text:
    Sarah E. Ambruster and Harriet E. Godfrey, executrices under the last will and testament of Amelia R. Godfrey, complainants, v. The “Own Your Home” Association, defendant.
    [Decided January 17th, 1925.]
    A devise to one for life, remainder to two nieces, and in case either niece should die without issue the survivor to have the whole, would be construed, if it stood alone, as meaning, dying without issue in the lifetime of the life tenant. But an indication of a contrary intention, though slight, renders inapplicable the rule that a limitation over of a remainder upon death and default of issue imports such death and default during the life of the particular estate.
    On final hearing on bill and answer.

      Mr. L. Edward Hermann, for the complainants.

      Mr. Jacob Ijubetkvn, for the defendant.
   Backes, Y. C.

This suit is for the specific performance of a contract fox the sale of land. The defendant desires, but is unwilling, to take title, because, as it claims, the complainants are not the owners of the fee. The alleged defect in the title involves the construction of the last will and testament of Mary Tompkins, former owner, who died in 1874, the pertinent parts of which read:

Note.'—The opinion as to the title was given at the solicitation of counsel for the defendant, who waived the available point, that where the marketability of the title is reasonably disputable, equity will not specifically enforce a contract, but will leave complainant to his action at law. He now has encountered difficulty in having the title insured, the insurance company claiming, and rightly, that the decree will not be res adjudieata, and desires that it be withheld until an action can be brought by the complainant to quiet the title, Schulz v. Garibaldi, 112 Atl. Rep. 854. I think he is within his rights; that will be the course.

“Second. I give and bequeath unto my niece Hannah M. Halsted all my personal property of every kind and description, to her, her heirs and assigns, and, in case she should die without issue, 1 give the same to her sister .Catherine C. .Halstead.
“Itom. I give and bequeath to my son, Moses Tomkins, for and during his natural life, the use of all my real estate of every kind and description.
“Item. After the decease of my said son, Mioses Tomkins, I give and bequeath unto my nieces before named, Hannah M. Halsted and Catherine C. Halsted, all my real estate in equal proportions, share and share alike, to them, their heirs and assigns forever, and in case either Should die without issue, the survivor to have the whole of my estate, and in ease both should die without issue, I give and bequeath the same unto their mother, Jemima 'Halsted, to her, her heirs and assigns.”

The life tenant died before the remaindermen. Hannah M. Halsted died without issue and intestate as to real estate, leaving as her heirs-at-law her sister, Catherine C. Condit (nee Halsted), and her brother, Henry B. Halsted. Henry B. Halsted died intestate as to real estate, leaving a widow and two children. Catherine C. Condit (nee Halsted) died intestate, leaving a son, who conveyed the premises, to Amelia R. Godfrey, from whom the complainants hold by will.

The defendant makes the point that the gift over of the real estate to the surviving niece, upon the death of one of them without issue, means, in view of the preceding life estate;, such death without' issue in the lifetime of the life tenant, and that as both remaindermen survived the life tenant, each became seized in fee-simple of a moiety, and that upon the death of Hannah M. Halsted her one-half interest descended to her sister, Catherine C. Halsted, and her brother, Henry B. Halsted, and, consequently, the latter’s children are now seized of a one-quarter interest in the land, and relies upon the second rule for the construction of wills defined by Chief-Justice Gummere in the case of Patterson v. Madden, 54 N. J. Eq. 714, as follows:

“First. If land be devised to A. in fee, and a subsequent clause in the will limits such land over to designated pex*sons in case A. dies without issue, and A. so dies, and the substituted devisees are in esse at his death, and there is no Other event expressed in the will to which the limitation over can fairly be referred, then A. takes a vested fee which be¡comes divested at his death and vests in those to whom the estate is limited over.

“Second. Where there is an event indicated in the will other than the death of the devisee to which the limitation over is referable [for instance, the distribution of the testator’s estate or the postponement of the enjoyment of the property devised until the devisee reaches the age of twenty-one, or until the exhaustion of a prior life estate], such limitation over will be 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 event specified or is connected with the devise itself.”

If the devise stood alone it would be susceptible of the construction contended for, that the executory devise was intended to become operative in case of death of either niece before the life tenant; but looking at the rest of the will, and particularly the bequest of the personal estate to the niece Hannah M. Halstead, “and in case she should die without issue I give the same to her sister Catherine C. Halstead,” it would appear that that was not the intention. According to the first rule of construction just quoted, the surviving niece would take the personal estate upon the death of her sister at airy time, without issue, and it is not reasonable to assume that the testatrix intended the executory bequest should take effect upon the death of the primary legatee at any time, without issue, and the executory devise upon the death of the primary devisee, before the life tenant, without issue. It is to be presumed that the testatrix intended the surviving niece to take both her personal and real property upon the same contingency. This view is supported by the expression “and in case either should die without issue, the survivor to have the- whole of my estate,” both personal and real. This provision might be defeated if the limitations over were not upon the same event—death at any time without issue. The executory devise, in the circumstances, is not referable to the event of the primary devisee dying before the life tenant, but stands in opposition to the devise, and was intended to come into effect upon the death of the primary devisee at any time, without issue. An indication of a contrary intention, though it be slight, renders inapplicable the rule that a limitation over of a remainder upon the death and default of issue imports such death and default during the life of the particular estate. Dean v. Nutley, 70 N. J. Law 217; Hampton, v. Newkirk, 93 N. J. Eq. 270. Michael v. Minchin 90 N. J. Law 603, is an instance of the application of the second rule of construction laid down in Patterson v. Madden, supra. The rule adopted in England for construing such executory devises is different from ours, as pointed out by Vice-Chancellor Learning, in Hampton v. Newkirk, supra.

The conclusion is that Hannah M. Halstead took a vested fee, subject to being divested, and that she was divested thereof upon her death without issue, and that it passed to her sister Catherine by the limitation over. The complainants have good title and the defendant will be decreed to perform its contract.


source: Caselaw Access Project

author: Backes, Y. C.

license: Public Domain

text:
    Arlington Realty Company, complainant, v. Amelia R. Gluck et al., defendants.
    [Filed January 22d, 1925.]
    1. On a bill to quiet title, the statutory allegation that “no suit shall be pending to enforce or test the validity of such title, claim or encumbrance” refers to the claim of title or encumbrance of the defendant. This allegation is jurisdictional, and an allegation that “no suit is pending to enforce or test the validity of the complainant’s said title, claim or encumbrance” is not a' compliance with the statute.
    2. In a bill to quiet title where an alleged encumbrance of the defendants is set forth, and in the prayer of the bill its removal is asked as a cloud on the title, such allegation and prayer are improper, and should be omitted.
    On motion to dismiss bill.

      Mr. Michael J. Tansey, for the motion.

      Mr. C. Herbert Walker, for the complainant.
   Backes, Y. C.

The bill is to quiet the title to land, under the statute. Motion is made to dismiss the bill because it discloses no ground for equitable relief. The statutory requirements are, that the complainant be in peaceable possession under a claim of ownership, and that his title is denied or disputed; or that the defendant claims to own the same or any part thereof or an interest therein, or to hold any lien or encumbrance thereon, “and no suit shall be pending to enforce or test the validity of such title, claim, or encumbrance.” The bill contains no allegation in compliance with the provision quoted, but alleges that “no suit is pending to enforce or test the validity of the said Arlington Realty Company’s said title, claim or encumbrance.” The statute refers to the claim of title or encumbrance of the defendant. The bill is fatally defective in this respect. The required allegation is jurisdictional. The motion will prevail, with leave to the complainant to amend.

Otherwise, the bill is in the usual form, except that in the fourth clause an alleged encumbrance of the defendants is set forth, and, in the pra}er of the bill, it is asked that this be removed as a cloud on the title. The allegation and prayer are improper, and should be omitted in the amended bill. Fittichauer v. Metropolitan Fire Proofing Co., 70 N. J. Eq. 429.


author: Backes, V. C.

text:
    National Newark and Essex Banking Company, as trustee, complainant, v. Johannes Hermann Curt Rosahl et al., defendants.
    [Decided April 8th, 1925.]
    1. A revocable deed of trust is not invalid as testamentary because some of the beneficiaries come into the enjoyment of the estate at the death of the testator.
    2. A right of revocation must be exercised in the manner and form specified in the reservation of the power.

      Messrs. Pitney, Hardin <& Slcinner (Mr. Stanley), for the complainants.

      Mr. Cecil II. McMahon, administrator, pro se.

   Backes, V. C.

Johannes Hermann Curt Rosahl, by deed, assigned and delivered to the complainant securities of the face value of $10,000, upon trust, to pay the net income to him for life, then to his widow for life, corpus to his lawful issue; if ho widow or issue, then to pa]'' the net income to his mother, and upon her death to his three sisters, and the survivors of them, and upon the extinction of these life interests, to pay the principal to his appointee by will, and in default of appointment to his next of kin who would be entitled under the laws of this state to succeed to his personal property. The deed contained a provision that the trustor may, during his lifetime, by instrument in writing, duly acknowledged, “revoke as an entirety this deed of trust and the trusts then subsisting thereunder. In such case the trustee shall thereupon pay over, deliver, or otherwise dispose of, the entire trust fund, both principal and income, in such manner as shall be by such writing directed.” The trustor died intestate and unmanned, leaving his mother and his three sisters, his next of kin. The defendant McMahon was appointed administrator of the estate. Shortly before the death of the trustor he executed and duly acknowledged an instrument, in writing, styled thereon, "Amendment to the deed of trust of Johannes Hermann Curt Rosahl, dated July 16th, 1921, in which the Newark and Essex Banking Company is the trustee of this estate,” in which the trustee is given authority to manage the estate for ten years after his death, and semi-annually divide the income among Ms heirs (sic) in equal parts, and at the expiration of that time to divide the corpus equally among Ms remaining heirs, (sic), and if there be none, 'then pay it to. the city of Lueneburg (Hann.), Germany, to be used to feed the hungry school children and orphans. The trustee seeks the advice of the court in the administration of the trust and the determination of the rights of the parties in the estate. The trustee is advised that—

1. The deed of trust is not, as claimed by the administrator, testamentary, and, therefore, invalid, because it was not executed as wills are required to be. The trust was completely executed. The property passed out of the donor and vested in the trustee to the beneficial use of the cestuis que trustent. That some of them were not to come into enjoyment until after the death of the donor did not affect the vesting of their interest. If the power of revocation is not exercised the interest remains vested as though such power had not been reserved. 1 Perry Trusts 137. The power is personal to the trustor. Jones v. Clifton, 101 U. S. 225; Brandies v. Cochrane, 112 U. S. 344. The reservation of such power is not inconsistent with the passing of title to the property to the trustee. Stone v. Hachett, 78 Mass. 227; Windolph v. Girard Trust Co., 91 Atl. Rep. 634. The omission of such reservation has led to voluntary settlements being set aside on the ground of mistake. 26 R. C. L. 107, Garnsey v. Mundy, 24 N. J. Eq. 243. The distinction between trusts thus created and transfers of property to take effect after death, as in Stevenson v. Earl, 65 N. J. Eq. 721, upon which the administrator relies, is that in the one the property immediately passes out of the donor while in the other it remains in him and passes at death. The doctrine of that case, as pointed out by Chancellor Walker, in Robeson v. Duncan, 74 N. J. Eq. 745: “Applies to the disposition in his lifetime of property which will be in the donor at the time of his death; the tradition to take place at or after death. * * * It can have no application to a case where the grantor has by his conveyance divested himself of his property in his lifetime.” The courts have frequently upheld such trusts as against attacks, that they were testamentary. Green v. Tulane, 52 N. J. Eq. 169. See, also, New Jersey Title Guarantee Trust Co. v. Archibald, 91 N. J. Eq. 82; Kaufman v. Edwards, 92 N. J. Eq. 554; Dunn v. Houghton, 51 Atl. Rep. 71. When, however, it plainly appears that a revokable trust to take effect in enjoyment at the death oí the trustor was created in evasion of the statute of wills, equity will decline to enforce them. Kelley v. Snow, 185 Mass. 288; Seaman, v. Harmon, 192 Mass. 51; McEvoy v. Boston Five Cent Savings Bank, 201 Mass. 50; Brown v. Crafts, 98 Me. 40. There is no evidence in this case indicating such a purpose.

2. The rights of the cesiuis que trusteni under the deed of trust are not impaired by the “amendment.” Their vested rights were subject to defeat only in the manner and form reserved to the trustor, and any other course, to that end, adopted by him was futile and is unavailing. 26 R. C. L. 1206; Lippincott v. Williams, 68 N. J. Eq. 130. The right reserved to the trustor was to “revoke as an entirety this deed of trust,” and thereupon the trustee was “to pay over the entire trust fund, both principal and income,” as directed by the revoking instrument, viz., to revoke the legal estate of the trustee and to repossess himself of the trust-property as a whole. Short of that there was no reservation. He could have destroyed the trust altogether but not in part. While the trust as a unit was subject to his will or whim, it was not within the scope of the reserved power to amend or supplement the deed or to alter the rights of the c'estuis que trustent. It is suggested, but not urged, that the right to revoke the trust implies the power to modify it. That may have been the intention, but the language of the reservation does not admit of that construction. The deed fixes the rights of the parties to the fund, the donor’s as well as the donee’s, and each is bound by its terms. Gulick v. Gulick, 39 N. J. Eq. 401.

The trustee is directed to, for the present, perform the trust according to the provisions of the deed. They are unambiguous and do not call for specific instruction.

The principal of the fund is now vested in the trustor’s next of kin who take under the statutes of distribution as they stood at the time of his death (American Builders’ Corporation v. Galligan, 94 N. J. Eq. 731), but this question must be determined finally when the time for distribution arrives. Nagle v. Conard, 79 N. J. Eq. 124.


text:
    C. B. Rutan Company, complainant, v. Local Union, No. 4, Hatters’ Union of America, et al., defendants.
    [Decided April 20th, 1925.]
    1. Labor has tire right, either -singly or in concert, to refuse to work out of sympathy with fellow-employes, or because they regard it as n'o-t of advantage to organized labor to work for a particular employer, or for no explained reason whatever.
    2. Where the purpose of a strike is to compel an employer to run a shop against his will, and to his injury to re-empl'oy his discharged hands for whom he has no use, then such a strike is unlawful, for a labor union as no right to prevent employers of labor from profitably prosecuting their business.

      3. Wlkere proofs in a case fall short of establishing the unlawful purpose charged, and it appears that the employes have done nothing more than refrain from working, have not prevented the employer from employing other hands, nor in any waj' interfered with him in carrying on his own business in his own way, such conduct is not subject to judicial criticism.
    On bill, &c.

      Mr. John A. Bernhard, for the complainant.

      Messrs. Biker & Biker [Mr. Andrew Van Blarcom), for the defendants.
   Backes, Y. C.

This bill is to restrain a union labor strike. The complainant is a hat manufacturer. Its factory is divided into three shops—making, finishing and trimming, each employing about'twenty-five hands. Finding that the making shop- was unprofitable, and that hat bodies'could be bought cheaper, the complainant shut it down and discharged the hat makers. Thereupon the finishers quit work. The complainant charges that they struck to compel it to- re-establish the making shop. The defendants, finishers, say they quit—struck—because their fellow-unidnists were thrown out of work, and because they do not regard it to the interest of union labor to work for an employer who has a making shop and refuses to operate it, and that the policy of the union in this respect is expressed by its by-laws that "no manufacturer shall be allowed the union label who has a plank [making] shop and buys his hats in the rough, unless the plank shop- is running at full capacity.” . That they had the right to, singly or in concert, refuse to work, out of sympathy for their fellow-employes, or because they regarded it as not of advantage to organized labor to work for this- complainant under the circumstances, or for no explained reason at all, is beyond question. New Jersey Painting Co. v. Local No. 26, 96 N. J. Eq. 632, where many o£ the leading cases are cited. See, also, Maisel v. Sigman, 205 N. Y. Supp. 807; Sauls bery v. Coopers’ International Union, 147 Ky. 170; Union Pacific Railroad Co. v. Ruef, 120 Fed. Rep. 114. Organized labor has the same right to chose its employers as employers have to select their labor, and so long as they confine their activities to advancing their own welfare, whatever the ramifications may be, the other has no cause for complaint, and when these activities, lawfully carried on, conflict, and, as sometimes happens^ labor, because of its ascendancy, is powerful enough to dictate terms within the scope indicated, judicial interference is unjustified. If, however, the purpose of a strike is, and as the complainant contends it is here, to compel an employer to run his shop against his will, and to his injury re-employ his discharged hands, for whom he has no use, then the strike is unlawful, for the union has no right to prevent employers of labor from profitably prosecuting their businesses. Folsom Engraving Co. v. McNeil 235 Mass. 369; Roraback v. Motion Picture Machine Operatives Union, 140 Minn. 481; Haverhill Strand Theatre v. Gillen, L. R. A. 1918 c. 813. The New Jersey Painting Co. Case, supra, is in line with accepted authority, that the strike weapon may be used if the object is to advance the interest of organized labor, provided the object be otherwise not unlawful. The act of 1883 (Comp. Stat. p. 8051) was there regarded as of greater forcé than heretofore entertained, but the case does not countenance the strike, to advance the interest of organized labor, if the purpose is to impinge upon the constitutional rights of employers, to pursue their callings unmolested. This court enjoined the strike there involved because it was sought to .enforce a rule relating to the wage scale which was thought to discriminate between employers of labor upon an illusory and harmful basis, and was in unfair restraint of trade, but the court of errors and appeals was of the opinion that, although discriminatory, inasmuch as the rule operated alike on all employers similarly fixed, and as its prime object was to establish a standard of wages, it was within the province of the union to make, and a strike to enforce it was not unlawful. The act of 1883 had theretofore been regarded as relieving organized labor only from liability to criminal prosecution (Jonas Glass Co. v. Glass Bottle Blowers Assn., 77 N. J. Eq. 219; Erdman v. Mitchell, 207 Pa. 79), but the court of errors and appeals declared the statute to be much broader in its scope. How much, or in what respect, was not indicated. It surely does not extend immunity for invasion of private rights, for that is beyond the power of the legislature to grant. Adair v. United States, 208 U. S. 161; Coppage v. Kansas, 236 U. S. 1.

The proofs fall short of showing the unlawful purpose charged, although in the circumstances the complainant may have to re-establish its plank shop or go out of business altogether. For such misfortune the members of the union disclaim responsibility, and rightly. They were not under contract to work; they hav'e done nothing more than refrain from working; they have not prevented the complainant from procuring other hands, and none of the usual strike tactics has been resorted to to deter others from taking their ¡daces, nor have they in any way interfered with the complainant in the carrying on of its business in its own way. In fine, their attitude has been simply one of hands oil and let the complainant get along as best it may without them. This attitude is not open to judicial criticism.

Injunction denied and bill dismissed.


author: Bacices, Y. C.

text:
    Frederick Stahl et al., complainants, v. Richard P. Walters et al., defendants.
    [Decided April 20th, 1925.]
    1. A subcontractor on a building who works on the job, but not as a journeyman or laborer for wages, is not entitled to priority of payment under the Mechanics’ Dien law.

      2. A stop-notice under the Mechanics’ Lien law is to be given to the party in control of the fund, and, if given by a creditor of a subcontractor, should be served upon the contractor and the owner; if given by a creditor of the contractor it need not be served on the contractor.
    On bill, &c.

      2Íessrs. Kanter c& Kanter, for the complainants.

      Mr. Aaron Harder, Mr. Harry A. Augenblick, Mr. Meyer 21. Semel, Messrs. Kessler & Kessler, Mr. Joseph L. Smith and 21 essrs. Schwartz & Schwartz, for the defendants..
   Bacices, Y. C.

The complainants, husband and wife, paid into court $821, adjudged to be due as balance of the contract price for the erection and construction of their dwelling-house, under a contract duly filed, and took a decree of interpleader against the contractor and the latter’s stop-notice creditors, who filed notices in due form in this order:

November 23, 1923, Franklin Lumber Co........ $843.27
November 28, 1923, Elizabeth Sash and Door Co.. 1,917.36
December 12, 1923, Mulroy Cooke Co........... 513.25
December 20. 1923. Albert H. Boerman.......... 447.13
December 22, 1923. S. & S. Supply Co.......... 210.00
December 23. 1923, Louis Pisciotta.............. 350.00
December 24, 1923, Gustave Hecht.............. 51.38
December 24, 1923, Howard Oliver.............. 110.00
February 6, 1924, Edward King and Edward J.
Connelly ................................... 340.00

There was some question as to. the time of filing the notice of the Franklin Lumber Company, but the testimony establishes that it was filed on the dale above stated. Boerman, Piaciotta, Hecht, Oliver and King & Connelly claim priorities as. journeymen and laborers under the sixth section of the Mechanics’ Lien act. Comp. Siat. p. 3299. The claims of Hecht and Oliver in this respect are conceded. Boerman had a subcontract for the plumbing work, Pisciotta for the mason work and King & Connelly for the painting, each for a lump sum,. They personally worked, on the building, but not as journeymen or laborers for wages., and are not .entitled to priority. Donnelly v. Johnes, 58 N. J. Eq. 442.

The validity of thei Franklin Lumber Company stop-notice is contested, because it was not served on the contractor. The contention is that the third section of the Mechanics'’ Lien act (Comp. Slat. p. 8291) as amended by P. L. 1917 ch. 211 p. 821, requires service on both contractor and owner. The amendment extends the right of stop-notice to subcontractors Steuerwald v. Munn, 90 N. J. Eq. 474; Mills v. Hegeman, 125 Atl. Rep. 127. As it stood the act gave a lien on the funds in the hands of the owner upon demand and refusal of the contractor to pay lien claims, and notice in writing by the claimant to the owner of such demand and refusal, and of the amount due and demanded. The subcontractor is interpolated in the amendment, and by an inapt conjunction of contractor and subcontractor it would appear, and if taken literally it would seem^ that notice of the demand and refusal of the contractor, as well as the notice of the demand and refusal of the subcontractor is to be served upon the contractor, but, sensibly and contextually read, there is no confusion. The stop-notice is to be given to the party in control of the fund,—the contract price. Notice of the demand and refusal of the contractor goes to the owner only, and when the subcontractor refuses to pay notice must be served upon both the contractor and the owner, for both in a measure control the fund. It is inconceivable that the legislature intended that a claimant should do such an idle thing as to notify the contractor in writing that demand has been made upon him, and that he has refused to pay the claim. The statute, that upon demand and refusal it shall be tire duty of such journeyman, laborer, materialmen or subcontractor to give notice in writing “to the owner or owners of such building and such master workman or contractor of such refusal” is to be construed as if it read: “To the owner or owners of such building and/or such master workman or contractor, as the case may be.” This is supported by the further provisions of the amendment, that upon notice to, and if the claim is not paid by the subcontractor, the owner may pay it, and also by the fourth section, which was amended at the same time in accommodation to the amended .third section; winch requires that when the notice of the claim is served on the subcontractor by the owner, and he, within five days, gives notice of dispute; the claimant forfeits his claim unless within sixty days he begins suit against the subcontractor to establish his debt by judgment.

The clerk will be directed to pay Hecht and Oliver in full and the balance to the Franklin Lumber Company.


author: (tRIEEIn, Y. 0.

text:
    Helene Salman, petitioner, v. Ernest C. Salman, defendant.
    (Submitted June 15th, 1921.
    Decided July 17th, 1924.]
    Evidence examined, and held that the circumstances of the defendant and the co-respondent are sufficient to' show strong desire for sexual intercourse with each other, and, the opportunity for such intercourse being present, the adultery charge is sufficiently proved.
    On bill, &C.

      Messrs. Perkins .fi Drewen, for the petitioner.

      Messrs. McKirgwn & Gilson, for the defendant.
   (tRIEEIn, Y. 0.

The petitioner filed her petition for divorce from bed and board against her husbard on the ground of adultery. The wife is forty-tw'o years of age, the husband fifty-two (although he looks to be a much older man, and says he has been weakened greatly by a number of operations), and the co-respondent is forty. The parties were married in 1903 in Belgium, and the co-respondent was employed as a nurse in the household in 1905. At that time she was about twenty-one years of age. The wife is a Belgian; the husband was bom in Germany. The co-respondent is a. German. When the war broke out in 1914 the husband and wife, with their five children and the co-respondent, went to England. When they arrived at Folkestone tire wife said she wanted to return to Belgium to get some winter clothes for the children, and. perhaps, to do war work. When she got to Antwerp the Germans had made such progress that she was unable to leave for some two months, and escaped in November, 1914, and returned to Folkestone. The husband says that he protested against her leaving him in England and returning to Belgium and desired her to stay, and said, to her that if she returned to Belgium “then it is finished once and forever, and that is how our relations came to an end. I mean my love was finished once and for all.” And, in answer to the question, “You would never live with her again?” he said. “Yes, that is what I said.” On cross-examination he said, “I meant the finish of my affections, yes.” He also said that he meant that he was through with his wife, so' far as affection was concerned, and that has remained true.

Before the wife arrived at Folkestone upon her return from Belgium the husband, with the five children and the co-respondent, came to America and settled at Hasbrouek Heights. The wife came over about a month later and met her husband at Hasbrouek Heights. The evidence shows that on May 5th, 1915, at Hasbrouek Heights, there was a great storm raging, and the wife says that she heard a great noise downstairs, and knowing that the trap-do-or to the cellar was open, she went to the bedroom of her husband to have him go down and fix it. (At that time they were not occupying the same bed nor the same bedroom.) The wife says that when she reached the husband’s room and opened the door she saw the co-respondent in bed with her husband, and that the co-respondent, upon seeing her, placed her hand over her eyes. The co-respondent says that,. on this same occasion, “I woke up; there was a fearful storm, and a door was slammed down in the cellar, and I got up to wake Mr. Salman, and I walked to his door and walked in and asked him to see what it was, and in a few minutes Mrs. Salman walked in, too, and saw me in the room. She did not say a word. Mr. Salman was in bed.” She says, further, that, seeing the way the wife took the situation, she was so affected that she wrote a letter and put it under the door of the wife's room, in which letter she said that if Mrs. Salman felt that way about it, or words to that effect, she would leave. She did not, however, leave, and the wife says she did not at that time ask her to, fearing her husband. The co-respondent also says that she spoke to the wife afterwards and told her that if she felt that she had done wrong she would leave. The wife, on the contrary, says that after this event she desired the woman to leave, but she would not do so.

The husband and wife went to Hot Springs twice, about 1918, and, upon the second occasion, the husband says he had intercourse with the wife there for the first time in years; and she says, in substance, that they rather talked of agreeing to forgive and forget. He says that she tried to bargain with him for the possession of letters which he had and which had been written to her by other men, and it is quite plain that he suspected her of adultery.

In 1919 the wife discharged the co-respondent, and after that, the wife says, he discontinued his former practice of coming home at night excepting at week-ends, and acted toward her as a polite stranger. This is denied by the defendant.

After the co-respondent left she telephoned the defendant, giving him her address, and she says this was done for the purpose of having her mail sent to her, but, as I recall, she also says that he took her to dinners and treated her as a social equal. In 1920 the wife went to Belgium with her children, to be gone about a year, but has not returned since. About eight or nine months after the wife left the co-respondent came back to the house of the defendant in East Orange. For two years after she returned the co-respondent and defendant lived alone in this house, with bedrooms on the second floor, and without servants or anyone else in the house. At the end of the two years a chauffeur and his wife came to live with them, and occupied the third or top floor, with the defendant and co-respondent continuing to. occupy the same bedrooms even after suit started and down to the trial. The new chauffeur and bis wife testified that the chauffeur used to go to tbe tube station in Newark and meet the co-respondent and the defendant and bring them to the home, and that this continued down to within two days of the trial. In May, 1922, defendant and co-respondent went to Europe on the same steamer, she going to see her relatives and he to visit his wife and children, and boih returned in August, 1922, on the same steamer. This was all pre-arranged. The evidence does not disclose any misconduct on board ship.

The versions of the petitioner, defendant and co-respondent as to what happened on tbe night of the storm axe virtually tbe same, excepting that tbe petitioner says that the defendant and co-respondent were in bed, and they both deny it. The husband says that after this scene his wife accused him of adultery with the co-respondent hundreds of times, and the co-respondent swears to' frequent quarrels between them. This continued until 1919, when tbe petitioner ordered the co-respondent from the house, and she left. The co-respondent admits that, from the night of the storm, she knew that the petitioner said to her husband that he- was guilty of improper relations with her, and that from that time she knew that the petitioner had suspected the defendant of improper relations with her.

After the return of the co-respondent to the home of the defendant, she, with the defendant, went to. New York at night, to dinners and theatres^ about once a week.

There is no direct evidence of desire on tbe part of either the defendant or co-respondent shown, excepting from their relations as above stated. The testimony of strangers is that they never saw the co-respondent and defendant kissing or hugging, or, by glances or other manifestations, giving indication of love or affection. Both the husband and the corespondent deny positively any adultery.

The husband, when asked if he thought his conduct was not indiscreet in keeping this woman in the house under the circumstances, said he did not think it was in view of his age and weakened state as the result of his various operations. The defendant, at the time he testified, was fifty-two years of age; at the time of these happenings he was about forty-eight. He is an intelligent man, fully capable of judging of the proprieties. He knew that his wife charged him with adultery with the co-respondent, and the bedroom episode during the storm, while enough to create a suspicion in the mind of the wife by reason of the prior friendship of the parties, is hardly sufficient to found a finding of adultery— the wife swearing one way and the husband and co-respondent swearing another. Birt she was in his room, and their subsequent continuance together down to the time the wife put the co-respondent out; his meeting the co-respondent in New York and taking her to dinners, from the time of her ejection to her return, and his bringing her back to the home after his wife went back to Belgium; his taking her to dinners, the theatre and opera while living together, and their living together for a period of two years, during the wife’s absence, alone, and even continuing to live together down to the date of the trial, with only the addition of the chauffeur and his wife as members of the family, all this being done when each had knowledge of the charge made by the wife that for a number of years their relations had been meretricious, indicates that they had such a feeling for each other that they could not satisfy the proprieties by staying apart, and indicates, to my mind, in dealing with persons of the refinement and education of the defendant and co-respondent, that such acts and conduct evidence strong desire, and, living together as they did, are sufficient to prove adulter;’-.

A decree will be advised for the petitioner.


author: Grieein, V. C.

text:
    Joseph Koperski et al., complainants, v. Samuel Wira et al., defendants.
    [Submitted February 25th, 1925.
    Decided March 2d, 1925.]
    1. Where an agreement to sell land was signed by a married woman and delivered without any certificate of acknowledgment endorsed thereon, parol evidence that she, in fact, acknowledged it, is not admissible.
    2. Where after delivery of such agreement of sale, the master, who was said to have taken the acknowledgment, endorsed a certificate thereof on the contract as of the date when the same was said to have 'been taken, and no delivery of the contract was thereafter made, the contract as against her is unenforceable.
    3. Where a wife, whose acknowledgment of an agreement of sale is not endorsed thereon, refuses to join in the deed called for by the agreement of sale (her refusal not having been induced by her husband), her husband will not be ordered to execute the deed subject to the inchoate right of dower 'of his wife, with abatement of purchase price, or indemnity to the complainants.
    On bill, Sc.

      Messrs. Garrick & Worlendyke, for the complainants.

      Messrs. Benny & Gruden, for the defendants.
   Grieein, V. C.

The bill in this cause is filed for the specific performance of a contract for the exchange of properties, with an adjustment of the difference in values in cash. The bill alleges that "the contract was executed in duplicate-and was duty ac-' lmowledged by all the parties, before Ralph B. Sanborn, Esq., master in chancery of New Jersey. The certificate of said acknowledgment by the said parties was not endorsed by said master on said agreement of exchange, and the said agreement, in duplicate, was immediately exchanged by the parties respectively.”

The defendants’ answer, among other things, sets up that the agreement was not acknowledged by either of the defendants.

On the hearing of the cause the complainants offered in evidence the original contract, dated December 11th, 1923, signed by the complainants and defendants, but no certificate of acknowledgment was written thereon or attached thereto.

There was evidence of witnesses offered at the trial, over objection of the defendants, that Mrs. Wira acknowledged the contract. This evidence was received tentatively, but, on reflection, I have reached the conclusion that the same is inadmissible to prove the acknowledgment. The statute (P. L. 1918 p. 119), which amends section 39 of the Conveyance act, provides that no estate or interest of a feme covert in any lands, tenements or hereditaments lying and being in this state shall hereafter pass "by her deed or conveyance without a previous acknowledgment, * * * and a certificate thereof written on or under or annexed to the said deed or conveyance and signed by the officer before whom it was made; and it provides further that “every deed or conveyance heretofore or hereafter so executed and acknowledged by a feme covert, and certified as aforesaid, shall release and bar her right of dower, and every deed or instrument of the nature or description set forth in the twenty-first section of this act heretofore or hereafter executed by her and so acknowledged and certified as aforesaid shall be good and effectual to convey or affect the lands, tenements, &c., thereby intended to be conveyed or affected.” Under this statute not only is the acknowledgment necessary, but the certificate is a condition precedent to the passing of any estate or interest in the lands of a feme covert. Hall v. Otterson, 52 N. J. Eq. 522 (at p. 529); Potter v. Steers, 95 N. J. Eq. 102, 122 Atl. Rep. 685; O’Neill v. Linowitz, 92 N. J. Eq. 179, 182; Kotok v. Rossi, 94 N. J. Eq. 327, 333. And oral evidence cannot be substituted for the certificate.

Mr. Sanborn, who represented the defendants, and is said to have taken the acknowledgment after the case was closed, on July 8th, 1924, wrote on the agreement a certificate of acknowledgment, dating the same as of the date when the contract was signed. In order to properly present the issue, the case was reopened to permit the offering of the contract in evidence with the certificate of acknowledgment annexed, with evidence of when it was actually written upon the instrument. If this certificate, when so written, complies with the statute, then the complainants should prevail; if otherwise, then the married woman defendant is not bound.

It is well settled in this state that the contract of a married woman for the conveyance of lands cannot be enforced against her unless she acknowledges the instrument aecording to law. Rittenhouse v. Swiecicki, 94 N. J. Eq. 36, and cases cited. And this acknowledgment must be accompanied with a certificate as provided in the act of 1918.

It is quite apparent that when this contract was delivered, it was unenforceable against Mrs. ‘Wira, because of the absence of this certificate.

The case therefore presents the question whether, after the delivery of the contract, the officer may, by writing the certificate on the instrument, render it enforceable without a further delivery?

In Potter v. Steers, supra, Vice-Chancellor Backes said: “The delivery of a deed is essential to the passing of title to land, and the statute relating to the acknowledgment of deeds of married women requires a previous acknowledgment, and that the certificate accompany delivery.”

Here, as the instrument was unenforceable against Mrs. Wira when delivered, and no delivery having been made after the certificate was written on the agreement, I must hold that the contract continued unenforceable against the defendant Mrs. Wira.

In the event that it is held that the contract is unenforceable against Mrs. Wira, the complainants ask that a decree be made directing the defendant Samuel Wira to perform either with an abatement of the purchase price, or indemnity against the inchoate right of dower if the wife refuses to join in the deed. The contract in question provides for the exchange of properties, and as the property of the defendants was considered to be worth $4,000 more than that of the complainants, it was provided that this sum should be paid by the complainants to the defendants, and on the execution of the agreement the complainants paid to .the defendants the sum of $500 as part of said sum of $4,000. At the foot of the agreement is the following clause: “In the event of failure for valid reason to complete this exchange of title, the said parties of the second part agree to refund to said party of the first part the $500 deposit, and all liability further be at an end.” This sum of $500 was tendered by the defendants to the complainants,' who refused to accept the same. It seems to me that the refusal of the wife to join in the conveyance (her refusal not having been induced by her husband) is a valid reason excusing the defendant Samuel Wira from executing a deed subject to the inchoate right of dower of his wife, with an abatement of the purchase price or indemnity to the complainants.

A decree will be advised dismissing the bill.


author: C-rirrin, V. C.

text:
    Joseph Koperski and Marie Koperski, his wife, complainants, v. Samuel Wira and Anna Wira, his wife, defendants.
    [Decided May 20th, 1925.]
    Where a wife signed a contract for the exchange of lands, but did not acknowledge it, her act, if there was any evidence to support the theory that she was induced by her husband not to sign the deed, would be regarded as some evidence of willingness to carry -out the contract by signing the deed, but when there is no such evidence, and the contract contains a clause, inserted for the benefit of both parties, that if either party was unable to perform, the contract was to be at an end, and neither party was to be liable to the other, 'the defendant (vendor) will not be decreed to execute a deed subject to the inchoate dower of his wife, with abatement of the purchase price, or indemnity.
    Oil bill, &C.

      Messrs. Garrióle & Workendylce, for the complainants.

      Messrs. Benny .& Graden, for the defendants.
   C-rirrin, V. C.

After this cause was decided counsel for the complainants suggested that the question of specific performance, with an abatement of the purchase price, had not been sufficiently argued. Leave to reargue this point was given.

The complainants cite Luczak v. Mariove, 92 N. J. Eq. 377; affirmed, 93 N. J. Eq. 501. This case does not support the complainant’s theory. There, while the contract was not acknowledged by the wife prior to the date fixed for passing the title, she did execute and acknowledge, with her husband, a deed to the complainant, which the husband afterwards destroyed, which destruction it does not appear that she consented to, or that she knew of it; and the court said, “and her execution and acknowledgment of the deed may be taken as evidence that she was willing to release her right of dower.”

In Rittenhouse v. Swiecilci, 91f N. J. Eq. 36, there was a clause in the contract which provided for the payment of a thousand dollars on the signing of the agreement, “which deposit shall be forfeited to the said party of the first part as liquidated damages in case of the default by the party of the second part in the performanace of the terms of this agree-meat.” Vice-Chancellor Learning decided that such a clause did not preclude the filing of a bill for specific performance. This case does not aid the complainants.

In Coltinuk v. Hockstein, 95 N. J. Eq. 513; affirmed, 3 N. J. Adv. R. 168, the defendant owner made a contract with the complainant to sell certain lands. In that case there was a supplemental contract giving the owner an additional year within which to perfect his title and discharge the various encumbrances existing on the lands, in accordance with the contract. The agreemeent further provided that if title did not pass as of August 1st, 1919, because of the inability of the defendant to make title, complainant might continue in possession for an additional four years at a certain stipulated monthly rental. The agreement also provided that if the defendant was unable to convey the premises on the 1st of August, 1919, the complainant should have no claim against the defendant other than for the lease. The court said: “The question involved here seems to be as to what is the meaning of the defendant’s inability to convey. I cannot see how this defendant can plead inability when the complainants are willing to take title subject to encumbrances, the amount of which can be easily ascertained and deducted from the agreed-upon price.” The argument was made that the contract was in the alternative; the court found to the contrary.

In Epstein v. Mundweiler, 97 N. J. Eq. 375, the contract provided that if the title be found defective then the vendor was to pay back to the vendee his $550 deposit and pay him $150 additional to cover his costs and disbursements for searches. Vice-Chancellor Foster held that this provision of the contract was primarily for the vendee’s benefit. It was for him to elect, and it was, in a secondary sense, for the protection of the defendants, in that it limited the amount of damages that complainant could claim by reason of the defective title. Complainant elected to take the defective title and pay the purchase price in full, and not to have his deposit returned to him.

In the foregoing cases the clauses were inserted for the benefit of the vendee. Here there was an exchange of properties, and the clause inserted was for the benefit of both parties, namely, that, if either party was unable to perform, the contract was to be at an end, and neither party was to be liable to the other thereunder; and, in order to effectuate this, as the party of the first part received a deposit of $500, which was paid as the difference between the values of the properties to be exchanged, this sum was to be returned by the defendants to the complainants.

The defendants cite Bateman v. Riley, 72 N. J. Eq. 316, and Stein v. Francis, 91 N. J. Eq. 205, which support the rule that where the wife of the vendor has not signed the contract of sale and refuses to sign the deed, neither abatement of purchase price nor indemnity against the inchoate right of dower of the wife will be decreed, unless the wife’s refusal has been induced by the husband. The situation here presented, while somewhat different, does not take the case out of the above rule. Here the wife signed the contract, but did not acknowledge it. Her signing the contract, if there was any evidence to support the theory that she was induced by the husband not to sign the deed, would be regarded as some evidence of willingness to carry out the contract by signing the deed; but here there was no evidence whatsoever that the husband in the slightest degree influenced his wife not to sign the deed.

There is also absent from this case what has frequently appeared in others, namely, that the refusal of the wife to convey was due to an increase in the value of the property, or other circumstances which- would move the defendants not to convey.

I, therefore, see no reason to change the view expressed in my memorandum filed March 2d, 1925.


author: Foster, Y. C.

text:
    Young Men's Christian Association of Matawan, New Jersey, complainant, v. T. Frank Appleby, &c., et al., defendants.
    [Submitted October 31st, 1924.
    Decided November 22d, 1924.]
    1. Where a gift is made by will to an association “provided said association is incorporated at that time,” a performance of the condition of incorporating within a reasonable time will substantially fulfill the testator’s intentions, where there is no limitation over the gift.
    2. A gift to an association of an income, subject to the care and maintenance by the association of two burial plots at an annual cost of not less than $10, is not void as combining charitable and non-charitable purposes, and does not produce a division thereof between uses charitable and non-eharitable, nor does it create a condition subsequent, which is not favored in equity, nor a condition for the breach of which entry may be had, as for forfeiture—it merely creates a trust which the recipient is bound to perform.
    3. Where gifts are solely for charitable uses, the rule against perpetuities does not apply.
    On bill, &c.

      Messrs. Wilson & Smock. Mr. Henry JD. Brinl'ey and Mr. Robert H. McCarter, for the complainant. ■

      Mr. Thomas Brown, for Rosehill Cemetery, Katherine E. Brown and other defendants.

      Mr. J. Raymond Tiffany, fox Naomi P. Johnson and Jose^' phine L. Tiffany, defendants.
   Foster, Y. C.

The bill in this canse seeks the construction of the ninth clause of the will of Edwin I. Brown, who died at Ocean Grove, in Monmouth county, New Jersey, on November 8th, 1913.

This clause reads as follows:

“Ninth. I give and bequeath unto my beloved sisters, Naomi P. Johnson and Josephine L. Tiffany, and to the survivor of them, during their natural lives, or the survivor of them, eighty per cent, of the net income and receipts of my buildings known as ‘Commercial Block,’ in the borough of Matawan, Monmouth county, New Jersey ; and I give and bequeath and devise the remaining twenty per cent, of the net income and receipts of the said Commercial Block unto the Young Men’s Christian Association of the boi'ough of Matawan, provided said association is incorporated at that time, subject, however, to the annual expenditure of at least ten dollars for the care and maintenance of my father’s and my cemetery plots in Rosehill Cemetery. At and after the death of my sisters, or the survivor of them, I give and devise said Commercial Block property to the said Young Men’s Christian Associatioxr of the borough of Matawan, absolutely, subject, however, to the care and maintenance of said cemetery plots in Rosehill Cemetery at an annual cost of not less than ten doltei-s.”

Testator was a resident of Matawan from 1877 to 1905, when he moved to Ocean Grove, and he made his will in 1911.

For some years prior to his death testator had been connected with and interested in the work of the Matawan branch of the Young Men’s Christian Association, which had been in existence, although unincorporated, from about the year 1903. Since then this branch of the association has carried on its ordinary work among the boys and young men of Matawan; it has annually elected officers, made annual reports to the state association, and has been under the general control of the association’s county secretary.

Testator, after his removal to Ocean Grove, continued his connection with and his interest in the work of the Matawan branch of the association, and about two years before his death he expressed a desire to purchase a lot for it.

Testator, who is described as a careful, shrewd business man, left an estate estimated to be worth over a quarter of a million dollars, and by his will he apparently made suitable and ample provisions for all his step-children and other relatives. The Commercial Block, the premises in question, at the time of testator’s death, in 1913, was estimated to be worth about $20,000, and is now considered to be worth double that amount.

On December 9th, 1913, about four weeks after testator’s will was probated, the Matawan branch of the Young Men’s Christian Association took proceedings to' have itself incorporated, and to that end a certificate of incorporation was duly executed and recorded in the office of the clerk of Monmouth county, on December 11th, 1913, under the provisions of the act entitled “An act to incorporate associations not for pecuniary profit.” 1 Comp. Stat. p. 125. Section 1 of this act requires that, in order to complete its incorporation under this act, every organization must not only record its duly executed certificate in the office of the county clerk, but must also file such certificate in the office of the secretary of state. Through inadvertence or neglect, this certificate was not filed with the secretary of state for over eleven years after it was recorded in the county clerk’s office, in fact not until September 16th, 1924.

Testator’s sisters, Mrs. Johnson and Mrs. Tifian}', who are still living, have, since the death of testator, been in the receipt of eighty per cent, of the income from .the “Commercial Block,” and the remaining twenty per cent, of such income has been retained by the executors.

Complainant now claims this accumulated income and asks for a decree directing the payment of it to complainant, and also prays that it be decreed that upon the death of both Mrs.'Johnson and Mrs. Tiffany, testator’s sisters, the property known as the Commercial Block shall, under the devise made to it, be the property of complainant.

Testator’s sisters, the defendants Mis. Johnson and Mrs. Tiffany, in the brief filed in their behalf, ask that these prayers of complainant be granted to cany out the intentions of the testator.

The other defendants, who are the residuary legatees and devisees, resist these claims of complainant on the following grounds:

1. That as complainant was not incorporated at the death of the testator, it is not qualified and entitled to either the twenty per cent, of the income, or to take the devise of the property.

2. That complainant is guilty of laches in failing to. complete its incorporation before September 16th, 1924., when the certificate of incorporation was. filed with the secretary of state, and therefore forfeits the gift and devise.

8. That the gift of the income and the devise of the realty fail, as they are not made for strictly charitable purposes, because they are made subject to an annual charge for the care and maintenance of the burial plots of testator and his father.

Considering these objections, in their order:

It appears that the entire controversy is largely over the purpose or intention of the testator in stating in this clause of his will that complainant should have the gift of twenty per cent, of the income “provided said association is incorporated at that time.” To what time testator thus referred is the principal question for determination. The contesting defendants contend testator intended the time of his death, and in support of this contention they invoke the rule that, ordinarily, a will speaks from the time of the death of the testator.

This rule, however, is not applicable where there is anything in the instrument indicating a contrary intent. Voorhees v. Otterson, 66 N. J. Eq. 172.

From this provision of the will it is clear that testator intended and made it of the essence of the payment of tire gift of income to complainant, that complainant should at some time, which he did not specify, be incorporated. It will also be observed that testator imposed this, fact of incorporation as a prerequisite to the payment of the twenty per cent, of thé income, but he did not make the devise of the property to complainant subject to any such qualification.

From this situation the question naturally arises: What had the testator in mind in requiring complainant to incorporate before it could receive the share of the income he bequeathed*to it? The answer, I think, is to be found in testator’s intimate knowledge of the scope of complainant’s work, and the amount and tbe sources from which it obtained its income for such purposes, coupled with his desire to see such work continued from an adequate income, and through a permanent organization, such as complainant would become by incorporation.

Testator selected complainant as one of the objects of his bounty; he clearly desired its beneficent work to permanently continue for the benefit of the boys and young men of Mata wan; he certainly did not intend, by any language he used in his will, to defeat the very purposes he ivas so evidently desirous of perpetrating, and it is the duty of the court to do everything in its power to discover his intentions and to see that they are earned into effect, if possible. Johnson v. Brown, 85 N. J. Eq. 76. And, as indicative of testator’s intentions, it is to be noted that he specified no time within which complainant should be incorporated, and he significantly omitted to impose any penalty of forfeiture of gift or devise in the event that complainant did not incorporate within any particular period. Furthermore, testator lived for about two years after making his will, and during this time he continued his interest in and his connection with the association, and it does not appear that he ever disclosed to anyone the necessity, of incorporating the association in order to obtain the provisions he had made for it in his will, nor did he; personally, ever do anything towards incorporating the association.

Within a few weeks after testator’s death complainant attempted to comply with his wishes about incorporation, and did everything necessary to carry out his desire, except to file its certificate of incorporation with the secretary of state.

Must this omission to file the certificate at an earlier date, now that complainant is, in fact, incorporated, be held to bar complainant from the gift and devise testator gave it, and thereby defeat the purposes and intentions testator had in mirad in making disposition of this part of his estate ?

The answer to this question appears to' be that where, as here, there is no limitation over, a performance within a reasonable time, of the conditions as wall substantially fulfill testator’s intentions, is sufficient. Chadwick v. Chadwick, 37 N. J. Eq. 71.

The time referred to by testator was merely ancillary to the objects he had in mind to- aid by this gift and devise. The event he contemplated has now occurred; complainant is incorporated, as he directed it should be, before it could receive the twenty per cent, of income he bequeathed it.

The delay in filing the certificate does not malee complainant guilty of laches, as the contesting defendants claim, because testator specified no time within which the incorporation should be completed; his stipulation as to tune referred merely to the time when complainant should be entitled to have the share of the income paid to it. The effect of this reference to time simply postponed the payment to, and the enjoyment by, complainant of the share of income until such time as it was in fact and in law incorporated. The contesting defendants evidently took this view of the matter, for they have been equally neglectful, and none of them has-made any claim to this part of the income or to the lands devised until the present time, and the delay in completing complainant’s incorporation has been in no way prejudicial to them. Silverman v. Klussman, 96 N. J. Eq. 224, 621; 2 N. J. Adv. R. 1481.

As testator did not limit his gift to the current income, and as he gave no directions for any other application or distribution of this share of the income ponding the incorporation of complainant, it is reasonable to- assume that he intended this share of income to accumulate in the hands of his executors, as it has done, until such time as his requirement respecting the incorporation of complainant was complied with, when it was to be paid, as he directed, together with future income as it was received during the lifetime of his sisters.

Testator did not mention the element of time in connection with the devise of the realty to complainaut, and I am unable to adopt the Hew urged by the contesting" defendants that by the use of the words "said association” in the devise, testator referred to and intended an incorporated association at the time of his death. Incorporation as a prerequisite for the vesting of the devise in complainant is not required by the will.

The remaining contention of the contesting defendants is that the gift and devise to complainant are void for uncertainty, because they are for purposes charitable and non-charitable, and, also, because they violate tire rule against perpetuities.

The basis of this contention is that the gift and devise are expressly made subject to the care and maintenance of the burial plots of testator and his father at an annual cost of not less than $10.

The entire gift and devise are both given absolutely to complainant; no part of either is given for the care and maintenance of the burial plots, nor for any other purpose than the charitable uses of the association. The mere fact that the gift and devise are made subject to the annual disbursement by the association of ihe amount mentioned, does not produce a division thereof between uses charitable and non-charitable, nor does it create, as claimed, a condition subsequent, which is not favored in equity. MacKenzie v. Trustees, &c., 67 N. J. Eq. 652. Nor does the imposition of this obligation create any condition for the breach of which entry may be had as for a forfeiture.

What this provision does is to create a trust which complainant, by accepting the gift and devise, is bound to perform, regardless of the extent of the income or the value of the devise, and this trust can be enforced in equity. Mills v. Davison, 54 N. J. Eq. 659; MacKenzie v. Trustees, £c., supra. The gift and devise being solely for charitable uses, the rule against perpetuities does not apply. Mills v. Davison, supra; MacKenzie v. Trustees, &c., supra.

A decree will be advised that complainant is entitled to be paid the twenty per cent, of the income that has accumulated, and, also, this part of the income as it hereafter accrues during the lifetime of testator’s two sisters, and, also, that complainant is entitled to receive the devise of the Commercial Block property upon the death of both sisters of the testator.

The decree may be settled on notice.


author: Postee, V. C.

text:
    Adolph Pilger, complainant, v. United States Steel Corporation et al., defendants.
    [Submitted December 16th, 1924.
    Decided December 29th, 1924.
    1. An action to determine the ownership of stock is an action quasi in rem, and as to the stock of a New Jersey corporation, should be determined by the courts of this state.
    2. Where certificates of stock in a New Jersey corporation, owned by a subject and resident of Germany, were deposited in the London branch of a German bank, and the certificates were seized and taken possession of, at the outbreak of the great war, by the public trustee of Great Britain, as custodian of enemy property, a claim of immunity from suit in ibis court to determine the ownership of the stock by the public trustee is not sustainable.
    3. Such suit against the public trustee is not a suit against the British government.
    4. The public trustee by the act of 1906, and the Trading with (he Enemy act of 1914, is a corporation sole, and may sue and be sued under that name like any other corporation solo.
    5. A mere suggestion of title in a state to property in the possession of an individual does not arrest the proceedings of a court, and prevent its looking into the suggestion and examining the validity of the title.
    6. A foreign sovereign has no inherent right to immunity from suits in the courts of another sovereign, but courts have uniformly granted this immunity in purely personal actioins against the sovereign, and in cases where, after hearing, the property involved was found to belong to the sovereign.
    7. Where a foreign sovereign grants the public trustee the capacity to be sued, it voluntarily strips him of his sovereign character, and waives all privileges of that character.
    8. The rule of international law that a sovereign state cannot be sued in the courts of its own country, or in the courts of any otner country without its consent, must be applied and administered to promote justice, and not to defeat it or prevent a private suitor from obtaining the hearing and enforcement of a just demand.
    On bill, &C.

      Mr. Arthur H. Bissell, Mr. Boardman Wright and Mr. A. W. Lafferty (of the New York bar), for the.complainant.

      Messrs. Lindabury, Depue & Families, Mr. Richard V. Lindabury, Mr. John W. Bishop, Jr., and Mr. William Averell Brown (of the New York bar), for the defendant Hnited States Steel Corporation.

      Messrs. Treac-y & Milton, Mr. John J. Treacy, Mr. Frederic R. Coudert and'Nr. Mahlon B. Doing (of the New York bar), for the defendant Public Trustee and Custodian of Enemy Property for England and Wales.
   Postee, V. C.

Complainant, who is a subject and resident of Germany, by his amended' bill, seeks a decree determining that he is the owner of five hundred shares of the stock of the defendant Hnited States Steel Corporation, and asks that the steel corporation be decreed to transfer these shares to him upon its books, and to issue to him new certificates therefore; and further, that this corporation be decreed to pay to him all accumulated dividends in its possession on this stock, and that the defendant public trustee be decreed to surrender for cancellation certificates for this stock now in his possession, and that the public trustee be further directed to pay to complainant all dividends he may have received on these shares of stock.

The defendant Hnited States Steel Corporation, which is admitted to be a corporation of this state, by its answer asks in effect for the court’s protection in the event that the relief sought by complainant is granted. A motion has been made by complainant to strike from the answer of this defendant the second, third, fourth and fifth defenses presented therein. In view, of the conclusion I have reached on the issue of jurisdiction, I will advise that this motion to strike be denied at this time.

The defendant public trustee appearing specially, under substituted service, has filed an answer in lieu of a plea to the jurisdiction of the court, alleging in effect that he is, or represents the sovereignty of Great Britain, and that through him the crown is being sued without its consent.

To these answers complainant has filed special replications. The matter is now before the court on the question of jurisdiction raised by these pleadings, and on complainant’s motion to strike out the answer filed by the public trustee. The controversy is based npon the following facts set forth in the pleadings.

The shares of stock in question were originally owned by Shearson, Hammill & Company, a New York brokerage house, in whose name the certificates were issued. The certificates were duly endorsed in blank and sold by Shearson, Hammill & Company, and were finally- bought by complainant, who deposited them some time prior to 1914 at the London branch of the Dresdner Bank, a German corporation. At the outbreak of the great war these certificates were seized or taken possession of by the defendant the public trustee, as custodian of enemy property. This official still retains these certificates, and, like complainant, he claims to be the owner of the shares in the steel corporation, which they represent. The public trustee denied jurisdiction in this court to determine the ownership of these shares, contending that lie is immune from suit at the instance of complainant, a German national. .

The grounds for this claim to immunity may be summarized as follows:

1. The suit against him as public trustee is in effect against him' as custodian of enemy property for England and Wales, and is therefore a suit against the British government.

2. A sovereign state cannot be sued in any court without its consent, and that the crown has not consented to be sued herein.

3. The public trustee, as custodian, is an indispensable party to the action, and as the court is without .authority to obtain jurisdiction over the foreign sovereign state by its process, and is likewise powerless to enforce its decree against a foreign sovereign, it is therefore without authority to hear and determne the issues involved in these proceedings, and

4. That as the United States, in the treaty of Berlin with Germany, incorporated therein the provisions of the treaty of Versailles, granting immunity to this government and its agencies from any claim or action by German}» or any of its nationals for any matter or thing done during the war; that it must be held that this government incorporated these provisions for immunity for the benefit of itself and also for the benefit of its allies, as against the common enemy and its nationals.

In .support of these contentions, the court’s attention has been directed to two test suits, which were recently heard, on an agreed state of facts, involving the claim of the ownership made by certain German nationals to shares of stock in the steel corporation, in which action the public trustee was a party. These cases were decided in favor of the British government by the Honorable Learned Hand in the federal court in the southern district of New York, and they are now on appeal in the United States supreme court.

The disposition of these cases affords no assistance in the present controversy, not only because as complainant contends they did not include or dispose of all of the issues involved herein, but because the question of jurisdiction over the public trustee was not raised nor considered in either case.

The merits of the contentions presented by the public trustee questioning the jurisdiction of the court must be determined by the nature cf the action and the relief which is sought, and this problem is simplified by the withdrawal on the brief of complainant’s claim for a personal judgment against the public trustee. The withdrawal of this claim leaves the sole question for determination on final hearing, should the case reach that stage, the ownership of these shares of stock. And with this single question for determination the action is now what our courts have termed a proceeding quasi in rem. Andrews v. Guayaquil and Quito Railway Co., 69 N. J. Eq. 211; affirmed, 71 N. J. Eq. 768; Sohege v. Singer Manufacturing Co., 73 N. J. Eq. 567; Amparo Mining Co. v. Fidelity Trust Co., 74 N. J. Eq. 197; affirmed, 75 N. J. Eq. 555.

Considering the suit as a proceeding quasi in rem, does the plea of the public trustee to immunity deprive the court of jurisdiction to hear and determine it? The answer to this question depends upon whether the public trustee as custodian, is, in fact, a sovereign power, and if he is, can he claim the privilege of non-suability in a proceeding of this nature ?

The public trustee of England is an officer somewhat analogous to the office of public administrator in New York, but with much more extensive powers over property of the living as well as of the dead.

Under the Public Trustee act of 1906 the public trustee was created a corporation sole, and it was provided that he "may sue and be sued under that name like any other corporation sole.” By the Trading with the Enemy Amendment act of 1914 the public trustee was made custodian of enemy property, and it is therein provided that the public trustee should, "in relation to- all property held by him in his capacity of custodian, have the like status * * * as if the same were held by him in his capacity of public trustee, and the Public Trustee act, 1906, shall apply accordingly.”

Under this authority suits have been brought in and determined by the chancery division of the high court of justice in England against the public trustee in relation to property held by him as custodian. New York Life Insurance Co. v. Public Trustees (1923), 39 Times L. Rev. 720; 40 Times L. Rev. 480; Stoeck v. Public Trustee (1921), 2 Ch. 67.

And Chief-Justice Marshall, in United States v. Peters, 5 Cranch. 115, &c., held: “It certainly can never be alleged that a mere suggestion of title in a state to property in the possession of an individual must arrest the proceedings of the court and prevent their looldng into the suggestion and examining the validity of the title.”

And whether this suit against the public trustee is to be deemed a suit against his sovereign “is now to be determined, not by the mere name of the titular parties, but by the essential nature and effect of the proceeding, as it appears from the entire record.” Ex parte New York, 256 U. S. 490, &c.

Applying this test to the instant case, it is to be noted that a foreign sovereign has no inherent right to immunity from suits in the courts of another sovereign.

In Schnoor Exchange v. McFadden, 7 Cranch. 116, &c., Chief-Justice Marshall stated that whatever immunity a foreign sovereign may have is with the consent of the sovereign of the forum and is extended only by courtesy.

The extension of this courtesy may be due in part to the impossibility of serving process upon a foreign sovereign, as well as upon the impossibility of enforcing a personal judgment against him. Notwithstanding these practical difficulties, there are, however, cases in England and in this country in which it has been held that a foreign sovereign may properly be made a party to- the suit, when he is alleged to be interested in or to have some title to> the subject-matter of the action. The Prinz Frederik (Eng. Adm.), 2 Dads. 451; The Duke of Brunswick v. King of Hanover, 6 Beav. 1; Gladstone v. Musurus Bey, 1 H. & M. 495; United, States v. Wilder (Mass.), 3 Sum. 308; Clark v. Steam Navigation Co. (R. I.), 1 Story 531; Ex parte Transportes Martimos (1924), 264 U. S. 105.

In the two latter cases it was held that when a court of admiralty had jurisdiction in rem, it was wholly unimportant to whom the res belongs, although in the latter case the res was owned by the Portugese government.

The authorities are uniform in granting this immunity in purely personal actions against the sovereign, and have also extended this imjmunity to cases where, after hearing, the property involved was found to belong to the sovereign. But where the foreign sovereign, as here, grants the public trustee the capacity to be sued, it voluntarily strips him of his sovereign character and waives all privileges of that character. Clark v. Steam Navigation Co., supra; Bank of United, States v. Planters Bank of Georgia, 9 Wheat. 904; In The Pesaro (District Court Southern District of New York, 1921), 277 Fed. Rep. 473.

I do not find any bar to. the jurisdiction oí this court to determine the ownership of these, shares of stock in the treaty of Berlin, or in the- provisions of the Versailles treaty incorporated therein, whatever effect these provisions may be found to have as a release or an estoppel on final hearing.

The public trustee by his plea invokes immunity through the courtesy of the sovereign State of New Jersey, although he claimed no. such privilege in the cases cited in the English court of chancery, nor in the test cases recently decided in the federal court in New York, nor in the earlier case of Garvan v. Certain Shares of International A. Corporation, (District Court Southern District of New York, 1921), 276 Fed. Rep. 206, &c. In all of these cases the pirblic trustee appeared without objection to the jurisdiction, and participated in the proceedings to protect the interests of his sovereign.

T am unable to understand why the public trastee should now assume a different attitude to the sovereignty of New Jersey, and why, coupled with his assertion of immunity, he should ask this court to- give extra-territorial effect to the acts of parliament, which he claims give validity to his actions as public trustee and custodian, while refusing to recognize authority in the court to investigate the legality of such actions.

Common justice requires that the rule of international law, that a sovereign state cannot be sued in the courts of its own country, or in the courts of any other country without its consent, resting as this rule does upon the courtesy of the sovereign of the forum, must, like all other laws, be applied and administered to promote justice, and not to defeat it, or to prevent a private suitor from obtaining the hearing and enforcement of a just demand.

The language of Mr. Justice Swayze, in delivering the opinion of the court of errors and appeals in the case of Amparo Mining Co. v. Fidelity Trust Co., supra, is, I think, particularly apposite to the present situation:

“The shares of stock * * * are personal property, whose location is in the state where the corporation is created * * *. In view of the control of the New Jersey courts over our corporation, * * * it is, we think, quite as important that the title to the shares, should be determined by our courts as that the title to real estate in New Jersey should be so determined. We are not concerned with the possible rights of a. bona, fide transferee of the present certificates. We are dealing only with the question of the jurisdiction of the subject-matter. Our courts can protect the rights of a bona fide holder as well as the courts of his own domicile. We think there is a res within this state, and that no personal action of the defendant is necessary which would require a decree in personam.'”

The res in question in this action is located in this state; no decree in personam is sought, or will be necessary, to give effect to the court’s determination of the ownership of title to these shares of stock. In entertaining jurisdiction of the suit we are'not attempting to exercise jurisdiction over a foreign sovereign, or over his property, but we are exercising jurisdiction over a corporation created by our laws and over its property which is within our jurisdiction. By our process we have, in effect, invited án agency of Great Britain, its" public trustee, without in any way infringing upon its dignity, or derogatory to its sovereignty, to participate in these proceedings for the protection of the interests, if any of his sovereign, and to enable him to assert any claim of ownership his sovereign may have to the property which is the subject-matter of the suit.

My conclusion is that the public trustee is not to be regarded, for the purposes of this suit, as the sovereign of Great Britain, and that if he were he is not entitled to the immunity claimed. I will advise that the motion to strike the answer as a plea to the jurisdiction be granted, and that all other motions not herein disposed of await final hearing.


author: Buchanan, Y. C.

text:
    Bertha Baumann, complainant, v. Reginald B. Naugle et al., defendants.
    [Decided January 14th, 1925.]
    1. Where vendee sued vendor and vendor’s wife and a subsequent grantee from vendor and his wife, for specific performance of agreement to sell and convey real estate free from encumbrances, to which agreement vendor’s wife was not a party, -and decree was made that the subsequent grantee perform the contract and convey to vendee, by good and sufficient conveyance, a deed by such grantee expressing a conveyance subject to the dower interest of the vendor’s wife, is not a. compliance with the decree, and the decree will operate as a .conveyance under Chancery act, section 45.

      '2. In such a case, the vendor having contracted to convey free from dowel’, and vendor’s wife having voluntarily intended and attempted to extinguish her dower in favor of the subsequent grantee, and the circumstances being such that the decree could and did provide for the payment to the vendor’s wife of the price or value of her dower right, such dower right will be deemed to have been extinguished in favor of the vendee.
    3. Refusal of vendee to accept deed which is not in compliance with the decree does not divest vendee of the equitable’ title nor prevent his acquisition of the legal title. As to effect of refusal to accept tender of deed fully complying with decree, quairef

    4. Where conveyance is not made pursuant to decree within the time fixed by the decree, the decree operates as conveyance under Chancery act, section 45, notwithstanding pendency of appeal from the decree.
    On final hearing.

      Mr. Earle A. Merrill, for the complainant.

      Mr. Augustus O. Nash and Mr. Winfield 8. Angleman, for the defendants.
   Buchanan, Y. C.

The present bill initiates still another chapter in the voluminous litigations amongst the parties to this suit. It is filed by complainant, tbe holder of a certain mortgage at Westfield, New Jersey, seeking a declaration of her rights under that mortgage, under the provisions of the Uniform Declaratory Judgments act (P. L. 1924 ch. 140 p. 312), which was enacted subsequent to the prior proceedings in this court for the same purpose. Naugle v. Baumann, 96 N. J. Eq. 183; 2 N. J. Adv. R. 1172.

Complainant’s husband, Karl Baumann, owning the lands in question, contracted July 19th, 1920, to sell and convey them to Herbert McYoy. Complainant was not a party to this contract. McYoy assigned to his wife, Mary McYoy. Baumann, instead of performing the contract, conveyed to complainant, and she conveyed to one Cooley, November 9th, 1920, taking back a purchase-money mortgage for $2,700, which is the subject of the present bill. Mrs, Mc-Yoy sued the Baumanns and Cooley and obtained decree that Cooley convey to her. McVoy v. Baumann, 93 N. J. Eq. 360; Ibid. 638.

Subsequent to the affirmance of this decree Cooley tendered Mrs. McYoy a deed which she refused to accept, as not being in proper form in compliance wdth the decree. Thereupon Cooley executed and delivered a deed of conveyance of the premises to Ruth C. Naugle, subject to the mortgage in question. Thereafter Mrs. McYoy recorded a copy of the decree.

Immediately after the original Baumann-McYoy contract Reginald Naugle (Ruth Naugle’s husband) had contracted with McYoy for the purchase and conveyance of the premises, or a portion thereof, and he has filed bill in this court, still pending, for specific performance of that contract against the MeYoys.

Complainant has made the MeYoys, Cooley and the Naugles defendants to her bill, and brought them into court, and asks a determination as to wtoether or not her mortgage is a valid and subsisting lien upon the land described therein.

There is no doubt in my mind but that complainant’s mortgage is not a valid and subsisting lien upon the lands. It was determined in McVoy v. Baumann, supra, that Mrs. McVoy was the equitable owner of the premises; that neither complainant nor Cooley were bona fide purchasers for value without notice, and that Cooley therefore held the title in trust for Mrs. McVoy, and the decree directed him to convey that title to her. There is no reference to the mortgage in that decree for the very good reason that it was not in evidence; there was no evidence as to the mortgage, or as to what the facts were as- to payments made or due between Cooley and the Baumanns. See the opinion, page 379. But, of course, the practical effect of that determination and that decree was to eliminate any and all rights or claims, of the Baumanns and Cooley, of, in or respecting these lands, as against Mrs. McVojq so far, at least, as such rights or claims arose out of the transaction there sub judice, excepting, of course those rights which were preserved in the decree, namely, to the payment of the balance of the purchase-money. If the mortgage had been in evidence in that suit, undoubtedly the decree would have directed its cancellation, in order to accomplish a complete determination of the rights of the parties. Mrs. Baumann had the opportunity in that suit to present the mortgage and her claims thereunder; that she failed to do so does not prevent the matter from being res adjudícala. As a matter of fact, upon the request of herself, and her husband and Cooley, the decree provided that the unpaid balance of purchase price due from Mrs. McVoy should be paid into court, so that their several equities or interests therein might be thereafter determined as amongst themselves.

As I understand complainant’s argument, it is not contended that the situation is otherwise than what I have so far indicated. Her contention is that her rights under the mortgage have become revived by' subsequent occurrences. The argument is succinctly as follows:

"That the deed tendered by Cooley to Mrs. McVoy was a proper deed, fully complying with the directions of the decree in the original suit; that Mrs. McVoy’s refusal to accept that deed operated to reinvest the. equitable title in Coolej, who .still held the legal title, and he thereby became vested of the entire title absolutely, and that this therefore operated to validate the mortgage in question.”

It is stated in complainant’s brief that the mortgage, although dated November 9th, 1920, was not delivered until September 30th, 1922, the date of its recording. There is no such allegation in the bill, and no admission in the McYoys’ answer; nor do I recall any evidence thereof in the proofs; while, on the contrary, the mortgage bears an acknowledgment of its execution and delivery by Cooley on November 12th, 1920. I think, however, that this question is immaterial, for I am quite willing to assume, arguendo, at least, that if Cooley became reinvested of the equitable title, the mortgage if, in fact, delivered previously, would thereby have become just as valid and effective as if executed and delivered thereafter.

It is further argued by complainant that the decree in the original suit did not operate to divest the legal title from Cooley and vest it in Mrs. MeYoy, under the forty-fifth section of the Chancery act, for the reason that that statute, by its express terms, operates only if “the party against whom the decree shall pass shall not comply therewith by the time appointed,” and that in the present case Cooley did comply with the decree, and hence the statute could not operate to make the decree a conveyance.

This latter argument opens-up some interesting questions, and, if sound, might prove unsettling to a considerable number of titles resting on such decrees. In the instant case, however, it will be sufficient to point out that complainant did not in fact comply with the decree by the time appointed, and hence that the decree did beeome operative under the statute as a conveyance from Coolev to Mrs. Mc-Yov.

In the first place, the “time appointed” by the decree was “within ten days” from the date of the decree, February 24th, 1922, and the tender of the deed was not made until June 23, 1922. True it is that in the meantime an appeal from the decree was pending, but the statute referred to contains no exception in that behalf, and it has heretofore been determined in tin's court that the pendency of such appeal does not prevent or delay the operation of the statute. White v. Smith, 60 Atl. Rep. 399 (at p. 402).

In the second place, the deed tendered was not a proper compliance with tire decree, as I have already had occasion to determine in Re Cooley, 95 N. J. Eq. 485, on substantially the identical evidence now before me. Complainant contends that the language of the deed tendered, to the effect that the intent of the deed is to convey the title subject to the inchoate dower right o£ Bertha Baumann, is at most mere surplusage (because it could not in fact operate to create such a dower right if none existed). I am unable to acquiesce in this view. In express terms it conveys subject to an encumbrance; it expresses a failure to convey the full and complete title, and, in any event, the language of this deed, upon which Mrs. McYoy’s title was to rest, would itself cast a cloud upon, that title. This was in nowise warranted or justified by the decree or the facts, and in my view it was not a compliance with the decree. As I shall proceed to show hereafter, there was no dower interest outstanding in Mrs. Baumann, and, moreover, the intent and effect of the decree was to accomplish or establish that very fact, inter alia.

I am not sure, from complainant’s brief, whether it is intended to urge in the present case the same contentions as to laches, abandonment and acquiescence which were argued, considered and determined in the proceedings on application for writ of assistance. McVoy v. Baumann, 95 N. J. Eq. 335. If so, it is sufficient to say that, although that determination may not be res adjudicaia against complainant, since strictly she was not a party to that proceeding, and had no opportunity to be heard therein, nevertheless, the issues rest upon precisely the same evidence, and the rule of stare decisis leads, of course, to the same result there affirmed by the court of errors and appeals.

I think it is evident, therefore, that the decree conveyed the title to Mrs. McYoy by force of the statute, and that the mortgage, whether delivered before or after such passing of title, is utterly without force or validity as a lien upon Mrs. MeYoy’s property.

That no outstanding dower right remained in complainant was determined by the opinion in the original suit. McVoy v. Baumann, 93 N. J. Eq. 360 (at p. 378). The decree contains a recital or finding that complainant and her husband had “conveyed their interest” in the premises to Cooley, and decrees specific performance by Cooley of Baumann’s agreement, and conveyance by Cooley to Mrs. McYoy. Baumann’s agreement was to convey the entire premises free from all encumbrance. It seems to me, therefore, that this question of outstanding dower right is res adjudicaba.

' In any event, however, it is clear to me that there is no merit in complainant’s contention. The ingenious argument is put forward that by the determination and decree in the original suit Baumann’s contract to McYoy conveyed the equitable title in the premises, and thereafter he held only the bare legal title as trustee for McYoy; that his subsequent conveyance to his wife therefore was only of the bare legal title to her as trustee, and hence there was no merger of her dower; that her subsequent conveyance to Cooley was of the bare legal title to him as ■ trustee, and neither conveyed her dower to Cooley (dower not being susceptible of conveyance) nor released her dower nor barred it by estoppel.

Doubtless, technically, there was no merger of complainant’s dower, nor a release thereof, by the two' conveyances mentioned, but by estoppel that result must be deemed to have happened. It is perfectly clear from the evidence in the original suit (which is also evidence in the present suit) that the Baumanns at the time of these two conveyances believed that the McYoy contract had become unenforceable because of wha.t they believed was MeYoy’s default,.and that they intended by these conveyances to deal with the entire interest, legal and equitable, in the premises, According to their intent, the conveyance by Baumann to his wife merged her dower in the fee; according to their intent their conveyance to Cooley conveyed the premises freed and discharged of complainant’s dower. Since these attempts and these intents were in fact violative of the equitable rights of the MeVoys, and were done by the Baumanns, not being purchasers, for value without notice, it is equitable, and not inequitable, to hold them estopped from denying the results which they actually intended, so far, at least, as is required under the circumstances of the case to accomplish complete equity for the McAtoys, and, so far as no inequity is thereby caused, to result to the Baumanns.

It is necessary to hold them so estopped in order to accomplish complete equity for the MeVoys, for Baumann’s contract was to convey to MeVoy free of complainant’s dower. That he might not have been able to do> this, since his wife was not a party to that contract, does not alter the fact that he had bound himself so. to do, and hence, if the subsequent circumstances placed him (or the subsequent grantee, Cooley) in a position of ability to convey free of that dower, it is equitable that such conveyance, free of dower, should be made.

No result inequitably* affecting complainant is thereby entailed. It may be taken as true that complainant, who was not a party to her husband’s contract with MeVoy, had not bargained for nor consented to release her dower to MeVoy, and that she could not have been compelled to do so if the subsequent conveyances had not been made. It may also be assumed that if only the deed from Baumann to his wife had been made, and no deed from the Baumanns to Cooley, the decree in the original suit could not have provided for a conveyance to MeVoy free of dower, but must have protected complainant in her dower. But it. is perfectly clear (in the absence of any evidence or intimation to the contrary) that at some time in the double transaction complainant did bargain for, or voluntarily consent to, a release of her dower (unless the whole proceedings were intended as a fraud on MeVoy, in which event, of course, the doctrine of estoppel would be only the more strongly reinforced). Why the deed from Baumann to her was made does not appear, nor the eireumstances thereof. It may or may not be the fact that she paid her husband the value of the property less the value of her dower right. Or it may be that it was a mere step to the conveyance to Cooley, and that from the consideration for that later conveyance she was to get paid for her dower interest. What the bargain was as between the husband and wife does not in anywise appear. The two deeds (which were not in evidence in the original suit, but are in the present suit) each recite a consideration of one dollar. But the mortgage, and the statements in complainant’s bill, show that she was to get, and did get,’ a bond and mortgage from Cooley for $2,700, and her deed conveyed to Cooley free of her dower or other encumbrance. From all the evidence, therefore, it is clear that she did bargain to release, extinguish or bar her dower, and that such release or extinguishment was voluntary on her part. Doubtless, if it had. been accomplished as the result 'of fraud or other inequity upon her by her husband, a situation would be presented which might require the protection to her of her dower right as against McYoy, but there is no such evidence or contention.

Having so bargained for and voluntarily attempted and intended to extinguish her dower, the only thing which equity requires that she be protected in, as against the Mc-Yoys, is that she obtain either the fair value of that dower right or the value or price which she may have agreed to accept therefor. She is not, of course, entitled as against the McYoys, to be protected to the extent of the value of the premises over and above the dower right, because as to that the equity was in the McYoys as against her. This protection to her of the value or price of her dower right was accorded and provided for her in the decree, which, upon her consent or request, directed Mrs. McYoy to pay into court-the $3,000 unpaid balance of the purchase price of the Mc-Yoy-Baumann contract, with interest, in order that the several rights or interests therein of Mrs. Baumann, her husband and Cooley might be determined as amongst themselves. Such payment was actually made into court by Mrs. McYoy, as appears by the evidence in this ease (despite the statement to- the contrary in complainant’s brief), and the moneys are and have been for a long time there available to complainant and the others, although for some reason they have preferred to indulge in further fruitless litigation rather than have determined and obtain their respective shares thereof. Since this o-ppo-rtunity is still o-pen to- complainant, and includes the opportunity for her to- prove and obtain whatever is equitably due to- her in lieu of her bond and mortgage, as well as what is due to- her in respect of the value of her dower interest; and since there- has been no- evidence in this suit as to- the respective interests of the Baumanns and Cooley in that fund, there is neither propriety nor opportunity to attempt to deal with that problem in the decree in this cause under the prayer for other o-r general relief.