the consideration should be paid as follows: $150 on the execution and delivery of the agreement (which was paid), a further sum of $100 to be paid on the 24th of June, 1910; the complainant to accept a deed of conveyance subject to a mortgage of $5,000 and to give a purchase-money mortgage on the property for $4,500, and the balance of the purchase-money, $750, to be paid on the delivery of the deed. -The agreement contained the further stipulation that the complainant might enter into and take possession of the premises on the 1st day of August following, and that the deed should be delivered on that day.

The bill then alleges, that although by the terms of the written agreement it is provided that the title was to be closed and deed delivered on the 1st day of August, 1910, it was expressly understood and agreed orally between the parties that the time for the delivery of the deed should not be of the essence of such agreement in writing, and it was further agreed “at the time of the execution and delivery of said agreement in writing, by and between the parties thereto, to wit, on the 24th day of May, 1910,” that the defendant would postpone the closing of the title until such time as the complainant could procure a release of the restrictions referred to in the written agreement, or in the event of the failure of the complainant to procure such release, then until such time as it should notify the defendant of its inability to do so, in either of which events the complainant should immediately thereafter accept title to said lands and premises, &c.

In overruling the demurrer to the bill, the chancellor, in the opinion filed by him, states these grounds: “The bill alleges an agreement by the parties for the enlargement of the time for passing title to the premises in question, and besides the defendant seeking to put the complainant in default has not tendered performance to the complainant. For these reasons the demurrer should be overruled.”

It is obvious from the oral agreement set forth in the bill that it contains much more than a mere “enlargement of the time for passing title to the premises in question.” Viewed in any aspect it is a modification of the terms of the written agreement. Having been made contemporaneously with the execution and delivery of the written agreement and there being no allegation of fraud or mistake, no legal or equitable right can be founded thereon. The written agreement is the only competent evidence of the intention of the parties and their agreement. This rule of Law is elementary. French v. Griffin, 18 N. J. Eq. (3 C. E. Gr.) 280.

The rule is well expressed.by Vice-Chancellor Van Fleet in Parker v. Jameson, 32 N. J. Eq. (5 Stew.) 223, as follows: “Undoubtedly a written agreement may be modified or altered by a parol agreement, if the parol is made subsequent to the written, but if they are made contemporaneously, the written must be taken in the absence of fraud or mistake, to be the sole repository of the intention of the parties, and the only competent evidence of their agreement. Until a contract is reduced to writing and executed by the parties, it is always subject to such 'parol changes and modifications as the parties choose to make; but after it is put into writing and executed by the parties, the writing itself, in the absence of fraud or mistake, must be taken as conclusive evidence as to what were the ultimate intentions and purposes of the parties, and the only competent evidence of what they meant.”

The order of the chancellor overruling the demurrer will be reversed, with the direction to the court below that the bill be dismissed.

For affirmance — Hone.

For reversal — Ti-te Ci-itef-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, -Minturn, Kalisci-i, Bogert, Vredenburgi-i, Congdon, Treacy — 12.


author: Treacy, J.

text:
    William H. Drake, respondent, v. Lillian K. Mann, appellant.
    [Submitted December 7th, 1912.
    Decided March 3d, 1913.]
    The complainant, an elderly man, within six weeks after a paralytic stroke which disabled one side of his-body and affected his mind, executed an agreement promising to give defendant, an employe with whom he boarded, a certain amount in cash or a house in lieu thereof. — Held, under the evidence in the case that the defendant had not met the burden which was cast upon her of showing that the donor .understood the nature of the act, and that it was not done through the undue influence of the donee.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell.

      Mr. James Fisher and Mr. Joseph M. Roséberry, for the respondent. ,

      Mr. Frank E. Bradner, for the appellant.
   The opinion of the court was delivered by

Treacy, J.

The complainant has been for about twenty years in the business and manufacture and installation of steam and hot water heaters. His factory was in Hackettstown in this state and he had an office in* Newark. He appears to have looked after the office himself, leaving the factory in charge of his wife. The defendant was employed by him in 1893 as a stenographer and bookkeeper in the Newark office. She was then and is now residing with her mother in East Orange, and the complainant took up his residence with them practically as a member of the family at about the same time that defendant entered his employment and lived with them until some time after -the agreement, which is the cause of the controversy in this action, was executed. That agreement was made November.14th, 1908. It recites that the defendant was in complainant’s employ for more than thirteen years, during which time she rendered services for which she had not'been fully compensated, and in view of the illness of the complainant which would prevent his giving his attention to the business and require additional labor and responsibilitjq it is provided, first, that complainant shall pay defendant a sum of money in cash or convey to her certain property in Newark, the payment or the transfer to be made after the expiration of one year after the business carried on by the complainant shall be discontinued or one year after his decease; and second, that the defendant will remain in said employ so long as she is able to do so and shall receive the salary she was then receiving and an additional compensation consisting of a percentage of the profits, which percentage should be paid also at the expiration of one year after the discontinuance of the business or the death of the complainant. The bill attacks the agreement upon the "ground that at the time it was executed the complainant was incapacitated by disease from properly comprehending the nature of the transaction and that defendant taking advantage of his weak mental and physical condition procured his signature to it.

The complainant, a man between sixtj'-five and seventy years of age, had a stroke of apoplexy on October 6th, 1908, which affected his left side. He was taken to his boarding-house in East Orange, the house of defendant and her mother, and remained there till late in December following. His wife came from Hackettstown to take care of him and returned at the end of each week to that place, spending Saturdays in Hackettstown at the factory. On November 14th, 1908, the agreement in question was executed. It was on a Saturday, and the wife of the complainant in accordance with her custom had gone to Hackettstown, leaving the complainant in the charge of defendant and her mother, father and another relative of defendant. The defendant had been paid her salary regularly while in the employ of the complainant, beginning with $13 a week and increasing from time to time until it was $20 a week at the time, of the execution of the agreement. She used to go to lunch almost daily with the defendant and had been in New York and Boston with him. The attorney who drew the agreement, a reputable lawyer, testifies that the defendant saw him a day or two before it was signed and gave him the substance of it, telephoned him when to come to have it signed by the. complainant and paid him for his services. A doctor who had known complainant twenty years and saw him about the time that he was removed from the house of defendant and her mother about two and a half months alter the stroke, and talked with him frequently, and who attended him for several months before the commencement of the action, says he was totally paralyzed on the left side. He noticed a great change in his mental condition and that his talk was of a silly nature. He says the complainant had a complete hemiplegia and laughs and cries over the slightest thing although he was a man of stern and taciturn manner before his illness. He does not consider him competent to do business. This testimony, so far as it bears on the nature of the illness and incapacity of complainant to transact business, is fortified by that of another physician called on behalf of complainant. The superintendent of the factory at Hackettstown went to Newark to see him about two or three weeks after the stroke, and again seven or eight weeks afterwards and says his mind wandered when he tried to talk with him on business matters. Although the physician called on behalf of defendant testified on direct examination that he did not think the complainant’s mind was affected by the stroke, he said on cross-examination that such a stroke as' the complainant had would necessarily affect the brain to a certain extent.

The learned -vice-chancellor determined among other things that upon the facts recited the burden of proof was shifted to the defendant and that she did not meet that burden. We agree with him. We think the complainant’s mind was enfeebled by the paralytic stroke and he was so placed as to be likely to be subjected to the influence of the defendant. , The familiarity of the relationship that existed between complainant and defendant, his serious illness, which necessarily affected his brain, and his residing at the home of defendant and her mother where the surrounding influences were favorable to the making of the agreement, gave to defendant a dominant position as between herself and complainant. She failed to support the burden that was cast upon her by reason of the relationship thus shown to exist. Baur v. Cron, 71 N. J. Eq. (1 Buch.) 743. In Haydock v. Haydock, 34 N. J. Eq. (7 Stew.) 570, this court, Mr. Justice Reed delivering'the opinion, says (at p. 57It) : “I take the rule to be settled that where a person enfeebled in mind by disease or old age, is so placed as to be likely to be subjected to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the donee.” The context shows that the “influence” spoken of is “undue” influence, i. e., the substitution of the dominant will for that of the ostensible actor.

Wo think, therefore, that the decision of this case is governed by the rule stated in the Haydock Case, and that the decree below was right.

The decree is affirmed.

For affirmance — Ti-ie Chief-Justice, Garrisok, Swayze, Trehci-iard, Parker, Bergeh, Miftturh, Ivalisoit, Bogert, Vredenburgi-t, Congdon, Treacy — 12.

For reversal — None.