author: Backes, Y. C.

text:
    The State of New Jersey v. Elizabethtown Water Company.
    [Submitted February 5th, 1914.
    Decided February 6th, 1914.]
    1. P. L. 191% p. 551 § 1, as amended by P. L. 1913 p. $06, provides that the state water supply commission shall have power to acquire by condemnation any water rights deemed necessary for appropriating or conserving the potable waters of the state to the general use, and, in order that the desirability of the acquisition of any water plant may be ascertained, the commission may enter upon the property, have access to the books and accounts of the company, &c., and, in case of refusal to comply with such request of the commission, it may direct the attorney-general to proceed in the name of the state to enforce its order “in a court of competent jurisdiction,” and, upon the filing of a petition by the attorney-general, citation shall issue requiring such persons to show cause why the information shall not be given, and the court shall summarily hear the cause and may pass such order as will cause the production of such information and enforce such orders by injunction, process for contempt, or such other process' as may be applicable in such cases. — Held, that mandamus was the proper remedy to compel a water company to permit an examination of its premises by the state water supply commission, arid that a mandatory injunction would be refused.
    2. Mandamus will issue to enforce a statutory duty imposed upon a private corporation, if there is no other adequate or specific remedy.
    3. Unless mandamus is inadequate for the purpose, equity has no jurisdiction to compel the performance of a statutory duty, by mandatory injunction, in the absence of some other well-established equitable ground of jurisdiction.
    4. To authorize a bill of discovery, there must be a legal right which is sought to be enforced in a pending or contemplated judicial proceeding, and in aid of which a discovery is necessary.
    On petition and answer.

      Mr. Edmund Wilson, attorney-general, for the petitioner.

      Messrs. Lindabury, Depue & Faulks, for the respondent.
   Backes, Y. C.

The Elizabethtown Water Company, the respondent, is a corporation organized for the purpose of, and is, supplying the inhabitants of the city of Elizabeth and vicinity with water. To be informed whether it would be advisable, in the conservation of the potable waters of the state for the general and common use, to acquire, by condemnation, the water plant of the respondent, the State Water-Supply Commission demanded of it permission to enter upon its property in order to make a physical examination and to have access to its books and accounts, and to be furnished with a statement regarding its business and property, all for the purpose of making an appraisement, which was refused. Application is now made by petition to obtain an order in the nature of a mandatory injunction, commanding the respondent to grant the leave, and to furnish the information desired, and chapter 128 of the laws of 1913 (P. L. 1918 p. ■206), amending section 1 of chapter 318 of the laws of 1912 (P. L. 1912 p. 557), is relied upon as furnishing the warrant for these proceedings, which reads:

“1. The state water supply commission as a body corporate shall have power to acquire by gift, purchase, condemnation, or in any other lawful manner, any lands, water rights and interests therein, whenever in its judgment it is advisable so to do, for the purpose of appropriating or conserving tím potable waters of the state to the general and common use of the inhabitants thereof. In order that the advantage and desirability of the acquisition of any existing water plant or plants may be ascertained, the commission is hereby authorized to enter upon the property of any water company or companies, to have access to the books and accounts of any such company or companies, and may require any such company or companies to furnish such statement regarding the business and property of said company or companies as shall by the state water supply commission be requested. In case of the refusal of any water company or companies to comply with any such request of the commission with reasonable expedition, the commission is hereby authorized to direct the attorney-general to proceed in the name of the state to enforce its order in a court of competent jurisdiction; upon the filing of a petition by the attorney-general in such court, a citation shall issue to the person or persons controlling or operating any such water plant or plants, commanding him or them to appear at a time and place named therein to show cause, if any exists, why the information ordered to be furnished shall not be given, and the court shall summarily hear the said cause, and upon hearing the parties, and by proceeding ex parte if the respondent fails to appear, the court may pass such order and decree in the. premises as will effectually cause the production of such papers, books and records desired, and the court may enforce such orders and decree by injunction, process for contempt, or by such other processes as may be applicable in such cases. In case condemnation of such lands or water rights or interests therein shall become necessary, the proceedings shall be in accordance with the act entitled ‘An act to regulate the ascertainment and payment of compensation for property condemned or taken for public use (Revision of 1900),’ approved , March twentieth, nineteen hundred, and the acts amendatory thereof and supplemental thereto.”.

The application is resisted, and the first objection assigned is that the remedy is by mandamus, and that therefore this court is without jurisdiction, which, if founded, will render an examination and decision of the manyr other and interesting grounds of objection, so ably presented on the argument and in the briefs of counsel, a profitless task.

The jurisdiction by mandamus over private corporations is of ancient origin and is well established. It is exercised both in England and America for the enforcement of corporate duties, and to compel the proper exercise-of corporate functions in cases where the law affords no other adequate or specific remedy. It may be laid down as a general rule governing the exercise of the jurisdiction in question, that where a specific duty is imposed by law upon a private corporation and no other adequate or specific remedy is provided for its enforcement, the writ of mandamus will'be granted. High Extr. Leg. Rem. §§ 276, 277.

Illustrations of the application of this doctrine are collected in Thomp. Corp. (2d ed.) § 5754. The prerogative writ has been variously employed in this state to compel gmsi-public corporations to perform duties imposed upon them by statute or ordinances authorized by statute, such as the building ol: bridges, carrying of passengers, macadamizing of streets and stopping of cars at street corners, &c. In re Trenton Water Power Co., 20 N. J. Law 659; Bridgeton v. Traction Co., 62 N. J. Law 592; Rutherford v. Hudson River Traction Co., 73 N. J. Law 227; Camden v. Public Service Railway Co., 82 N. J. Law 246; and trading companies to submit their books to examination by stockholders. Garcin v. Trenton Rubber Mfg. Co., 60 Atl. Rep. 1098.

Tn the ease of Board of Railroad Commissioners v. D. L. & W. R. R. Co., 79 N. J. Law 219, the board made an order directing the railroad company to re-establish an abandoned railroad station, and proceeded to enforce it ‘by mandamus. Upon demurrer to an alternative writ, the question was raised whether under the statute (P. L. 1907 p. 448), creating the board and defining its power, mandamus was the appropriate remedy. The eighth section of the act provided that upon failure to comply with an order of the board, the attorney-general should institute proper proceedings to enforce such order, in equity by mandamus, or injunction; and the ninth section provided that the proceedings may be in equity to compel a specific performance. It was contended that the latter course should have been pursued. Chief-Justice Gummere, in overruling the demurrer, held, that: “The proper proceeding for compelling a (^¿asi-public corporation — such as a railroad company —to perform duties imposed upon it by statute, is manadmus; The act of 1901?1 imposes upon all these corporations the duty of complying with all reasonable and just orders made by the board, and they are, therefore, subject to be proceeded against by mandamus for failure to do so, in the absence of any statutory provision exempting them therefrom.”

The act upon which the present proceedings rest, it will be observed, does not presume to confer jurisdiction. It directs that proceedings to enforce the commission’s orders are to be instituted in a court of competent jurisdiction. By this the legislature indicated the tribunal-already established by law for the enforcement of legal duties, as the one to which resort must be liad, and whose inherent power to compel obedience to the mandate of the law it meant to leave unimpaired. The obligations imposed by this enactment upon a class of corporations exercising a particular kind of franchise, and to which class the respondent belongs, are obviously legal duties, to compel the performance of which tire law courts furnish a complete and adequate remedy by mandamus.

Unless it is made to appear that the remedy by mandamus is inadequate, chancery is without jurisdiction to constrain by injunction the performance of a duty commanded by law, in the absence of some other well-established equitable ground for interference. Johnson v. Atlantic City G. & W. Co., 65 N. J. Eq. 129; McDowell v. Avon Co., 71 N. J. Eq. 109; Jacquelin v. Erie R. R. Co., 69 N. J. Eq. 432.

In Stettauer v. New York and Scranton Cons. Co., 42 N. J. Eq. 46, Chancellor Runyon, in sustaining a demurrer to a bill filed by a stockholder to compel a corporation to allow an examination of its books, withheld relief because the denial of the complainant’s right to make the examination presented' no ground of equitable jurisdiction and held that the remedy was by manclamtis.

In Fuller v. Hollander & Co., 61 N. J. Eq. 648, on appeal from an order of this court, that the defendant bring into this state its books and papers and that the complainant have access to them for the purpose of inspection, the appellate court held the order to be coram non juclice, and expressed doubts as to the authority of the legislature to confer power on this court to make such an order. It was there laid down that “The inherent jurisdiction of the court of chancery to compel the production, for inspection, of books and papers, whether of an individual or corporation, is confined to cases where the same are evidential in a cause pending in the court, and cases arising under a bill filed for relief as well as discovery, or under a bill filed for discovery onfy, in aid of a prosecution or defence in litigation, pending or contemplated.” Singer Co. v. Bowne, 81 N. J. Eq. 157.

Clearly these proceedings do not come within the first two classes, nor can they be regarded as in the nature of a bill for discovery in aid of a prosecution in litigation pending or contemplated, as was contended. It is not pretended that the water supply commission has in mind instituting legal proceedings to condemn the property of the respondent. Its attitude is of one who is seeking information for the purpose of determining whether it would be advisable to institute litigation and resembles somewhat the situation of the suitor in the Sieiimier Qase. The position of the commission is at least one step removed from the status required to bring these proceedings within the theory of a discovery in equity. There must be some legal right, the enforcement of which is sought and in aid of which a discovert- is necessary, and some judicial proceeding must be pending or contemplated, before a bill of discovery will lie. United N. J. R. R. & C. Co. and Pa. R. R. Co. v. Hoppock, 28 N. J. Eq. 261.

If the water supply commission has the right to examine the property and inquire into the business of the respondent, that right arises purely out of a statutory duty, enforceable only in the supreme court by mandamus.

The attorney-general pressed the argument that the phraseology of the act relating to the procedure, viz., that upon petition hied a citation shall issue to show cause, and that upon a summary hearing the court may pass an order or decree and that the order or decree may be enforced by injunction or process of contempt, is consistent with the practice of a court of equity, and altogether out of harmony with that which obtains in the law courts, and therefore suggests this court as “the court of competent jurisdiction.” This may be true, but we can scarcely accord to mere intimation the force of legislation and especially in these circumstances, where the functions to be exercised are recognized as residing in a branch of our judicial S3rstem from which there is no effort made either to wrest or to compel it to share them with another. The supererogation as to form of procedure may be entirely excised from the act, without endangering its object or the means of enforcement. And on this phase of the discussion the views of the learned chief-justice, in the case of Board of R. R. Commissioners v. D., L. & W. R. R. Co., supra, are pertinent and commanding. There, it will be noted, the act under consideration nominated this court as a forum in which to prosecute and presented a situation much more favorable to the state’s contention than exists here, but the court held that, “The force claimed for the ninth section of the act by counsel for the defendants can only be given to it by attributing to the legislature the intent to take away from the supreme court, in this particular instance, without an apparent reason therefor, one of its prerogative powers, and further to repeal by implication what it had just enacted in the preceding section. There is absolutely nothing in the act which would justify the attributing of such a remarkable intention to the law making body; and to do so without such a justification would be an unpardonable offence ag'ainst jurisprudence.”

The petition will be dismissed.


source: Caselaw Access Project

author: Backus, Y. C.

license: Public Domain

text:
    Farmers' Trust Company of Mount Holly, New Jersey, trustee, v. Mary B. Borden et al.
    [Argued February 3d, 1914.
    Decided February 6th, 1914,]
    1. A will directed that the income of one-half of the testator’s estate be paid to a daughter for life, and that upon her death the principal should be divided “among the children of my said daughter in equal shares or parts, and in case my said daughter should die without leaving lawful issue, * * my executors are hereby directed to divide said sum * * * equally among all my brothers and sisters, * * * the child or children of any deceased brother or sister to take their parent’s share.” — Held, that it was testator’s intent that, if there was a failure in the direct line of descent his estate should go to the collateral lino per stirpes.

    2. The interest bequeathed to testator’s brothers and sisters and the children of deceased brothers and sisters vested immediately, subject to being divested if there were direct descendants living at the life tenant’s death.
    3. The gift over to “the child or children of any deceased brother,” &c., would include a granddaughter of a brother, in view of the fact that, when the will was executed, the granddaughter’s father and grandfather were, to testator’s knowledge, both dead.
    4. In a suit to construe a will which gave a sum to testator’s daughter for life, and upon her death to be divided among her children, but, if she died without issue, then to be divided equally among testator’s brothers and sisters and the child or children of any deceased brother or sister, in order to bar the widow of the deceased son of testator’s daughter, who died childless before the daughter, his personal representative’ should have been made a defendant, as should the personal representatives of certain children of testator’s brothers and sisters.

      On bill for construction of a will.

      Mr. V. Claude Palmer, for the complainant.

      Messrs. William A. Slaughter and William If. Heisler, Jr„ for the defendants.
   Backus, Y. C.

Joseph B. Pew died June 7th, 1885, leaving a last will and testament, dated March 29th, 1880, in which he directed his executors to fund his estate and to pay the net. income of one-half to his daughter for life and upon her death the principal

“to and among the children of my said daughter, Theodosia Borden, in equal shares or parts, and in ease my said daughter, Theodosia Borden, should die without leaving lawful issue, then my will-is, and my executors are hereby directed to divide the said sum, so as aforesaid invested for my daughter’s benefit, together with the interest due thereon, equally among all my brothers and sisters, the child or children of any deceased brother or sister to take their parents share.”

The daughter is dead. She had one son, who predeceased her, childless, leaving a widow, Mary B. Borden.

The testator had eight brothers and sisters: James, William, Charles, Samuel and Asher; Emeline Stevenson, Mary A. Longstreet and Margaret Kirby.

James was dead at the time the will was made. He left a son, William, who was also then dead. The latter is survived by a daughter, Johanna, and a widow, now Margaret Gaskill.

William died after the testator, being survived by three children : Joseph, Joshua and Lydia Clevenger.

Charles died before the making of the will, leaving three children : Walter, Sarah Willis and Edward. Sarah died after the testator, leaving one son, Charles. Edward died before the making of the will, leaving a son, J. Howard, and a daughter, Lena. Lena died after the testator, leaving a husband, Thomas Talleciesen, and four minor children: Thomas, Hichard, Ella and Grace.

Samuel died after the testator, leaving seven children: Josiah Jr.,'Charles, Bloomfield. Oscar, William, Clara and Ella Stevenson. Josiah died after the testator, leaving a widow,;Bmma. William H. Heisler, Jr., is his administrator.

Asher died after the testator, leaving a widow, Mary, and a daughter, Emma.

Emeline died after the testator, leaving two children: Lydia and Elizabeth Allenson. Elizabeth died, leaving a husband, Thomas B., and son, Aaron H.

Mary A. Longstreet died after the testator, leaving three children: Asher, Sarah Dudlej’', and W. Howard. Asher died after the testator, leaving a widow (name not stated) and a daughter, Laura E. Wright. Sarah Dudley died after the testator, leaving one son, George W. Dudley.

The substituted trustee is ready to distribute the estate, and to that end asks the aid and protection of the decree of this court.

1. The widow of the testator’s grandson laid claim to the fund, although she did not answer nor appear at the bearing to press her demand, and for obvious reasons. Theodosia, the testator’s daughter, having died without leaving lawful issue, the bequest to her children failed and the. bequest to the brothers and sisters and to the children of the deceased brothers and sisters, living at the death of the testator, became effective.

2. The testator’s intention, as expressed by him in his will, is not at all obscure. In the event of a failure.of a direct line of descendants, he meant that his estate should go in the collateral line per stirpes. The bequest to the brothers and sisters and to the children of then-deceased brothers and sisters of the testator, living at the time of his death, was a substantive original gift, which became immediately vested, subject to being divested in case, of a direct line of descent living at the death of the life right holder. Green v. Howell, 30 N. J. Law 326; 31 N. J. Law 570; Post v. Herbert’s Executors, 27 N. J. Eq. 540; Neilson v. Bishop, 45 N. J. Eq. 473; Adams v. Woolman, 50 N. J. Eq. 516; Miller v. Worrall, 59 N. J. Eq. 134; Van Houten v. Hall, 71 N. J. Eq. 626; 73 N. J. Eq. 384; Security Trust Co. v. Lovett, 78 N. J. Eq. 445; Brown v. Fidelity Trust Co., 82 N. J. Eq. 323.

3. Johanna Pew, the granddaughter of James, the brother of the testator, took a vested interest. At the time the will was executed, her father and grandfather were both dead, which fact was well known to the testator. Although the will substitutes children only, the conclusion is irresistible from these circumstances, that the testator intended to embrace within the terms of ‘''child” or “children” this grandchild. Dunn v. Cory, 56 N. J. Eq. 507.

4. The same rule of construction must be applied to the inheritance of J. Howard Pew and Lena Talleciesen (née Pew) grandchildren' of Charles Pew, brother of the deceased. The latter’s three children would have been the takers had they survived. Edward, the father of the two with whose inheritance we are now dealing, was dead when the gift wras made and there appears to be no ground for supposing that the testator did not intend that they should participate in his bounty.

5. The administrator of Josiah B. Pew, Jr., claims a distributive share. His intestate was a son of Samuel Pew, who survived the testator. In this instance, Samuel, the brother of the deceased, was the taker and legatee. His share belongs to his personal representative.

In accordance with these views, a decree will be advised, at the proper time, directing that the fund be divided into eight parts, and each paid to the following: (1) Johanna Pew; (2) William’s personal representative; (3) equal shares to Walter Pew; Sarah R. Willis’ personal representative; and to J. Howard Pew and the personal representative of Lena Talleciesen, each a half portion of the share; (4) Samuel’s personal representative; (5) Asher’s personal representative; (6) Emetine Stevenson’s personal representative; (7) Mary A. Longstreet’s personal representative; (8) Margaret Kirby.

This case is not ripe for a decree. The interest of Mary B-. Borden, the widow' of Frank P. Borden, in this estate, is only as a distributee under the statute. Comp. Stat. p. 8875. If it was intended to bar her, the personal representative of her deceased husband ought to be made a party defendant. This also' applies to the shares which belong to the personal representatives of William, Sarah R. Willis, Lena Talleciesen, Samuel, Asher. Emeline Stevenson, Mary A. Longstreet.


author: Bacices, Y. C.

text:
    The Trenton Trust and Safe Deposit Company, substituted trustee, &c., v. Mary C. Robinson et al.
    [Submitted February 5th, 1914.
    Decided February 9th, 1914.]
    1. A bequest to surviving persons following a bequest for life means to such of the persons as survive the holder of the life interest.
    2. Testator left part of his estate in trust for a daughter for life, the principal over to her children in equal shares as they attained majority, and, at her death without issue surviving, the principal equally between the surviving children of all his sisters, “or in other words, between all the nephews and nieces who are the children of all my sisters,” and •provided should the daughter not survive him, her part was to be disposed of to such nephews and nieces The income from one-fifth of his estate was left to each of two sisters for life and at their death to her children until the youngest attained majority, and then the principal equally among her surviving children, and, in case his sisters did not survive him, their whole interest was to go as directed after their decease. The daughter survived testator and died without children. — Held, that the nephews and nieces who survived testator, but predeceased the daughter, took no interest in the trust fund, but that the bequest was to the class of nephews and nieces who survived the daughter and who took a vested equitable estate subject to be divested by her death leaving issue.
    3. In such case the provision that in case the daughter did not survive him her part should “go in the manner above directed to said nephews and nieces” did not affect the nature of the bequest, or change the class of beneficiaries, since the gifts to those nephews and nieces who predeceased testator would have lapsed in favor of the remainder of the class.
    On bill for construction of will.

      Messrs. -James & Malcolm G. Buchanan, for the complainant.

      Mr. W. Holt Apgar, Mr. Gardner TJ. Gain and Mr. Be.ler Baches, for the defendants.
   Bacices, Y. C.

William Tí. Burdsall died in 1859 leaving a twenty-page holograph will, dated February 9th of that year, part of which, pertinent to these conclusions, reads as follows:

“My whole estate real and personal, or the proceeds thereof remaining after satisfying the provisions herein already made for the disposition of the portions required herein to be specially disposed of as herein directed. I direct held in trust and appoint George B. Carhart of N. York and Henry M. Baing of Philada. Trustees, and give the same to them and the survivor of them, subject to such disposition as is hereafter herein provided for, To wit, First to my daughter Irene Burdsall three-fifths (%) of the whole income thereof during her natural life for her maintenance, support and education, to be applied during her minority as will hereafter be directed, after she attains her majority to be paid her in semi-annual dividends if practicable, — During her minority such portions only of her income as is necessary for her comfortable maintenance, support and liberal education to be used, The balance to be loaned out from time to time in the manner herein directed for making loans, and all the income from such loans on the amounts accumulated by principal and interest, during her minority, be also paid her semi-annually if practicable after she becomes of age, and during her natural life. After her decease the whole principal of which she has had the income from, being three-fifths (%) of the whole and the increase to be divided between her children in equal shares as they attain their majority. During their minority the income to be used in equal portions for their maintenance, support and education. Should she die without issue her surviving, I direct that the %ohole amoimt of her portion of principal he divided as soon as practicable equally Vetween the surviving children of all my sisters, or in other ioords, between all my nephews and nieces toho are the children of all my sisters. Should my •daughter not survive me, the disposition of her portion above named, to go in the manner above directed to said nephews & nieces — should no child or children of my daughter her surviving attain majority, and in case such child or children die without issue surviving them, then my daughters whole interest to go as above directed to said nephews and nieces in the. same manner as directed in the event of my daughters dying without issue surviving her.’-’

The only other portion of the document which, may serve to illuminate and concerning which there is no dispute follows the .above and reads:

“Second. To my sister Mary B. Potts one fifth of the income of my whole estate, during her natural life for her maintenance or for her sole personal use and benefit, to be solely under her control. At her decease the income to go for the maintenance, support and education of her minor surviving children until the youngest becomes of age, then the whole principle being one fifth, to be divided equally between all her surviving children. Should my sister Mary not survive me the whole interest provided for her, to go in the same manner as directed after her decease, in case she should live to receive and have the use of it.
“Third. To my sister Anna Campbell the income of one fifth (%) of my whole estate (being the same amount of interest herein provided for my sister Mary, with the understanding that it is for her sole personal benefit and use, maintenance and support during her natural life to be entirely under her own control. After her decease the income to go for the maintenance, support and education of her surviving minor children,, until the youngest attains majority. Then the whole principle being one fifth to be divided equally between all her surviving children, — Should my sister Anna not survive me, the whole interest provided herein for hex* to go in the same manner as directed after her decease, in case she should live to receive and have the use of it.”

The testator had three married sisters, each of whom had children living at the time the will was executed. One sister, Eliza South wick, was then deceased. The daughter Irene died recently, without having had children, and the estate is now ready for distribution. The present controversy is between the nephews and nieces surviving the life right holder and the personal representatives of nephews and nieces who survived the testator but predeceased the daughter, and involves the construction to be given to the phraseology of the will above emphasized in italics. The complainant,, substituted trustee, is an indifferent stakeholder and asks instructions.

Had the testator contented himself with terms bequeathing the corpus of the daughter’s life interest to be divided “between the surviving children of all my sisters,” upon his daughter failing of issue, then, under the familiar rule of construction, that a bequest to surviving persons following a bequest for life, means to such of the persons as survive the holder of the life interest (Stout v. Cook. 79 N. J. Eq. 573), there would he no room for speculation. But, to this testamentary language, of definite legal significance, he added, “or in other words between all my nephews and nieces who are the children of all my sisters,” which is seized upon by the representatives of the nephews and nieces who predeceased the life tenant, as the basis for their contention that the equitable estate in the trust, fund vested in all the testator’s nephews and nieces who survived him, and, consequently, in right of their decedents, they are entitled to share in- the distribution. To their insistence I cannot subscribe without doing-violence to the manifest intention of the draftsman of the will. The bequest was to a class of nephews and nieces, viz., those who survived the testator’s daughter. By the added words just quoted and which occasion a divergence of opinion, the testator merely nominated all of the children of all of his sisters as eligible takers in the class if they qualified by outliving his daughter, and left the class undisturbed. There was no intention to destroy or enlarge it. In prefacing the disputed language by “or in other words” immediately following the bequest to the nephews and nieces, the testator obviously intended to explain and not to qualify that which preceded. The expression was used in the .nature of a videlicet or an equivalent of “that is to say.” This view finds support in the circumstances that in a succeeding part of his will, the testator made specific provision for the surviving children of his two then living sisters but none for those of his deceased sister, Eliza. Evidently apprehensive that this fact might be misconstrued as a controlling discrimination between his nephews and nieces in the bequest now being considered, the testator, in an effort to clarify his meaning, resorted to explanatory expressions, which to him must have seemed unmistakable.

Another indication of the testator’s bent of mind to limit his beneficiaries to those living at the happening of given events, is to be seen in the manner in which he disposed of the bequests for life to his two sisters. These he directed should go to their respective surviving children. So, it will be observed, that the trust fund created by the will and consisting of the testator’s entire residuary estate, was bequeathed after the termination of the three life estates, to survivors only.

The interest which the nephews and nieces took under the will was a vested equitable estate, subject to being divested by the testator’s daughter dying, leaving issue (Dunn v. Cory, 56 N. J. Eq. 507); or by predeceasing her (Van Houten v. Hall, 71 N. J. Eq. 626; 73 N. J. Eq. 384).

Two contingencies mentioned in the will, and to which I will now advert, are pointed out by-counsel as evidencing testator’s intention to include in the bequest to the nephews and nieces all of the children of all of his sisters who survived him. The provision that in case the testator’s daughter did not survive him, her portion should “go in the manner above directed to said nephews and nieces” did not affect the nature of the main bequest nor change the class of beneficiaries. The gift to those who failed to survive the testator would have lapsed in favor of the remainder of the class. Security Trust Co. v. Lovett, 78 N. J. Eq. 445.

The further disposition made of the daughter’s interest, in case her children should die before reaching majority and without issue, would not, had the situation presented itself, have allered the vested interest of the nephews and nieces who survived the daughter. Its effect would have been merely to further postpone the enjoyment.

A decree will be advised in accordance with these views.


text:
    Owl Laundry Company v. Victor J. Banks.
    [Submitted February 10th, 1914.
    Decided February 11th, 1914.]
    1. An agreement by the solicitor for a laundry that, upon termination of bis employment, he would surrender a list of his customers, and would not solicit orders from any of such customers, either for himself or as an employe of any other person or corporation in the county where the employer was operating, and would not engage in such business in any capacity for himself or with others in such county for two years from the termination of such employment, was reasonably necessary for the protection of the employer’s business, both in the restriction as to area and time.
    2. Such contract was not illegal as preventing defendant from engaging in such business “in any capacity,” since it was not broader than necessary for the protection of the employer’s business.

      On final hearing.

      Ur. James G. Agnew, for the complainant.

      Hr. William B. Stiles, for the defendant.
   Backes, Y. C.

The complainant is engaged in carrying on the wet-wash or laundry business in the town of Union, Hudson county. The defendant was employed by it from May 11th, 1912, to August 14th, 1913, as a solicitor of orders for wet-wash from residents of Hudson county. At the time he took employment, the defendant entered into a written agreement with the complainant that upon the termination of his employment he would surrender to his employer a list of his customers and that he would not

“solicit orders of wet wash from any of the customers of the said Owl Laundry Oo., Inc., either for myself or as employe of any other person or persons, corporation or corporations, in the County of Hudson, State of New Jersey, and that I wiH not engage in the wet wash business in any capacity for myself or others either natural or artificial persons in any portion or portions of the County of Hudson, in the State of New Jersey, for the period of two (2) years continuously from the time of the termination of my employment, with the Owl Laundry Co., Inc.”

The defendant broke his promises, and the bill is filed to restrain further breaches. Relief is resisted on the ground that a compliance with the agreement will effect an unreasonable restraint of the defendant’s opportunities to secure work in his line of trade, and is, therefore, contrary to public policy.

1. The nature of the defendant’s services brought him into intimate relation with the complainant’s trade and obviously for the purpose of preventing the defendant from diverting the custom lie secured for the complainant, to a competitor, the restrictions upon the defendant’s activities, after the termination of his employment, were stipulated as a part of the contract. The restrictions as to area and time are both reasonably necessary for the protection of the complainant’s business. American Ice Co. v. Lynch, 74 N. J. Eq. 298.

2. It is also contended that the contract is illegal because the defendant covenanted that lie would not engage in tire wet-wash business in any capacity, and the argument is that it is broader than necessary for the protection of the complainant’s business, in that it prevents the defendant from accepting employment from any concern engaged in a wet-wash business, even as a watchman, janitor, machinist or scrubber of the wash. The identical point was raised in Sternberg v. O'Brien, 48 N. J. Eq. 370, and there decided by Yice-Chancellor Yan Fleet against the views now advanced by the defendant.

The complainant is entitled to an injunction as broad as may be necessary to insure a compliance with both the letter and spirit of the defendant’s agreement.

The complainant is entitled to costs.


author: Bacees, Y. C.

text:
    The Chancellor of The State of New Jersey v. Arthur R. Cruse et al.
    rSubmitted April 14th, 1914.
    Decided April 24th, 1914.]
    1. Chattels to become realty as between a mortgagee thereof and a subsequent mortgagee of the chattels, must be actually annexed to the real estate or something appurtenant thereto with the intention of making a permanent accession to the freehold, and must be applied to the use or purpose to which that part of the realty with which they are connected is appropriated.
    2. Machinery installed in a building used as an engineering and machine shop and factory • for the manufacture and fabrication of iron and steel materials and construction work, which was fitted for and intended to be and was used by the owner in carrying on such business, and for that purpose was affixed to the ground and building, though removable without injury to the real estate, was a part of the realty as between a mortgagee of the realty and a subsequent mortgagee of the machinery, as it was an integral part of a common plant forming with the building a unit for the prosecution of a common purpose, and was undoubtedly intended to remain indefinitely as a permanent accession to the freehold.

      On petition for injunction.

      Messrs. James & Malcolm Q. Buchanan, for the complainant.

      Mr. William Hauser, for the defendants.
   Bacees, Y. C.

This is a suit to foreclose a mortgage on real estate. Application is now made to restrain two of the defendants, who hold subsequent real and chattel mortgages, from selling or interfering with articles contained in a factory building on the mortgaged premises, and claimed by the complainant to be fixtures and subject to the lien of his mortgage.

The complainant’s mortgage describes the real estate merely by metes and bounds; no definite mention is made of the articles in dispute, which consist of one twenty-horse-power boiler, one seven and one-half-horse-power motor, two drill presses, one pump, one steam engine, one Sturtevant blower, one Wall punch, ■one switchboard, shafting and pulleys, although they wei'e affixed to the land when the mortgage was made. The defendants’ mortgages comprise inter alia these articles, which they threaten to remove and sell.

The rule by which we determine articles to be fixtures involves the united application of the following requisites, which must appear in order to establish the claim of the complainant to the property as against the defendants’ right under their chattel mortgage, viz.— (a) that the chattels were actually annexed to the real estate, or something appurtenant thereto; (6) that they were applied to the use or purpose to which that part of the realty with which they were connected was appropriated; (c) that they were annexed with the intention of making a permanent accession to the freehold.

These essentials are all present in this case. That the chattels were actually affixed to the realty is conceded. As to the intention with which they were annexed to the realty, and the appropriateness of their application thereto, there can be no serious controversy.

The building in which the machinery and appliances were contained was used by Cruse, the mortgagor, as an engineering and machine shop and factory for the machining and fabrication of iron and steel materials and construction work. The articles in question were installed hv the mortgagor and were fitted for and intended to be, and were, used by him in the carrying on of that business on the mortgaged premises, and for that purpose, were affixed to the ground and building. They were removable without injury to the real estate, but this circumstance is of little moment. They were integral parts of a common plant, and with the building formed a unit for the prosecution of a common purpose. Undoubtedly, they were intended by the mortgagor to remain indefinitely, and were designed by him *to be, not. a temporary, but a permanent accession to the freehold. Speiden, Receiver, v. Parker, 46 N. J. Eq. 292; Feder v. Van Winkle, 53 N. J. Eq. 370; Knickerbocker Trust Co. v. Penn Cordage Co., 66 N. J. Eq. 305; Prudential Insurance Co. v. Guild, 64 Atl. Rep. 694.

1 will advise a perpetual injunction.


text:
    Mary L. Vliet, executrix, &c., of Daniel Vliet, deceased, v. Charles T. Cowenhoven et al.
    [Submitted March 3d, 1914.
    Decided April 27th, 1914.]
    1. Complainant’s testator held a mortgage upon a tract of land divided into three lots. The prior mortgages on lots A and B had been foreclosed when complainant’s testator brought foreclosure proceedings on the remaining lot C. Through a mistake in description, the bill excluded lot C, upon which foreclosure was sought, and the sheriff’s deed to complainant’s testator contained the same mistake. Complainant’s testator went into possession of the lot C, and after his death complainant discharged prior mortgages under the belief that she was the owner of the equity of redemption.. — Held, that, the mistake not being the result of gross negligence but a natural one, a court of equity would relieve complainant from the effect and revive the discharged mortgage.

      2. Where a mortgagee’s bill for foreclosure did not describe the land sought to be foreclosed, and neither did the sheriff’s deed, the foreclosure was wholly inoperative, and the mortgage was unimpaired; and hence the mortgagee, having gone into possession and discharged earlier mortgages, is entitled to subrogation, his rights being those of a mortgagee in possession.
    3. Where a suit to set aside the cancellation of a mortgage was instituted within about a year after complainant discovered the mistake, and defendants’ rights were in no way prejudiced by the delay, the action is not barred by laches.
    4. Where defendant consented to numerous extensions of time, he cannot set up complainant’s want of diligence in prosecution of the stdt.
    On final hearing.

      Mr. Alan Id. Strong, for the complainant.

      Mr. Freeman Woodbridge, for the defendant.
   Backes, Y. C.

The object of this bill is to restore a mortgage canceled by mistake and to foreclose it. Daniel Yliet, tlie complainant’s testator, owned a mortgage to secure $5,250, conveying a tract of land on the southeasterly comer of George and Washington streets, in the city of New Brunswick. The tract has a frontage of eighty-five feet on George street, and some eighty-eight feet in depth. Subdivisions of this tract were subject to several prior mortgages. The first twentjr-six feet, starting from the corner, which T shall call “Lot A,” was covered by a mortgage of $3,000. The next lot adjoining, of thirty-four feet, which I shall call “Lot B,” was covered by a mortgage of $5,000. The remaining “Lot C” of twenty-five feet, and in the record called the “Office Property,” was subject to a first mortgage held b3r Alan H. Strong, as trustee, for $3,000, and a second mortgage of $750 held by one Robert W. Johnson.

The mortgages on “Lots A and B” had been foreclosed when Daniel Yliet, on February 25th, 1899, filed his bill in this court to foreclose his mortgage, which is therein set up in the usual form. That bill correctly alleged the foreclosure proceedings and the sales thereunder of “Lots A and B” by the descriptions con-tamed in the mortgages and then erroneously averred the result to be that the complainant’s mortgage remained a lien upon the original tract of eightv-five feet, after excepting therefrom “Lots B and C,” viz., on “Lot A.” The mistake was carried throughout the proceedings. The fi. fa. directed the sheriff to sell what remained of the tract of eighty-five feet, after excepting and reserving “Lots B and 0.” Daniel Vliet, the complainant, was the purchaser, and the sheriff’s deed to him bears the same faulty description. He immediately went into possession of “Lot C,” the office building, and kept it until his death, a period of nine years; all during that time exercising absolute ownership. The complainant, in this suit, his executrix and trustee, continued in possession until her death. The substituted administrator and trustee, who has been made a party herein, followed the same course. The interest on the mortgage now sought to.be restored was paid by the deceased in semi-annual installments, regularly, until the principal was paid off. Under the will of Daniel Vliet, who died in 1908, he gave his estate to his executrix in trust, with directions and power to pay off the principal and interest on mortgages covering any of his property. In discharging the directions of the will, Mary L. Vliet, the executrix and trustee^ on February 26th, 1909, paid to Alan H. Strong, the holder of the mortgage, on “Lot C,” $3,084.45, the principal and interest then due, who endorsed on the mortgage a receipt and a cancellation authorization, and on the same day the mortgage was canceled of record. On July 28th following, she paid the Robert W. Johnson mortgage, on which was endorsed an acknowledgment of satisfaction and an authority to cancel. This mortgage has not been canceled. After the cancellation of the Strong mortgage a formal written assignment of it was made to the executrix, in which it was stated that the mortgage was canceled under a mistake as to the title to the mortgaged premises. The bill prays to have the cancellation of this mortgage set aside and declared to be of no effect, and that the complainant be subrogated to the rights of the said Alan H. Strong, trustee.

Robert H. Eastburn, as administrator of Isabelle Eastburn, judgment creditor of the mortgagor, the owner of the equity of redemption, is the only answering defendant. His judgments were recovered in the supreme court on June 6th, 1899, for $2,-818.47 and $251.56, respectively. Executions were issued after this suit was brought and levies made on “Lot C.” There are other subsequent moil gage encumbrances against the property, which are prior in point of time and record to these judgments. The holders are made parties to the suit.

We need look no further than to the allegations contained in the bill filed, by Daniel Yliet to demonstrate the error which led to the later confusion. Upon the facts presented by that bill the solicitor made wrong deductions, and it is easily seen how he made the mistake. The description of the prior mortgage on “Lot A” covered the entire tract of eighty-five feet, and excepted by metes and bounds “Lots B and C.” It was so described when foreclosed. “Lot B” was described within the lines of its four corners. The Yliet mortgage, which was intended to be foreclosed against “Lot C,” also covered the whole tract of eighty-five feet, and the solicitor obviously intending to identify this lot, eliminated it from the operation of the foreclosure proceedings by including it within descriptions intended to except “Lots A and B.” The only inference from the conduct of YLiet, the purchaser, and his executrix, taking and holding possession of “Lot C,” collecting the rents and pajdng the interest on prior mortgages, is that they labored under the misapprehension that the description in the sheriff's deed covered that tract and that the latter paid off the-Strong and Johnson mortgages under the mistaken notion that she was the owner of the equity of redemption. Against such mistakes, in the absence of gross negligence or intervening equities, this court will grant relief. Seeley v. Bacon, 34 Atl. Rep. 139; Swedesboro Loan and Building Association v. Gans, 65 N. J. Eq. 132. There was no such negligence, nor are there any such equities. The mistake of the draftsman of the bill was due to a misconception of the effect of the exceptive descriptions he employed, and into which, under the circumstances, a careful practitioner might readily have fallen. That of the complainant was a logical sequence. The status of the judgment creditor, Eastlmrn, can only be changed and advanced if we deny relief. He has no equities in his favor which will permit him to reap the benefit of the complainant’s honest mistake.

It is argued that inasmuch as the sheriff’s deed, to Daniel Yliet did not convey the equity of redemption in “Lot C,” that the payments of the two mortgages by his executrix were voluntary, and that she is therefore without standing to a right of subrogation. This proposition is untenable. The suit by Daniel Yliet to foreclose his mortgage was abortive. It was a proceeding in rem, minus the res. It was entirely nugatory, and left his mortgage unimpaired and a subsisting encumbrance subject to enforcement in a second suit. Johns v. Wilson, 180 U. S. 440; Moulton v. Cornish, 138 N. Y. 133. Therefore, while not the owner of the equity of redemption, the position of Daniel Yliet was, and that of the complainant is, one of mortgagee in possession, and as such mortgagee it was the complainant’s privilege to pay off •all prior encumbrances and to be subrogated thereto. Bigelow v. Cassedy, 26 N. J. Eq. 557; Barnett v. Griffith, 27 N. J. Eq. 201.

It is also urged that relief should be denied because the complainant was guilty of laches in the bringing of her suit and in its prosecution. The bill was filed April 5th, 1910, shortly after the discovery of the mistake. As to this, there is -no serious contention, but the complaint is that the suit has not been diligently prosecuted. There are two answers — one is, that the defendant has not been prejudiced by the loss of testimony or means of proof or changed relation. Tynan v. Warren, 53 N. J. Eq. 313; Lutjen v. Lutjen, 64 N. J. Eq. 773; Gerhard v. Welsh, 80 N. J. Eq. 203. No testimony could disturb the proof of the initial mistake as certified by the Daniel Yliet foreclosure bill and upon which this case rests. The other is, that it there has been any delay, the defendant has contributed and consented thereto, or acquiesced therein. He filed his answer out of time, with the •consent of the complainant. In November, 1912, after the death of the complainant, he, in -writing, consented to two extensions of time for the revival of the cause, and in September, 1913. in writing, consented to a reference to a vice-chancellor and the designation of a day for the trial. He cannot now consistently say that he is aggrieved.

I will advise a decree setting aside the cancellation and restoring the mortgage as a valid lien. A reference will be made to a master to ascertain the amount clue thereon, and on any subsequent liens which the complainant may hold, and further, to ascertain the amount of the rents, issues and profits since the complainant’s testator took possession. Credit must be given for the net sum.