author: Dixon, J.

text:
    In the matter of the estate of Charles Myers, deceased. Joseph Hamscher et al., appellants, v. Charles G. Myers, respondent.
    [Argued March 29th, 1905.
    Decided June 18th, 1906.]
    When caveats are filed against the probate of a will service of citations upon the caveators and upon those propounding the will for probate vests in the orphans court of the proper county complete jurisdiction over the question of probate.
    On appeal from a decree of the prerogative court. The opinion of Magie, Ordinary, is reported in 67 N. J. Fq.:6<6'0.

      Mr. Matthew Jefferson and Mr. John W. Wescott; for the appellants.

      Mr. William T. Boyle, Mr. Howard Garroiv and Mr. B. 0. Moon (of the Philadelphia bar), for the respondents:
   The court, having conferred upon this case and reached a conclusion therein, requested Mr.’ Justice Dixon to prepare an opinion. The following was prepared and copies distributed by him among the members of the court shortly before his'death. It has been approved and adopted as the opinion of the court:

Dixon, J.

On January 5th, 1897, Charles Myers, a resident of Cape May county, died in that county, leaving an instrument purporting to he his last will, in which his son J ames was named as one of the executors. On February 3d, 1897, Mary F. De Roche, a daughter of the deceased, filed with the surrogate of the county a caveat against the probate of any paper purporting to be the will of her father. On April 14th, 1897, James applied to the surrogate for probate of the instrument, and thereupon the surrogate issued citations to certain relatives of the testator, among them the caveator and the executor, to appear before the orphans court on June 8th, 1897. In pursuance of these citations the question of probate was tried in the orphans court, and on July 3d, 1897, a decree was made adjudging the instrument to be the last will of Charles Myers and admitting it to probate. Under this decree James qualified as executor and administered the estate, and his final account was settled and allowed by the court on September 20th, 1898.

On January 19th, 1903, Joseph ílamscher, a grandson of the testator, residing in Pennsylvania, presented to the orphans court a petition stating that no citation had been issued to him or to several other grandchildren also residing in Pennsylvania; that until recently they had been ignorant of the proceedings; that the alleged will was not properly executed; that Mary F. De Roche had been fraudulently induced to withdraw her caveat pending the hearing in the orphans court, and praying that the decree of probate might be vacated and the caveat reinstated in order that the parties in interest might he heard against the will. Subsequently the other grandchildren named were made parties to the petition, and on September 23d, 1903, the court made an order vacating the decree of probate and reinstating the caveat. On appeal by the executor to the prerogative court that order was reversed, and the petitioners now appeal to this court against such reversal.

A fundamental question arising on this appeal is whether the orphans court had power in 1903 to vacate its decree made in 1897 for the reasons set forth in the petition, namely, the frauduient inducement of Mrs. De Eocheto withdraw her caveat and the supposed lack of complete jurisdiction because of the failure to cite all of the next of kin.

Although the orphans court is one of general jurisdiction within certain departments of the law (Den v. Hammel, 18 N. J. Law (3 Harr.) 73; Clark v. Costello, 59 N. J. Law (30 Vr.) 234, still it is the creature of statute, and its authority must be found in some express enactment of «the. legislature or in necessary implication therefrom. Murray v. Lynch, 64 N. J. Eq. (19 Dick.) 290, 300; affirmed on appeal, 65 N. J. Eq. (20 Dick.) 399.

An act passed December 16th, 1784 (Pal. L. p. 59), established an orphans court in each county of the state and invested it (section YII.) with full power and authority to hear and determine “all disputes and controversies whatsoever respecting the existence of wills,” and provided (section XY.) that in

“all cases whatsoever where doubts arise on the face of a will, or a caveat is put in against proving a will, and wherever disputes happen respecting the existence of a will, the surrogate shall issue citations to all persons concerned to appear at the next orphans court to be held in and for the county (which citations shall be served at least ten days before the sitting of the court), where the cause shall be heard in a summary way and determined by the judges of the said court, subject to an appeal to the prerogative court if demanded by any of the parties within one month next after the decree of the orphans court.”

With some changes in arrangement and phraseology, these provisions still exist. Elm. Dig. 360 §§ 6, 21; 2 Gen. Stat. p. 2356 §§ 2, 14, 176; P. L. 1898 p. 715 §§ 2, 13, 204.

The foregoing statement makes it plain that the withdrawal of the caveat pending the hearing in the .orphans court could have no effect whatever upon the legality of the proceedings. Slocum v. Grandin, 38 N. J. Eq. (11 Stew.) 485; affirmed on appeal, 40 N. J. Eq. (13 Stew.) 342. The function of the caveat was ended when it had raised a controversy, and the jurisdiction over the subject-matter of that controversy attached at once. Young’s Case, 67 N. J. Eq. 553, 557. To complete the jurisdiction of the court, jurisdiction over the necessary parties was the only other requisite, and this was to be obtained by the service of citations issued by the surrogate to “all persons concerned.”

This expression, “all persons concerned,” has relation to each of the three conditions upon which the jurisdiction of the court is declared to depend, namely, (1) when doubts arise on the face of a will; (2) when a caveat is put in against proving a will; (3) when disputes happen respecting the existence of .a will.

The meaning of the first clause, “when doubts arise on the face of a will,” is somewhat obscure, and I am not aware of any case in our courts which has required its interpretation. The clause may have related to erasures or interlineations, formerly deemed of more consequence than theyr arc now; to doubts whether the proposed instrument is of testamentary character, and to apparent attempts at cancellation. But whatever its scope, the import of the words “all persons concerned,” with regard to that class of cases, may be left for determination when a case is presented.

The other clauses are more definite, and each indicates a controversy in which the parties are readily ascertainable. In the first of these two clauses the caveators on the one side and the persons seeking the probate of a will on the other are indicated; in the second the disputants, whoever they may be, alleging on the one side and denying on the other the existence of a will affecting their rights.

In connection with these clauses there are two possible constructions of the expression “all persons concerned.” One is that it includes all persons having an interest in the admission of a will to probate; the other, that it applies only to the parties raising the controversy.

In seeking the proper interpretation, it must be borne in mind that the probate of a will is, in New Jersey, conclusive only respecting the title to personal property, and that no one has any right to the personalty of a decedent except such as the laws of the state allow.

Consequently the question whether such personalty shall pass under an alleged will or under the statute of distributions is to be determined by reference to the laws of the state alone, and a determination made in conformity with those laws, even if made without such notice to individuals interested in the question as would be necessary to bar ordinary rights of property, is conclusive. We are therefore not compelled to give the broadest effect to these words, “all persons concerned,” in order to maintain the validity of the decrees rendered by the orphans court but we may be guided by the practicability of the situation.

The persons interested in the admission of an alleged will to probate are the decedent’s widow and next of kin under the statute providing for distribution of intestate estates and those who are indicated as legatees in the will. The officer on whom the statute places the duty of citing “all persons concerned” is the surrogate, who need not be, and usually is not, learned in the .law.

Ts it practicable for this officer to discharge the duty imposed upon him if by “all persons concerned,” all persons ■ interested in the question of probate—that is, the next of kin and legatees —are intended?

When the next of kin are remote relatives of the deceased, their ascertainment often involves doubtful questions of fact and debatable questions of law. Similarly the ascertainment of legatees is frequently dependent on the application of indefinite descriptions of persons and on the construction of obscure and contingent bequests. In disputes regarding the existence of a will said to have been lost or destroyed, the contents of the supposed writing must be proved before the questions of construction and application can be even reached. Our statute suggests no mode by which these problems can be solved before the issue of citations, and it does not seem reasonable to hold that their correct- solution was intended by the legislature to be a sine qua non to the complete jurisdiction of the orphans court over the question whether a proposed will should be admitted to probate. In Young’s Case, 67 N. J. Eq. 553, the learned ordinary expressed the opinion that the persons concerned included the beneficiaries under the will and the next of kin and heirs-at-law of the deceased. But the interpretation of those statutory words for the purpose of deciding what was necessary to complete the jurisdiction of the orphans court'was not then involved. The case was an. appeal from a decree of the orphans court admitting a will to probate, and the questions for decision were whether the decree was reversible for irregularity when the rule ■of court requiring notice to the heirs and next of kin of the decedent and to the beneficiaries under the will had not been complied with, and whether one of the next of kin, who had not filed a caveat and who had not appeared or been cited by the ■orphans court, was, in the language of section 204 of the Orphans Court act of 1898, “a person aggrieved by the decree.” An affirmative answer to both questions was given. But when the learned ordinary adjudged that the appellant was aggrieved by the decree, he must have considered and did in fact determine (at p. 559) that the orphans court had jurisdiction to. establish or divest the-appellant’s claim to the decedent’s property. That conclusion being reached, it was non-compliance with the rule which led to the reversal of the decree. But there is a marked difference between irregularity which may warrant the reversal of a decree on appeal, or even the opening-of a decree during the term at which it was rendered, and a lack of jurisdiction over subject-matter or over particular persons, which vitiates the decree wholly or partly, always and everywhere.

The other construction, which limits the persons concerned to the parties raising the controversy, is entirely practicable. It is also more in accordance with the language and spirit of the act. The words of the statute confer on the court jurisdiction over disputes and controversies. If no dispute or controversy exists when the will is presented to the surrogate for probate, then, without notice to anyone, probate is granted, and whether granted by the ordinary, as seems to be required by the act of 1784, or by the surrogate, as has been permitted since the act of 1820, the probate is conclusive and final, subject only to the right of appeal. Ryno’s Executor v. Ryno’s Administrator, 27 N. J. Eq. (12 C. E. Gr.) 522. But when a caveat is filed and a will is presented, or when a dispute happens respecting the existence of a will, then the matter goes to the orphans court to be considered under its power and authority to hear and determine all such disputes and controversies.

The citation of the parties to those disputes and controversies affords reasonable protection to all interests. A caveat may be filed by any person who would be injured by the probate of a will, and its function is to prevent probate without the caveator’s having an opportunity, to be heard. In re Coursen's Will, 4 N. J. Eq. (3 Gr. Ch.) 408. But it concerns the caveator alone to this extent, that it may be withdrawn at his pleasure before thó jurisdiction of the orphans court has attached. Thurston v. Gough, 42 N. J. Eq. (15 Stew.) 346. So, any person to be benefited by the probate of a will may present it or require it to be presented for probate. 2 Redf. Wills 5. Thus, anyone interested in promoting or preventing the probate of a supposed will is entitled to make himself a party to the proceedings having such an end in view, and our statute secures an opportunity for such intervention by requiring ten days to elapse between the death of a testator and the probate of his will. When the legislature provided for thus converting “non-contentious business” before the surrogate, whose final action would be conclusive on all persons interested in the deceased’s estate, into, “contentious business” before the orphans court, which is to hear and determine all disputes and controversies, but without any greater conclxisiveness attaching to its final decree, it is reasonable to suppose that, by the provision for notice to all persons concerned, onl\r those persons who had made themselves parties to the contention were intended.

Our conclusion is that when caveats are filed against the probate of a will, the service of citations upon the caveators and upon those propounding the will for probate vests in the orphans court of the proper county complete jurisdiction over the question of probate.

The decree of the prerogative court reversing the order of the orphans court for the vacation of its decree of July 3d, 1897, is affirmed.

For affirmance—Ti-ie Ci-iiee-Justice, Garrison, Garretson, Pitnet, Swaxze, Bogert, Yredenburgii, Yroom, Green—9.

For reversal—None.


source: Caselaw Access Project

license: Public Domain

text:
    William H. Bogart, appellant, v. Mary G. Stevens et al., respondents.
    [Submitted July 8th, 1905.
    Decided March 5th, 1906.]
    A mortgage delivered to A without consideration, but in order that A may raise money thereon for the mortgagor, becomes valid in the hands of A’s assignee for the money paid therefor by the latter, although A fails to pay over the money to the mortgagor.
    On appeal from a decree of the court of chancery.

      Mr. Samuel W. Beldon, for the complainant.

      Mr. William J. Miller and Mr. Hiram 0. Hanoe, for the defendants.
   The opinion of the court was delivered by

Dixon, J.

The object of the bill in this case is to foreclose a mortgage dated October 31st, 1902, given by Mary G. Stevens and Will A. Stevens, her husband, to Jesse Price and his wife, purporting to convey real estate belonging to Mrs. Stevens, in order to secure a bond of the same date made by Mr. and Mrs. Stevens, conditioned for the payment of $3,000, to Mr. and Mrs. Price, on October 31st, 1903. On October 27th, 1903, the bond and mortgage were duly assigned by Mr. and Mrs. Price to the complainant.

The defence interposed is that the bond and mortgage were given for the purpose of raising $3,000 in cash, which was to be paid to Mrs. Stevens, and which she was then to loan to the president of the Snow-Church Surety Company on his giving to her ample security for repayment, and that she hud never received any part of the sum mentioned.

The learned vice-chancellor to whom the cause was presented in the court below accepted this defence as substantially proved, but he also found that, in an arrangement made January 15th, 1903, Mrs. Stevens had ratified the mortgage as security for an advance of $800 made to the Snow-Church Surety Company on the strength of the mortgage, and thus it had become enforceable against her estate for that sum. Then, applying the doctrine that the assignee of a mortgage holds it subject to the defences that could be made against the assignor, he advised a decree in favor of the complainant for $800 only.

From this decree the complainant appeals. In thus limiting the claim of the complainant the learned vice-chancellor overlooked, we think, the due effect of two important facts.

As before stated, the nominal mortgagees were Mr.-and Mrs. Price. The defendants, in their answer to the bill, allege that the bond and mortgage were delivered to Mr. and Mrs. Price by Mr. Stevens upon the promise that Mr. Price would obtain the sum mentioned in those instruments and turn it over'to Mr. Stevens in cash, and Mrs. Stevens, while testifying as a witness in the cause, on being asked why the names of Mr. and Mrs. Price were used, replied that she did not know as to Mrs. Price, but that Mr. Price was thus included because he was to obtain the money for her. Hence it is evident that Mr. Price was authorized by both Mr. and Mrs. Stevens to assign the bond and mortgage for cash.

On receiving the assignment the complainant paid to Mr. Price $3,000 'in cash, and thus the latter carried out the very purpose for which the instruments had been executed in the form adopted. Consequently, even if we assume that the mortgage, before assignment to the complainant, was invalid as a security or was valid for $800 only, it became valid on such assignment for the full amount then paid by him. As was said by this court in Sweeney v. Williams, 36 N. J. Eq. (9 Stew.) 627, 631: “Although the contract, as between the parties, was wholly without consideration, yet, if made for assignment and if assigned for a consideration, the latter became the consideration of the original contract.”

The obligation of Mr. Price, if any existed, to account to Mr. and Mrs. Stevens for the money received, was a matter in which the complainant had no concern. They had clothed Mr. Price with the semblance of absolute ownership of the mortgage and had given him authority as owner to assign it for cash, and consequently a payment made to him by an assignee, who was unaware of the duties of the agent, had the same force as if the payment had been made to the principals. Story Ag. chap. 16 §§ 429, 430.

The decree appealed from should be reversed, and a decree entered in accordance with this opinion..

For affirmance—None.

For reversal—The Ci-iiee-Justice, Dixon, Garrison, Port, Garretson, Pitney, Swayze, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill—13.


author: PlTjSTEY, J.

text:
    In the matter of the account of Margaret Doland, guardian of Margaret Cahill, et al. Margaret Doland, guardian, appellant, v. Michael Cahill, respondent.
    [Argued June 27th, 1905.
    Decided March 5th, 1906.]
    1. An order of an orphans court (made after hearing upon an order to show cause) reciting that it appeared that a guardian had not paid over certain moneys to the party entitled, as directed by a previous order of the court, and that the guardian had willfully contemned the authority of the court, and thereupon ordering that the guardian be attached for contempt of court, and that an attachment do issue forthwith, &c.—Held,
      in view of the practice of the court, not to be a definitive adjudication upon the question of contempt, but an interlocutory order, based upon the apparent guilt of the guardian, and directing- an attachment to issue for the purpose of bringing her before the court to answer therefor.
    2. An appeal from the orphans court to the prerogative court being allowed by statute only to a “person aggrieved” (P. L. 1898 p. 198 § 204) —Held, that by an order for the issuance of process of attachment, to bring in the party to answer for an alleged contempt, the party accused is not aggrieved so as to be entitled to an appeal, following GoryeTl v. Holcombe, 9 N. J. Eq. (1 Stooh.) 650.

    On appeal of Margaret Doland from a decree of the prerogative court. The opinion of Magie, Ordinary, is reported ante p. 4-66.

      Mr. Willard P. Yoorhees, for the appellant.

      Mr. Freeman Woodbridge and Mr. Henry B. Cook, for the respondent.
   The opinion of the court was delivered by

PlTjSTEY, J.

Upon an accounting made before the Middlesex orphans court by Margaret Doland, as guardian of certain infants who were deceased, she was ordered to pay over to Michael Cahill, one of the heirs-at-law of the infants, the sum of $714:53. The guardian having, with notice of this decree, failed to pay over the money, the orphans court, on June 14th, 1904, upon petition of Michael Cahill, verified by affidavits, made an order requiring her to show cause, on July 5th, 1904, why she should not be attached for contempt of court. This order having been duly and personally served upon her, and the hearing upon it having been continued from time to time until September- 21st, 1904, the orphans court on that, day read and considered the petition of Cahill and the affidavits presented therewith, took the depositions of witnesses and considered the same in the presence of counsel; and thereupon made an order, dated the day last mentioned, shortly reciting the above matters, and proceeding as follows:

“And it appearing that .the said Margaret Doland, general guardian of Mary and Margaret Cahill, infants, deceased, has not paid over to the said Michael Cahill the money in her hands as such general guardian, as directed by the order of this court, bearing date August 24th, 1903, or any part thereof, although she has been duly served with copies of the said order and account, and that she has willfully contemned the authority of this court: It is’ hereby, on this 21st day of September, 1904, ordered that the said Margaret .Doland be attached for contempt of court in willfully refusing to obey the orders of this court in the premises, an<J that an attachment do issue forthwith against the said Margaret Doland.”

Prom this order the guardian appealed to the prerogative court. That court dismissed her appeal on the ground that the order was not the subject of appeal, it not being an order by which she was aggrieved. Prom the action of the prerogative court in dismissing her appeal the:present appeal is taken.

The learned ordinary was clearly correct in holding that the order of September' 21st, 1904, was not the subject-matter of an appeal under the act of April 17th, 1884. P. L. 1884 p. 219; 2 Gen. Stat. p. 2600. That act provides for a review by the supreme court of summary convictions for contempt by any court inferior in its jurisdiction to the supreme court, except the orphans court.

.The appeal to the prerogative court was therefore based upon section 204 of the Orphans Court act (P. L. 1898 p. 793), which gives a right of appeal to “any person aggrieved.”

The ordinary held that the order in question was not a conviction or judgment for contempt, but only-an order for the issuance of the process of attachment to bring in the accused to answer, fo.r the alleged contempt—an interlocutory order not concluding the party upon the 'merits—and that the guardian was not aggrieved thereby so as'to'be entitled to an appeal, citing as authority the decision of this court in Coryell v. Holcombe, 9 N. J. Eq. (1 Stock.) 650.

It is insisted by the learned counsel of the appellant that the ordinary misconstrued the 'order of' September 21st, 1904; that according to the proper interpretation the orphans court thereby adjudged the guardian to be. guilty of contempt, and ordered that, she be attached for the contempt of which she was thus convicted. The fact that the order was made after the previous allowance of an order to show cause, and after the taking of depositions in the court, is relied upon as tending to sustain this interpretation.

This circumstance is entitled to some weight, but, in our view, is not conclusive. The- considerations which convince us that the interpretation adopted by the learned ordinary is correct are the following:

1. A definitive adjudication upon the question of contempt was not within the contemplation of the order to show cause. That order did not require the guardian to show cause why she should not be adjudged guilty of contempt, but “why she should not be attached for contempt of court.” This plainly required her merely to show cause for the non-issuance of an attachment, and she had a right to suppose that if the rule were made absolute it would result merely in the issuance of an attachment, .after which she would have a .further day in court before being found guilty. The order of September 21st, 1904, is quite in line with this, if interpreted as the ordinary interpreted it.

2. The order of September 21st does not in terms adjudge the guardian to be guilty of contempt; it only declares that upon the petition, affidavits and depositions it appears that she' has been thus guilty-—that apparently she has willfully contemned the authority of the court.

3. If it had been the intent of the order of September 21st to definitively adjudge her in contempt, the court would probably have proceeded at the same time to impose a penalty, such as the commitment of the guardian into custody until she had .paid over to Michael Cahill the moneys due to him, and had paid a fine in vindication of the dignity of the court, or the •like. But the order commands only that she be “attached for contempt,” and that an attachment do forthwith issue against her. "An attachment is merely process requiring one to be arrested and produced before the court, and does not of itself import that when produced the party is to be punished. On the contrarj', it is usually mesne process, not final.

■ 4. But, still further, the order in question must be construed in the light of the ordinary practice of the court in such cases; and in view of that practice it should be held, we think, not as a definitive adjudication, but as án interlocutory order, and this in spite of the fact that it was made after hearing upon a previous order to show cause.

From an early day the practice in contempt proceedings 'has varied, according to the circumstances of different cases. Thus Mr. Justice Blacks tone says (referring, however, more particularly to cases where only the dignity of the court is involved, and not to those where rights of the opposite parties are concerned) :

“If the contempt be committed in the face of the court the offender may be instantly apprehended and imprisoned, at the discretion of the judges, without any further proof or examination. But in matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him, or in very flagrant instances of contempt the attachment issues in the first instance, as it also does if no sufficient cause be shown to discharge, and thereupon- the court confirms and makes absolute the original rule. This process of attachment is merely intended to bring the party into court, and when there he must either stand committed or put in bail, in order to answer upon oath to such interrogatories as shall be administered to him for the better information of the court with respect to the circumstances of the contempt. These interrogatories are in the nature of a charge or accusation, and must, by the course of the court, be exhibited within the first four days; and if any of the interrogatories is improper the defendant may refuse to answer it, and move the court to have it struck out.” 4 Bl. Com. 286, 287.

In -tliis extract reference is made, as will be observed, to the practice of issuing an attachment upon making absolute the rule to show cause, the same practice that was adopted' in the present instance. A notable instance of this practice is Rex v. Beardmore, 2 Burr. 792 (1759).

So in the Cheeseman Case, 49 N. J. Law (20 Vr.) 115, 142, Mr. Justice Dixon said, speaking for the supreme court: “No doubt the- ordinary course of practice in such cases in courts of law is that an affidavit of the facts should first be presented; then that- a rule should be entered requiring the alleged offender to show cause why he should not be attached for contempt; then, if good cause be not shown, that an attachment should issue, and the accused, on being brought in, should be either held to bail or committed to answer interrogatories; then, that interrogatories should be exhibited and. answered; and thereupon, according as his answers confess or deny his guilt, he should be punished or discharged. But the practice has not been uniform. Sometinies a rule to show cause has been allowed without an affidavit, on a mere suggestion; sometimes an attachment has issued without a rule to show cause; sometimes punishment has been indicted forthwith on the offender’s confession when brought in by the writ, without interrogatories, and sometimes, as in McQuade v. Emmons, 38 N. J. Law (9 Vr.) 397, the penalty has been imposed on the offender’s admissions made under the original rule, without either writ or interrogatories.”

Kor need we go to the extent of declaring that the alleged contemnor has the right to exculpate himself by his answers to the interrogatories, so that an adjudication of guilt made without the exhibition of interrogatories or contraiy to his responses thereto, would be beyond the jurisdiction of the court, as intimated, arguendo, in the opinion last cited. The cases referred to by Mr. Justice Blackstone upon'this head are authorities to the effect that the courts of law in ordinary cases would not, rather than that they could not lawfully, fine or imprison for contempt of court, without according to the accused the opportunity of exculpating himself by making response to interrogatories. It is true he does plainly say (4 Bl. Com. 288) that the method of examining the delinquent himself upon oath, with regard to tire contempt alleged, has, by long and immemorial usage, become_the law of the land. But the cases he refers to hardly bear him out in declaring this to be the invariable practice, nor warrant the conclusion that the courts of law have no power to punish for contempt contrary to the sworn denial of the accused on the return of the attachment.

Moreover, as Blackstone himself observes (4 Bl. Com. 288) in the court of chancery the answers of the alleged contemnor were subject to be contradicted. Even in the courts of law it is not clear that in proceedings having for their object the enforcement of the rights of a litigant (as the performance of an award, or the like), the party in contempt could ever gain his discharge by a mere denial under oath.

Whatever may be the correct view of these matters, it is certain that the practice of submitting interrogatories upon the return of an attachment for contempt has obtained in our courts, both of law and equity, from an early period. In Coryell v. Holcombe, 9 N. J. Eq. (1 Stock.) 650 (at p. 653), it appears that interrogatories were exhibited. In Magennis v. Parkhurst, 4 N. J. Eq. (3 Gr. Ch.) 433, and in Jewett v. Dringer, 27 N. J. Eq. (12 C. E. Gr.) 271, the same practice was pursued. So, in the supreme court, in State v. Fisler, 6 N. J. Law (1 Halst.) 305, 371. In the court of chancery the practice is regulated by rules Nos. 133 and 134, promulgated September 8th, 1817, and rules Nos. 135, 136 and 137, promulgated May 21st, 1822. These rules provide that upon the return of an attachment for contempt with the defendant in custody, or upon his appearance on the. return day pursuant to his bond given at the time of arrest, the opposite party shall exhibit interrogatories and enter a rule for the defendant’s examination before a master. And, by statute, the practice in the orphans court with respect to attachment for enforcing performance of orders requiring the payment of- money is made conformable to the practice in chancery. P. L. 1898 p. 785 § 184.

Upon the whole, therefore, we hold that the order of September 21st, 1904, had not the effect of determining the question of the appellant’s guilt, but only of determining that she was apparently guilty, and that for this reason an attachment should be issued against her, upon the return of which, according to the ordinary practice of the court, she would have a further hearing upon the question of her guilt. This being so, it follows, upon the authority of Coryell v. Holcombe, 9 N. J. Eq. (1 Stock.) 650, that she was not in a legal sense aggrieved by the order, and not entitled to appeal therefrom to the prerogative court.

The dismissal of her appeal was therefore proper, and the order of dismissal should be affirmed, but without costs.

For affirmance—The Chief-Justice, Dixon, Garrison, Eort, Garbetson, Pitney, Swayze, Bogert, Vroom, Green, Gray—11.

For reversal—None.


author: Swayze, J.

text:
    Thomas Cogan v. Conover Manufacturing Company. Greenville Banking and Trust Company, appellant, v. Frank P. McDermott, receiver, respondent.
    [Argued June 26th, 1905.
    Decided July 11th, 1906.]
    1. An assignment of an account not yet due, if absolute in form, is not to be construed as a mere covenant to pay out of the fund because the assignor therein agrees to act as agent of the assignee in collecting the money.
    2. A corporation assigned as collateral security for a debt the first payment on an executory contract for two condensers to be made by it; one condenser was substantially completed and actually delivered to the vendee prior to the appointment of a receiver of the vendor corporation, and the price was subsequently paid to the receiver.—Held, that the assignee was entitled to the fund to the extent of the price of the condenser actually delivered as far as needed to pay the debt secured.
    3. As between an assignee of a fund under an equitable assignment and the receiver of the assignor,' an insolvent corporation, notice of the assignment to the debtor or holder of the fund is not necessary to perfect the title of the assignee.

      On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported ante p. 858.

      Messrs. Collins & Corbin, for the appellant.

      Mr. J. Merritt Lane, for the respondent.
   The opinion of the court was delivered by

Swayze, J.

The Greenville Banking and Trust Company claims a right to have certain debts due it from the Conover Manufacturing Company paid in full by the receiver out of moneys in his hands, upon which it claims a lien by reason of assignments from the insolvent corporation. This claim was rejected by the receiver, and his decision was affirmed by the vice-chancellor.

The determination of the case depends upon the construction of two documents signed by the Conover company, which read as follows:

“January 5th, 1904.
“In accordance with a resolution passed by the board of directors at a meeting held this date:
“We hereby assign to the Greenville Banking and Trust Company as collateral security the sum of thirty-seven hundred and eighty ($3,780) dollars out of an order from the Public Service Corporation of New Jersey.
“We agree to act as agent of said Greenville Banking and Trust Company in collecting this money, and- agree to turn it over to them immediately on receipt of same in such sums as it may be received.
“This $3,780 is the balance remaining of our final payment of $6,300, after deducting $2,520 which has already been assigned to said Green-ville Banking and Trust Company.”
“Jersey City, N. J., April 26th, 1904.
“We hereby assign and transfer to the Greenville Banking and Trust Company the first payment of eighty-two hundred' and fifty ($8,250) on contract with the Public Service Corporation of New Jersey, amounting to sixteen thousand five hundred ($16,500), and we authorize the Public Service Corporation of New Jersey to make above payment, when due, direct to the Greenville Banking and Trust Company.”

It is not questioned that the execution of these papers was duly authorized by the board of directors- of the Conover company.

The questions which arise under the two papers are somewhat different, and I deal with them separately, in the order of their daTes.

Prior to January 5th, 1904, the company had contracts with the Public Service Corporation amounting to $25,200, and had assigned to the trust company as security $10,000 of the amount. On January 5th, 1904, $18,900 of the total had been paid by the Public Service Corporation, of which the trust company had received its due proportion, $7,500. There was still due or to grow due from the Public Service Corporation $6,300, of which the trust company’s proportion was $2,500. The intent of the paper of January 5th was to cover the balance of the money to grow due, as clearly appears from the recital in the last paragraph. There was an error in assuming that $2,520 was payable to the trust company under the earlier .assignment. The real amount was only $2,500, and the actual balance remaining of the final payment was $3,800, instead of $3,780, but the .intent is so clear that we think the paper is to be'construed as including the whole balance.

The first objection made to the claim of the trust company is that the paper does not amount to an assignment, but is a mere covenant to pay out of the proceeds of the contract with the Public Service Corporation. We do not question the distinction between the rights acquired under a mere covenant to pay and under an assignment. In our judgment the paper now in question amounts to an assignment. There is an “actual appropriation which confers a present right on the assignee, although the circumstances may not admit of its immediate exercise.” 2 Lead. Cas. Eq. 1644. The language of the paper is that of an absolute assignment, and the fact that the Conover company also agrees to act as agent in collecting the money does not militate against the plain construction of the preceding paragraph. The Conover company does not thereby retain authority over the fund. Whatever it may do is to be done not in its own right, but as agent, and the very fact that it agrees to act as agent precludes the construction that the fund is to remain its own, or subject to its control except as agent.

The fact that the money was not yet due affords no argument against our construction. Such is the ordinary case of an equitable assignment. The very fact that the money is not due so that the assignment is not effective in a court of law is sometimes relied on to give jurisdiction to the court of equity. Bower v. Hadden Blue Stone Co., 30 N. J. Eq. (3 Stew.) 171; affirmed by this court on the vice-chancellor’s opinion, 30 N. J. Eq. (3 Stew.) 340.

It is argued that the only effect of the assignment was to secure a loan of $3,780, made two days after its date, and that as that loan was afterward paid, the right of the trust company to the amount assigned was at an end. We do not so read the assignment. The language is general and the debt secured is not specified. The new loan probably was the inducement to the Conover company to make the assignment, but it was not extraordinary for them to agree with the trust company that the fund should be held as security generally. We think they did so agree.

There is in the hands of the receiver $2,100, the proceeds of this account. The debts from the Conover company to the trust company -which were in existence on January 5th, 1904-, exceed that amount. The trust company is entitled to the fund.

The only authority for the assignment of April 26th, 1904:, is a resolution of the board of directors, which authorized a loan of $5,470 from the trust company and an assignment of such contract or contracts of the company as might be necessary to further secure the loan. It is now urged bjr the trust company that the president of the Conover company had power by virtue of his office to assign this fund generally as security for the indebtedness. The evidence does not justify this conclusion. The parties relied upon the resolution of the board as the authority for the assignment, and that limited the power to securing the loan of $5,470.

The resolution authorized an assignment of the contract and not in terms of the money to be earned, but we agree with the vice-chancellor that the evident intent of the resolution was to authorize an assignment of the fund, and that was actually done in terms by the paper of April 26th. This was an equitable assignment of money to be earned, and operated upon the fund as soon as it was earned. Bower v. Hadden Blue Stone Co., 30 N. J. Eq. (3 Stew.) 171; affirmed, 30 N. J. Eq. (3 Stew.) 340; Bank of Harlem v. Bayonne, 48 N. J. Eq. (3 Dick.) 246; affirmed, 48 N. J. Eq. (3 Dick.) 646; Terney v. Wilson, 45 N. J. Law (16 Vr.) 282.

Whether the fund was earned by the Conover company was one of the disputed questions, and was decided by the vice-chancellor adversely to the claim of the trust company. The solution of the question depends on the facts of the case.

The contract was for two condensers for a price of $16,500, payable one-half cash on bill of lading or when condensers were ready to ship, thirty per cent, in thirty days thereafter,.and the final payment on erection and test not later than ninety days from the time the condensers were ready for shipment. One'condenser was completed and, with the exception of certain attachments, delivered prior to the appointment of the receiver. The other was completed by the receiver at a cost of $3,000. Both were paid for by the Public Service Corporation.

It is unnecessary to decide upon.the respective rights of the, receiver and the assignee where the work contracted for has not been completed at the time the receiver is appointed.and where no debt exists to which the assignment can attach until work has been done by the receiver.

In the present case one condenser had already been completed and delivered to the purchaser, which recognized its liability by subsequently .paying therefor in full. To the extent of the value of the one condenser the money was earned by the Conover company. It was at the time of the appointment of the receiver an account receivable. Even if the contract was an entire contract for two condensers, the delivery to and acceptance by the Public.. Service Corporation made that corporation liable for the price. The amount paid afterward for this condenser, which was the first delivered, may fairly be regarded as the first payment on the contract, within the meaning of the assignment of April 26th.

It is now argued that the assignment was not effective because notice was not given to the Public Service Corporation. As between the assignor and assignee and those standing in the shoes of the assignor, notice to the debtor or holder of the fund is not necessary. The English cases to that effect are Beavan v. Lord Oxford, 6 De G. M. & G. 492 (at pp. 524, 532), where Watts v. Porter, 3 El. & B. 743, is disapproved; Pickering v. Ilfracombe Railway Co., L. R. 3 C. P. 235; Crow v. Reeves, L. R. 3 C. P. 264; Scott v. Lord Hastings, 4 K. & J. 633. Cases in which notice to the debtor or holder of the fund becomes important are cases where the question is one of priority between different assignees, as in Loveridge v. Cooper and Dearle v. Hall, 3 Russ. 1, and cases arising under the English Bankruptcy acts, Ryall v. Rowles, 2 Lead. Cas. Eq. 1533.

The object of notice is discussed by Vice-Chancellor Pitney in Board of Education v. Duparquet, 50 N. J. Eq. (5 Dick.) 234, and his view was approved by this court in Miller v. Stockton, 64 N. J. Law (35 Vr.) 614 (at p. 622), where Justice Lippincott distinctly said that notice was not an essential part of the assignment.

The controversy in this case is between the receiver of the assignor on one side and the assignee on the other. The receiver represents the creditors, but the creditors as such have no lien upon the fund. Their position is not as favorable as that of the judgment creditor and the attaching creditor in the English cases above cited.

One of the reasons urged for postponing the claim of the trust company to the claim of the general creditors is that the failure to notify the Public Service Corporation gave the Conover company a delusive appearance of credit, like the retention of the possession of personal chattels and the withholding from record of a conveyance. There is no proof that any creditor was actually misled, and it is by no means certain that a notice to the Public Service Corporation prior to the time when the debt came into existence, on the eve of the appointment of the receiver, would have been effective. The retention of possession of personal property and the withholding of conveyances from record do not necessarily make the transfer void as to general creditors. That result is reached only in cases of fraud. Miller ads. Pancoast, 29 N. J. Law (5 Dutch.) 250; Flemington National Bank v. Jones, 50 N. J. Eq. (5 Dick.) 244; affirmed, 50 N. J. Eq. (5 Dick.) 486.

There is no evidence of fraud in the present case.

It is also argued that the assignments are invalid because the company was insolvent at the time, but the proofs fail to disclose a condition of insolvency. The case is much stronger than Regina Music Box Co. v. Otto, 65 N. J. Eq. (20 Dick.) 582, which has since been affirmed by this court.

We think the assignment of April 26th, 1904, entitled the trust company to be paid the amount of the note for $5,470, dated April 20th, 1904, out of the money paid the receiver by the Public Service Corporation.

The result is that the decree must be reversed and the record remitted to the court of chancery for further proceedings in conformity to this opinion.

For affirmance—Pitney, Bogert, Yroom, Green—4.

For reversal—Ti-ie Ci-iiee-Justice, Garrison, Fort, Swayze, Eeed, Yredenburgh, Gray—7.


text:
    Thomas Cogan v. Conover Manufacturing Company. Greenville Coal and Ice Company, appellant, v. Frank P. McDermott, receiver, respondent.
    [Argued June 26th, 1905.
    Decided July 11th, 1906.]
    The general authority of the president of a business corporation is sufficient to warrant him in collecting outstanding accounts and in selling the accounts for their face value. .
    On appeal from a decree advised by Vice-Chancellor Garrison, whose opinion is reported 'ante p. 398.

      Mr. Charles 'L. Corbin, for the appellant.

      Mr. J. Merritt Lane, for the respondent.
   The opinion of the court was delivered by

Swayze, J.

The appellant claims a preference upon the funds in the hands of the. receiver by reason of five assignments of accounts due the insolvent corporation and collected by the receiver. Four of these accounts were due at the time of the assignments; one was of money not yet earned. The resolution of the board of director's, which is relied on as authorizing the assignments, empowered the president and treasurer to borrow money of the Coal and Ice Company, “the same to be returned to them out of the first collections following such loans.” This did not authorize absolute assignments and the right of the appellant must depend, upon the general authority of the president. W& think this was sufficient to warrant him in collecting money due the company on outstanding accounts, and we see no valid distinction in this respect between collecting the money of the debtor and selling the account for its face value. The result in both cases is the same—book accounts are converted into cash. The first four assignments are valid and the amount thereby assigned belongs to the appellant. The fifth assignment is of money not yet earned. We find no authority in the president to make that assignment, and the claim of the appellant thereunder is not valid.

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

For affirmance—Pitney, Bogert, Veoom, Green—4.

For reversal—The Chief-Justice, Garrison, Poet, Swayze, Eeed, Veedenburgh, Gray—7.


author: Peii Curiam.

text:
    Sarah B. Armstrong et al., appellants, v. Obadiah E. Armstrong, executor, &c., et al., respondents.
    [Argued June 21st, 1905.
    Decided March 5th, 1906.]
    The probate of a will, contested on the grounds of lack of testamentary-capacity in -the testator and of undue influence, sustained.
    On appeal from a decree of the prerogative court made by Magie, Ordinary, who filed the following opinion:

      This appeal challenges the correctness of a decree of the •Sussex orphans court, made March 31st, 1896, admitting to pro•bate two paper-writings as the last will and testament and a ■codicil thereto of Obadiah P. Armstrong, deceased.
    The attack upon the decree in this court is confined to two ;points, viz., (1) that at the time of the execution of the paper-writings in question, Obadiah P. Armstrong, who executed them, •was not possessed of capacity to make a testamentary disposition of his estate, and (2) that the same were executed by him under the pressure of undue influence. Although my attention ‘has been mainly restricted to these contentions, it is proper to .say that the evidence is entirely convincing that the paper-writings were executed by Obadiah P. Armstrong in the manner required by law to constitute a valid testamentary disposition ■of property, and they are not open to the objection on that score, which was pressed in the court below.
    With respect to the contention that Obadiah P. Armstrong .at the time of the execution lacked testamentary capacity, I have reached the conclusion that it is not supported by the facts proved, but that, on the contrary, the facts dearly show that he was then possessed of that degree of capacity which, under the •settled rules established by our decisions, enabled him to dispose ■of his property by will.
    At the time of the execution of the papers in question, Oba■diah P. Armstrong (whom I will hereafter call the testator) was between seventy-two and seventy-three years of age. He had always resided in the county of Sussex, and had been an ■active and intelligent business man. He had received from his father some property and bad acquired more, so that, at the time in question, he was the owner of a mill and various farms and ■of some personal property, in all of considerable value. He had never married. If he died intestate, his next of kin, under the statute of distributions, were William B. Armstrong, a brother, residing in Iowa; John B. Armstrong, a brother, residing in the county of Sussex, near testator; Obadiah E. Armstrong, Martha Josephine Calvin and Mary 0. Demarest, who were children of a deceased brother, and Martha Elizabeth Cummins, a daughter, and- Cummins, a granddaughter of a deceased sister. John B. Armstrong was married and lived with his wife, having four children, for one of whom testator had considerable respect and regard. Martha Elizabeth Cummins had been'a ward of testator and he had directed her education and maintained with her a correspondence which indicated his regard for her. The granddaughter of testator’s deceased sister was the child of William Cummins, deceased, and it appears that testator and others of the family had become somewhat estranged from her mother, the widow of William. The deceased brother had left a widow, Cornelia M., who more than thirty years before had come to Sussex county with her three children above named, who were then young. Erom about that time the testator and the widow and children of the deceased brother had been one household, living together • until the children successively married. Thereafter testator and the widow continued to live in the same manner. Testator’s interest in these children arid his love for them, is manifested by the evidence. He likened his regard for them to that of a father for his own children.
    The papers in question were both executed on August 27th, 1895. Eor many years testator' had been afflicted with stricture, which, however, did not prevent his active attention to his business in connection with his own property and the affairs of a bank in Newton, of which he was an officer, until about the 6th or 7th of August. He then remained at his home in Lafayette, giving some attention to his own business there, and not confined to his house. He afterwards became so much worse that he summoned his physician, who finally advised that an operation was necessary. That physician, with two others, performed the operation on August 21st. Thereafter testator was confined to Iris bed and gradually sank until he died, on August 30th.
    Erom the time he was first summoned his physician was' in attendance upon testator. After the operation he directed what should be administered to him and what care should be taken of him. Testator was also visited by other physicians during the period between the operation and his death, and for most of the time he had the services of a trained nurse, who administered to testator what was directed or permitted by the physicían in charge. He kept a record of what was so administered, which has been put in evidence, and from which it appears that testator had given to him narcotics to allay pain and stimulants of various kinds, principally to stimulate the action of the heart.
    The contention is, not that testator, by age or disease, was laboring under dementia, but that, by reason of the administration of the narcotics and stimulants his faculties were so affected as to render him incapable of intelligent action. It is particularly urged that during the night preceding August 27th he had been at the very gate of death, and had only been drawn back by the administration, hypodermically, of powerful stimulants, which revived the flagging powers of the heart. The evidence of what occurred during that night is contradictory and by no means clear, but I think the discrepancy only calls for the observation that the real question relates and must be confined, to' the period of the day, during which testator was engaged in the business of making his will.
    Evidence of previous weakness and inability, if credited, is admissible and important. But if evidence of capacity during the period while the business was in hand is convincing and sufficient, the evidence of previous incapacity has no weight.
    That testator, during the period of the day when he was engaged in this business, possessed sufficient intelligence and capaehy, notwithstanding the effect of the operation and of the drugs administered, I deem to be conclusively established by the proofs. The contrary conclusion could not be reached without rejecting or discrediting the evidence of intelligent and indifferent witnesses, for which I can find no ground.
    Prom the evidence, which is uncontradicted, it is clear that testator did not desire to die intestate, and had, prior to the operation, indicated that he intended to make a will. In 1893 he went' to Chicago, and before going he wrote a paper in the form of a will, and making disposition of all his property not dissimilar from that made by the paper in question. The paper was signed by him, hut by only one witness. It was consequently ineffective as a testamentary disposition. It is contended that testator was aware of its ineffective character and executed it only to satisfy the importunities of those who are respondents in this cause. Experience has shown that many intelligent business men are not well informed as to the requisites of a will. Testator acted, however, as if he believed it was a paper of consequence by directing its safekeeping. That he did know its defective character at the time of the operation seems clear, because, although he had thereby made his nephew, Obadiah E. Armstrong, his executor, yet, on the morning when he was about to submit to the operation, he wrote and gave to Mrs. Calvin a paper, indicating his request that “if worst comes to worst” his nephew, Obadiah, and his niece, Mrs. Calvin, should act as his administrators. But it is proved, without contradiction, that prior to that time, and within one or two weeks, he had written down upon paper his wishes respecting the disposition of his property to some extent. At that time, I conclude, he intended to have a will drawn, and upon the scheme in that paper expressed. He had not done so at the time the necessity of an operation was forced upon him by the progress of his trouble. In the presence of that risk he made the request as to his administrators, embodied in the 'paper he wrote and gave to Mrs. Calvin that morning. When the operation had been safely passed, he reverted to his original intention and prepared to make a will.
    Having come to that determination, he acted in such a manner as to indicate capable judgment as to what he wished done. .He sent for a well-known and intelligent lawyer, who had been his legal adviser and personal friend for thirty years. Upon his arrival testator caused to be produced.the paper which he had written a week or two before, and said: “I want my will drawn according to that paper as far as it goes.” Then ensued a conversation in respect to the contents of the paper and modifications of some of its terms, and, eventually, in respect to the residue which would be undisposed of under the previous instructions. Testator recognized that he had not disposed of all his real estate, and directed one farm to be devised to the wife of his brother John for life, with remainder to her children. His adviser put down a memorandum of this instruction thus, “Ackerson farm to Dorcas Armstrong and her children.” Then was brought up the question of the general residue, and testator declared that it had given him some trouble what to do with it. As a final statement he said he would “put it in four shares/’ and one share should go to Cornelia M., his brother’s widow, and one to each of her children. His adviser jotted down the result thus:
    “All rest and residue of my estate—•
    “10 shares in Belvidere Nat. Bank, New Bank.
    “Residue to Joe.
    “1 share to Cornelia.
    “1 O. E. Armstrong'.
    “1 Josie.
    “1 Mary C.”
    Furnished with testator’s written instructions and his own memoranda, the lawyer drew the will in question and afterwards read it in full to the testator, who signified his approval of each clause, and then it was executed in the manner required by,law.
    Appellants’ counsel advert to several circumstances appearing from the evidence which, they contend, indicate that testator’s faculties must, have been affected and his power of observation destroyed. It is first said that-the testator’s instruction, as to the gift to Miss Cummins of the income of the Peters farm, was not satisfied by the devise of the farm to her for life. But this was the subject of conversation between testator and the lawyer, who properly pointed out that, as the instruction contemplated her having the farm in fee-simple if she left children surviving her, and a remainder over if she died childless, the devise for life was the most convenient way to provide for the whole devise intended. It is next pointed out that the instructions contemplated that the devise to Mrs. Calvin and the bequests to her were all to be hers absolutely only in case she had issue, while the will bequeaths to her certain shares of bank stock absolutely. But it is obvious that testator did not hesitate to direct deviations to be made in his instruction in various particulars, and when it appears that the will was read to and assented to by testator, it will be presumed that this change was directed. It is also argued that the devise to Obadiah E. Armstrong of the “Armstrong Homestead” was a devise of property of which the devisee held the title. The instructions drawn by testator expressed the intent to give to the nephew the “encumbrances” upon that property. Testator’s meaning, in respect to the gift, was the 'subject of conversation between him and the lawyer. Both seemed to know that, although, the title was in the nephew, the consideration for the transfer to him had been paid by the testator. He therefore had a resulting trust therein, and the expedient of a general devise of the property to the nephew was resorted to with the idea that by this devise the equitable title of testator would pass.
    It is next urged that the memorandum of the lawyer shows that testator instructed him that the residue should go to “ J oe,” by which name Mrs. Calvin was called. Yet the will divides the residue between her and her mother, brother and sister. This confusion in the memorandum indicates, in my judgment, some original doubt in the mind of the testator. He had not fully determined the destination of the residue. At first he inclined to give it all to Mrs. Calvin. Eventually he determined to divide it.' This would account for the inconsistent entries on the memorandum and justify the lawyer in drafting the residuary clause according to the last instructions. That this division was determined upon by testator also appears from the fact that a suggestion by the lawyer that Miss Cummins should be given a share in the division met with a decided negative from testator. It is lastly argued that testator manifested incapacity because the will as executed did not conform to the instructions and memorandum in two important particulars. In testator’s instruction the devise of the farm to Mrs. Calvin was to be accompanied by a bequest of all the personal property he had on the said farm.- In the lawyer’s memorandum, at the bottom, were these words: “Ex. O. E. Armstrong and Martha Josephine Calvin,” and these indicated testator’s wish as to the executors of his will. Keither of these important matters was contained in the will, yet testator, to whom it was read, did not' notice the omission, but assented to and executed it as his will. The effect of testator’s failure to take note of the omissions must depend upon whether such failure was due to weakness of faculties or mere temporary inattention, such as was consistent with eapacity. That it was due to the latter seems to. me indisputable. The omission had escaped the attention of the astute lawyer who had drawn the will. With the memorandum before him he had failed to insert what he was instructed to include. When the omission was disclosed it was brought to the testator’s attention, who reiterated his intention in the two respects, and they were expressed by the codicil in question.
    Unless I discredit the evidence of the lawyer who drew the will, and the other witness thereto, and the silent proof of the instructions in testator’s writing, and the lawyer’s memorandum made at the time, I must conclude that testator contemplated and intended to dispose of his property by will, and that he knew particularly what property he had to bestow; that he knew the natural objects of his bounty; that on the day'in question he knew what business he was engaged in and what he intended to do and what he did do by the will and codicil, and so was possessed of testamentary capacity within the doctrine laid down by Chancellor McGill, and approved by the court of errors and appeals. Wesicoit v. Sheppard, 51 N. J. Eq. (6 Bide.) S15.

    The claim that the will and codicil in question were the product of undue influence requires brief consideration.
    The case before me does not furnish any sufficient evidence that the testator was a man accustomed to yield to influence. It is absolutely wanting in any direct evidence that, during the period of time when testator’s mind as to the disposition of his property was being made up, any influence in favor of or against any person was exerted upon him. The uncontradicted evidence is that the memorandum he had prepared a week or two before, and which he furnished to his legal adviser as containing his wishes, and which served as the basis of the will and codicil, but modified under the information and advice given by the draftsman, was made by himself, without consultation or advice from anyone. While some of the beneficiaries under these papers were present at least at parts of the interview between testator and his counsel when the instructions_ took final shape, and at the execution of the will and codicil, the evidence convinces me that their presence was deemed by them to be requisite for the care of the very sick relative with whom they had lived so long, and that none of the beneficiaries present joined in the conversation between him and his adviser, or made any suggestion or gave any advice in respect to the matter in hand.
    But it is insisted that, from the opportunities furnished to those beneficiaries to approach and influence testator by their long intimacy and association in one household; from their presence at the giving of instructions for and the execution of his will, and the fact that it gives to them a greater share of testator’s property than is given to others as .near or nearer of lcin to him, the inference that the will was the product of influence that was undue is justified and required.
    The evidence shows that testator, by this testamentary disposition, gave something to each of the persons to whom his property would go if he died intestate, except t^o. Nothing was given to his brother John, but a farm was devised to John’s wife for life, with remainder to their four children. Nothing was given to the granddaughter of his deceased sister, probably for a reason which induced him to declare in the paper written by him in 1893 that he desired to “disinherit” her.
    The evidence does' not clearly show that the gifts and devises to the members of testator’s household were more valuable than those made to others by this will and codicil, but it is so strongly insisted upon that I will assume it as a fact.
    N othing is better settled than that inequality of benefit among those of equal degree of consanguinity to testator will not justify any inference against the will that creates it. Any other doctrine would abolish the power to direct the disposition of one’s property after death as between relatives.
    Nor will such inequality justify, of itself, any inference of undue influence upon testator. Eor such inequality may well be induced by the influence of kindly attentions and loving care producing affection and good will.
    Nor will the fact that these present and former members of testator’s household, giving attention to him when he sorely needed it, remained in his room while he gave instructions to his lawyer, and while he executed his will, which was so favorable to them (if their conduct in that respect may be characterized as indecorous and improper), justify the inference that such presence constituted undue influence, because that requires the assumption that their presence operated to destroy testator’s free agency, and to so dominate his will as to compel him to do what he did not desire to do. If their presence reminded him of their love and attention, and recalled or stimulated his own feelings of affection for them, the influence thus produced cannot be said to be undue unless it deprived him of the power to do what he wanted to do. That it produced such an effect cannot be justifiably inferred.
    If the concurrence of the circumstances mentioned bo considered, at most, it only incites the mind to a careful scrutiny of the proofs to determine whether it may be justifiably inferred therefrom that testator was coerced or his free agency destroyed so that this will was not his real desire. On this subject I entertain no doubt whatever. The facts are not only consistent with an untrammeled and uninfluenced exertion of the free will of testator, or of such an exertion of will as was induced by kindly offices and attentions, but afford no shred of inference that it was produced by malign and improper influence dominating the testator.
    It should be added that if upon the whole circumstances I could find ground to impose upon respondents the burden of showing that the will in question was made freely and without coercion, I should be bound to hold that they had sustained that burden. Prom all the facts proven, proponents of the will, from their opportunities as members of testator’s household, might exert influence upon him. Such influence, if arising only from good will and affection, is not undue. Suggestions and persuasions from persons so intimately connected as to what disposition testator should make of his property, would not necessarily be improper. They would not constitute the influence which is undue unless they became importunities so pressing or repeated as to render testator powerless to resist them. Not only is there no scintilla of proof of such importunities, but the uncontradicted evidence of each of these beneficiaries of testator’s bountjr is that they had held no conversation whatever with testator respecting his will or the disposition of his property. Such evidence might tend to overcome suspicion, if any had been engendered, by the concurrence of circumstances alluded to, but in the absence of such suspicion T know no reason for not according to it entire credit.
    The result is that the decree below must be affirmed.
    Whether, upon this affirmance, I should direct the contesting parties to pay the costs and expenses of the litigation, has given me some difficulty. In the orphans court the costs and expenses, together with considerable counsel fees, were ordered to be paid out of the estate of deceased. This involved the determination by the court that contestants had reasonable cause to contest the validity of the paper. No appeal was taken from that determination.
    But that determination does not affect the question. A contest in the primary court may be reasonable and yet, after the evidence has plainly disclosed its futility, an appeal1 may be-unreasonable.
    I am, however, inclined to pronounce the contest in this court a reasonable one, and so to direct the costs of appellants, with a fair counsel fee, to be paid out of the estate.

      Messrs. McCarter, Williamson & McCarter, and Mr. Henry Huston, for the appellants.

      Mr. Lewis J. Martin and Mr. Charles J. Roe, for the respondents.
   Peii Curiam.

The decree appealed from is affirmed, for the reasons set forth in the opinion of the ordinary, filed in the prerogative court.

For affirmance—Ti-ie Ci-iiee-Justice, Dixon, Garrison, Port, Garretson, Pitney, Bogert, Yredenburgh, Yroom, Green, Gray—11.

For reversal—None.


author: Per Curiam.

text:
    Charles P. Moore, respondent, v. Charles B. Durnan, appellant.
    [Submitted March 25th, 1905.
    Decided July 5th, 1905.]
    A court of equity has jurisdiction to entertain a suit for the recovery of the amount due upon a lost check, wliich is not negotiable for lack of endorsement.
    On appeal from a decree in chancery advised by Vice-Chancellor Beed, whose opinion is reported in 63 N. J. Eq. (18 Dick.) 96.

      Mr. Martin P. Devlin, for the appellant.

      Mr. William J. Baches, for the respondent.
   Per Curiam.

The bill in this case was filed to compel the appellant, Durnan, and the Broad Street National Bank, of Trenton, to pay to Moore, the respondent, the amount of a lost check, drawn by Durnan, to his own order, upon the bank, and delivered by him to the agent of Moore, without endorsement, as a part of the purchase-money for premises agreed to be purchased by Durnan from Moore, and which agreement Durnan subsequently refused to perform. The liability of the bank was rested upon the fact that before the delivery of the check to the agent of Moore, the Bank had certified it “good when properly endorsed.” The decree under review adjudges that “the said Charles B. Durnan and the said The Broad Street National Bank of Trenton do pay to the said complainant the sum,” &c., &c.' This adjudication carries with it, by necessary inference, the conclusion that a certification by a bank that a check, drawn to the order of the maker, is good when properly endorsed by him, renders the bank jointly liable, with the drawer, to an assignee of the check, although the instrument has not. been endorsed by the maker. As Durnan is the only appellant, the correctness of the conclusion of the vice-chancellor on the question of the liability of the bank is not before us for our consideration.

We concur in his conclusion that a court of equity has jurisdiction to entertain a suit for the recovery of the amount due upon a lost check, which is not negotiable for lack of endorsement, and establishing the liability of Durnan upon the note in suit.

The decree appealed from will be affirmed.

For affirmance—The Chief-Justice, Dixon, Garrison, Pitney, Swayze, Bogert, Vredenburgh, Green—8.

For reversal—Garretson, Vroom—2.


text:
    Samuel H. Grey, attorney-general, ex rel. Mount Zion Sanctuary, appellant, v. Morris & Cummings Dredging Company, respondent.
    [Argued June 20th, 1905.
    Decided March 5th, 1906.]
    Equity has jurisdiction on an information by the attorney-general, at the relation of a private party, to annul a lease of the state’s lands under water obtained by a person not the owner of the shore front, through a false representation of the fact.
    On appeal from a decree in chancery advised by Vice-Chancellor Emery, whose opinion is reported in 64 N. J. Fq. (19 Dick.) 555.

      Mr. James H. IIoweTl, for the appellant.

      Mr. Norman Grey, for the respondent.
   Per Curiam.

The object sought by the information in this case is to have decreed to be null and void a lease made by the riparian commissioners to the defendant company of lands of the state lying under the waters of Hew York bay. The lands were leased to the defendant company upon a representation made by it to the riparian commissioners that it was the owner and possessor of the ripa upon which they abutted. The ground upon which the validity of the lease is attacked is that the representation which induced its making by the riparian commissioners is false; that grantor of the relator, not the defendant company, was the owner of the rvpa before and at the time when the lease was made, and continued to be so until.he conveyed it to the relator; and that ever since that conveyance the relator has been, and still is, the owner thereof.

Before entering upon a consideration of the merits of the case the vice-chancellor was called upon to determine the question whether the court of chancery had jurisdiction to annul a lease of the state’s land, obtained by a person not a shore owner through a false representation of the fact. He concluded that the jurisdiction existed. Reaching that conclusion, he proceeded to a consideration of the meritorious questions which the case presented, and held, among other things, that the allegation in the information that the defendant company was not the owner of the ripa adjoining the lands demised by the lease, at the time of the execution of that instrument, was not sustained by the proofs.

We concur both in the conclusion of the vice-chancellor in favor of the existence of jurisdiction in the court of chancery to-annul the state’s lease in a proceeding of this character, and in his finding that the evidence in the cause will not support the allegation in the information relating to the ownership of the land along the shore at the time of the making of the lease, and for the reasons stated by him in his opinion.

The ease of the relator having failed upon the facts, it is unnecessary for this court to express an opinion upon the other questions decided by the vice-chancellor, viz., (1) whether a reservation to the grantor, in a deed conveying riparian lands, of the water rights in front thereof, and of the right to dock out and reclaim the submerged land, is valid; and (2) whether the state is entitled to have its lease set aside, solely for the benefit of a private relator, who has stood by for a long period of years without challenging the validity of the lease, -and permitted the lessee to expend large sums of money in the improvement and development of the riparian land.

The decree will be affirmed.

For affirmance—Ti-ie Chief-Justice, Dixon, Garrison, Fort, Gaeretson, Pitney, Swayze, Bogert, Vksdenburgh, Vroom, Green, Gray—12.

For reversal—None.


author: Pee Cueiam.

text:
    Grace Livingston Furniss et al., appellants, v. William H. Leupp, trustee, respondent.
    [Submitted July 10th, 1905.
    Decided March 5th, 1906.]
    On appeal from an order of the court of chancery advised by Vice-Chancellor Pitney, whose opinion is reported in £7 N. J. Fq. 159.

      Messrs. Grouse & PerTcins, for the appellants.

      Mr. Willard P. Yoorhees, for the respondent.
   Pee Cueiam.

The order appealed from should be affirmed, for the reasons stated in the opinion of the vice-chancellor.

It will appear from an examination of the opinion that the learned vice-chancellor concluded that the fund in dispute was not within the scope of the “anticipation” clause of the trust deed, and in this conclusion we concur. The case, therefore, does not call for a consideration of the question whether or not that clause is valid. It was assumed to be so by the learned vice-chancellor. As the question is not involved in the determination of the case, we express no opinion upon it.

For affirmance—The Chief-Justice, Dixon, Gabeison, Poet, Gabbetson, Pitney, Swayze, Bogebt, Vbedbnbubgh, Vboom, Geeen, Geay, Dill—13.

For reversal—Done.


text:
    Annie E. Costell, respondent, v. Smith Costell, appellant.
    [Submitted July 8th, 1905.
    Decided March 5th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Grey, whose opinion is reported anle ¶. 218.

      Mr. William T. Hilliard, for the appellant.

      Mr. Howard L. Miller, for the respondent.
   Pee Cueiam.

The decree appealed from is affirmed, for the reasons set forth in the opinion filed in the court of chancery by Vice-Chancellor Grey.

For affirmance—The Ci-iiee-Justice, Dixon, Garrison, Fort, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Yroom, Green, Gray, Dill—13.

For reversal—None.


author: Pee Curiam.

text:
    James M. Seymour, Jr., respondent, v. Rebecca Goodwin, executrix, et al., appellants. (Two cases.)
    [Argued June 22d, 1905.
    Decided March 5th, 1906.]
    On appeal from an order advised by Yice-Chancellor Emery, whose opinion is reported in 68 N. J. Eq. 189.

      Messrs. Qorilancli and Wayne Parker, for the appellants.

      Mr. Louis A. Ziegler and Mr. James E. Howell, for the respondent.
   Pee Curiam.

The order brought up for review by these appeals is affirmed, for the reasons set forth in the opinion filed in the court of chancery by Yice-Chancellor Emery.

For affirmance—The Chief-Justice, Fort, Garretson, Pitney, Bogert, Yeedenbuegh, AJroom, Green—8.

For reversal—Dixon, Garrison, Swayze—3.


text:
    Louisa Avakian, respondent, v. Hagop Avakian, appellant.
    [Submitted July 10th, 1905.
    Decided March 5th, 1906.]
    On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported ante p. 89.

      Messrs. Weller & Lichtenstein, for the appellant.

      Mr. Fuseiius W. Arrow smith, for the respondent.
   Per Curiam.

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

For affirmance—The Chiee-J ustice, Garrison, Fort, Gabretson, Pitney, Swayze, Bogert, Vredenburgi-i, Vroom. Green, Gray, Dill—12.

For reversal—Dixon—1.


text:
    Aaron Van Houten, respondent, v. Mary V. H. Stevenson et al., appellants.
    [Argued June 23d, 1905.
    Decided June 26th, 1905.]
    ’ On appeal from a decree in chancery based on opinions filed by Vice-Chancellor Stevens and Vice-Chancellor Garrison, whose opinions are reported, respectively, ante p. 626 and in 68 N. J. Bq. 490.

      Mr. Preston Stevenson, for the appellants.

      Mr. Frederich If. Van Blarcom, for the respondent.
   Per Curiam.

The decree appealed from is affirmed, for the reasons stated in the opinions of Vice-Chancellors Stevens and Garrison, delivered in the court of chancery in this canse.

For affirmance—-The Chiee-Justice, Dixon, Garrison, Garretson, Pitney, Swayze, Eeed, Bogert, Vredenburgh, Vroom, Green, Gray—12.

For reversal—None.


text:
    Emma W. Cook et al., executors, &c., respondents, v. William W. Weigley et al., appellants.
    [Submitted July 7th, 1905.
    Decided February 2d, 1906.]
    The validity of a decree of the court of chancery, after it has been affirmed by the court of errors and appeals, cannot be brought into auestion by a petition filed in the court of chancery. A bill of review is the only proceeding' by which such a decree may be challenged.
    On appeal from an order dismissing order to show cause, advised by Vice-Chancellor Bergen, whose opinion is reported in 68 N. J. Eg. Jf80‘.

      Mr. John M. Dickinson, Mr. Gorklandt Parker and Mr. Charles F. Eggleston (of the Pennsjdvania bar), for the appellants.

      Mr. Frank Durand, for the respondents.
   Per Curiam.

The order appealed from should be affirmed. The appellants seek, by a petition, verified in the most general form, to challenge the jurisdiction of the court of chancery of this state to entertain a bill to foreclose a mortgage upon lands lying in New York bay, west of the middle line thereof. The challenge is sought to be interposed, in the summary way mentioned, not only after the conclusion of a, protracted litigation in the court of chancery, which resulted in a decree of foreclosure, but after an appeal from that decree to and an affirmation thereof by this court. Without at all intimating any dissent from the opinion expressed by the learned vice-chancellor upon the merits, we affirm the order appealed from upon the ground that the validity of a decree of the court of chancery, after it has been affirmed by this court, cannot be brought into question by a petition filed in the court of chancery. A bill of review is the only proceeding by which such a decree may be challenged, and it may not be done even by that proceeding unless the conditions exist which justify the filing of such a bill. We have had occasion lately (in Watkinson v. Watkinson, 68 N. J. Eq. 632) to point out what those conditions are, and it is not necessary to restate them.

For affirmance—The Ohiee-Justice, Dixon, Garrison, Garretson, Pitney, Swayze, Eeed, Bogert, Vredenburgh, Green, Gray, Dill—12.

For reversal—Hone.


author: Pee Ctjeiam.

text:
    Alonzo E. Wright, respondent, v. Stone Harbor Improvement Company et al., appellants.
    [Submitted July 10th, 1905.
    Decided February 2d, 1906.]
    The amount due on foreclosure of a mortgage was ascertained from the admission of a former owner of the equity of redemption contained in a declaration of no set-off. The proofs did not sustain an alleged tender.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Grey, who rendered the following opinion:
    The testimony submitted on the part of the complainant indicates that the mortgage, which is sought to be foreclosed, in this case was a purchase-money mortgage; that it still remains a subsisting mortgage, and that it passed by a number of assignments from one holder to another until it came into the hands of the present holder. There is a declaration of no set-oE from one of the -previous owners of the equity of redemption which states the amount which at the time of that declaration was due on the mortgage. The complainant accepts that admission of the party who then held the equity of redemption as an ascertaining of the amount due, and claims that admitted amount as the principal sum due, with interest from that date.
    There is no proof on the part of the defendant that he has paid anything. There is some testimony on the part of the defendant that a tender was made, but the testimony on the point failed to prove that the amount tendered was the full amount due, and also to show the other requisites of a competent tender. It has not been shown that the amount due was reduced by payments, or that it was voluntarily dismissed or remitted by the holder of the mortgage. The defendant starts out with a showing that the alleged tender was made. When the witness, who undertook to prove the tender, was asked whether it was a tender of the amount due on the mortgage, he said it was not, but that it was an amount which was due on an agreement between Mr. Walter Brooks and Mr. Alonzo Wright, which agreement, he said, was in writing, and this writing was not produced. Whether that, agreement had any relation to this mortgage, whether it was made between parties who had a right to bind the mortgagor and mortgagee, does not appear.
    I see no reason why the complainant should not have a decree in accordance with the proofs, and I will advise such a decree.
    The complainant’s proofs fix the amount. I will advise a decree for that sum.

      Mr. Edward Ambler Armstrong, for the appellants.

      Mr. J. Willard Morgan, Mr. Charles V. D. Joline and Messrs. French & Richards, for the respondent.
   Pee Ctjeiam.

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

For affirmance—The Chief-Justice, Dixon, Garrison, Garretson, Pitney, Swayze, Eeed, Bogert, Yredenburgi-i, Yroom, Green, Gray, Dill—-,13.

For reversal—None.


text:
    James T. Ackerman, appellant, v. Cornelius P. Crouter et al., respondents.
    [Submitted July 10th, 1905.
    Decided March 5th, 1906.]
    On appeal from a decree of Chancellor Magie, whose opinion is reported in >38 N. J. Fq. Jfi.

      Mr. James T. Ackerman and Mr. David D. Ackerman, for the appellant.

      Mr. Cornelius Doremus, for the respondents.
   Per Curiam.

The decree appealed from is affirmed, for the reasons set forth in the opinion of the chancellor, delivered in the court below.

For affirmance—The Chief-Justice, • Dixon, Garrison, Port, Garretson, Pitney, Swayze, Bogert,- Yredenburgi-i, Yroom, Green, Gray, Dill—13.

For reversal—None.


text:
    Eli S. Amole et al., respondents, v. Ida Meyers et al., appellants.
    [Argued June 26th, 1905.
    Decided June 26th, 1905.]
    On appeal from an order in chancery striking out a demurrer to a bill.
    ' Mr. John Q. Reed, for the appellants.

      Mr. Eli E. Chandler, for the respondents.
   Per Curiam.

We concur in the view of the court of chancery that the demurrer is frivolous. The order appealed from should be affirmed.

For affirmance—The Chief-Justice, Dixoh, Garrisok, Port, Garretsok, Pitkey, Swayze, Reed, Bogert, Vredehburgkk, Vroom, Greek, Gray—13.

For reversal—None.


text:
    Monmouth County Electric Company, respondent, v. Thomas P. McKenna, appellant.
    [Argued June 27th, 1905.
    Decided March 5th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Pitney, whose opinion is reported in 68 N. J. Eq. 160.

      Messrs. Collins & Corbin, for the appellant. •

      Messrs. Grey, McDermott & Enright,-for the respondent.
   Per Curiam.

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

For affirmance—Dixon, Fort, Garretson, Pitney, Bogert, Vroom, Green, Gray—8.

For reversal—The Chief-Justice, Swayze—2.


text:
    Lydia A. Ayres, respondent, v. John H. Ayres, appellant.
    [Argued June 27th, 1905.
    Decided March 5th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported ante p. 848.

      Mr. Hervey G. Scudder and Mr. Edwin Robert Walker, for the appellant.

      Mr. Linton Satterihwail, for the respondent.
   Per Curiam.

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

For affirmance—The Chief-Justice, Dixon, Garrison, Fort, -Garretson, Pitney, Swayze, Bqgert, Vredenburgi-i, Vroom, Green, Gray—12.

For reversal—None.


text:
    United New Jersey Railroad and Canal Company et al., appellants, v. Francis Lewis et al., respondents.
    [Argued June 27th, 28th, 1905.
    Decided June 18th, 1906.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported in 6S N. J. Eq\ 4S7.

      Mr. Alan II. Strong, for the appellants.

      Mr. George T. Parrot, for the respondents.
   Per Curiam.

The decree in this case will be affirmed for the reasons contained in the opinion delivered in the court of chancery by Vice-Chancellor Bergen.

For affirmance—Ti-ie Oi-iiee-Justice, Garrison, Eort, Pitney, Swayze, Eeed, Bogert, Vredenburgh, Vroom, Gray —10.

For reversal—Uone.


text:
    United New Jersey Railroad and Canal Company et al., appellants, v. William McCully et al., respondents.
    [Argued June 27th, 28th, 1905.
    Decided June 18th, 1906.]
    On appeal from a decree of the court of chancery advised by yice-Ohancellor Bergen, whose opinion is reported in 68 N. J. Eq. M2.

      Mr. Alan II. Strong, for the appellants.

      Mr. George T. Parrot, for the respondents.
   Per Curiam.

The decree in this case is affirmed for the reasons contained in the opinion delivered in the court of chancery by Vice-Chancellor Bergen.

For affirmance—Ti-ie Chiee-Justice, Garrison, Fort, Pitney, Swayze, Reed, Bogert, Vredeneurgii, yROOM^ Gray —10.

For reversal—None.