text:
    Austin Davis and Adda Davis, complainants, v. Morris Scharf and Belmont Holding Company, defendants.
    [Decided May 11th, 1926.]
    The accepted rule of construction of wills in this state is, where a limitation over upon failure of issue at the death of the devisee is incident to a devise of a remainder upon the termination of a life estate, to refer the limitation clause to the event of the death of the devisee before the death of the life tenant unless there are indications in the will of a contrary intent.
    On bill, &c.

      Mr. George B. Astley, for the complainants.

      Mr. Jacob LubetMn, for the defendants.
   Backes, V. C.

This bill is to compel the defendants to perform theii agreement to purchase the house and lot 117 Arlington street, Newark. The defendants answer that the title is not marketable.

The complainant Austin (Hunt) Davis acquired title by will of his adoptive father, John Davis. The co-complainant is his wife. By the will the testator devised to his two sons, William and James, each a lot, and to his adopted son Austin another lot, and the remainder of his estate to his wife during widowhood. At her death he devised the homestead to his grandson, John W. Davis, the property here involved to his son William for life, and then to the complainant Austin and the residue of his estate, after some specific bequests of household articles to members of his family, to his sons, William and James, in equal shares, with power in his executors to sell his real estate. The sixth item of the will, which contains the devise to the complainant Austin, reads as follows:

“Siatth. In case the house No. 117 Arlington street, in the city of Newark, now owned by me, shall be not sold during the lifetime or widowhood of my said wife as hereinafter provided, then, at the death of my said wife, I give, devise and bequeath the said house, No. 117 Arlington street, to my son William A. M. Davis, to be used and enjoyed by him during the -term of his natural life; and from and immediately after his death I give, devise and bequeath the same to my adopted son Austin Hunt, and to his heirs and assigns forever, but in case said Austin shall die leaving no children to inherit, then said house and lot shall go to my son James N. Davis, ‘ his heirs and assigns forever.”

The testator’s widow and his son William, the life tenants, are dead. The property was not sold during the widow’s lifetime. The defendants contend that- Austin’s estate is subject to defeat if he dies “leaving no children to inherit.” That, undoubtedly, would be the case if there was no other event than his death at any time without leaving children to which the limitation over would be referable, but where, as here, there is another event expressed in the will to which the limitation over can fairly be referred, i. e., the event of the death of the life tenants, and the right of-possession by the devisee, then, according to Chief-Justice Gummere’s second rule of construction in Patterson v. Madden, 54 N. J. Eq. 714, “such limitation over will he construed to refer to the happening of such event, or to the death of the devisee, according as the court may determine, from the context of the will and the other provisions thereof, that the limitation clause is set in opposition to the events specified or is connected with the devise itself.”

The accepted rule of construction of wills -in this state is, where a limitation over upon failure of issue at the death of the devisee is incident to a devise of a remainder. upon the termination of a life estate, to refer the limitation clause to the event of the death of the devisee before the death of the life tenant unless there are indications in the will of a contrary intent. .The inclination of our decisions is to combine absolute ownership with the right of possession and enjoyment and to lay hold of other events than the death of the devisee at any time to affect that end, unless it be inconsistent with the expressed intention of the testator. Patterson v. Madden, supra; McDowell v. Stiger, 58 N. J. Eq. 127; Michael v. Minchin, 90 N. J. Law 603; Ambruster v. Own Your Own Home Asso., 97 N. J. Eq. 69. In these cases and in Platt v. Johnson, 87 N. J. Eq. 403, the context or other provisions in the wills were dwelt upon as supporting the rule. In Dean v. Nutley, 70 N. J. Law 217, and also in Chetwood v. Chetwood, 81 N. J. Eq. 296; affirmed, Ibid. 522, and Hampton v. Newkirk, 93 N. J. Eq. 270, the rule was recognized, but regarded as inconsistent with the intention of the testator and inapplicable. The devise in Rogers v. Baily, 76 N. J. Eq. 29, was held to be within the first rule of construction laid down in Patterson v. Madden. The rule in England for construing devises such as we are here dealing with is pointed out by Yice-Ohancellor Learning in Hampton v. Newkirk, supra, to be, that the limitation over is not defeated by the devisee surviving the life tenant unless the devisee has power of disposition, and he observes that the effect of that circumstance is in entire harmony with Patterson v. Madden, but it will be noted that in the latter case, though the devisee’s power of disposal was inferable from the suspension of the power during his mother’s lifetime, and the termination of the suspension of power by the death of the mother was regarded as the event to which the limitation over referred and not the death of the devisee at any time, it was not adverted to by the chief-justice, nor is it intimated in any of the reported cases in this state that any such power must accompany the gift to defeat the executory devise. Such grant of power may be influential to defeat the gift over, but that it is essential is not the law of this state.

There is nothing in the will indicating a testamentary purpose that the executory devise should become operative upon the death of Austin at any time without leaving children, but, on the contrary, other provisions of the will sustain the applied legal construction. By an earlier item in the will, and which precedes the gift of the life estate to his widow, the testator gave Austin another lot outright, thus indicating that it was not his intention that his adopted son should merely have the use of property given to him by the will and not the ownership unless he earned it, and when he gave him the house in question, which he was not to have in possession until after the deaths of the widow and his son William, it is reasonable to assume that he intended to unconditionally give the ownership with the enjoyment, if Austin lived to go into possession. The devise is in terms of absolute gift, including words of limitation, “but” was to be cut down if he failed to survive the life tenants “leaving no children to inherit.” The words of inheritance, it would seem, were used also in the sense of words of purchase, denoting the devisee’s surviving children as substituted devisees if he failed of possession. It is obvious that the testator did not mean that if and whenever Austin died, leaving no children to inherit, the property was to go to James, but that he meant that either Austin or his children should have the house after his widow and son were through with it; that he was to have it if alive at that time, but, if dead, his children were to inherit it, and, leaving no children to inherit, it was to go to his son James, and in this order to each alternately, absolutely. The limitation over is set in opposition to the event of Austin’s death before the life tenants. The complainants have an indefeasible estate of inheritance. The defendants will be decreed to perform.


source: Caselaw Access Project

author: Griffin, V. C.

license: Public Domain

text:
    Ella Hicks, complainant, v. Leon Hicks et al., defendants.
    [ Submitted September 8th, 1925.
    Decided December 30th, 1925.
    Ifiled April 16tb, 1926.]
    1. Where the interest on a legacy is directed to be paid to the legatee until he receives the principal, or where a legacy is placed in the hands of trustees for the exclusive benefit of the legatee until it is directed to be paid over, the legacy will be deemed vested.
    2. Testator devised specific lands to a trustee to secure the income, pay moneys for the unkeep of the property and divide the residue equally between his two sons until one son should arrive at the age of thirty years, “at which time I give, devise and bequeath to my said sons Percy D. Hicks and Leon Hicks said real estate as tenants in common.” Meld, that the language “at which time, &e,” standing alone, would create a contingent estate; but when testator separated this property from the mass of his estate and gave the income to his devisees until one son attained the age of thirty years the devisees took a vested estate, the right to posesssion being postponed until the one son attained the age of thirty years. JEM, further, that the fact that the will contained no residuary clause tends to the above conclusion, as it will be presumed that testator did not intend to die intestate, and the will was drawn by a scrivener not well versed in the law.
    On bill, &c.

      Mr. James B. Bowen, for the complainant.

      Messrs. John S. Applegate & Son, for Marion D. Hicks and John Hicks.

      Mr. Emanuel Weitz, for Jos. A. Hicks and Elena Hicks.

      Mr. Leo J. Warwiclc, for Leon Hicks and Beatrice Hicks.
   Griffin, V. C.

The hill in this canse is filed for the construction of -the will of John Hicks, of the city of Long Branch, Few Jersey, dated the 14th of March, 1910, with a codicil thereto which need not be considered.

The decedent left him surviving his widow, and, as his heirs-at-law and next of kin, Percy D. Hicks, a son; Leon Hicks, a son; Elena M. Hicks, a daughter, and Joseph Hicks, a son. In the second, third and fourth paragraphs of the will he gave certain legacies to his wife for her benefit, and also for the benefit of his daughter, Elena, and his son Joseph, who were infants.

The fifth paragraph of the will, which requires construction, is as follows:

“Fifth. I will devise and bequeath to my .brother, Martin D. Hicks, the following described real property: All that certain tract of land situate and lying on the southwestern corner of Broadway and Academy alley, in the city of Long Branch, (New Jersey, known as the Hicks Building, at No. 188-190 Broadway, together with all buildings thereon situate. In trust, however, to receive tbhe income from, said property and pay moneys for the upkeep of said property, the residue or remainder thereof to be equally paid and divided between my two sons, Percy D. Hicks and Leon 'Hicks, until my said son Leon Hicks shall arrive at the age of thirty years, at which time I give, devise and bequeath to my said sons, Percy D. Hicks and Leon Hicks, said real property as tenants in common.”

At the time this will was made Percy was twenty-one years of age and Leon seventeen. Leon attained the age of thirty years December 17th, 1923. Percy died on September 1st, 1918, aged twenty-nine years, before Leon bad attained the age of thirty. Percy left him surviving his widow, Marion, and a son, John. Percy died testate, giving two-thirds of his estate to his son and the other third to his wife, Marion.

The will of John Hicks contains no residuary clause.

It is contended by the heirs-at-law that the devise to Percy and Leon created an estate on condition, which would not vest in Percy unless he was living when Leon attained the age of thirty years, and, as Percy died prior thereto, the devise lapsed and passed to the heirs-at-law. On the other hand, it is contended by the widow and child of Percy Hicks that the estate vested on the death of the testator.

If the language of the will “at which time” (referring to Leon’s attaining thirty years) “I give, devise and bequeath to my said sons, Percy D. Hicks and Leon Hicks, said real property as tenants in common” stood alone, I would incline to the view that the estate was contingent. But it does not. The will gives to Martin Hicks, as trustee, the premises in question “to receive the income from said property and pay the moneys for the upkeep of said property, the residue and remainder thereof to be equally paid and divided between my two sons, Percy D. Hicks and Leon Hicks, until my said son Leon shall arrive at the age of thirty years.” Thus, all the income from the property, from the date of the testator’s death down to the time when Leon reached the age of thirty years, was payable to these two sons, and, upon his reaching thirty, then the trust, under the will, would cease, and Percy and Leon were to take absolutely.

The plain intent of the testator, in this paragraph, was to give this property to his two sons as tenants in common, suspending their right to manjage the same until Leon reached the age of thirty years.

The rule deducible from the English authorities is that if language in a will, standing alone, would make the legacy contingent, yet if the will also provides that the legatee should receive the income from the legacy until the period had arrived .when the legatee would take, then the legacy vests in the legatee from the time of the death of the testator, subject to the control of the trustee until the time of payment arrives. Hanson v. Graham, 6 Ves. Jr. 239; 31 Full Eng. Repr. 1030; Goodtitle v. Whitby, 1 Burr. 228; 97 Full Eng. Repr. 287; Lane v. Goudge, 9 Ves. Jr. 225; 32 Full Eng. Repr. 589; Stapleton v. Cheales, Prec. Ch. 318; 24 Full Eng. Repr. 150; Fondereau v. Fondereau, 3 Atk. 645; 26 Full Eng. Repr. 1171; Dodson v. Hay, 3 Bro. C. C. 405; 29 Full Eng. Repr. 611; In Re Hart’s Trust, 3 DeG. & J. 195; 44 Full Eng. Repr. 1243; Boraston’s Case, 3 Co. 19; 76 Full Eng. Repr. 668. This is also the rule in other states. Fuller v. Winthrop, 3 All. (Mass.) 51; Warner v. Durant, 76 N. Y. 134.

Counsel for complainant cites Gifford v. Thorn, 9 N. J. Eq. 702, to support the theory that the estates devised to Leon and Percy were contingent, and not vested. The will in that case is as follows:

“I give and devise all the residue and remainder oí my property, both in England and America, of every kind and description whatever, to the said William Jauncey Thorn when he arrives at the age of twenty-one years, to him and his heirs forever.”

’This clause clearly created a contingent estate. Chief-Justice Green, who sat for the chancellor, said (on p. 708): “In the present instance there is no severance of the legacy from the rest of the estate, and no appropriation of the interest to the separate benefit of the legatee; on the contrary, the whole estate, real and personal, is vested in the hands of trustees, who are to receive the entire interest, rents and profits for the general purposes of the will. The legatee is to receive, not the interest on the residuary legacy, but a maintenance and education from the general fund, in common with the other children of Jane Mary Thorn: Such a disposition of the estate can raise no presumption of any intention on the part of the testator that the legacy should vest immediately.” In his opinion the chief-justice dealt with a great number of English cases (some of which are above cited), and said (at p. 708) : “Where the interest of the legacy is directed to be paid to the legatee until he receive the principal, or where the legacy is placed in the hands of trustees for the exclusive benefit of the legatee until it is directed to be paid over, the legacy will be deemed vested.” The case was affirmed on appeal.

The clause in question in this case comes clearly within the rule laid down in the last clause above referred to in Gifford v. Thorn, supra. The testator set apart the premises in question, in which he had carried on his jewelry business for the benefit of his two sons, Percy and Leon. He devised the same to his brother Martin, in trust, until Leon should arrive at the age of thirty years, and, in the meantime, directed him to receive the income from the property and pay moneys for the upkeep of the same, and the residue or remainder thereof to pay and divide equally between his two sons, Percy and Leon; and then, when Leon attained the age of thirty years, he gave, devised and bequeathed to Percy and Leon the said real estate as tenants in common.

Here we have a situation which complies with every condition required to vest the estate. There was the property separated and taken from the mass of his estate, conveyed to a trustee to pay all the net income derived from the property to Percy and Leon until Leon reached the age of thirty years, and then he devised the property to Percy and Leon.

The case of Gifford v. Thorn, therefore, is against the theory of the complainant. See, also, Post v. Herbert’s Executors, 27 N. J. Eq. 540; Moore v. Matthews, 70 N. J. Eq. 373.

Another circumstance which tends to the above conclusion, based upon the intention of the testator, is the fact that the will contains no residuary clause, and the presumption is that the testator did not intend to die intestate; and the will was drawn by a scrivener who evidently was not well versed in the law of wills. See Aitken v. Sharpe, 93 N. J. Eq. 336 (at p. 346).

I will advise a decree that, under the terms of the will, Percy and Leon took vested estates, and that upon Percy’s death his one-half interest passed to his heirs or devisees, with the right of possession when Leon attained the age of thirty years.


text:
    Henry Manzo et al., complainants, v. Theresa Manzo et al., defendants.
    [Decided April 26th, 1926.]
    1. Where the mayor and aldermen of Jersey City presented a claim to the receiver of a partnership, which claim was for taxes on personal property for 1921, 1922, 1923 and interest, which claim the receiver rejected as a preferred or general claim, it appearing that there is no statute giving a lien on property of a partnership for unpaid taxes, but such taxes must be collected by distress and sale, such right of distress gives a preference to the city in the distribution of the assets of a partnership.
    2. Where taxes on personal property of a partnership become due and delinquent, the collector should enforce the collection by distress proceedings, but when the partnership property is in custodia legis the collector cannot distrain without leave of the court, but the receiver takes the property burdened with the right of the city to distrain by leave of the court, and if it had distrained, the distress would have given the city a lien prior to the claim of creditors, and as there is no statute of limitations applying to the collection of taxes, the taxes are a lien on the property in the hands of the receiver prior to the claims of creditors.
    On bill, &c.

      Mr. Marshall Van Winkle, for the receiver.

      Mr. Thomas J. Brogan and Mr. Charles Hershenstein, for the mayor and aldermen of Jersey City.
   Griffin, V. C.

S. DeBenzi & Company, a co-partnership, carried on business in the city of Jersey City, New Jersey, and, on a bill filed for a dissolution of the co-partnership (not under laws of 1919, page 450), on November 26th, 1923, a temporary receiver was appointed. The language of this order is that “J. Eisher Anderson, of Jersey City, be and he hereby is appointed temporary receiver, pending the return of this order to show cause, of the co-partnership of S. DeRenzi & Company, to take charge of the property, estate, books and papers of the said co-partnership business;” and it was further ordered that the defendants and creditors of the co-partnership show cause, on December 3d, 1923, “why said J. Eisher Anderson should not be appointed permanent receiver of said co-partnership.” On the return of the order to show cause, on December 3d, 1923, it was ordered “that J. Fisher Anderson, of Jersey City, New Jersey, be and he hereby is appointed receiver of the estate, property, moneys, debts and effects, real and personal, of said co-partnership of said S. DeRenzi & Company,” giving him wide powers, and directing the surviving partners to convey and transfer in writing the assets, property and debts of the partnership. There is no decree of dissolution in either order.

About the 20th of February, 1925, the mayor and aider-men of Jersey City (hereinafter called “the City”) presented its amended proof of claim to the receiver, which claim was rejected by him as a preferred or general claim, and, thereupon, the City appealed. The claim consists of $233.28 for the second half of the taxes assessed' for the year 1921, with interest; $206.88 for the entire year 1922, with interest, and the taxes for the entire year 1923, $751.60, with interest.

By the act of 1888 (P. L. p. 119) a lien was given for the taxes assessed upon all tangible personal property used in connection with any business or employment (with certain exceptions which need not be considered) for the period of one year from the date of the assessment. This act was repealed (P. L. 1908 p. & 89); so that, at the present time, no statute is in existence giving a lien on the property of a partnership, although there is a statute which gives a lien on the property of corporations and in cases where assignments are made for the benefit of creditors. 4 Comp. Stat. p. 5182 § 228. The only remedy now existing for the collection of taxes on personal property that is applicable to this case is contained in section 606 of “An act for the assessment and collection of taxes.” Rev. 1918; P. L. 1918 ¶. 8pl (at ¶. 87p). This section makes it the duty of the collector, forthwith, after the 1st day of December, to enforce the payment of all taxes on personal property, &c., by distress and sale of any of the goods and chattels of the delinquent in the county.

The question that arises is, Does this right of distress give a preference to the City in the distribution of the assets of the partnership ?

In the case of Duryee v. U. S. Credit Co., 55 N. J. Eq. 311, Vice-Chancellor Emery had occasion to investigate this question of the lien of the municipality for taxes, and held that under the act of 1888, sufra, warrants for the unpaid taxes on personal, tangible property might be issued, and the personal property thus taxed, as well as other personal property, might be levied upon and sold under the warrant previous to the expiration of the year during which the lien continued, and that sale before the expiration of the lien was necessary in order to preserve the lien; provided, the sale under warrant of the property subject to the- lien is the authorized method for collecting the tax.

Where there -is a divestiture of the title to the property, the City may not destrain; otherwise, it may. 1 Clark Rec. 513; Maish v. Bird, 22 Fed. Rep. 180. .The appointment of a receiver for a co-partnership prior to dissolution does not vest the title to the personal property in the receiver.

In the case of Brockhurst v. Cox, 71 N. J. Eq. 703 (at p. 708); affirmed, 72 N. J. Eq. 950, the receiver of a partnership rejected the claim of Elizabeth A. Brockhurst on a chattel mortgage. One of the questions determined was the power of the receiver before and after the decree of dissolution. Vice-Chancellor Garrison said (at f. 708) : “From the proofs in this suit it appears that the partnership is insolvent. Before a decree of dissolution, the receiver appointed pending the suit is nothing more than a custodian of the property, and represents nobody excepting the court, and represents it solely for the purpose of conserving the property until the further order of the court. The court having taken the property in charge solely for the purpose of conservation, has not, by that act, attempted to adjudicate any claims nor to settle any rights. The suit may be discontinued, or in any one of a number of ways it may result in some disposition other than a finals decree, the effect of which would be to revest the partnership with its property. After a decree of dissolution, however, the situation is entirely changed. The court, by such decree, determines that the partnership is dissolved; that its property must first go'to pay the creditors of the partnership, and that such creditors will be ascertained by the court, their rights passed upon, and their debts, to the extent that the property will go toward that end, paid.” He then held that from the time of the dissolution the debts were fastened upon the assets of the partnership as a lien in favor of subsisting creditors, and the receiver becomes their representative, with power,'by suit or defense, to avoid any instrument which is void as against them. See, also, Boss v. Titsworth, 37 N. J. Eq. 333; Pennsylvania Steel Co. v. New York City Railway Co., 198 Fed. Rep. 721, 728; Atlantic Trust Co. v. Chapman, 208 U. S. 360; 52 L. Ed. 528, 533 col. 1; 28 Sup. Ct. 406; Booth v. Clark, 17 How. 322; 15 L. Ed. 164, 168 col. 1; Quincy, M. & P. R. Co. v. Humphreys, 145 U. S. 82; 12 Sup. Ct. 787; 36 L. Ed. 632, 637 col. 2; Union National Bank of Chicago v. Bank of Kansas City, 136 U. S. 223; 10 Sup. Ct. 1013; 34 L. Ed. 341, 346 col. 1; Gaither v. Stockbridge, Receiver, 67 Md. 222; 9 Atl. Rep. 632; 10 Atl. Rep. 309; 1 Clark Rec. 513 § 441.

Dealing with the tax of 1923, the first half of the tax due, as provided in the law of 1918 (P. L. p 872 § 602), became delinquent on June 1st of that year, amounting to $3'?5.80, with interest from that date; and the second half of the taxes for that year were unpaid, and the partnership became delinquent on December 1st. Thus it will appear that, under section 606, supra, it became the duty of the collector forthwith, after the 1st day of December, to enforce the payment of said taxes by distress proceedings. At this time the property was in custodia legis under the order appointing the temporary receiver, and the collector was without authority to distrain without leave of the court. If he had applied to the court for leave to distrain, the court was bound either to permit such a proceeding or direct the receiver to pay the tax, because the title of the property was still in the partnership, and the receiver was a mere conservator. And the same may be said when the second order was made appointing the receiver permanently on December 3d; because, although the order directed the partners to convey to the receiver, that order did not, in effect, so divest the rights of the City, because there had been no decree of dissolution, and the receiver still continued as a conservator of the property for the persons untimately entitled to it. Instead of applying for leave to distrain, the City presented its claim (the date of which is not given) for these taxes (as well as for those of 1921 and 1922, which will be dealt with hereafter), and also presented its amended claim, sworn to on February 20th, 1925, service of which was acknowledged as within time by the solicitor of the receiver. No objection is raised to the fact that the City presented its claim instead of applying to the court for leave to distrain, and, I think, quite properly so.

In Noe v. Gibson, 7 Paige 513, Chancellor Walworth said: “Where the receiver is in possession of property upon which a third person has a claim for rent, the proper course for the landlord is to apply to the court, upon notice to the receiver, for an order that the receiver pay the rent, or that the landlord be at liberty to proceed by distress or otherwise, as he may be advised. See, also, Martin v. Black, 9 Paige 614; 2 Tayl. L. & T. (8th ed.) § 594.

The conclusion I have reached is that the City would have had the right to distrain forthwith, after December 1st, 1923, and that the receiver took this property burdened with the right of the City to distrain by leave of the court, and, if it had distrained, the distress would have given a lien to the City prior to the claims of creditors.

Turning to the taxes levied for the years 1921 and 1922, if the act of 1888, sup'a, was, in effect, as a statute of limitations, it gave a lien for one year; and if the distress had not been made within the year the right to distrain was gone. When the legislature repealed the act of 1888, supra, it fixed no limitation of time on which the collector might distrain for taxes (Hettfield v. Plainfield, 46 N. J. Law 119, 122), except this, that it made the duty of the collector to proceed, by distress, forthwith, after the 1st day of December. Whether, in view of the enormous number of taxpayers who are delinquent, the city collector did not obey the statute (see tit. “Forthwith,” 26 Corp. Jur. 997, word “Forthwith”), it is unnecessary for me to consider, because the taxpayer cannot take advantage of the failure of the collecting officer to proceed forthwith.

In the case of Settfield v. Plainfield, supra, Mr. Justice Reed, speaking for the supreme court, said: “Nor is there any statute of limitations applying to the collection of taxes. No vested right to .immunity from liability from the pajrment of taxes arises from a failure of the collecting officers to pursue the law within the periods provided by the tax statutes.”

Counsel for the receiver also urges that there is no proof that the merchandise on which the tax was levied ever came to the hands of the receiver. This is unnecessary. In Mullins et at. v. Mayor and Aldermen of Jersey City, 61 N. J. Law 135, Mr. Justice Dixon, speaking for the supreme court, said: “In executing such a warrant the city collector is not confined to the property for which the tax was assessed. The warrant commands him to make the tax of the goods and chattels of the person named therein,” and Yice-Chancellor Emery, in Duryee v. U. S. Credit System Co., supra (at p. 312), says that “the personal property taxed, as well as the other personal property, might be levied upon and sold under the warrant, previous to the expiration of the year during which the lien continued.”

I will therefore advise an order that the determination of the receiver be overruled.


author: Foster, V. C.

text:
    The Borough of West Long Branch, complainant, v. John Hoch et al., defendants.
    [Submitted October 1st, 1924.
    Decided October 8th, 1924.]
    Evidence examined, and held, that the proofs are convincing that the roadway in question is, by reason of its continued adverse use since 1892, a public street to the width it was originally opened.
    On bill, &c.

      Mr. William A. Stevens, for the complainant.

      Mr. Benjamin P. Morris and Mr. Wilbur A. Heisley, for the defendants.
   Foster, V. C.

Complainant seeks an injunction to restrain defendants from closing or obstructing what is alleged to be a public street or road in the borough of West Long Branch.

The answer denies the lands in question to be a public road, and claims they have been used for travel only by permission of the owners of the fee, and also claims the lands have been so used for a width of only twelve or fifteen feet, as against the borough’s claim of a public use of fifty or sixty feet.

The proofs show that the road in question was opened about 1892 by J. H. McIntyre, the owner of the fee, both for his own accommodation to reach High street, now called Wall street, from his property, and also with the intention of having it become a public street, extending northerly from Wall street to Broadway, whenever the owners of lands north of his property would open the street through their lands. For his own convenience in driving to and from his property into Wall street, Mr. McIntyre lowered the strip used for the roadway about eight or ten inches below the grade of the adjoining land, for a width of fifty or sixty feet and for a length of two hundred and fifty-two feet six inches extending northerly through his lands from the northerly side of Wall street. On the southerly side of Wall street, directly opposite this roadway, Norman L. Munro, about the same time, had opened and dedicated a street of like width extending southerly through his property and which has since been known as Monroe avenue. At this time, in 1892, the property was in Eatontown township, and in 1908 it was incorporated as part of the territory of the borough of West Long Branch.

Mr. McIntyre had purchased part of his property in 1891 from one Isaiah Lane, and, on opening the roadway, Lane asked for, and McIntyre gave him permission to, use it to enable Lane to drive into his farm, in the rear of McIntyre’s lands, from Wall street.

The McIntyre place, eventually, changed owners and was divided into two parcels, the portion lying to the east of the roadway, being now owned by the defendant Hoch, and the westerly portion by the defendant Tilton.

Since 1892 the roadway has been used continuously, not only by the occupants of the Lane farm, but also by the general public, and particularly by people who purchased farm produce from the Lane’s and by others who drove through the roadway and around Lane’s house into the public street known as Locust avenue, for the purpose of reaching the golf links and for other purposes.

On the westerly side of the road there was a fence for a number of years, and on the easterly side — fifty or sixty feet distant- — -there was a privet hedge and also a sidewalk or foot path. Some graveling, filling in and scraping has been done on the traveled part of the roadway by both the township and borough during the past twenty or twenty-five years, and during the last eight or ten years some effort was made by the owners of what is now the Hoch property, to obstruct or to confine the travel to the middle of the driveway by placing posts, or rails, or stones, or pieces of brick, or a fence, on the easterly side or at the entrance to the driveway from Wall street, to keep vehicles off the grass part of the roadway and to compel them to use the graveled portion, which is said to be from twelve to twenty feet in width, and which is, approximately, in the middle of the roadway; these obstructions were promptly removed by the borough officials and were ignored by the traveling public.

The clear preponderance of proof shows this roadway to have been continuously used by the public as a street or road since 1892, and this fact is conceded by counsel for defendants on pages 49 and 50 of the transcript. But it is contended that this user was not adverse to the defendants’ right, because such use was originally expressly granted and’ permitted by defendants’ predecessor in title, Mr. McIntyre.

There is not the slightest evidence to support this contention; the record does show that McIntyre, in 1892, gave Isaiah Lane permission to use the road, and it also shows that the defendant Dr. Hoch notified Louis Lane, the son of Isaiah, in 1922, that this permission was then and there revoked.

No such permission was ever given to or asked for by the public. On the opening and grading of the road by Mr. McIntyre in 1892, the public began to use it, and has continued to do so, up to the present time, without interruption and without serious interference from any owner of the abutting properties, until defendants erected a fence at the Wall street entrance to the roadway in 1923, which the borough officials removed and which resulted in this litigation.

Defendants further contend that the proofs do not show the public use of the roadway for its full width of fifty or sixty feet, for the evidence is that the traveled and also the graveled part of the roadway has been from five to twenty-four feet in width, but it is also in evidence that when the usual traveled track was blocked with snow, or was, for any other reason, unsuitable for travel, that the public drove over and used the grass part of the roadway, extending from the gravel to the side of the road, and that this was done so frequently as to become an annoyance to Mrs. Julian, Mr. Hayes and other former owners of the Hoch property, and it was for this reason that some of the obstructions mentioned, such as the post and rails and pieces of a brick or culvert pier, were placed on the grass part of the roadway.

Note. — This case should have appeared in an earlier volume' of the Equity Reports. — Rep.

The proofs are convincing that the roadway in question is, by reason of its continued adverse use since 1892, a public street, to the width it was originally opened by Mr. McIntyre and which I understand corresponds to the width of Monroe avenue on the south side of Wall street.

"Under the authority of Railroad Co. v. Parker, 41 N. J. Eq. 489; Renwick v. Hay, 106 Atl. Rep. 547; Man v. Vockroth, 94 N. J. Eq. 511, and other cases, the power of the court to grant the relief sought under the situation here presented, showing what may be properly regarded as repeated trespasses on a public right, is well settled, and a decree will be advised for complainant.


author: Buchanan, V. C.

text:
    Anna Fried, complainant, v. Arnold Fried, defendant.
    [Filed March 22d, 1926.]
    1. Suit for maintenance under Divorce act, section 26, is a suit in personam, and must needs be brought in the state where defendant is located. Where defendant is living in this state and is here served with process, this court has jurisdiction of, and will entertain, such suit for maintenance, notwithstanding the legal domicile of defendant and of complainant may be elsewhere.
    2. Where, in a cause of which this court has jurisdiction, a judgment of a court of a foreign state is set up as the foundation of an action or as a defense, and the validity of such judgment is chailenged as having been obtained by fraud or as being the judgment of a court lacking jurisdiction, this court has jurisdiction to determine the issue thus raised.
    3. Allegations under which a wife living separate and apart from her husband seeks decree awarding her the custody of a child then in the care of the husband, constitute a cause of action entirely separate and distinct from, the cause of action involved in suit for maintenance under Divorce act, section 26, and should be separately pleaded.
    4. A release by a wife of all claims for future maintenance against the husband is no bar to subsequent suit for maintenance where the agreement, of which the pelease forms a part, is not just and fair: nor where the husband’s promise to pay monthly a sum to the wife, in consideration of which the release was given, is immediately broken by the husband.
    5. Evidence examined, and decree of divorce by foreign court, set up in defense of suit for maintenance, held invalid, as coram non judice and fraudulent.
    On final hearing.

      Mr. John P. Lloyd, lor the complainant.

      Mr. Cecil S. Aclcerson, for the defendant.
   Buchanan, V. C.

Complainant’s hill is for maintenance, under the statute, for herself and two children of the marriage between herself and defendant, and for custody and possession of one of said children now in the custody of defendant, and as ancillary and antecedent to the main relief, to have declared null and void a decree of divorce obtained by defendant in the courts of Illinois, to have defendant enjoined from setting up such decree, and to have him commanded to endeavor to have the Illinois court set aside its decree.

The answer sets up the Illinois decree, denying the allegations that it was obtained by fraud or that the Illinois court lacked jurisdiction; it also denies the allegation of his abandonment of complainant, and sets up laches.

In addition, defendant challenges the right or status of complainant to maintain her hill under the allegations of the bill (and the proofs at the hearing) on the authority of Floyd v. Floyd, 2 N. J. Adv. R. 638. This first issue, it seems to me clear, must needs be decided against defendant. The situation in the instant case is entirely different from that in the Floyd Case.

In that case the complainant husband, a resident of Pennsylvania, filed bill in New Jersey for an adjudication that a decree of divorce obtained by the wife in Nevada was null and void because fraudulently procured. This was the primary and sole relief sought; it was a direct attack on the validity of the Nevada judgment,* hot ancillary or collateral to a different cause of action or defense. On complainant’s own averments the matrimonial domicile was in Pennsylvania. The parties had lived there as husband and wife until the wife wrongfully left him without his consent. The court held that the legal domicile of the wife was still that of the husband; that the matrimonial domicile was Pennsylvania; that the proceeding was one solely seeking to deal with or affect the matrimonial status considered as a res, and that the complainant had no status in this state to entitle him to ask the courts of this state to entertain such a suit.

The opinion, however, expressly recognizes and affirms (at p. 642) the right and power of the courts of this state to relieve against fraudulent judgments or judgments of tribunals lacking jurisdiction, “whenever they are sought to be made the foundation of an action or defense.”

The present bill is not one seeking to deal with or affect the matrimonial status as a res. It is a bill for maintenane, which is an action in personam. Hervey v. Hervey, 56 N. J. Eq. 424 (at p. 428); Cf., also McG-uinness v. McGuinness, 72 N. J. Eq. 381. (We are, of course, in nowise concerned here with the question of a maintenance suit as quasi in rem as regards property of the defendant, where commenced by sequestration. Wood v. Price, 79 N. J. Eq. 1; affirmed, 79 N. J. Eq. 620.) The Illinois decree is attacked, not directly, but because it is sought to be made the foundation of a defense. It is immaterial that New Jersey was not the state of matrimonial domicile at the time of the separation of the parties, or at the time of the Illinois decree. Being a personal action, it must needs be brought in the state where the husband is located. The husband was served here, and, admittedly, resides here, and has appeared and defended generally.

That this court has jurisdiction of the proceeding, as a suit for maintenance, is not challenged, nor could it be, successfully. It has jurisdiction over the persons, as has been noted; assuredly it has also jurisdiction over the subject-matter, for the bill alleges (and, concededly, if defendant and complainant are still husband and wife, there has actually been) an abandonment and refusal to support, as specified by the statute. Moreover, if this, indeed, be requisite, the abandonment and refusal to support were acts committed by the husband in this state, being acts continuing during the period of his actual residence here. In Freund v. Freund, 71 N. J. Eq. 524; affirmed, 72 N. J. Eq. 943, the parties were domiciled in New York; the husband deserted and came to New Jersey; the wife later discovered he was residing here, and, herself still a resident of New York, filed bill for maintenance in this court and was awarded decree. These facts are identical with the case at bar.

Having thus jurisdiction of the main cause, this court has also jurisdiction of the secondary question as to the validity of the Illinois decree interposed as a defense. Fairchild v. Fairchild, 53 N. J. Eq. 678; Floyd v. Floyd, supra.

It appears that complainant has made application in the Illinois courts to set aside the decree in question, and it is argued by defendant that such step deprives this court of jurisdiction. Not so. The present suit was commenced before the pending application in Illinois, and, even if the contrary were true, it would not deprive this court of jurisdiction, but merely afford ground for motion to stay proceedings or final decree until the final determination of the prior proceeding. Fairchild v. Fairchild, supra (at pp. 681, 682).

It seems to me that the disposition of the present case must needs be in accordance with the opinion of Vice-Chancellor Backes in Thompson v. Thompson, 89 N. J. Eq. 70, wherein are fully set forth the authorities, as well as the principles, involved. New York was the last matrimonial domicile; Illinois was never the state of matrimonial domicile, neither did the Illinois court have jurisdiction over the person of the wife. The decree, therefore, is not entitled to recognition in this state under the provisions of the federal constitution. Neither is it entitled to recognition on the ground of comity, for it is clear that the alleged jurisdiction of the Illinois court was not obtained “in substantial conformity with the requirements imposed by the legislature on this court in acquiring jurisdiction in such cases.”

It appears by tlie decree that the divorce was granted for the same cause of desertion. In such case it is a jurisdictional requisite under our statute that petitioner shall have been a bona fide resident of this state for the two years next preceding the commencement of the action. By the husband’s own testimony he moved to New Jersey in June, 1916, after the separation in New York, stayed here until July, 1917, when he moved to Detroit, where he lived until July, 1918, at which time he went for the first time to Illinois, although he kept rooms for his son Morton and Laura Tunis ii? Detroit. It is clear, therefore, that there was not, either actually or approximately, a two years’ residence of any kind by him in Illinois to support a decree granted November 20th, 1919,

I think the decree is invalid for fraud and lack of jurisdiction on other grounds as well. It would appear from the face of the decree to be a jurisdictional requisite under the laws of Illinois that the complainant shall have been a resident for over a year next prior to filing his complaint. As heretofore noted, he was not even eolorably a resident of Illinois prior to July, 1918; he was a resident of Detroit. He does not say, nor is there anything to show, that when he went to Chicago in July, 1918, he intended Illinois as his residence. Quite the contrary; he went to Chicago only because he was transferred there by his superiors in the quartermaster’s department; he still maintained the home for his son in Detroit, as I have said; he went or was transferred back to Detroit, Fovember 11th, 1918; on Fovember 16th, 1918, he executed an agreement with his wife, wherein he described himself as “Arnold Eried, of the city of Detroit, State of Michigan;” and, most cogent of all, on Fovember 23d, 1918, he filed a bill for divorce against his wife in the courts of Michigan, alleging himself to be a resident of Michigan, and to have been such for two years prior thereto, and swore to the allegations. It is perfectly obvious that, as a resident of Michigan on Fovember 23d, 1918, he could not have been a resident of Illinois for a year prior to commencing the Illinois suit, wherein decree was granted Fovember 20th, 1919; that the Illinois court, therefore, did not have jurisdiction under its own statutes, and that the finding by the Illinois court that it had jurisdiction could only have been made as the result of fraud by the complainant (the present defendant).

The explanation he gave before this court is edifying, but scarcely adequate: “I can keep a residence in two different states as far as that’s concerned.”

It may be further noted that the record in the Illinois suit shows that he there testified that he had lived continuously in Chicago since July 2d, 1918, whereas he here admits that he lived in Detroit for several weeks in Fovember, 1918. He further testified in the Illinois suit that he had not seen either his wife or children since seven months after January, 1917; had tried to find them but could not; whereas the truth was, as he now admits, that he took the son to Detroit with him in July, 1917, and kept the boy until Fovember, 1918, and that he saw his wife in Fovember, 1918, and again in May, 1919, when she came out and successfully contested the Detroit divorce suit.

I 'find no ground to support the defense of alleged laches.

The custody of the son, Morton, is also- an issue between the parties, and is a part of the relief prayed by complainant. Strictly, this would seem to be the subject of a separate cause of action, coming not within the statute as to maintenance (2 Comp. Stat. p. 2088 § 26), but under the act concerning minors (2 Gomp. 8tat. p. 2810 § 20), and should have been so pleaded. The matter has been fully tried and argued, and complainant may have an order to amend her bill accordingly.

The boy is now fourteen years old. Under the pendente like order of this court the custody was given to the father, in whose actual possession the son was at the commencement of this action, and with whom he at the time desired to remain. Later, his attitude changed, and he ran away to his mother in New York. Although he was, subsequently, returned by her, his dissatisfaction remained. While I do not believe all of his stories as to neglect and improper treatment bjr the father, I am satisfied that it is not for the boy’s best interest that he remains in the father’s custody. He has become highly nervous and entirely beyond the father’s control, resulting in his suspension from school, and his later commitment by the Monmouth common pleas to the State Home for Boys.

There are other circumstances all tending to the same end. The father, admittedly, has no religious faith or affiliations. His false swearing in the Michigan and Illinois proceedings has been noted. He is living with Laura Tunis,' with whom he went through the ceremony of marriage in Indiana immediately after the Illinois decree, admittedly, because, by the law of Illinois, he could not remarry for a year after the decree. They have a child now about two or three years old. The result of the finding of invalidity as to the Illinois decree, upon the relationship between defendant and Laura Tunis, is obvious. That a meretricious relationship existed between them in Keyport in 1917, and, later, in Detroit and Chicago, is, doubtless, not proven, but there is ground for grave suspicion, in view of the “Dear Sweetheart” note (Exhibit G2 of October 22d), and the perjury which I am constrained to find was committed by both in their denials of the authorship or receipt of that note. Comparison of the handwriting in this note and its address, with that of the postal cards admittedly written by her, leaves no room for doubt that they are the work of the same person. The same result is reached by comparison with the samples written by her under cross-examination, the same characteristics are plainly evident even in the back-hand writing, while the obvious attempt at disguise by the change of slant, in the writing in court, itself affords additional ground for certainty.

By the Detroit agreement of November 16th, 1918, defendant gave the boy to the mother’s care and custody, and to pay her $25 a month for his support. That situation continued (although the payments ceased after five or six months) until shortly before the filing of the present bill, when the defendant took the boy while the latter was visiting in Keyport. In 1920 complainant procured an order for $12 per week for the support of both children, from a court in New York, which defendant paid for, at least, two years.

The wife, it is true, is a resident of New York and the husband of New Jersey. But the husband’s continued residence in New Jersey, judging from his past history, could not be relied on, and in view of the fact that he is not “the suitable person who should have custody of the child for its best welfare,” section 10 of the act concerning minors, as amended (P. L. 1921 p. 205), does not preclude the award of custody to the wife. Neither does section 7 of that act (P. L. 1902 p. 263), for the boy is not a native of New Jersey, has not lived here five years, and does not object to going to New York. Moreover, bond may be required of the wife, conditioned for her compliance with the orders and decrees of this court in the premises.

There is conflicting testimony as to the attitude of the mother toward the care and custody of the children prior to 1917, but she has had the daughter ever since then, and the son since 1918. It appears that the daughter, who is sixteen or seventeen years old, -is now working, and receives $12 per week; she is boarding with complainant’s sister, paying $7 a week. Complainant formerly earned $25 a week, but now averages only about $8 a week.

By the Detroit agreement of November 16th, 1918, the wife, “in consideration of receiving the child Morton, * * * hereby releases and discharges the said Arnold Fried from all claims of whatsoever kind, nature or character against him.” It also recites a declaration of intention by both parties not to live with each other in future, but to part forever.

This release cannot be held a bar against future action for maintenance. An agreement between husband and wife is binding only to the extent that it is just and fair. Hollingshead v. Hollingshead, 91 N. J. Eq. 261 (at p. 278), and cases cited. The fairness of this agreement may well be doubted, considering that the release clause was obviously imposed by the husband, a husband who had deserted his wife in New Jersey and gone to Detroit, taking the boy with him and keeping him from the mother for more than a year, as a condition to her haying the boy. Moreover, it was speedily broken by the husband, for he paid the $25 per month for only five or six months, and within a week after making the agreement filed his bill in Michigan praying for the custody of both children, and, on the dismissal of that bill, sought and obtained decree in Illinois giving him the custody of both children, and later, in New Jersey, took the boy and refused his return to the mother.

(I have said the husband deserted the wife in New Jersey. The wife and her sister Mrs. Jacobs, and Mr. Rothenburg, originally a friend of the husband, but whose sympathies are now with the wife because of the husband's conduct, all testify to efforts in January, 1917, to have him establish a home for his wife and children, and his refusal. The husband's denial is of no weight, in view of his proven lack of credibility.)

The -declaration of intention by the wife not to live with the husband might be a factor for consideration on the question of abandonment, if there were no proof of subsequent change of intent. It might, well be doubted that the declaration, under the circumstances, would be held to amount to consent to separation and non-support (Cf. Power v. Power, 66 N. J. Eq. 320), but, at any rate, there is proof of a later •different attitude of mind. There is the fact of her going to Michigan to contest the divorce suit as soon as she received notice. When the Michigan suit was dismissed her husband's attorney said defendant wanted to come live with her, and she said that if he would give up Laura Tunis he could come to her or she would come to him. There are also the proceedings later brought by her against her husband in New York for support for herself and her children, before she knew of the Illinois decree or the second marriage.

The decree will award the custody of the boy to the wife, and the sum of twelve dollars ($12) a week, of which half shall be deemed for the support and maintenance of the wife and half for that of the boy.


author: Fielder, V. C.

text:
    Jacob S. Freedman, complainant, v. Kensico Realty Company, defendant.
    [Decided February 4th, 1926.]
    1. The doctrine of caveat emptor is applicable to the purchase of real estate, and is applied in equity as well as at law.
    2. In order to justify interference of a court of equity with a contract for the sale of lands because of the concealment by the vendor of facts material to the interest of the vendee, the case must amount to a suppression of facts which one party under the circumstances is bound in conscience and duty to disclose to the other, and in respect to which he cannot innocently be silent.
    3. The undisclosed existence of a party wall, if it is, in fact, a detriment to the building, is not a sufficient reason to rescind a contract of sale upon the vendee’s application.
    On bill, &c.

      Mr. Abe D. Levenson, for the complainant.

      Mr. John Milton and Mr. John L. Ridley, for the defendant.
   Fielder, V. C.

This cause is on final hearing on bill filed by the complainant, vendee in a contract for the sale of real property made with the defendant vendor, to have the contract rescinded on the ground that the vendee was induced to enter into the same through fraud and misrepresentation on the part of the vendor and for the return of the deposit paid by the vendee on account of the purchase price.

The contract calls for the purchase and sale of a plot of land, situate in Jersey City, described by metes and bounds, being one hundred and seventy-five feet wide in front by about one hundred and twenty-seVen feet in depth. Upon the plot is a five-story brick apartment building, divided into two units identical in design and size, each about one hundred feet deep, the whole occupying practically the entire width of the plot. Each unit has a separate main entrance opening on a large court which separates the units in front, and which court is reached by a walk leading from the street. Each unit has its own elevator service, heating, water and sewerage systems, and the two are intersected by a wall which (scaled from a survey in evidence) is about twenty-five feet long, running from the front court to another court which divides the units in the rear. There is no means of communication between the units through this wall, except in the cellar where there is an opening or doorway.

The bill charges that the 'vendee was induced to purchase by fraudulent representations made by the vendor as to the rental income from the property, but the evidence failed to support this charge and it was not pressed by counsel in his argument. The only ground upon which the vendee now relies is, as charged in his bill, that the wall between the units is a party wall, of which the vendor had full knowledge, and fraudulently induced the vendee to enter into the contract without apprising him of the existence of such party wall, and should the vendee be required to take the title tendered him, he would be unable “to sell one house without the other unless the purchaser would be willing to take it subject to a party-wall agreement/’ because of the liability for repairs to, and maintenance of, the party wall.

It is not every concealment of facts material to the interest of a party which will entitle him to the interposition of a court of equity. The ease must amount to a suppression of facts which one party, under the circumstances, is bound in conscience and duty to disclose to the other party, and in respect to which he cannot innocently be silent. Conover v. Wardell, 22 N. J. Eq. 492; Keen v. James, 39 N. J. Eq. 527.

First, it may be questioned whether this is a party wall. A party wall is defined to be a wall of which two adjoining owners are tenants in common, or a wall which belongs entirely to one of the adjoining owners, subject to an easement of the other owner to have it maintained as a dividing or supporting wall between the two tenements. 30 Cyc. 771. The wall in question is really a partition wall between two units of a building, title to which building is in the vendor alone. But, assuming that it may be called a party wall, whether a party wall is an advantage or a liability to the owner of a building is, at least, a matter of opinion upon which men may differ. The vendor was not bound to know or to inquire as to the vendee’s opinion or state of mind on matters of building construction. To the vendor this so-called party wall may well seem a proper and practical method of construction and an economy in expense and in conservation of space for apartments, and since the vendee did not bring to the vendor’s notice the vendee’s objection to a wall of this character, the vendor was not bound to inform the vendee that the floor beams of each unit are not supported by separate Walls. Denman v. Mentz, 63 N. J. Eq. 613. The vendee did not testify that had he known of the party wall he would not have entered into the contract, nor did he attempt to prove that the party wall depreciates the value of the property or makes it difficult to sell it as a whole or as separate buildings.

The vendee does not contend that the party wall is a defect in construction of the building, and where there is no hidden defect in construction or condition a vendor of real estate is ordinarily under no obligation to explain to the vendee the detail or plan of construction of a building. No relationship of trust or confidence existed between these parties. The vendee was free to examine the building and to ask questions before entering into a contract of purchase. It does, not appear that he asked any questions, or that the vendor made any statement concerning the plan of construction. In the sale and purchase of real estate, the parties usually deal with each other at arm’s length and there is nothing to indicate that this was other than a usual transaction of sale and purchase. The vendee says he made no examination of the building before agreeing to purchase, except to spend about five minutes in the entrance hall. Even that slight inspection must have acquainted him with the fact that the units were separated by a wall, and if it was so highly important to know whether or not each unit had a separate wall for its floor beams, it was his duty to satisfy himself by examination or by inquiry. Courts do not aid a purchaser of real estate who is carelessly indifferent to the use of ordinary caution before entering into a contract, when he is left free and uninfluenced to make examination of the property and to exercise his own judgment in determining whether or not to buy. The doctrine of caveat emptor is applicable to the purchase of real estate and is applied as well in equity as at law. Denman v. Mentz, supra; Industrial Sign Co. v. Plummer, 84 N. J. Eq. 184; Hawthorne v. Odenson, 91 N. J. Eq. 588.

The vendee’s position seems to be that he intended to buy two complete buildings. The contract calls for the conveyance of a plot of ground by metes and bounds, which, of course, carries with it all structures erected on the land. The contract makes no mention of any building, except as it speaks of tenancies, monthly rentals and insurance premiums, and provides that it is agreed that the buildings upon the premises are all within the boundary lines described, and that they comply with municipal ordinances and tenement-house laws. The vendor is able to convey to the vendee the two buildings the latter says he intended to purchase, in strict accordance with the terms of the contract, and so long as each building is a complete building, the vendee cannot complain. If the outside wall of each building were a party wall, standing partly on adjoining land, each building would still be a complete building, and in taking title with outside party walls the vendee would get all that the contract would give him the right to claim (even without mention of party walls in the contract), namely, a plot of land of specified size, with the buildings thereon. Burns v. Thomas, 81 N. J. Eq. 168. That the division wall between the two units or buildings in question is a party wall, and that the vendee was not apprised of that fact, has no bearing upon the agreement entered into between the parties, as evidenced by their contract.

The bill of complaint will be dismissed.


text:
    Commercial Trust Company of New Jersey, executor, &c., complainant, v. Lettie A. White et al., defendants.
    [Filed March 26th, 1926.]
    1. Where moneys belonging to one person are iby him deposited in a savings bank in the joint names of himself and another, the question whether or not the act of deposit accomplished a then, present transfer to the donee of an interest in the money in bank, depends upon the intent with which the donor made such deposit.
    2. Where the donor and donee signed a signature card by which a savings bank was directed to open an account in the names of “J. J. B. or L. A. D.,” with no further direction on the card with regard to the account, such form of deposit does not, in itself, constitute the donee a joint owner of the fund.
    3. In the absence of evidence that the words “either or the survivor to draw,” stamped on a savings bank pass book, were placed there at the donor’s direction, those words cannot be considered for the purpose of enlarging or explaining a signature card contract on which said words do not appear.

      4. Where the donor and donee signed a signature card by which a savings bank was directed to open an account in the names of “J. J. B. or L. A. D., as joint tenants, either and the survivor to draw,” or equivalent words, such form of deposit is evidence of a gift to the donee to take effect in prcesenti, and the balance to the credit of the account belongs to the donee on the death of the donor, unless it appears from the evidence that the donor had no donative intent in naming tfie donee as joint owner.
    5. The pass hook for the account contains a provision to the effect that no withdrawal shall be made from the account without production of the hook, and at the donor’s death the pass book was found in a safe deposit box standing in the joint names of himself and another. Held, that under the form of contract of deposit last mentioned, and in the absence of evidence to show that the donor had no donative intent of a gift in prwsenti to the donee, delivery of the pass book to the donee was not necessary to complete the gift.
    On bill, &c. On bill, answers, replication and oral proofs.
    This suit is brought to determine the ownership of nine special, or savings, accounts in banks in this state, all standing in the joint names of John J. Bullis and Lettie A. Dath. Mrs. Dath was Bullis’ sister, and some time after the accounts were opened she married Sidney White. Bullis died April 10th, 1924, Mrs. White surviving him, and the complainant is executor of his will. The bill of complaint alleges that all money deposited in the accounts was owned by Bullis, and that Mrs. White deposited no money in any of them, which allegation Mrs. White, by her filed answer, admitted. The bill further alleges that some legatees under Bullis’ will claim that Bullis opened the bank accounts in said joint names without intending to vest any right therein in Mrs. White, and that her name was used in the accounts as a matter of convenience for Bullis in making withdrawals therefrom, which allegation Mrs. White, by her answer, denied. Shortly after filing her answer Mrs. White died and the suit was revived against her husband as executor of her will. The contest here is between the executor of Bullis’ will and certain legatees thereunder on one side and the executor of Mrs. White’s will on the other.

      The pass books for all the accounts contain a provision to the effect that no withdrawals could be made from the accounts without production of the pass books, and at Bullís’ death all the pass books were found in a safe deposit box originally rented by Bullís April 16th, 1914, but for three years preceding his death held in the joint names of John J. Bullís and Sidney White, under rental conditions which gave Bullís and White, and each of them and the survivor, right of access to the box. No testimony was offered to show that the books had always been kept in this box, neither was there any testimony of any statement made by Bullís or Mrs. White before, at the time or after the accounts were opened, which would throw any light on the purpose or intent with which they became joint depositors. Following is a statement of the pertinent facts concerning each bank account:
    Hoboken Trust Company—
    Opened October 7th, 1914, in the names of "John J. Bullís ór Lettie A. Dath.” Both signed the signature card, but there is nothing thereon to show the purpose with which the account was opened.
    On the cover and on an inside page of the pass book are the printed words "Hoboken Trust Company in account with,” following which are written the names "John J. Bullís or Lettie A. Dath,” and nothing more.
    There were no withdrawals.
    Lincoln Trust Company—
    Opened originally January 3d, 1910, in the names of "John J. Bullís or Emma F. Bullís,” by a signature card on which appear the signatures of said depositors. October 7th, 1914, the name of Emma F. Bullís was inked out and the signature of Lettie A. Dath taken on a new card. No new account was opened and the balance then to the credit of the original account was carried along in the changed account. There is nothing on the old or the new signature card to show the purpose with which the account was opened. On the cover and on an inside page of the pass book are the printed words "Lincoln Trust Company in account with,” following which were written the names “John J. Bullis or Emma E. Bullis.” The name of Emma E. Bullis is inked out and the name of “Lettie A. Dath” written thereunder. On the cover, but separate from the other words, are stamped the words “either or the survivor to draw.”
    There was one withdrawal by draft signed by Bullis, for the amount of interest previously credited.
    Hudson Trust Company—
    Opened October 7th, 1914. The signature card contains the following:
    “Either signature to draw. This account is opened by us and intended to create a joint estate to us as joint tenants and not as tenants in common.
    [Signed] John J. Bullís, or
    [Signed] Lettie A. Dath.”
    On the cover and on an inside page of the pass book are written the names “John J. Bullis or Lettie A. Dath,” under which, in both places, are stamped the words “as joint tenants and not as tenants in common,” and on the cover'and inside the book, but separate from the other words, are stamped the words “either signature to draw.”
    . There were two withdrawals, both on drafts signed by Bullis, in each case for an amount of interest previously credited.
    Commercial Trust Company (No. 1813)—
    Opened originally January 14th, 1904, in the name of Bullis alone. Later, the name of Emma E. Bullis was added and subsequently erased and the name of Lettie A. Dath substituted October 7th, 1914. A new signature card was then made out on which appears the following:
    “This account and all money to be credited to it belong to us as joint tenants, and will be the absolute property of the survivor of us, either and the survivor to draw. We ¿¡0 each appoint the other attorney irrevocable with power to deposit in said joint account moneys of the other, and for that purpose to endorse any cheek, draft, note or other instrument payable to the order of -the other.
    [Signed] Lettie A. Dath, John J. Bullís.”

      The pass book shows it was issued iu the name of John J. Bullís or Emma E. Bullís, “either and the survivor to sign,” and that the latter name was stricken out and the name “Lettie A. Dath” substituted therefor.
    There were four withdrawals on drafts signed by Bullís, one of which, dated April 12th, 1916, for $3,500, was used to open a new account (No. 9873) in the same bank in the names of John J. Bullís or Lettie A. Dath. There were also two withdrawals on drafts signed by Mrs. Dath, one dated June 25th, 1923, and the other dated September 27th, 1923.
    Commercial Trust Company (No. 7236) —
    Opened originally June 27th, 1911, in the names of “John J. Bullís and Emma E. Bullís.” The name of Emma E. Bullís was stricken out and the name “Lettie A. Dath” substituted October 7th, 1914. A new signature card was then made out on which appear the same words as in the account last above, with the signatures “John J. Bullís, Lettie A. Dath,” appended.
    The pass book shows it was issued in the names of John J. Bullís or Emma E. Bullís, “either and the survivor to sign,” and that the latter name was stricken out and the name of Lettie A. Dath substituted therefor.
    There were two withdrawals on drafts signed by Bullís, also two on drafts signed by Mrs. Dath, one dated January 16th, 1922, and the other dated June 8th, 1922. All four drafts were for amounts different from the amounts of interest credits.
    Commercial Trust Company (No. 9873)-—
    Opened April 12th, 1916, in the names of John J. Bullís or Lettie A. Dath, by draft signed by Bullís against Commercial Trust Company account No. 1813. On the signature card both names appear signed under the same words as were used in account No. 1813 of the same bank. The pass book shows it was 'issued in the names of John J. Bullís or Lettie A. Dath, “either and the survivor to sign.”
    There was one withdrawal on draft signed by Bullís, also one on draft signed by Mrs. Dath, dated January 16th, 1922. Neither draft is for an amount of interest credit.

      Hoboken Bank for Savings-—
    Opened October 7th, 1914, in the names of John J. Bullis or Lettie A. Dath. Their signatures appear below an agreement which, in effect, states that they have deposited the sum with which the account was opened, and that they request the bank to open an account with them in their names; that they are the joint owners of the money deposited and thereafter to be deposited, and of the interest accruing thereon; that upon the death of either, the moneys then on deposit shall become the property of the survivor; that each, or the survivor, may at any time draw against the account. The pass book was issued in the names of “John J. Bullis or Lettie Á. Dath, payable to either or survivor.”
    There were two withdraw]s, both on drafts signed by Bullis for the amount of interest previously credited.
    Provident Institution for Savings (two accounts)-—
    Both opened January 5th, 1915, in the names of “John J. Bullis and Lettie A. Dath.” The signature cards signed by them are identical and contain the following: “This account and all money to be credited to it belong to us as joint tenants, and will be the absolute property of the survivor of us; either and the survivor to draw upon producing consent of any public officer required by taxation laws.”
    The pass books were issued in the names “Lettie A. Dath and John J. Bullis.”
    There were seven withdrawals from one account and eight from the other, all on drafts signed by Bullis. In each case these withdrawals, except the first one on each account, were for amounts of interest credits.

      Messrs. Fisk & Fisk, for the complainant.

      Mr. August G. Menge, for the defendant Lettie A. White.

      Mr. Pierce F. Cook, for the defendants Etta Bullis Wood et al.
   Fielder, V. C.

In opening the accounts, Bullís had either a donative intention of a then present gift to Mrs. White of an interest in the moneys deposited therein, with the right to receive what remained to the credit thereof at his death in case she survived him, or an intention merely to use her as a convenience in withdrawing money for him in his lifetime, with no beneficial interest to her in the monejr, except, perhaps, after his death, in case she survived him. There being no direct testimony to show what his purpose was, the rights of the donor and donee must be determined upon the effect to be given the writings which they signed and delivered to the several banks, in connection with the surrounding circumstances.

Taking up first the accounts with the Hudson Trust Company and the Lincoln Trust Company. The form of the deposits as appears from the signature cards is not evidence of a gift to her to take effect in prcesenti. Schick v. Grote, 42 N. J. Eq. 352; Skillman v. Wiegand, 54 N. J. Eq. 198; Taylor v. Coriell, 66 N. J. Eq. 262; Gordon v. Toler, 83 N. J. Eq. 25; McCullough v. Forrest, 84 N. J. Eq. 101; Morristown Trust Co. v. Capstick, 90 N. J. Eq. 22; affirmed, 91 N. J. Eq. 152. In the case of the Lincoln Trust Company account, the words “either or the survivor to draw,” stamped on the pass book, are not found in the contract entered into between Bullís, Mrs. White and the bank; they were evidently placed on the pass book by a bank official or employe. Not-' withstanding that these words are in plain sight on the pass book, which is assumed to have been always in Bullís’ possession, in the absence of any evidence that they were placed there by his direction or consent, I think they should not be considered for the purpose of enlarging or explaining the signature card contract signed by Bullís. Taking the signature cards, then, as showing the entire contract between Bullís, Mrs. White and these two banks, in connection with the fact that all money in both accounts originally belonged to Bullís; that it does not appear that Mrs. White ever had possession of the pass books evidencing these accounts; that she never withdrew money from either account and could not withdraw any in Bullis’ lifetime -without producing the pass books. I can find no donative intent by Bullis to give Mrs. White a then present interest in these two accounts. The form of these deposits indicates that if he had any donative intent toward her, it was confined to such balance as might remain to his credit at his death, which interest should not vest in her until that time, thus making his gift a testamentary disposition of funds without complying with the law of wills, and therefore void. I reach this conclusion upon the authority of the decisions above cited and the decision in Stevenson v. Earl, 65 N. J. Eq. 721. The amounts standing to the credit of the accounts in the Hoboken Trust Company and the Lincoln Trust Company will be decreed to belong to Bullis’ estate.

Taking up next the remaining accounts. The form of deposit used for these accounts is evidence of a gift to Mrs. White to take effect in prcesenti, and it is settled law in this state that under such forms the balance to the credit of the accounts belonged to Mrs. White on the death of Bullis (Morristown Trust Co. v. Capstick, supra; New Jersey Title, &c., Co. v. Archibald, 91 N. J. Eq. 82), unless it appears from the surrounding circumstances that he had no donative intent in naming her as joint owner with him.

First, it is contended that the fact that all moneys deposited in these accounts originally belonged to Bullis is a circumstance to be considered. But, under the forms of deposit which we are now considering, this fact is immaterial. New Jersey Title, &c., Co. v. Archibald, supra.

It is next contended that the provisions of Bullis’ will negative the idea of an absolute gift to Mrs. White of any interest in the seven accounts now in question. His will is dated December 9th, 1914, and by it he bequeathed legacies for a total of $19,600, which includes a bequest of $7,000 to Mrs. White, and he provided for distribution of his residuary estate. The inventory of his estate shows gross personalty of approximately $10,000 (exclusive of all bank accounts involved in this suit, which total approximately $45,000). Whether or not he left any undevised real property does not appear, but I shall assume he did not. It is argued that he would not have given Mrs. White a legacy of $7,000 had he intended her to have his bank accounts, and that he would not have provided for $19,600 in legacies from an estate of but $10,000. I consider this argument mere speculation, and since we have in writing the plain and unambiguous things he did, I am not willing to guess that he had something in mind other than what he said. In the absence of evidence to the contrary, he is presumed to have known the effect of the agreements of deposit entered into with Mrs. White and the banks. He had opened six of his nine accounts two months prior to the date of his will, and I have found that two of them, for a total of over $9,000, were opened in such form that they could not be paid to Mrs. White as his survivor, and he is presumed to have known that she would not receive the moneys in these two accounts. Why he opened two -more accounts less than a month after the date of his will and a third account about sixteen months after the date of his will (the three for a tptal of $17,000) in such form that he gave Mrs. White a present interest in them, with the right to receive the balances credited to them on his death, I do not know and I do not think that anyone can' speculate safely that he had an intention different from what his agreements with the banks said he had. He died more than nine years after the date of his will. I might guess that when he executed his will he had an estate (exclusive of the money in bank) ample to pay the legacies provided for in the will. In fact, less than a month after the date of his will, he opened two of the bank accounts nowr in question for a total of nearly $12,000, the money so deposited coming from some source other than the bank accounts involved in this suit. I might also guess that when he executed his will he hoped and expected to leave sufficient property applicable to the payment of legacies. I might also guess that after he had executed his will he decided to give his sister, Mrs. White, a greater interest in his estate than he had already provided by bank accounts and will, and therefore he opened three more bank accounts and made them payable to her, jointly with himself, with right of survivorship to her. But, as I have said, these matters of speculation cannot be used as factors in determining Bullís’ intention, and so I cannot use the provisions of his will as evidence that he had an intent with regard to the bank accounts contrary to the terms of his written agreements with the banks.

It is further contended that there being no delivery of the pass books to Mrs. 'White, the gift to her was not complete because she was unable to draw money from the accounts without possession of these books. One of the essentials of a complete gift inter vivos is that there must be a delivery of the gift to the donee, and in case of a chose in action, the delivery must be of such a nature as the subject-matter of the gift is most capable. Where the subject-matter is a certificate of stock, a bank account or other chose in action standing in joint names, delivery cannot be made to, and possession is usually not held by, both or all joint owners at the same time, and delivery to one must, in the nature of things, be a delivery to the other or others (Dunn v. Houghton, 51 Atl. Rep. 71; East Rutherford B. & L. v. McKenzie, 87 N. J. Eq. 375), and since in the present case only one of the joint owners could hold the pass books (unless they were kept in a box or some place to which both could have access), the donor was the natural one of the two to hold them. After all, the gift was not of the books but of the monej^s in the accounts, and the books were but the written record issued by the banks of the items of debit and credit to the accounts, and the provision that no withdrawals could be made without presenting the books was mainly for the protection of the banks when called on to make payments. Of course, a donor who desired to guard the accounts against unnecessary and improper withdrawals could take advantage of and have protection under such provision, but had the pass books come into Mrs. White’s possession in Bullís’ lifetime and had she used them to draw against the accounts, can it be doubted, on the facts here present, that she would have been entitled to hold the amount of her drafts as against Bullís? There is no evidence that the pass books were always in Bullís’ possession, and if it is to be assumed that they were, it is to be noted that for the last three years of Bullís’ life a safe deposit box in which they were found was rented in the joint names of Bullís and Mrs. White’s husband under terms by which both and the survivor had access, and that the three Commercial Trust Company pass books were out of Bullís’ possession as follows: Account No. 1813, June 25th, 1923, and September 27th, 1923; account No. 7236, January 16th, 1922, and June 8th, 1922, and account No. 9873, January 16th, 1922, because entries in the pass books of withdrawals on those dates show that they wore made on drafts signed by Mrs. White. The pass book on account No. 1813 of the Commercial Trust Company was also in Mrs. White’s constructive possession March 12th, 1916, when she and Bullís went to the bank and $3,500 was drawn out on draft signed by him and deposited in account No. 9873 of the same bank, opened in their joint names under the agreement signed by them on that day. The real question seems to me to be: Do the facts show that there was an intention on Bullís’ part to make a present gift of the accounts to Mrs. White, which the latter accepted by signing the deposit agreements ? By the agreements with the banks, under which the accounts were opened, Bullís delivered his property to the banks and procured from them a contract with and for the benefit of Mrs. White (as well as himself), and the banks became debtors to both of them. Thus, a complete, valid gift or trust was made, under which the banks contracted to pay to Mrs. White, and I do not consider that delivery of the pass books into her hands was necessary to complete the contracts, at least so far as her right of survivor-ship is concerned. Dunn v. Houghton, supra; New Jersey Title, &c., Co. v. Archibald, supra; Meriden Trust Co. v. Miller, 88 Gonn. 157; Scott v. Berkshire Bank, 140 Mass. 157; Alger v. North End Bank, 146 Mass. 418. Further, can it not be said that Bullís made delivery of the pass books to a third person for Mrs. White? If so, such a delivery would be sufficient, even if the books did hot come to Mrs. White’s hands until after his death. Hoboken Bank for Savings v. Schwoon, 62 N. J. Eq. 503. I have said that for the last three years of Bullís’ life it is assumed that the pass books were kept in a safe deposit box, to which Bullís and Mrs. White’s husband and the survivor of them were to have access. Mr. White had no interest in these’ bank accounts or in the pass books, and it seems to me that if Bullís kept the pass books evidencing accounts payable to Mrs. White alter his death, in a safe deposit box, to which Mr. White had access in Bullís’ lifetime and after his death, Bullís said to Mr. White, in effect: “I deliver these pass books to you to hold jointly with me. If you survive me, deliver them to your wife, to whom the balances to the credit of these accounts are payable upon my death.”

Finally, it is argued that retention of control of these accounts by Bullís, through possession of the pass books, shows that Mrs. White was to have no beneficial interest in the accounts until after Bullís’ death; hence, the gift is void as an attempted testamentary disposition of the accounts. There having been a donative intent by Bullís that the gifts should take effect forthwith, that Bullís reserved an interest therein for his life and intended that Mrs. White should not come into possession of her interest until his death, would not invalidate the gift as an attempted testamentary transaction contrary to the statute of wills. Green v. Tulane, 52 N. J. Eq. 169; Sibley v. Somers, 62 N. J. Eq. 595; Mullen v. Mullins, 98 N. J. Eq. 727. Further, the form of these deposits created the relation of debtor and creditor between the depositors and the banks, under which the banks contracted with Bullís and Mrs. White to pay to Mrs. White, should she survive Bullís, all moneys the banks owed on the accounts, so that Mrs. White is entitled to the moneys under her contractual relation with the banks. New Jersey Title, &c., Co. v. Archibald, supra.

The amounts standing to the credit of the accounts in the Hudson Trust Company, Commercial Trust Company (three accounts), Hoboken Bank for Savings and Provident Institution for Savings (two accounts) will be decreed to belong to the estate of Lettie A. White.


author: Church, V. C.

text:
    James B. Sketchley, complainant, v. Lydia A. Campton et al., defendants.
    [Decided March 26th, 1926.]
    1. In the exercise of a power, the donee of such power must refer to or otherwise indicate an intention to exercise such power, and a bequest of “the remainder of my estate” is not a legal exercise of the power of appointment given the testatrix under her husband’s will.
    2. Where land is devised to one for life with remainder to her heirs-at-law, share and share alike, and one of the heirs-at-law dies during the lifetime of the life tenant, childless and leaving a will, the portion of the heir-at-law so dying passes under her will.
    On bill, &e.

      Messrs. Stickel & Nanighright, for tbe complainant.

      Messrs. Hood, Lajferty & Campbell, for the defendant Lydia A. Campton.
   Church, V. C.

This is a bill filed to quiet title to two tracts of land on Nassau street, in the city of Newark. Tract A is derived from the will of Daniel Sketchley. His will disposed of his estate as follows:

“Secondly. All my estate, real and personal, wheresoever and whatsoever [remaining after the payments above mentioned], I give, devise and bequeath to my beloved wife, Mary A. Sketchley, for and during- her natural life, and- upon her decease, I give and bequeath the same to my three children, James B. Sketchley, Mary A. Witheridge [wife of Charles Witheridge] and Daniel E. Sketchley, in such proportions thereof to my said children, respectively, as my said wife may in and by her last will and testament provide.”

This clearly gives a life estate to Mary A. Sketchley with a vested remainder in her three children, subject, however, to be divested, as to proportionate parts only by her last will. In other words, Mary conld, in her last will, provide in what proportion these three children should take, provided all three were in some measure considered, or it may be she could exclude one or more entirely. The daughter Mary died in her mother’s lifetime, childless, leaving a will. Did Mary, the mother, exercise this power of proportionate division? Her will provides: “I give, devise and bequeath to my son James B. Sketchley all the rest, residue and remainder of my estate, real, personal and mixed, wheresoever the same may be situate, to him, his heirs and assigns forever.” No mention is here made of any power of appointment. Mary, the mother, owned no real estate in her own right. I am of the opinion that she did not exercise the power of appointment given to her under her husband’s will.

The general rule is that in the exercise of a power the donee of such power must refer to or otherwise indicate an intention to exercise such power. This rule is expressed by Vice-Chancellor Backes in the case of Farnum v. Pennsylvania Ins. Co., 87 N. J. Eq. 108, affirmed by the court of errors and appeals on the opinion below at 87 N. J. Eq. 652. The learned vice-chancellor says:

“Whether Mrs. Batterson executed the power in the manner prescribed, depends upon her intention to exercise it, which intention, in some form of expression, must be found in her will. The intention to execute a power must alwaj's appear in its execution either by express terms or recitals, or by necessary implication. A reference to the instrument by which the power is given is, indeed, not necessary to demonstrate the intention to execute such a power, but it must appear from the will that the intention existed. It need not appear by express terms or recitals in the instrument; it is sufficient if the act shows that the donee had in view the subject of the power. Meeker v. Breintnall, 38 N. J. Eq. 345. If the quest were to be confined to an inspection and consideration of the will and codicils, there would be no difficulty in reaching the conclusion that they evince no intention to dispose of the property, the subject of the power. No allusion whatever is made in the many items of the will and codicils to the fund or the testatrix’s control over it. By each of the items a specified sum of money is bequeathed, referable, prima, facie, to her own private fortune, and by the residuary clause ‘the rest, residue and remainder of my estate’ is disposed of. A general devise or bequest by the donee of a power in which the testator refers to the property devised or bequeathed as his property has been repeatedly held not to be an exercise of the power.” Wooster v. Cooper, 59 N. J. Eq. 204; Meeker v. Breintnall, supra; Ackerman v. Ackerman, 81 N. J. Eq. 437; Lee v. Simpson, 134 U. S. 572; Patterson v. Wilson, 64 Md. 193. See, also, Mason v. Wheeler, 19 R. I. 21 (31 Atl. Rep. 426).

Therefore this property, having vested in the three children, should be divided one-third to each of the living children and the remaining one-third to pass by the will of the deceased child.

Tract B is derived from the will of James Bishop, which provided:

“Sixth. I give and devise unto Mary Ann, wife of Daniel Sketchley, the tract of land and premises situate on the south side of Nassau street, in the city of Newark. Said tract of land hounded on the north by Nassau street, on the west by Sheffield street, on the south by Morris and Essex railroad and on the east by Boydem street, to have and to hold the same during her natural life, and, on her decease, I give and devise the same to her heirs-at-law, share and share alike.”

Section 10 of the Descent act is as follows:

“That in case any lands, tenements, hereditaments or real estate, situate, lying and being in this state, shall hereafter be devised by the owner thereof to any person for life, and at the death of the person to whom the same shall be so devised for life, to go to his or her heirs, or to his or her issue, or to the heirs of his or her body, then and in- such case, after the death of such devisee for life, the said lands, tenements, hereditaments or real estate shall go to and bo vested in the children of such devisee, equally to be divided between them as tenants in common in fee, and if any child be dead, the part which would have come to him or her shall go to his or her issue in like manner.”

The last clause of this section should be noted, viz., “if any child be dead, the part which would have come to him or her shall go to his or her issue in like manner.” It should be remembered that Mary, the daughter, died in her mother’s lifetime, childless, leaving a will. This contingency is considered and decided in Dome’s Case, 68 N. J. Eq. 11, where the court, speaking through Chancellor Magie, says:

“The language of section 11, describing the estate of those who are to take after the death of the life tenant, is identical with the language used in section 10, which prescribes the mode in which titles formerly affected by the rule in the Shelley’s Case should pass. In Hopper v. Demarest, 22 N. J. Law 699, the language of section 10 was construed as vesting in the children of a life tenant an estate in the lands. In Lamprey v. Whitehead, 64 N. J. Eq. 408, I was obliged to consider the true construction of that section in the light of the decision of Hopper v. Demarest, but with reference to a situation which had not been disposed of by that decision. 1 held that the estate of a child of the life tenant must be considered to be so vested as to be a subject of conveyance, but that in pursuance of the expressed provisions of the last clause of section 10, such an estate would be divested by the death of a child during the life of the life tenant leaving a child or children. It is impossible not to give the same construction to the identical language of section 11 in the same act, and it follows in my judgment that (a) any child who has survived the life tenant is no longer subject to any contingency, but his or her estate has become absolute; (b) any child who died before the life tenant, leaving children, was divested of her estate in favor of the children, and (c) any estate so vested in a child [though subject to be divested] might be the subject of a conveyance by deed or will, and would pass by descent. If not divested by the happening of the contingency contemplated by the statute, viz., death during life of life tenant leaving a child or children, the grantee, devisee or heir-at-law of such child would become entitled thereto.”

I, therefore, find as to this tract that one-third should go to each living child and the remaining one-third should pass under the will of the deceased child.