author: Howell, V. C.

text:
    William H. Jeffers v. New Jersey and Pennsylvania Railroad Company.
    [Submitted December 28th, 1915.
    Decided February 15th, 1916.]
    Where the property of a railroad in receivership is sold in foreclosure of receiver’s certificates under a decree that from the proceeds the cer-> tifieates be paid first, the proceeds are applicable first to pay in full the receiver’s fees and expenses, including counsel fees, and then to pay pro rata the receiver’s certificates on a par with claims against him for car service and damages to shippers.
    On motion for distribution of a fund in the hands of a receiver.

      Mr. Corwin I-Iowell and Mr. John JR. Hardin, for the receiver.

      Mr. John B. Vreeland, contra.

   Howell, V. C.

The New Jersey and Pennsylvania Railroad Company owned a short line of railway constructed from Whitehouse to Morris-town. It became insolvent and Frederick Y. Pitney was appointed receiver in proceedings taken to wind up the affairs of the company. He found it necessary in the progress of his work to have more money than he could obtain from the ordinary transaction of the company’s -business, and in order to obtain funds in January, 1913, he made application to the court for leave to borrow money to the extent of $7,000 on receiver’s certificates. Notice of the application appears to have been given to every one in interest by the ordinary order requiring creditors and stockholders to show cause why the petition of the receiver should not be granted. On January 28th, 1913, on the receiver’s motion it was ordered that he have authority to borrow money by the issue of receiver’s certificates, of indebtedness maturing not later than twelve months from their date, and not at any one time to exceed the sum of $7,000, carrying interest at a rate not exceeding the legal rate, which certificates of indebtedness should be a first lien on the property, real and personal, of the defendant company in preference to mortgage, judgment or other liens or claims thereon, except only a mortgage held by the Tail estate. In pursuance of this authority on February 14th, 1913; he borrowed from a bank the sum of $3,000, and on June 13th, 1913, he bprrowed from the same bank the further sum of $4,000, for which several amounts he issued his certificates, one for $3,000 and the other for $4,000; which after reciting the authority given to him in that behalf, certified that he as such receiver had received from the bank the said several sums of money to be used in the administration of his trust as such receiver under the direction of this court, and which as such receiver he promised to pay to the bank within twelve months with interest at the rate of six per cent., payable quarterly, out of the property of the railroad company or the proceeds thereof prior to any other debt or demand of any kind or character whatsoever. The form of the two certificates is the same, except that the junior certificate purports to be made subject to the prior certificate of $3,000 then held by the bank. The receiver continued to pay interest on the certificates until October 1st, 1913. There is now due on them the sum of $7,000 with interest from the last named date.

In the latter part of 1914 and the early part of 1915, proceedings were taken by the bank by a petition in the administration suit to foreclose the lien held by it, and such proceedings were had therein, that on January 28th, 1915, a decree was entered by which the amount due the bank was ascertained and fixed, and it was decreed that the said certificates of indebtedness were a first lien upon all the property, real and personal, of the defendant company in preference to any mortgage, judgment ox other lien or claim thereon, excepting only taxes due to the State of New Jersey and a mortgage held by the trustees of the Vail estate.

It was further decreed that all the property rights, privileges, effects and franchises of the railroad company and all its assets of any character or description whatsoever, and all the right, title and interest of said receiver thereto should be sold by the said receiver free and clear of any mortgage, judgment, receiver’s certificates or a lien or claim thereon, except only the taxes and mortgage herein above mentioned, to raise and satisfy the debt therein found to be due to the said bank, and that out of the proceeds of the sale the receiver should pay the said bank its debt, interest and costs, with a counsel fee of $250. It was also provided that in case more money should be raised by the sale than should be sufficient to answer such payments, such surplus money should be administered by said receiver according to law and the further orders of this court. In pursuance of this power the receiver sold the said property for the sum of $28,600, out of which he paid by order of this court to the treasurer of the state the sum of $15,000 for taxes due it; there remains in his hands for distribution the sum of $13,985.77.

In addition to the receiver’s certificates the receiver is also indebted, principally to railway companies throughout the United 'States for car service rendered to him as such receiver, in the sum of $2,019.12, and claims have been made against him also for damages arising out of losses to shippers by accidents, fires and other casualties.

There is also pending an application by the receiver and his counsel to fix and allow their fees, costs and expenses incurred in the administration of the assets of the defendant corporation. Notice was given to the creditors and stockholders that the receiver and his counsel would each ask for an allowance of $3,000. This was discussed at the hearing of the motion, and no objection having been made thereto, and the court being of .the opinion that the services of the receiver and his counsel were worth the amounts asked for by them, such allowances will be made, but tliey will be subject to sucli order as may be made regarding the distribution of the fund.

It is obvious that the receiver has not in hand a sufficient amount of money to pay all these claims and that one or more of them -will have to be abated to a considerable extent. The principal contention at the hearing of the motion was between the bank holding the receiver’s certificates on the one hand and the receiver and his counsel on the other hand, each claiming a prior right to be paid in full out of the fund in the hands of the receiver.

The question of law at issue here is one which has not had very much discussion. There are but two cases in this state so far as my investigation or those of counsel go that throw any light whatever upon the subject. The first one to which I will call attention is Nessler v. Industrial Land Co., 65 N. J. Eq. 491, in which Vice-Chancellor Emery seems to declare that whei’e the fund in the receiver’s hands is not sufficient to pay all the receiver’s debts and other compensation the distribution must be pro rata upon the principle that the claims are all and equally debts or claims which should be paid by the trust fund as expenses of the .receivership, and if the fund is not sufficient. to pay all in full then they must abate pro rata. A further reason given by him is that if the receivers desire or intend to claim a preference in payment of their own compensation they must apply to the court not only for such order but also for authority to incur indebtedness which will be subject to their claim. This case was decided in 1903. No reference is made to the prior case (November, 1900) of Chesapeake and Ohio Railway v. Atlantic Transportation Co., 62 N. J. Eq. 751, in which the court of errors and appeals rendered a decision covering the point, and which could not have been brought to the attention of the learned vice-chancellor who decided the Nessler Case. In the Chesapeake and Ohio Railway Company Case there were three classes of claims struggling for priority of payment out of the fund which was insufficient to pay them all in full. The court of errors and appeals ordered them paid in the following sequence: (1) The receiver’s allowance and the expenses of winding up the corporation, which would undoubtedly include counsel fees allowed to the receiver’s counsel; (2) the franchise tax owing to the state, and (3) the liabilities other than the expenses of the receiver above mentioned incurred by the receiver in carrying on the business in the due course of the administration of its affairs. The Chesapeake and Ohio Railway Company Case seems to be a clear authority in this state for directing the payment of receiver’s fees and expenses of winding up, in preference 'to, claims of other classes. hTo reasons are given in the opinion; it seems to have been taken for granted.

There are three English cases which throw light upon the question at issue. The first is Strapp v. Bull Sons & Co. (1895), 2 Ch. 1; 64 L. J. Ch. 658. There a debenture holders’ action was brought against the company and a winding up petitiqn was presented -by an unsecured creditor. By consent an •order was made in the winding up proceeding that the plaintiff in the action and the unsecured creditors should raise £5',000 in order to complete certain contracts then in progress by the insolvent company, which sum was to be a first charge in pro rale to debentures, and that no further debts or liabilities should be incurred. The sum of £4,250 was raised by the plaintiff and certain unsecured creditors in accordance, with the order, and further liabilities were incurred by the receivers and managers for the purpose of completing the contracts. It was held that the receivers and managers were entitled to be indemnified against these liabilities out of the assets of the company in priority to the charge of £4,250. A reading of the opinion in the court of appeal will show that the decision was based upon the principle that further liabilities which were incurred in the face of an order to the contrary were expenses of administration which should be paid before any distribution could be made to creditors. Lord Ilalsbury said: “I do not concur in the idea that it ever could have been ’contemplated that those who were to take upon themselves the burthen of the management and receivership should be left to speculate on whether or not they would ever get paid anything. It was an essential part of the arrangement that some one should manage this business, and it was necessarily implied in that arrangement that those who for the benefit of all concerned, and not merely for themselves, were entering into this arrangement and were carrying it on to its completion so there should be an ultimate resulting fund capable of being divided, should themselves be indemnified for what they were doing, namely, carrying on those contracts, and if you look, not at each one by. itself, but at the whole of the orders as one arrangement to which all were parties and all tending to the same thing, it seems to me really to be free from doubt that that was the real meaning of the transaction.”

The next English case is In re Glasdir Copper Mines (1906), 1 Ch. 365; 75 L. J. Ch. 109. This case is cited on the brief for the receiver. There a receiver and manager appointed in a debenture holders’ action under orders of the court borrowed for preserving the property of the company certain sums which were advanced by certain of the debenture holders. The receiver gave in respect of the sums so borrowed formal charges which were declared to be “first charges” on the property, and provided that he should not be personally liable to repay the advances out of his own moneys. The property charged was sold by him and the proceeds proved to be insufficient to pay his expenses and remuneration and the sums borrowed. It was held that he was entitled to be indemnified in respect to his expenses and allowance out of the assets realized in priority to lenders’ claims under their charges. This case was also in the court of appeal, and Mr. Justice Stirling in his opinion says, speaking of tire case of Strapp v. Bull: “The case therefore is an authority for the proposition that where advances are made to a receiver and manager by a party to. a debenture holders’ action under an order of court which directs that the sum advanced shall be a first charge on the assets in priority to the debenture holders a receiver and manager is nevertheless- entitled to take his costs and expenses properly incurred out of the assets in priority to the sums advanced if it should appear that the tine bargain was that the assets should be realized by the receiver and manager for the benefit of all concerned.

“In my opinion the orders were made and the securities given and taken in the expectation of all parties that by means of the money advanced the receiver will be enabled to realize the property more advantageously, that is to say, in such a way as not only to repay the advances but to pay something to the debendure holders. Things have turned out very differently, but inasmuch as the receiver, in my view, acted in the realization of the assets for the benefit of every one concerned I think that he is entitled to indemnity out of the assets in priority to those for whose benefit he was acting.”

The latest and only other English case is In re Boynton (1910), 1 Ch. 519; 79 L. J. Ch. 247. In that case a receiver appointed by the court in a debenture holders’ action was on the plaintiff’s application given leave to borrow on the security of a first charge on the debenture assets for the purpose of carrying on the business. Money was advanced by a bank and the receiver executed a deed giving the bank a first charge on the assets, but not expressly excluding his personal liability. The assets proved insufficient. It was held: “That the proper inference to draw from the whole transaction, being that the receiver did not intend to pledge an,d the bank did not rely upon his personal credit, the assets must be applied first in paying the plaintiff’s costs of action as between solicitor and client and the receiver’s remuneration, and the balance paid to the bank in part discharge of their debt.”

The same ruling was made in this country in the federal court of appeals from the fifth circuit in Petersburg Savings and Insurance Co. v. Dellatorre, 70 Fed. Rep. 643; Pennsylvania, &c., Co. v. Mercantile Trust Co., 98 Fed. Rep. 60. The reasoning upon which all these cases go seems to be that the court which appoints the receiver takes into its custody the property of the insolvent company for administration for the benefit of all concerned, secured and unsecured creditors and stockholders, and that it can hardly be expected that persons will be found to act as such receivers or as counsel in case there could be any doubt about their compensation or reimbursement for expenses. In the ease now under consideration unless such a distribution were permitted, the receiver, would not only have to spend his time and labor for nothing, but might and probably would also be compelled to pay some portion of the expenses ' without the possibility of reimbursement.

But it is said on behalf of the bank that the order authorizing the borrowing of money on receiver’s certificates provided that the certificates should be a first lien on the propertj^, real and personal, of the defendant company in preference to any mortgage, 'judgment, order, liens or claim thereon, except only the Vail mortgage and taxes; that the certificates themselves contained a like provision, and that the same is embodied in the decree taken to foreclose the bank’s lien under the certificates, and that having been made the subjecfimatter of judicial inquiry and decision, and having taken the form of a final judgment of a competent court, the right now claimed by the bank is therefore finally settled. This'view leaves out of sight the fact that the bank could not realize upon the certificates held by it without an administrative proceeding carried on by some one as it was in this case carried on by the receiver, and that such administrative proceeding could not be carried on without the expenditure of time and money, and that the persons administering the fund had no other place to apply to for reimbursement than to the fund itself.

I therefore think that on both principle and authority the compensation of the receiver and his counsel and the expenses of the receivership must be first paid in full out of the fund in the receiver’s possession, but I see no reason why the claims for car service and damages to shippers should outrank the claim of the bank; they seem to me to be on a par and that as between themselves they should pro rate.

I will advise a decree in accordance with these views.


source: Caselaw Access Project

license: Public Domain

text:
    Madge Greisner v. Arthur K. Greisner.
    [Decided April 7th, 1916.]
    1. It is unlawful for the sheriff to appoint a special deputy pro hac viee by parol, but all such deputizations must be in writing.
    2. Where the defendant in a wife’s maintenance suit was arrested by a constable, without any written authority from the sheriff, on a writ of ne exeat, and the sheriff ratified the act by taking the defendant into his own custody and keeping, or pretending to keep him in custody, by virtue of the writ, the defendant was properly taken into custody by the sheriff and was a lawful prisoner under the writ.
    3. A sheriff will not be punished by an adjudication for contempt, depending upon a controversy between him and the petitioner’s solicitor regarding the amount of fees which the sheriff was entitled to charge for executing a writ, as for such cause of action, if any, there is a remedy in the courts of common law.

      4. Evidence on a motion to charge the sheriff with contempt for permitting the escape of defendant in wife’s maintenance suit, arrested on a writ of ne exeat, Held to show that the prisoner had been permitted to go at large.
    5. The writ of ne exeat isi a “mesne process.”
    6. There is a difference in the result between an escape permitted under final process, which is punitive in its nature, and escape permitted under mesne process, issued merely to bring defendant into court on the return day, or at such other Limes as his presence may be required; and while under final process a creditor has the right to the body of his debtor, until the debt is paid, and if he escapes has an action of debt under the statutes against the sheriff to recover the whole debt, yet the sheriff, arresting under mesne process, discharges his duty and will be absolved from any charge of contempt if he brings the defendant before the court on the day of return, or when the suit requires it.
    On motion to charge sheriff with contempt.

      Mr. Albert Hughes, for the motion.

      Mr. Elmer Kmg, contra.

   Howell, V. C.

The original cause, of which this motion is an outbranch, is a maintenance suit brought by the complainant against her husband in which a decree was entered requiring him to pay her the sum of $8 per week for the support of herself and the children. On May 3d, 1915, a writ of ne exeai was issued in the. cause directed to the sheriff of Morris county commanding him in the usual form to cause the defendant, Greisner, to come before him and give bail in the sum of $1,000, and in default thereof to commit him to the common jail of the county. This writ came to the hands of the complainant’s solicitor. He communicated by telephone with the office of the sheriff and requested him to send an officer to Dover to execute the writ which the petitioner’s solicitor would there deliver to him. Neither the sheriff nor the under-sheriff responded to the solicitor’s request, but there was sent to Dover, by someone in the sheriff’s office, a constable named Newkirk, who was in attendance at the sheriff’s office. The solicitor gave the writ to him; he executed it by taking Greisner into custody. The constable then took him to Morristown and delivered him to the sheriff, who accepted the delivery and who confined him, in so far as he was confined at all, to the common jail of the county, in default of the bail demanded.

It is alleged that the sheriff having accepted the custody of the defendant was under the duty of keeping him actually confined in the common jail, and that on his failure to do so he permitted an escape for which he is liable to process of contempt. Newkirk was not especially deputized, in writing, to serve the writ, neither was he an under-sheriff capable of executing the same without such special deputization. It was held, by the court of errors and appeals in Meyer v. Patterson, 28 N. J. Eq. 239, that it was unlawful for the sheriff to appoint a special deputy pro hac vice by parol, but that, on the contrary thereof, all such' deputizations must be in writing. Yet, it was further held, in the opinion in that ease, that a person who held himself out as a sheriff’s deputy, apparently clothed with the right to execute the writ of the court, assumes the function not of a private but of a public office, and that when it clearly appears that the sheriff recognized such assumption of authority by a ratification of the act done, or otherwise, the public, and all the persons taking part in tire business, have a right to accept such person for what he claims and is admitted to be without examining into the regularity of his credentials. The rule thus announced seems to apply to the case in hand with -great exactness. The arrest was made by the constable without any written authority from the sheriff, yet the sheriff recognized the act and ratified it by taking the defendant into his own custody and keeping him, or pretending to keep him, in custody by virtue of the requirements of the writ of ne exeat. I must, therefore, hold that the defendant, Greisner, was properly taken into custody by the sheriff and that he is a lawful prisoner under the said writ.

While the defendant was so in custody of the sheriff proceedings were taken against him for contempt in not obeying the directions of the order of the court of chancery to pay his wife and children $8 per week. These proceedings resulted in a writ of commitment against Greisner for contempt, and this writ was mailed by the petitioner’s solicitor to the sheriff at Morristown, but no fees were enclosed for its service. The petitioner’s solicitor was promptly notified that the fees must be .paid before the service would be made, it being claimed by the petitioner’s solicitor that the sheriff hqd overcharged him for service of the writ of ne exeat, and that there remained in the hands of the sheriff sufficient moneys to pay the lawful fee for executing the commitment. This question I do not propose to decide any further than to say that I am unwilling to visit upon the sheriff so large and. ample a punishment as an adjudication for contempt which depends for its foundation upon a controversy between him and the solicitor with regard to the amount of fees that he is entitled to charge for executing a writ; for such cause of action, if any such exists, he may have his remedy in the courts of common law.

The next question is, whether the sheriff having the defendant in custody under the writ of ne exeat permitted him to escape from such custody, and, if so, what consequences arise therefrom ? It was testified to by several witnesses that the dofendant, Greisner, was seen by them at' various points in the city of Morristown and on various occasions apparently alone and not in anybody’s custody; thus it was testified that he was seen talking to an officer on Speedwell avenue; that he was seen on the sidewalk in front of Voorhees’ hardware store; that he was seen on Washington street near the Mansion House; and it was proved and admitted that special favors were shown to him by permitting him to wander about the jail and court house at will, and that he was not kept in confinement as required by the writ and the law. I think it is clearly proved that the defendant was seen by the witnesses as they described. I find in the testimony no positive denial. An order was made by the court permitting the sheriff to bring Greisner before the court at the hearing. He was actually in court during the time the testimony was being taken. If anyone knew whether he had been permitted to wander about the streets of Morristown alone it was he, and yet the sheriff did not see fit to call him, neither was the sheriff himself sworn. I must assume, therefore, that the witnesses spoke the truth and that statements they make about Greisner being at large are true.

The authority relied upon by counsel for the motion on this point is People v. Stone, 10 Paige Ch. 606. I fully concur in what the learned chancellor says on the point in his opinion in that case, but it will be- observed that in that ease the question arose out of a committal on final process by way of punishment. In other words, the writ under which the defendant was imprisoned in that case was a punitive writ based upon the final judgment of the court, while, in the ease at hand, the writ is one for appearance only and contains no element of punishment.

There is a wide difference in the results between an escape permitted under final process and an escape permitted under mesne process, for the reason that one is punitive in its nature and the other is issued merely for the purpose of bringing the defendant into court on the return day or at such other time or times as his presence may be required. The writ of ne exeat is, undoubtedly, mesne process. It was held in Adams v. Whitcomb, 46 Vt. 708, that "the writ of ne exeat, as at present used in this country, is a mesne process issuing from the court of chancery to hold a party to equitable hail that he may not depart from the realm or the jurisdiction of the court, but he present with Ms body to answer any decree which the court of chancery may malee in the case against him and commanding the arrest and imprisonment of the defendant if he or she fails to furnish such bail.”' The difference between escapes under mesne and final process is discussed in Browning’s Executor v. Rittenhouse, 40 N. J. Law 230. There the supreme court said that in arrests upon mesne process the officer discharges his duty if he brings in the body of the defendant on the day of the return, but that under final process the' creditor has a right to the body of his debtor every hour until the debt is paid, and, if the prisoner escapes, may bring an action of debt upon the statutes against the sheriff in which he may recover the whole debt.

If, therefore, the sheriff shall produce the body of the defendant before the court, whenever the exigency of the suit may demand it, he will be absolved from liability. Otherwise, he must remain' liable to such remedies as the complainant has a right to pursue.

Eor these reasons I have come to the conclusion that the sheriff is not liable in this case to any adjudication of contempt, and I will advise an order dismissing the proceedings, but without costs.


author: Lewis, V. C.

text:
    Jeanne Marie Josephine Givernaud et al. v. Anita Variel et al.
    [Decided February 5th, 1916.]
    The testator’s domicile of origin was France. He became a naturalized citizen of the United States in 1873, his domicile of choice being West Hoboken, New Jersey. He left a wife and two children in France, who are the complainants in this cause. In 1871 he obtained a divorce in this state and remarried, one son being the offspring of this second marriage. In 1896, having amassed a fortune of $300,000 he decided to take apartments in New York, as he was constantly attending different places of amusement in that city, almost every night in the week, and he did not feel strong enough to come back to West Hoboken at night. He made New York his headquarters, but was away, traveling in different parts of the world a very great part of his time. He, on many occasions, emphasized the fact that he was still domiciled in New Jersey. He died in Los Angeles, California, in 1908, where he had bought a house in his son’s name. — Held, that he never abandoned his domicile of choice, namely, West I-Iohoken.

      Messrs. Besson, Alexander & Stevens and Mr. Motorice Leon (of the Yew York bar), for the complainants.

      Mr. John S. Mdbon and Messrs. Collins .<& Corbin, for the defendants.
   Lewis, V. C.

The only question which the court considers it necessary to decide in this case is whether Barthelemy Louis Givernaud had his domicile in the State of Yew Jersey at the time of his death, which occurred on January 2d, 1908, at Los Angeles, California.

For a clear understanding, I will set forth, at this time, the facts bearing on the case: The testator, Barthelemy Louis Givernaud, was born in Lyon, France, on April 21st, 1835; on April 5th, 1860, he married, in France, Josephine Haour, both of them being French citizens. ■ Two children were born of that marriage, viz., the complainants, Joseph Givernaud and Yoemi Josephine Marie Genin, nee Givernaud, both born at Lyon, Joseph being born June 5th, 1861, and Yoemi on August 30th, 1862. By judgments rendered February 7th, 1866, and August 1st, 1866, in the civil tribunal of Lyon, Madame Josephine Givernaud obtained a separation from her husband, dissolving the community existing between them as to their property, and giving her leave to live separate and apart from him, and the custody of their children, on the ground of “abuse and injuries” and “abandonment.” He came to the United States of America in 1866, established himself in West Hoboken; obtained, in 1871, a divorce in this court upon service by publication on the ground of “desertion,” and thereafter contracted another marriage with Palmyre Elizabeth Lida Corriveau on the 30th day of May, 1872, and, as the fruit of this second marriage, a son, Charles L. Givemaud, was born to them, all three children being alive at the present time. In the course of time the testator became a very prosperous man, having factories at West Hoboken, Hackensack and Homestead, New Jersey, with an office in Green street, New York City. The bill was filed by the first wife of the testator and her two children born of their marriage, but she, the first wife, died during the taking of testimony, but, by stipulation, the testimony stands.

In the year 1873, the testator became a citizen of the United States, and from the time of his second marriage, until 1896, he lived with his wife at Spring and High streets, in West Hobo-ken. The second wife is also deceased.

The testator died on January 2d, 1908; at Los Angeles, California, having, on or about the 4th day of Hovember, 1907, executed a last wall and testament, in writing, which was ad-, mitted to probate by the surrogate of the county of Hudson on the 14th day of January, 1908.

The trust scheme contained in articles 9, 10 and 11 of the will is claimed, by the complainants, to be void, under the New York law, against perpetuities, found in laws of 1897, chapter 417, section 2.

It is admitted that if the testator was domiciled "in New Jersey at the time of his death, that the said trust is a legal one, and the only doubt of its legality would arise in case the court found that he was not domiciled in New Jersey at the time of his death. My own opinion is, that if the testator were domiciled in New York at the time of his death, the New York courts would have to pass on the legality of this trust scheme, and not the courts of New Jersey. However, as I have concluded that the testator was domiciled in New Jersey when he died, I find it unnecessary to decide as to whether this court would have jurisdiction to decide on the legality of the trust if he had' been domiciled in New York or elsewhere than in New Jersey at the time of his death.

The testimony shows that for many years the testator devoted himself to building up his business, and after he had become successful he devoted himself more and more to theatres, concerts and other amusements; he loved to travel and visit distant countries. He became acquainted with a dentist named Torillhon, and Dr. Torillhon became his companion, the testator being willing to pay the expenses of the companionship^ and they used to go together to theatres and other entertainments in New York about five times a week, coming back to West Hoboken each night. That continued until the year T896, when the testator decided to take apartments in New York. In the winter of 1895-1896, when caught in a snow storm while returning from New York to West Hoboken, the testator said to Dr. Torillhon: “I cannot stand these rough nights any more; I like my theatre, so I think that next winter I will take a room in a hotel, or somewhere in New York, so that I can enjoy my theatre;” and the next fall he asked Dr. Bertini and Dr. Torillhon to rent an apartment for him in New York, which they did. His wife continued to live in West Hoboken until 1898, when they sold the house, and she removed to New York, but not to live with her husband, the testator. They were uncongenial, and the testator never lived with Madame Givernaud after she left Hoboken in 1898, although he used to take meals with her occasionally. His brother lived in Homestead, New Jersey, and a room was set apart for him there, which was called “Mr. Louis’ room.” He had changes of clothing there and the use of a bedroom, but the defendants do not claim that he was domiciled anywhere else than in West Hoboken; their claim is, that he never changed his domicile from West Hoboken.

At all times when the question was broached the testator insisted strenuously that his domicile was New Jersey, and he went there to have his will drawn up in accordance with the laws of the State of New Jersey. The witness Joseph Braubach, however, testified that he. overheard him saying to two gentlemen in New York, in his apartment, that he was glad he was through with West Hoboken. That might mean “I am glad I don’t have to go back there nights,” and,-in view of all liis other statements, I must conclude that that is what he did mean; he certainly was not through with West Hoboken, as his factories remained there. He lived in many different apartments in New York, and he was away from New York much more than he was in New York. At the time of his death, shortly after he made the will in suit, he had no property in New Jersey, but kept his fortune, consisting of personal property, amounting to about three hundred thousand dollars, in a safe deposit vault in New York. In 1898, he made an extended trip to the west with Dr. Torillhon, and then returned to New York, staying there two weeks, and then took several short trips before going to Europe. In 1899, they went to California, to Hot Springs, to Glenwood Spa, and then came back to New York. The summer was spent at Atlantic City. Early in 1900, Mr. Givernaud again went to California. A few weeks after his return from California he went to Europe, accompanied by his son, Charles, and the wife of Charles, returning in the fall to New York. They then went to Atlantic City and came back to stay in New York, making short trips. These returns were all to his son’s apartments, with the exception of the return from California, when he went to' the Von Hoffman flats. In 1901, the testator, his son, Charles, and wife, and Dr. Torillhon, returned from Los Angeles and Honolulu to the New York apartment in Sixty-eighth street. He spent the summer of 1901 at Atlantic City and returned in the fall, making short trips from New York as a base in the fall of 1902. The winter of 1902-1903 was spent by Mr. Givernaud in California, returning to New York in the spring. And so it went on. He was constantly on the go. Sometimes he would spend a night in Homestead. Between 1896 and 1907 he moved to five different apartments in New York.

There is no doubt whatever that the testator firmly believed that he was domiciled in New Jersey. He certainly supposed there could be no possible question about that. In the fall of 1896 he asked Dr. Bertini and Dr. Torillhon to look up an apartment for him in New York, and they rented one under Dr. Bertini’s name, though the testator paid the rent. Dr. Torillhon testifies that at that time he asked him if he was going to leave his house to become a citizen of New York, and that he replied, “Fever; my home is in West Hoboken, and I stay there.” In 1898, when he was still living in New York, Mme. Givernaud sold the house in West Hoboken, and Dr. Torillhon testifies:

“I said to him, ‘What are you going to do now; shall you make New York your residence?’ and he said, ‘No, I never intend to live in New York;’ he said he had an aversion to becoming a resident of New York City, positively; he told me that positively twenty times.”

Again, in the fall of 1898, Louis Givernaud made an affidavit in which he swore that he was a resident of West Hoboken, to avoid the payment of taxes in New York. There was no evidence offered to show that he paid taxes in New Jersey, or elsewhere, after 1898.

At the time of drawing the will in question, the testator, when asked by his attorney, Abel I. Smith, if he were still a resident of West Hoboken, stated that Ms domicile was there and he would be buried there. Mr. Smith testified:

“I asked him whether he had changed his residence, and said it was proper for me to know that, as the laws in different states varied in regard to bequests to charitable institutions. Mr. Givernaud said to me, ‘No, I have not changed my residence; my domicile is here, and I have not changed it.' I am positive about the word ‘domicile’, because when he used the word ‘domicile’ he said it in French, and used the word ‘domicile,’ and said to me, ‘Is “domicile” right?’ and I said, ‘Yes, it is the same in- English as in French, ‘domicile.’ ”

As a matter of fact, the meaning in French of the word “domicile” is not necessarily always the same as in English, but the word in that language may denote a domicile in name which is used for legal purposes only, wMle the actual domicile is maintained in an entirely different place. Again, before he left for California, in 1907; he had a conversation with Dr. Torillhon’s sister, which Dr. Torillhon reports as follows:

“He had bought a house, I believe, in California; he had bought it in his son’s name, like he always did, and she said to him, ‘Now you are a resident of California;’ and he said, ‘Not a- bit; I am a resident of West Hoboken.’ ”

How, as to the law on the subject of domicile. Every man, woman and child has a domicile of origin. He may, however, choose another domicile for himself, but if he abandons his domicile of choice without adojiting another domicile in! the manner prescribed by law, then his domicile of origin becomes his domicile. So that, in this case, if the testator, when he left West Hoboken in 1896, had no intention of returning (mimo revertendi), and did not take up such a residence in New York or elsewhere (animo manendi), then his domicile would revert to his place of birth, namely, Lyon, France.

“Domicile can only be changed mimo et facto, and residence alone, although decisive as to the factum, is an equivocal act as to the mimus.

“Domicile imports an abiding and a permanent home and not a mere temporary one.

“The acquisition of a new domicile involves the abandonment of the previous domicile, and to effect the change, the animus of abandonment must be shown.” Jopp v. Wood, 4 De G. J. & S. 616; 4 N. R. 422; 34 L. J. Ch. 212.

“A change of domicile must be a residence sine animo revertendi. A temporary residence or business does not change the domicile. Also (1) every presumption is to be made in favor of the original domicile; (2) no change can occur without an actual residence in a new place; and (3) no new domicile can be obtained without a clear intention of abandoning the old.
“A mere change of residence, however long continued, does not effect a change of domicile in a testamentary sense, unless there is also an intention to change the domicile or throw off his native country, as for example, if an Englishman goes to France, he must not only reside in France but intend to become a Frenchman instead of ai^ Englishman, before his domicile will be held changed.” See 8 Mews Eng. C. L. Dig. p. 234. &c., tit. “Domicile.”

“The onus of proving a change of domicile is on the party alleging it.” Munroe v. Douglas, 5 Mad. 379.

“No length of residence without the intention of remaining will constitute-domicile.” See Stout v. Leonard, 37 N. J. Law 492; Cadwalader v. Howell, 18 N. J. Law 138; Valentine v. Valentine, 61 N. J. Eq. 400; Crawford v. Wilson, 4 Barb. 504 (at p. 518); Matter of Thompson, 1 Wend. 45; Frost v. Brisbin, 19 Wend. 13; Haggart v. Morgan, 5 N. Y. 422 (at p. 427); Matter of White, 116 App. Div. 183; Matter of Newcomb, 192 N. Y. 238; Flatauer v. Loser, 156 App. Div. 591, first department, May 16th, 1913; also, the recent English case of Huntly v. Gaskell (1906), App. Cas. 56; Watkinson v. Watkinson, 68 N. J. Eq. 632.

A careful study of the evidence entirely satisfies me that the testator was domiciled in New Jersey at the time of his death. Actions do speak louder than words, and the courts place greater reliance on them, but I see nothing in Mr. G-ivemaud’s actions to contradict his statements regarding his domicile. Eor convenience sake he made New York his headquarters, after the year 1896, when he was in this section of the country, but I cannot see that he ever made it Ms home in any sense of the word. True, he spent very little time in New Jersey after 1896, except to attend to his business here, but I am entirely satisfied that he never had any intention of abandoning his domicile in New Jersey, and never, for an instant, formed any intention of remaining indefinitely in any other state or country. Having reached this conclusion, the case is disposed of, and there is nothing further necessary to be said in the matter, and no reason exists for the court to pass upon the other-questions which have been raised.


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    Ben Schweitzer et al. v. Philip Schneider et al. Jacob Itzkowitz et al. v. Hyman Director et al.
    [Decided February 15th, 1916.]
    Where the-delegates of two local labor unions to a national convention of the international union of which both locals were members, such convention having split into two conventions, each of which elected a full set of general officers, recognized one set of officers, and thereafter the locals sent delegates to another convention, held by the various' locals which had recognized such officers in conjunction with another national labor union, a relatively small percentage of the membership of the locals ratifying the decision of the convention to consolidate with such other national unionj suc'h minorities were not entitled to the funds of the original organizations.

      Messrs. Hudspeth & Rysdylc, for the complainants.

      Messrs. McDermott & Enright, for the defendants.
   Lewis, V. C.

The complainant seeks an injunction restraining the defendant from withdrawing certain funds from the Union Trust Company of Jersey City. The funds in question belong to Pressers’' Branch, Local Union No. 2, and Basters’ and Tailors’ Branch of the United Brotherhood of Tailors, Local Union No. 2.

The facts in the case were agreed upon and were practically identical in the two above named actions. The defendants in the first action, were officers and trustees of a voluntary incorporated association, known as the Pressers’ Branch No. 3, which is a labor union composed of persons employed in the clothing manufacturing industry of the city of- New York. . The defendants in the second action were officers and trustees of a voluntary unincorporated association, known as Basters’ and Tailors’ Branch of the United Brotherhood of Tailors, Local Union No. 2, likewise a labor union, composed of persons employed in the clothing manufacturing industry of the city of New York. Both these organizations were affiliated with the United Garment Workers of America, which was also a voluntary unincorporated association and an international labor union of employes in the clothing manufacturing industry. The two associations are local unions of which thé defendánts in these two actions were respectively officers and trustees, and were organized prior to the organization of the United Garment Workers of America, aforesaid. These two local associations each collected from each of its members the sum of sixty cents dues per month, together with initiation fees, assessments levied and fines imposed by it, and out of the funds so accumulated, each of the said local unions paid to the United Garment Workers of America, the international union, initiation fees and per capita taxes, and the balance of said funds, after the payment of the expenses of the respective local unions in question, were deposited by the said local union in various banks, and the moneys for the recovery of which these actions are brought constituted such funds of the said respective local unions accumulated in such manner.

The United Garment Workers of America here referred to had a constitution and by-laws which were offered in evidence in this action. This constitution provided for the holding of biannual conventions for the élection of officers, and pursuant thereto, a convention was called for October 12th, 1914, at Nashville, Tennessee. Each of the local unions, whose officers are defendants in these two actions, sent .delegates to the convention. At the convention a dispute arose between the delegates, and the convention split into two separate conventions, each of which elected a full set of general officers, one set of officers being headed by Sidney Hillman, as general president, and the other by Thomas A. Riekert, as general president. The delegates representing the two local unions recognized the election of the general officers headed by Sidney Hillman, as general president. On or about the 26th day. of December, 1914, another convention was held in the city of New York by the various local unions which had recognized the group of officers headed by Sidney Hillman, as general president, in conjunction with another national labor union known as the Journeymen Tailors’ Union of America, and the two local unions involved in these actions sent delegates to this convention. This convention decided to consolidate with the Journeymen Tailors’ Union of America and to adopt the name of Amalgamated Clothing Workers of America.' After this convention, the association, of which the defendants in the first action were officers and trustees, held a meeting on January 6th, 1915, at which about four hundred members attended out of a total membership of twenty-five hundred, and the association, of which the defendants named in the second action are officers and trustees, held a meeting on January 16th, 1915, at which about seven hundred members attended out of a total membership of three thousand, and at each of the said meetings of said respective associations the local unions ratified by unanimous vote the action of the convention held December 26th, 1914, and the adoption of the name Amalgamated Clothing Workers of America.

That at each of the said meetings a communication was delivered to the secretary of the respective local unions, which communication was signed by the several members of the said local unions, setting forth what is now claimed to be an objection to the action taken at the said meeting, but there is nothing in the record to show that any of the subscribers of the said communication attended said meeting or voted, or attempted to vote, in opposition to the resolution adopted. The said subscribers thereupon talked with a few other members of the said local unions and seceded from the said local unions and attempted to set up rival organizations, claiming to be the original unions. That in the case of the Basters’ Branch, Loan Local Union, No. 3, involved in the first action, the number of said seceders assodated with said subscribers and with the complainants in said action were about eighty, while the number of members upholding the original union, represented by the defendants, amounted to at least one ‘thousand. In the case of the Basters’ and Tailors’ Branch of the United Brotherhood of Tailors’, Local Union, Ho. 2, involved in the second action, the number of such seceders associated with said subscribers, and with the complainants in said action, were about one hundred and twenty-five, while the number of members upholding the original local union represented hy the defendants amounted to at' least fifteen hundred. That the said large majorities represented by the defendants in these' two actions included all of the officers and trustees of the said respective local unions who have con^ tinued to hold the same offices theretofore held by them.

It appeared clear to me from the evidence that the claims presented by the complainant were those of a very small minority of a voluntary unincorporated association or labor union, and, being dissatisfied with a certain action of the members of the association, had attempted to set up a rival organization to claim the funds. The minority represented about four per cent, of the original membership. Upon the argument of this cause before the court it was urged, on behalf of this small minority, that because the supreme court of the State of New York had restrained the defendant organization from using the name of United Garment Workers of America, and the Biekert faction, to which the complainant organization adhered, had been permitted to retain the said name, that therefore this small minority membership of the local unions constituted the real and true organization and were entitled to the funds.

The case of Altman v. Benz, 27 N. J. Eq. 331, complainants contended, was dispositive herein. I cannot see how, under any view of the case, that the funds involved in this dispute were trust funds within the meaning of the decision in Altman v. Benz. If these funds can be called trust funds at all, then the said trust is for the benefit only of the members of the local unions as they represented a net surplus which belongs to the local union and upon which the national union had no claims. The funds represented a net accumulation of the contributions paid by the members of the respective local unions after deducting therefrom all initiation fees, per capita taxes and other charges which had been paid to the national body, and also all the expenses of the local union itself. Furthermore, the organizations now before the court are labor unions whose principal objects are the amelioration of working conditions. The payment of sick benefits is merely a non-essential purpose of the local unions. In the case in hand, the United Garment Workers of America, which is not a party to these proceedings, was not the parent organization of the two local unions involved in this issue. The two local unions were formed prior to tire organization of the United Garment Workers of America.

* The views expressed by the court in the case of State Council v. Enterprise Council, 75 N. J. Eq. 247, can properly be applied to this case. There the court held that the relation between the national council, state council and the subordinate councils are purety voluntary and may be severed at any time, the subordinate councils having an independent existence.

The bills in these cases must be dismissed and the defendants be awarded the funds on deposit ini the Jersey City bank.


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    Grace Reizenberger v. Richard C. Shelton, Jr., et al.
    [Decided March 1st, 1916.]
    1. Where a woman, desirous of rewarding her secretary’s gratuitous services, instructed the vice-president of a bank to buy the house in which the secretary lived for him, which was done, the woman giving the banker the cash to pay for the house, and the latter taking a deed in the secretary’s name, which he later sent to her, who had it recorded, and the woman’s last will, drawn after the gift of the house, for which $10,000 was paid, reduced the legacy to the secretary of more than $10,000 to $2,000, there was no resulting trust in the property, when purchased by the banker, in favor of the woman, so that her heirs were entitled to the property as against the secretary, the doctrine of resulting trust being founded upon the presumed intention of the parties, while the woman’s conduct showed no intention to create a trust in her own favor.
    2. To reward her secretary’s gratuitous services, a married woman could, from hpr separate funds, furnish the purchase-money for a house for such secretary, having the deed taken in his name, and by recording it give him good title, without her husband joining, despite the Married Woman’s act (3 Comp. Stat. 1910 pp. SBS2-3238), providing that nothing in the act should enable any married woman to execute any conveyance of her realty without her husband joining “as heretofore,” which did not change her condition relative to an equitable estate.

      Messrs. Smith, Mahon & Herr, for the complainant.

      Mr. Albert Leuly and Mr. Maximilian T. Rosenberg, for the defendant.
   Lewis, V. C.

The complainant in this case is the daughter of Melissa A. Eonda. She files a bill in this court to have a resulting trust declared in favor of her mother. The property in question is now in the possession of Richard C. Shelton, Jr., one of the defendants. It was the money of Mrs. Eonda that bought this property and the complainant contends that the -estate that her mother had in it descended under the residuary clause of the will to her.

Mrs. Eonda died in ’December, 1914, her husband surviving her. Shelton, the defendant, had been in her employ since the late spring of 1909. He met her first while they were active in the work of the Eirst Reformed Church of West Hoboken. At that time he was employed as a salesman in a wholesale silk house in New York City. She engaged him to act as a secretary for her and it appears from the evidence that for a number of years he practically attended to all her business, such as writing checks and letters, and so forth'. He accompanied her as secretary on her trips during the summer and she paid his expenses. His testimony is that he was at her beck and call all the time. In the year 1912 Mrs. Eonda and he had some conversation with reference to his continuing to work for her and he stated it was necessary for him to seek another position if his health which had been delicate would warrant it. She is said to have told, him not to leave her and said that she intended doing something for him. Later she told.him that she would buy the house at 111 Shippen street, West Hoboken, for him. Subsequently she discussed the matter with Shelton’s mother and made arrangements for the maintenance of the house. These arrangements having been agreed upon the Sheltons removed to the premises at 111 Shippen street. This was about the 10th of Maj’, 1912. Shelton’s parents paid rent for the house at the rate of $20 a month for some time, which Shelton turned over to Mrs. Eonda. On the 9th of August, 1912, a deed for the property, 111 Shippen street, was made to George A. Berger, vice-president of the Trust Company of New Jersey. Mr. Berger is executor of Melissa A. Fonda’s will and had transacted affairs for her at the bank. His story of the purchase of the property is that Mrs. Fonda told him that she desired to buy the house at 111 Shippen street for Richard Shelton; that the people that owned it thought that she had a lot of money and they wanted more than the house was worth and she therefore desired him to purchase it for Shelton. He says in consequence of his conversation with Mrs. Fonda he'entered into communication with the owners of the property and finally bought it for $10,200. Mrs. Fonda gave him the cash to pay for it. Berger entered into a contract with the owners of the property and thereafter took a deed from one Adelaide Ripple for it. This deed was recorded May 3d,. 1912. After he had received this deed he says he told Mrs. Fonda about it and she asked him to hold the property until she was 'ready to have it transferred to Richard Shelton. He received a letter on June 6th, 1912, from Mrs. Fonda, from Albany, New York, directing him to put the deed to Shelton on record. He says he then notified Mrs. Fonda that if she wanted it recorded he would send it to her. He subsequently executed the deed to Shelton and on August 19th, 1912, sent it to Mrs. Fonda, writing her that Mr. J. Rufus Besson had suggested that he mail it to her and that if she wished it recorded before her return from Westport, at which place she was then stopping, that she could mail it direct to Mr. Besson. Mr. Besson received the deed in due course of time and recorded it. Witnesses were produced to show that Mrs. Eonda had said she had purchased the property for Shelton and the reason she did it was that she had never paid him any salary and she wanted to give him something for his services. It appears also from the evidence that a legacy of $10,000 and furniture and personal property amounting to several thousand dollars more which Mrs. Eonda had given to Shelton was cut down to $2,000 by her last' will. It seemed apparent that she had done this owing to the gift of the property to Shelton.

The contention of the complainant is that there is a resulting trust in favor of Melissa A. Eonda. I cannot under any view of the case reach this conclusion. My opinion is that when Berger took title he took it as trustee under an express trust, not for Mrs. Eonda, but for Shelton. If there was any resulting trust in favor of Mrs. Eonda her interest was conveyed to Shelton by the letters of instruction which áre all in evidence and which were sent to Mr. George A. Berger. Berger acted upon these instructions. The trust was executed. What Mrs. Eonda did was to pay Shelton for his services that-he had rendered and was to render in the future. Her estate was benefited by the step which she took. The legacy and the valuable furniture gifts were cut down to a bequest of $2,000 by her last will. At no time did Mrs. Eonda ever exercise any dominion over the Shelton property. There is nothing in the testimony that indicates that she considered it as her property or that she considered herself as having any interest in it. She simply furnished Berger with the money to hold as her trastee. Berger realized that Shelton was his cestui que trust.

Her reasons for negotiating through Berger are quite apparent. It was her desire evidently to arrange it in such a manner as to prevent future complications for Shelton so that he might be undisturbed in his possession of the property.

The doctrine of resulting trust is foundqd upon the presumed intention of the parties. Certainly there can be no intention spelled out of Mrs. Eonda’s conduct in any respect to create a resulting trust in her favor.

It is further contended by the complainant that Mrs. Fonda could not convey any equitable title to the defendant without her husband joining. It is true that in the case of Cushing v. Blake, cited by counsel for the defendant, it is held that the husband would have an estate by the curtesy in the property held by the wife under an express trust,'but in this case Mr. Fonda is not a party nor is his curtesy at all in question. The Married Woman’s act did not change her condition where she holds an equitable estate. In safeguarding to married women their separate estates it simply provided that nothing in the act contained should epable any married woman to execute any conveyance of her real estate, and so forth, without her husband joining .as heretofore.

I do not find any basis in the decisions of this state, for this latter claim of the complainant. In the case of Leaycraft v. Hedden, 4 N. J. Eq. 512, the chancellor said:

“I think it may safely be said that a feme covert is a feme sole as to her separate estate, so far as to dispose of it in any way, not inconsistent with the terms of the instrument .under which she holds. Any danger apprehended from such rule can be avoided by words restraining the disposition, or directing the precise mode in which it may be made.”

I will advise a decree dismissing the bill.


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    Mary Elizabeth Boulanger v. George W. Churchill et al.
    [Decided May 22d, 1916.]
    1. Evidence on a bill for tbe specific performance of an oral contract to live at another’s farm, take charge of the entire house on ceytain terms as to expense, and to care for him, in consideration of a devise of the farm — Held to establish such contract.

      2. To take an oral contract for the devise of land out of the prohibition of the act for the prevention of frauds and perjuries (2 Qen. Stat. 1895 p. 1608 § 5), it is necessary to establish by the clearest proof that the doctrine of part performance of parol contracts will apply.
    3. An oral land contract may be specifically enforced, notwithstanding statute of frauds (2 G-en. Stat. 1895 p. 1608 § 5), requiring a written memorandum, provided that certain steps have been taken, after the contract has been made, toward putting it into effect; but payment in services will not, as a general rule, take the contract out of the statute so as to demand a specific performance of the contract.
    4. Where an oral contract to devise land in consideration of services to be performed by the complainant could not be covered by the doctrine of part performance so as to take it out of the statute of frauds, the complainant’s remedy was on the quantum meruit.

    On pleadings and proofs in open court.

      Messrs. Smith, Mabon & Herr, for the complainant.

      Messrs. Edwards & Smith, for George W. Churchill and wife, the defendants.

      Mr. John F. Gough, for the administrators, defendants.

      Mr. William Vcm Buskirk and Mr. Byrnes (of the Yew York bar), for the other defendants.
   Lewis, V. C.

The bill in this case was filed for specific performance of an oral contract entered into between the complainant, Mary Elizabeth Boulanger and Borneo T. Churchill. Mrs. Boulanger, the complainant, testified at the trial of the cause, and died shortly thereafter, and the suit has been revived in the name of Anthony D. Boulanger, Jr., as complainant. Mrs. Boulanger was a niece of Mrs. Borneo T. Churchill, who died in June, 1912. Mrs. Boulanger, before her marriage, resided a great deal of her time with her aunt and uncle already mentioned, at their home in Secaucus.

Mr. and Mrs. Boulanger, at the time of the death of Mrs. Churchill, were living in Bidgefiield Park with their four children, in a house which they rented for $20 per month. Their household expenses were very low, not over thirty to forty dollars a month, exclusive of house rent. Mr. Boulanger was in business for himself and had a drawing account of $35 per week, besides profit which accumulated in the business. Mrs. Churchill, during her last sickness, sent for Mrs. Boulanger to nurse her, and when she died, Borneo T. Churchill made the agreement with Mrs. Boulanger on which this action is now based.

Anthony D. Boulanger, Jr., the substituted complainant, and who was the husband of Mary Elizabeth Boulanger, testified at the trial that at the time of the last illness of Mrs. Churchill, Borneo T. Churchill came to Bidgefield Park and asked Mrs. Boulanger to come down to take care of Mrs. Churchill and that he consented thereto as Borneo was so insistent; that after the death of Mrs. .Churchill, two daj^s thereafter, he had a conversation with Borneo at the barn on the place where Mr. Churchill lived in Secaucus. Mr. Boulanger’s testimony on that subject was as follows:

“<?. What did lie tell you?
“A. He said to me, ‘Now Anthony, I spoke to Marne to-day about coming down here to take care of me; my health is very poor now, and now that Eliza is gone, I have nobody to look after me but Mame, and if she will do that and come down and take care of me, she shall have this property when I gowe were at the entrance of the barn; we were facing the property at the time, facing the property in question; the barn is at the rear of the premises and we were at the barn entrance, and he was facing the property in question, and he said, ‘She shall have this property.’
“I said, ‘That is all right, but it won’t be an easy matter to give up Ridgefield Park, our associations there;’ and he said, ‘That will be all right; the only one that will object to it will be Marion’ [that is my daughter] and we can win her over;’ and he said, ‘You just tell Marne to sell all the furniture up there and dispose of whatever she can and try and get rid of that piano, because we will have one here, and if she will come down here she shall have all this furniture in the house.’
“Q. What did you say then?
“A. I said, ‘Well, that is all very well, but what about the financial part of it; how shall we arrange about the funning of the place?’ He said, ‘Oh, that is all right, Anthony; you just come down and run it to suit yourself; you board me and Gus, and pay Mrs. McConn’s wages, and just take care of the expenses' of the house, and I will take care of the rest of it; I will pay Gus’s wages and the expenses of the barn, and any other expenses.’ I said, T think that is going to make it a pretty expensive proposition to me; you know our expenses in Ridgefield Park are very small now; I don’t believe it costs ns over $50 or $60 a month, and I will bet it will cost me two or three times as much as that down here;’ and he said, ‘It won't cost you that much;’ and I said, ‘Yes, it will;’ and he said, ‘It won’t make any difference, because Marne will own this property some day anyway;’ so I said, ‘Well, I guess I will speak to Marne again about that before we do anything.’
“Q. That was all the conversation,-was it, at that time?
“A. Yes, sir.
“Q. Then when was the next time you spoke to Romeo about it?
“A. The next evening.
“Q. The following evening; where were you then?
“A. At the same place,, in the barn again.
“Q. Who was there on that occasion?
“A. Just he and I, and the man was around there, the man that died.
“Q. What was said on that occasion?
“A. 1-Ie said, ‘Anthony, have you made up your mind about that?’ and I said, ‘Yes, I spoke to Marne about it, and she has agreed to come down.’
"Q. Then what did you do?
“A. Then we walked into the house, and we walked into the dining-room and Marne was there at the time; and he said, ‘Well, I feel relieved, Marne, that you are coming down.’ He said, ‘Frankie, you and I are going to be pals now for good.’ Frankie is my boy.”

Mr. Boulanger then testified that he and his wife and children moved on the 26th of June, 1912, and took up their residence at the home of Romeo T. Churchill and have been staying there ever since; that his wife took charge of the entire house and took care of everything, including Romeo, and took care of him during his sick spells and looked after him in every way possible. He says that Romeo was like a baby around the house, requiring a lot of attention, and that she nursed him; that he suffered from a chronic bronchial condition and that he would get into a sort of a spasm, and that she had to wipe his forehead with towels and get rid of the perspiration.

Mr. .Eberhard, an attorney and counselor, testified that about a week before Mr. Churchilhs death in 1914, he received a telephone call, and in response he went to see Mr. Churchill, and that Mr. Ohurdhill said:

“ ‘Fred, I have got you out here for the purpose of arranging my affairs * * * and I want Marne to be taken care of, and she is to have all this * * * the house and all this.’ I said, ‘That is all right, Romey; now, shall I get ready?’ and ho said, ‘No, don’t get ready yet, because there is a whole lot of things that I have got, personal chattels and the bank stock, which I want to provide for. and I am trying to think of a way to dispose of them.’ ”

The evidence in this case is very voluminous. There is nothing-in it indicating that the labor or services performed by Mrs. Boulanger were exceptional or extraordinary or that her whole course of life or lifework was changed by performance of the agreement. I am satisfied, however, that Borneo T. Churchill did enter into the oral contract”with Mrs. Boulanger as charged in the bill; but I am also convinced that the complainant’s case as proved is not within the cognizance of this court, for the following reasons: This was an oral contract for the devise of lands which is prohibited by the “act for the prevention of frauds and perjuries,” approved March 27th, 1874. See Gen. Stat. p. 1603 § 5, and to take this case out of the statute, it would be necessary to establish by the clearest proofs that the doctrine of part performance of parol contracts will apply. This doctrine is, that oral land contracts may be specifically enforced, notwithstanding the statute’s requirement of a written memorandum, provided that certain steps have been taken, after the contract has been made, toward putting it into effect. This doctrine is firmly established in England and in all the state jurisdictions with few exceptions, and has ever been confirmed in many of the states by statute.

In case of oral contracts where the vendee, in pursuance of the oral contract, goes into possession of the land with the consent of the vendor, and makes valuable improvements, we find an instance where courts of equity will enforce the contract in spite of the statute.

Pa3rmeht, however, is not an act which demands the specific performance of an oral contract.

Payment in services will not, as a general rule, take the contract out of the statute an3>- more than payment in money; but (some services cannot be measured by their money value, and jwere not intended to be so measured. Services of affection rendered by a child to its parent, rendered as consideration for an oral promise, cannot be compensated by money damages.

I find, however, that the ease under consideration cannot be covered by this doctrine of part performance so as to take it out of the statute, and I think the complainant’s remedy is on the quantum meruit. Cooper v. Colson et al., 66 N. J. Eq. 328.

A decree dismissing the bill is accordingly advised.


author: Backes, V. C.

text:
    Frank P. Bunnell, executor, &c., v. Paul F. Beam, administrator, et al.
    [Submitted March 8th, 1916.
    Decided April 12th, 1916.]
    A limitation over is void where the first taker under a will has the uncontrolled power of consuming and exhausting the estate.

      Mr. George A. Angle, for the complainant.

      Mr. Osiris D. McConnell, for the defendants, the heirs.

      Mr. William H. Morrow, for the defendants, the cousins.
   Backes, V. C.

The executor of Mary Jane Heldemore asks the advice and instruction of the court concerning the disposition- of funds in his hands. Mrs. Heldemore left a will, in which, after making some general bequests, by the fifth section gave as follows:

“Fifth. As to the rest of my estate, real, personal and mixed, I hereby give, devise and bequeath unto my husband Charles Heldemore, after Ms death and all expenses are paid, if there is any residue left it is to be divided among my six cousins,”

whom she named. She left a small quantity of personal property and some real estate, which was sold to pay debts. The husband survived, but is now dead, and the executor is in a' quandary whether to pay the proceeds of the real estate to the husband-s heirs, or to the six cousins, as directed by the will.

The decision depends upon whether the husband had the right to consume and exhaust the estate, for, if he had, then he was the absolute owner and the devise over is void. This is settled law. In Annin v. Vandoren, 14 N. J. Eq. 135, the testator gave his four daughters the residue of the proceeds of sale of certain of his real estate, and all his rights and credits, after the payment of all just debts and expenses, to be paid as soon as the estate could be conveniently settled. By a subsequent clause of the will, the testator made the following direction :

“Should my daughters Lenah and Mary, or either of them, die leaving no legal issue, the share or shares herein bequeathed to her or them (if not paid over by my executors, and if paid over, then such part thereof as remains unexpended), I give and bequeath unto my surviving children and their heirs equally between them.”

The chancellor held that the daughter Lenah, whose share had been paid over to her, took the share absolutely, by reason of the power of disposal given by the will, saying: “The cases rest upon the principle, that if the testator, either expressly or by implication, manifests an intent to vest in the first legatee the uncontrolled power of disposing of the property, such power involves the idea of absolute ownership, and the limitation over is void, as inconsistent with the rights of the first legatee. The uncontrolled power of expenditure necessarily implies absolute ownership as fully as the power of disposing of it. And this difficulty can only be overcome by limiting the right of expenditure to so much as may be necessary for the support of the legatee.” This doctrine was cited with approval by the court of errors and appeals in Downey v. Borden, 36 N. J. Law 460; McCloskey v. Thorpe, 74 N. J. Eq. 413; Brohm v. Berner, 77 Atl Rep. 517.

In Brohm v. Berner, the testator disposed of the remainder of the estate as follows:

“I give and bequeath to my beloved wife all my real estate, also all my personal property of every description, also all moneys due me at my decease, to her own private use forever, and after her decease, to the relatives of myself as well as her the balance in equal parts of shares.”

Chief-Justice Gummere, delivering the opinion of the court, sajts: “It is to be observed that the testator by the residuary clause of his will blends his real and personal estate into a single mass and disposes of it as a unit. He gives it directly to liis wife, and not to a third person in trust for her benefit, and declares that she shall receive it for her own private use forever. Thus employed the word ‘use’ implies something more than a mere usufruct. He then provides that, after her death, ‘the balance shall go to his and her relatives in equal shares/ From the context in which it appears the testator evidently intended the word ‘balance’ as the equivalent of the tenth definition given to it in the Century dictionary, viz., ‘ “What remains or is left over, as ‘He bequeathed the balance of his estate to A. B/ ” ’ Giving to the word this meaning, the residuary clause is almost identical with the provision of the will construed in Annin’s Executors v. Vandoren’s Administrator, 14 N. J. Eq. 135, a case frequently cited in our later decisions. * * * The effect given to this provision in Annin v. Vandoren was commented upon, approved, and followed by us in the late case of McCloskey v. Thorpe, 74 N. J. Eq. 413. There the testator by his will directed that the proceeds of the sale of his saw mill be paid over to his wife, to whom he also bequeathed all of the personal property of which he was possessed, and then provided that, ‘If there should be anything left after her death,’ it should be divided among specified beneficiaries. We held that the effect of the words quoted, unlimited as they were by any other provision of the will, conferred an absolute power of disposal upon the wife, and that the gift over of what was left was void. It is true that in these two cases the testamentary disposition was of personal property, not of real estate. But, as is pointed out by Chancellor Green in Annin v. Vandoren, the authorities upon the point (and many of them axe cited by him) sustain the principle in regard to devises of real estate as well as legacies.”

Guided by these authorities, there is not the semblance of a doubt left'of Heldemore’s absolute ownership of the property in his lifetime. Upon his death it descended to his heirs, to whom the fund now in question must lie paid, after the payment of Charles Heldemore’s debts; and the devise over to the testatrix’s cousins must be disregarded as void.

A sufficient sum to pay Charles Heldemore’s debts will be paid to his administrator.

The legacy of $25 to the First Presbyterian Church, of Oxford, New Jersey, under the seventh paragraph of the will called a “codicil,” but which in fact is incorporated in the will proper, must fail. It stands in the category of the cousins.

Counsel for the cousins earnestly urged that the language of the will was so plain as not to require interpretation, and that the estate ought to be awarded to those to whom the testatrix unmistakably intended it should go. The answer to this is that the will must be read in the light of established rules of construction and is to be regarded as having been executed with a knowledge of those rules, and as Mr. Justice Pitney said in Tuerk v. Schueler, 71 N. J. Law 331: “But while full force should be given to the intent of the testator, yet that intent must be gathered by the application of known rules of construction and interpretation, established by oft-repeated and long-standing adjudications.”


text:
    John W. Wescott, attorney-general of the State of New Jersey, v. American Creosoting Company.
    [Decided April 14th, 1916.]
    A license granted under the Wharf act of 1851 (Oomp. Stat. p. 5856) is not executed by the stringing of piles along the dock line on either side of, and tied to, a pre-existing wharf; and the land thus enclosed is not thereby vested in the licensee.

      Mr. John W. Wescott, attorney-general, for the informant.

      Mr. Francis Laferty, for the defendant.
   Backes, V. C.

" This is an information by the attorney-general, who seeks to have a wharf erected by the defendant on the southerly shore of the Passaic river at Newark, declared a purpresture, and an injunction for its removal. The defendant claims the right to maintain the wharf under a license granted to its predecessor in title, Baeder and Adamson, by the board of freeholders of Essex, by virtue of the Wharf act,of 1851 (Comp. Stat. p. 5856), the fifth section of which provides that such license

“Shall * * * authorize and empower the said applicant to erect the dock, wharf or pier at any time within five years from the daté whereof; and said docks, wharves, or piers, or so much thereof as may he erected within said five years, shall be vested in said shore owner, in the same manner, for the same estate, and with the same limitations over, in remainder or otherwise, as the lands along said tide-waters in front of which the same were made may be; and such license shall not be assignable, except with, and as appurtenant to said lands, and shall pass, by any sale of said lands, as appurtenant thereto.”

The license was granted February 23d, 1876, and extended across the whole of the river front of the licensee’s land, eight hundred and ninety-one and sixty-five hundredths feet, and into the river to the dock line, fixed by a commission appointed for that purpose by the legislature in 1872. Years before the license was obtained, Baeder and Adamson maintained a wharf on their property some sixty feet in width, reaching into the river a considerable distance beyond the after-established dock line; but by what right, if any, is not disclosed. This wharf is still standing and in use by the defendant. Within the year of the grant the licensees sunk piling along the dock line the entire length of their property, seven or eight feet apart, joined together by twelve-inch cap logs or stringers and fastened to the wharf on either side. Nothing else was done until 1911, when the defendant built another wharf, the one in question, immediately adjoining and westerly of the old one. By that time the string of cap logs and piling hád disintegrated.

A single question is submitted for decision: Was the enclosure of the land by the row of piling and top pieces an execution of the license within the intent of the act above quoted, so as to divest the state of its land and vest it in the licensees? Such an enclosure, without more, was held by Vice-Chancellor Emery in Stockton, Attorney-General, v. American Lucol Co., 36 Atl. Rep. 572, to be not a compliance with the terms of the grant. Assuming the doctrine of that case to be sound, defendant’s counsel controverts its application to the present situation, because of the added feature here of the old wharf, of which they contend, the row of piling and the connecting stringers when erected became an integral part and laterally expanded and spread it over the whole of the licensee’s eight hundred feet and more of river front. The pre-existence of this wharf, it seems to me, affords no differentiating factor, inasmuch as the premise upon which the theory of automatic enlargement rests is unsubstantial, for the reason that when Baeder and Adamson got their license from the freeholders they put in the piling, not for the purpose of extending the wharf, but as Mr. Adamson says, “to conform to the laws” — simulation—tying them by stringers to the wharf was an economic measure without thought or intent of being complemental of the statutory requisite; and further, because the price of the state’s land was a practical and not an ideal compliance with the condition of the grant. True, it may be, as the defendant sajrs, that the pilings were used and advantageously, for the mooring of boats preparatory to charging and discharging cargo, but the most that can be claimed on that score is that they furnish a convenience and facility for the work at the wharf, without being a constituent or essential part of it. I do not mean to indicate that the proprietary right acquired by a licensee erecting a wharf is confined to the area covered by the platform or floor space of the structure, but my view is that the right is only co-extensive with such immediate lateral fixtures necessary for its maintenance, and as are incidental to a full enjoyment of the privilege. The stretch of piling put in by the licensees to serve another purpose, obviously does not come withjn this criterion. The design of the act under consideration to stimulate commercial navigation, and the legislative scheme imposing an obligation upon the licensee to build a dock, wharf or pier as consideration for the state’s title, manifestly demands something more than the mere fencing in or enclosing the land by a line of poles.

The spirit and meaning of the statute is that within the time limited, a licensee shall have bona fide erected a “wharf,” viz., a space of ground artificially prepared for the reception of merchandise from a ship or vessel, so as to promote the convenient loading and discharging of such vessel (Bouv. 3449), or build a “dock,” viz., the slip or waterway extending between two piers or projecting wharfs for the reception of ships, sometimes including the piers themselves (Webster) in order to earn a concession and that the land thus ceded was to be confined to the dock, wharf or pier proper. The preemption, by virtue of the license, is not redeemed by a structure covering only a fractional portion of the grant.

The licensees not having in any sense met the requirements of the law, the defendant is adjudged guilty of purpresture in regard to the wharf built in 1911, and it will be ordered removed.' So much of the old wharf maintained beyond the dock line, the illegality of which was not denied, will also be ordered removed. Costs to the state.