text:
    Martha A. Swain v. Henry R. Edmunds.
    Before a will can be admitted to probate, it must appear, among other things, that it was declared by the testator to be his will, in the presence of two witnesses present at the same time. The recital of that fact in an attestation clause subscribed by the witnesses is prima fade evidence of the performance of that requisite. If there be no such attestation clause, the burden is upon the proponent of the will to prove such declaration to the satisfaction of the tribunal passing upon the question.
    On appeal from an order of the orphans court of Cape May county.

      Mr. William TL Corbin and Mr. Thomas E. French, for the appellant.

      Mr. Howard Carrow, for the respondent.
   The Ordinary.

The order appealed from admits a paper purporting to be the tv ill of Sallie S. Stevens to probate as such will.

The single ground of objection to the probate is that the paper was not declared by Miss Stevens to be her will, in the presence of the subscribing witnesses, when it was executed.

The execution took place at Cape May city, under the supervision of the son of the respondent, a young lawyer of Philadelphia, named Charles ~W. Edmunds, in the house of Miss Stevens and in the presence of Mr. Edmunds and Marion Young, who, for little over a month, had been 'Miss Stevens’ housekeeper and nurse.

It is admitted that the testatrix and the witnesses present have Subscribed their names to the will, but as the document does not contain an attestation clause reciting particulars to show compílete obedience to the requirements of the statute, which, upon the establishment of the signatures, would make prima facie proof of the due execution of the instrument (Darnell v. Buzby, 5 Dick. Ch. Rep. 725, 727), the burden is thrown upon the proponent to go further than proof of the mere signatures, and •affirmatively show that the will was executed in conformity with the statute’s requirements; and in bearing that burden he must, among other things, prove that the testatrix declared the writing "to be her will in the presence of the two witnesses. That fact is shown when he makes it appear that the testatrix clearly evinced to the witnesses in some way by which one mind can -communicate with another, that the writing she desired them to attest was her will. Darnell v. Buzby, supra; Robbins v. Robbins, 5 Dick. Ch. Rep. 742.

The proof upon that point in the present case is conflicting. It comes almost entirely from the two subscribing witnesses. The witness Edmunds testifies that he was twenty-two years •of age in April, 1894, six months before the will was executed, •and that in the following June he was admitted to the bar in Philadelphia; that he had been connected as student and clerk with his father’s law office in Philadelphia for four years preceding his admission to the bar, and during that time and the-time he had been at the bar when the will was executed he had. copied wills for his father, and, with his father, had been present at the execution of wills, acting in some cases as the subscribing-witness thereto, and, in one or two instances, in his father’s-absence had superintended the execution of wills; that a short time before the paper in dispute was executed, he took instructions for changes in a former will made by Miss Stevens, from-her at her house in Camden, and, having prepared the present will in accordance with those instructions, on the 14th of October, 1894, went to Cape May city, whither Miss Stevens had; preceded him, and, upon entering the house, saw Miss Stevens-alone in the parlor, and there read the will to her, and, upon* her expressing her satisfaction with it, informed her that there • must be another witness present besides himself at its execution,, whereupon she said that she would get Mrs. Young, and they went together into an adjoining room, to which Miss Stevens-called Marion Young. He testifies: “I told Mrs. Young I wanted her to witness Miss Stevens’ last will and testament, and ■■ she said, ‘Very well.’” In another place he says: “I asked' Miss Stevens if it was her last will and testament, and she repeated after me.” In yet another place he repeats: I asked her, and Miss Stevens asked her, to witness her last will and-testament.” And still in another place he says: Then I said to Miss Stevens, this is your last will and testament, and she-said, Yes, it is my last will and testament,’ repeating it after • me; I recollect that.”

Marion Young testifies that one day early in October, 1894, . at the request of Miss Stevens, she went to the law office of. Henry R. Edmunds, the respondent and father of Charles W.. Edmunds, to procure him to make some changes in Miss Stev- ■ ens’ will; that she saw him and explained to him her business, and at the same time saw Charles W. Edmunds there; that,, in obedience to her summons, Charles W. Edmunds went to-Camden and saw Miss Stevens; that she saw Charles W. Edmunds when he then called upon Miss Stevens, but was not; present during the interview between them; that, on the 14th of the same October, she saw Charles again at Miss Stevens’ home at Cape May city; that she opened the door for him and showed him into the front parlor, and that after he had been there a few minutes Miss Stevens came to the dining-room door, to which room the witness had gone, and said to her, “Mrs. Young, will you come in and witness my signature?” She continues : “ I went into the back parlor and handed her a chair, and I stood alongside of her; Mr. Edmunds stood on the other side and asked me to witness her signature and sign my name, and I did.” She further says that Miss Stevens did not say that the paper was her will, nor did Charles W. Edmunds say so; that she had no idea what she was signing; that she did not know what business Charles W. Edmunds had with Miss Stevens then. In response to the question, “Was the word ‘will’ mentioned?” she replied, “It was not; I am positive of that, because it was the first time in my life I ever was concerned with a will, and the thought passed through my mind I might be signing my own death warrant; if he had told me I was signing a will, I would not have thought any such thing as that.” In reply to a question, she said that it did not occur to her at the time to ask what she was signing. She says that, after the paper had been signed, Miss Stevens said to Charles W. Edmunds, “ Take it and give it to your father.” She was asked this question: “ You recollected the fact at the time that you had been at Mr. Edmunds’ office in Philadelphia, and requested him to come over?” and replied, “Ho, sir; I did not; I was interested in a book, and paid but little attention to their business.”

Henry R. Edmunds remembers that Marion Young, when she called at his office, in October, 1894, said that Miss Stevens wanted some alterations made in her will.

If the testimony is to be weighed merely by the number of witnesses, it is evenly balanced, and the case stands precisely as it stood before the offer of proofs. The burden cast upon the proponent has not been borne, and the will cannot be admitted to probate. But is the testimony of the witnesses of equal weight ?

The orphans court thought that Mr. Edmunds was more likely to be correct in his remembrance than Mrs. Young, because he had gone to Cape May city particularly charged with the duty of superintending the execution of the will and instructed by his father, and hence was aware of the importance of’-the declaration of the will and more likely to remember that it was made. This consideration was based, to some extent, upon the testimony of Mr. Charles Edmunds, that he thought that the laws of Pennsylvania required that the will should be published at the time of its execution. But when the case was presented to me, the statute of Pennsylvania prescribing the requisites for the execution of wills was offered in evidence, and it exhibited that a declaration or publication of the will by a testator is not required in Pennsylvania. It is, therefore, now urged that this circumstance, together with the fact that there is no attestation clause to the will in question, showing compliance with the requirements of the New Jersey statute, but instead thereof the words “witnesses at signing,” written over the signatures of the witnesses, exhibit that Mr. Edmunds was probably ignorant of the requirements of the New Jersey law, and impressed that the “signing” alone was the important thing for the witnesses to attest, for otherwise the full attestation clause would have been prepared and have shown his knowledge of the law, and, this being so, it is ai’gued that' the young man, in his ignorance of the New Jersey law and inexperience, failed to appreciate that other than the Pennsylvania law could apply to the case, and therefore probably pursued the formalities he had been accustomed to observe in his father’s office, which presumably did not include that which the law of Pennsylvania did not require — a declaration or publication of the will. Eurthermore, it is insisted that the incentive of the desire the young lawyer had to sustain his work, and the fact that his father is the executor of the will, are circumstances tending to discredit him.

In criticism of the testimony of Mrs. Young, the proponent urges, in the first place, that her repeated declarations to the effect that she did not know the nature of the transaction, or, at least, surmise it, when the will was executed, is not entitled to •credence in face of the fact that little more than a week before she had gone from Camden to Mr. Edmunds’ office to call him •to change Miss Stevens’ will, and there saw Charles Edmunds, ■and a little later again saw the latter gentleman attending at Camden, in obedience to the summons thus given, upon Miss Stevens, and having a private, confidential conference with her, and a few days later again saw him, not on a week day, when •ordinary matters of business would be attended to, but on Sunday, after another private conference with Miss Stevens, ■superintending the execution of an evidently-imporlant paper. These events, happening in close succession, evince the following ■up of a single important matter which, with woman’s usual •astuteness, she must have known, or, at least, have inferred, was the execution of the altered will which Miss Stevens had in contemplation when she proclaimed it to Mrs. Young in making her the messenger to Mr. Edmunds’ office, and hence her deliberate and reiterated assertion to the contrary, under oath, must weaken confidence in her entire testimony.

And in the second place, he urges that the fact that when this ■situation was called to Mrs. Young’s attention, and she was •asked whether she did not, at the time of the execution of the will, recall her visit to Mr. Edmunds, she replied in the negative, adding, by way of excuse, that she tvas interested in a book and paid but little attention to the business; and he insists that that fact evinces that when the execution took place she was so preoccupied in mind and indifferent to the transaction that the •declaration of the will, if made, was likely to have escaped her memory, or to have remained there in such hazy and indeterminate remembrance as to be susceptible to resolution in her mind, in one way or the other, by the influences by which she was surrounded at the time when she testified, the exertion of which, naturally by parties who are inimical to the will, was evidenced by the attendance of those parties upon the witness to, from and at the court.

I have carefully weighed all these suggestions. The testimony of Charles Edmunds, that the will was declared, is too-positive, coming, as it does, from a witness who, without question, must realize his precise situation, to be dismissed as untrue-upon the possibility that, through ignorance of the New Jersey-law, he followed the statute of Pennsylvania, which does not require publication, even though I may agree that the evidencaas to his ignorance of the New Jersey law is not without weight.

It may well be that, though the statute of Pennsylvania does-not enjoin the publication of a will, the precaution of publication, generally observed in practice and recognized as a usual! requirement by treatise writers, was the rule of the elder Mr. Edmunds’ office in the execution of wills, under which the-young lawyer was instructed.

I am fully persuaded that Charles Edmunds’ testimony is not. the outcome of any mistake or misapprehension on his part. It-must be either deliberately true or deliberately false, and I perceive no ground which is sufficient to justify the acceptance of the latter alternative.

Coming to the consideration of Mrs. Young’s testimony, I recognize the strength of the insistment that she must at least have inferred that she was witnessing the execution of Miss-Stevens’ will, if she was not absolutely indifferent to her surroundings. Her reply to the question whether she did not remember her visit to Mr. Edmunds’ office, evinces her realization of the strength of that circumstance, and her consequent, explanation that it did not come to her mind at the time because she was so interested in a book that she paid little attention to the business in which Miss Stevens and Mr. Edmunds were engaged, affords, I think, a satisfactory solution to all the difficulty in this case. I remember, in this connection, that in-another part of her testimony, indicating the same indifference-to the transaction, she says that it did not occur to her to ask what she was signing.

It appears to be a just conclusion that her absorption in the book which interested her was so great that her impression and remembrance of the transaction of the execution of the will, and particularly that part of it which was addressed to mental under■standing, as distinguished from that which concerned the mere physical action of attending and signing, was slight, vague and ■uncertain, and I cannot but now conclude that when she was ■required to testify to it, in her efforts to remember that which was done and said, she recalled her physical acts, but fell into the error, as to the language used, which has led to* the contradiction between her and Mr. Edmunds.

This conclusion accords the greater weight to the testimony of Mr. Edmunds, which thereby becomes sufficient to establish the publication of the will.

I will affirm the order appealed from.


source: Caselaw Access Project

author: Beasley, C. J.

license: Public Domain

text:
    Lewis C. Potter et ux., appellants, v. Arthur E. Berry, guardian &c., respondent.
    A person of advanced years devised certain lands to his daughter, and, informing her and her husband of the fact, put them in possession, stating that he desired them to hold the property during his own life. A few years afterwards, the father having become a lunatic, his guardian notified the daughter and her husband to yield up the premises. — Held, that a court of equity would protect the daughter and her husband in their possession, thus giving effect to the purpose of the father as expressed during his sanity.
    On appeal from a decree advised by "Vice-Chancellor Bird, whose opinion is reported in Berry v. Potter, 7 Dick. Ch. Rep. 664.

      Iii the latter part of the year 1886 or 1887, Samuel Dally, of the township of Wood bridge, then about seventy-eight years old, being about to make his will, asked his son-in-law, Lewis C. Potter, to make choice for his wife, Anna M. Potter, among the several parcels into which he had divided his real estate for distribution among his children by will. Potter chose a parcel consisting of three tracts, one of said tracts being a clay-bank, and Dally, assenting to such choice, made his will accordingly, which is still in existence, unrevoked. At the same time and incidental to the testamentary gift, Mr. Dally told his son-in-law, Potter, who was then and still is in straitened circumstances, to take possession of these tracts and make what he could out of them in the testator’s lifetime, without compensation to the testator, and paying only the taxes.
    Potter accordingly gave up another clay-bank, which he was then working, and took possession of the bank of his father-in-law, Dally, which he has ever since held and continued to work, as his only means of livelihood, down to the filing of the bill and subsequently, making large expenditures for draining and other permanent improvements of the clay-banks, in reliance upon said agreement of Mr. Dally.
    During this period, at one time, when it was supposed that a railroad would be built through the property, Potter applied to his father-in-law for some writing, to confirm him in possession, at which Dally became quite irritated, and told him to go and make what improvements he saw fit, and he never should be disturbed.
    In November, 1892, the complainant, Berry, was appointed by Middlesex county orphans court, guardian of said Samuel Dally, who had been duly found to be of unsound mind (and to have been so since the 1st day of June, 1892), under a commission out of the court of chancery, his mind having wholly failed from senile dementia.
    On the 28th of February, 1893, said guardian served upon Potter and his wife notice to quit and deliver possession of said premises on the 1st day of June then next, to said guar■dian, and further, to desist at once from digging any clay or sand on said premises or committing any other waste.
    The Potters not having obeyed said notice, the bill in this cause was filed by said guardian, joining with him the said lunatic as complainant, for an injunction and account and general ■relief.
    The defendants answered, setting up the above facts, and also, by way of cross-bill, prayed specific performance of the verbal agreement, and also that the arrangement should be continued as •a scheme of benevolence initiated and persevered in by the lunatic, and on the principle that the court should do for him in the ■administration of his estate what, presumably, he would do himself if sane, alleging that he has ample income aside from the ■day-bank for support of himself and his wife, who are all his ■family.
    The decree appealed from is for an accounting and injunction and that defendants surrender possession.

      Mr. Alan H. Strong, for the appellants.

      Mr. Ephraim Cutter, for the respondent.
   "The opinion of the court was delivered by

Beasley, C. J.

This case was decided in the court of chancery on the ground ■of its purely legal aspect. It was found that the defendants were in the occupation of the lands in question as the licensees ■of the lunatic, and that the licensor having become of unsound mind, and his guardian having notified them that such license was revoked, they were ordered by the decree to remove from ■the premises in question and to account for the profits.

Looking at the affair in this aspect, it is difficult to see how a ■court of equity could take cognizance of the case, for in such a •situation an action of ejectment would appear to be the appropriate remedy. But, as a cross-bill has been incorporated in the answer, presenting for the consideration of the court of chaneery certain equities that enter into and modify the strict legal status of the transaction, it has appeared to this court to be the proper course to retain the case so as to give due force to such conscionable characteristics.

The equities referred to are those inseparable from the fact that the lunatic, who is represented by the respondent on this-appeal, had expressed during his’ sanity, in an unquestionable-form, his purpose that the appellants should remain in the possession of the premises in dispute during his own life. This-property, by his will, he had devised to his daughter, and, in-turning it over to her husband, he said, according to the testimony of the latter, “if I ever needed it, I need it now; he intended it for his daughter, and he wanted her to be benefited? while he was alive.” For several years before the father-in-law’s lunacy, the appellants continued in the occupation of the-premises, spending considerable money in putting them in a productive condition. The son-in-law and the daughter who-were thus provided for had a large family and were in somewhat straitened circumstances, and the father who thus established them was possessed of an estate that fully warranted his-generosity. The question, therefore, arises whether, the father having lost his mind, this benefaction of his towards his own child is to be frustrated and revoked by his guardian. No case-has been observed in which a court of equity has permitted such a cruel dispossession. The cases strongly enforce the opposite-doctrine. The general rule on this subject is that the court will do that, in these matters, which it is reasonable to believe the-lunatic himself would do if he had the capacity to act. The decisions are numerous and all to this effect. The following .are illustrative cases: Ex parte Whitbread, 2 Meriv. 102; 11 Paige-257; 2 Barb. Ch. 326; 1 Myl. & C. 624.

The result is that the appellants should not, under present circumstances, be disturbed in the possession and use of the property in question, and a decree should be entered to that effect.

Consequently, let the decree appealed from be reversed, and a decree entered in accordance with the foregoing view, with costs-to be paid out of the estate.

For reversal — The Chief-Justice, Depue, Lippinoott, Magie, Reed, Van Syckel, Bogert, Brown, Krueger — 9¿

For affirmance — None.


text:
    Georgiana Manley, appellant, v. John J. Mickle, respondent.
    1. The owner of land put a mortgage upon it and then sold and conveyed the equity of redemption. In a foreclosure bill it was claimed that, by force of his purchase of the property so encumbered, the grantee of the mortgagor became liable for the deficiency in case a sale of the premises did not produce a sum sufficient to pay the claim of the complainant. — Held, that a decree establishing such liability in the grantee, although erroneous, was conclusive so long as it remained unreversed.
    2. On petition by the mortgagor, such foreclosure bill was permitted to be amended in order to show that when he conveyed the equity of redemption his grantee stipulated to pay the money secured by the mortgage, and that such fact had been omitted from the bill from inadvertence.
    On appeal from an order advised by Vice-Chancellor Pitney, whose opinion is reported in Forman v. Manley, 7 Dick. Ch. Rep. 712.

      Mr. James H. Van Gleef, for the appellant.

      Mr. Halsted H. Wainright, for the respondent.
   The opinion of the court was delivered by

Beasley, C. J.

The decree appealed from, we think, should be affirmed. In this respect, our views are in harmony with those of the vice-chancellor who advised' the determination that has obtained.

But, in order to avoid a misconception of the views of this •court with respect to one of the subjects embraced in the opinion read in the case in the court of chancery, it is necessary that it should be here stated that it is deemed to be entirely clear that the original decree rendered in this proceeding cannot be treated as a nullity. In our opinion, that decree is, within the scope of its operation, absolutely conclusive between these parties so long as it remains unmodified and unreversed.

The facts of the controversy are fully presented in the published report of the proceedings in the court below, so that it would be superfluous to reiterate them. For present purposes, it will be sufficient to regard the subject in its general aspect.

This was the status of the case upon the record: The bill sought a foreclosure and was exhibited by Elijah H. Cope, who had sold the premises to one Mickle and had taken the mortgage in question from him to secure part of the consideration money. Subsequently, Mickle sold and conveyed the property, with this encumbrance upon it, to Georgiana Manley, who is the present appellant. The bill exhibited these facts, and, after asking in the usual form for a foreclosure, proceeded to pray as follows, viz.:

“That if the proceeds of the sale of said premises in your orator’s said •mortgage described shall not be sufficient to pay and satisfy to your orator all the moneys due to your orator upon the said bond and the said indenture of mortgage, that the said Georgiana Manley and John J. Mickle may be decreed by the decree of this honorable court to pay the deficiency.”

Consequently, it is apparent from this statement that the legal proposition that the chancellor was then called upon to decide was whether the grantee of mortgaged premises became, by his purchase of them, personally responsible to the mortgagor for any residue of his claim that should remain unpaid after the exhaustion of the realty put in pledge. Upon the question thus propounded, it does not seem possible to doubt that the court was bound to respond, for both the subject-matter and the parties wére sub .judice. And, upon the ground of primary principles, it is equally certain that the judicial answer to the inquiry thus made was conclusive upon the litigants until such decree should have been reversed in a direct procedure for that purpose. Whether the decision of the chancellor on the point thus-raised was right or wrong is a matter of no account touching-the principle in question, for in either aspect the decree must have the finality of an estoppel in all collateral inquiry. To hold otherwise would involve the subject in the utmost confusion; it would supersede the use of demurrers, for all the judicial errors in the determination of the litigation could be passed by and subsequently be treated as nullities. In Mundy v. Vail, 5 Vr. 418, the rule prevailing on this subject was thus defined, viz.: “A decree in equity which is entirely aside of the issue raised in the record is invalid, and will be treated as a nullity even in a collateral proceeding;” but in the same case it was distinctly stated that “the judgment or decree of a court having jurisdiction over the controversy and the parties cannot be impeached for error except in a direct proceeding for that purpose.”

In view of this doctrine, that appears to be indisputable, the decree under criticism must be regarded as finally settling the controversy between these litigants so far as that controversy is embraced in it. But it does not comprehend the whole of that controversy, now presented, for, while it directs the mortgagor and his grantee to pay the deficiency in question, it is silent as to their right inter sese; it does not declare who is the primary debtor in this respect. It is that matter that is to be settled by virtue of the amendments that the order appealed from has provided and which are sanctioned, as above stated, by the court.

Let the decree be affirmed, with costs.

For affirmance — The Chief-Justice, Lippincott, Reed, Van Syckel, Bogert, Brown, Krueger — 7.

For reversal — Dixon, Magie — 2.


author: Van Syckel, J. Garrison, J.

text:
    Robert L. Barber, appellant, v. The West Jersey Title and Guaranty Company, respondent.
    1. Every person has the right of access to the public records of the county clerk’s office, without the payment of fees to the clerk, to examine any title in which he is interested, subject to reasonable rules and regulations.
    2. The respondent has the same right of access to the records when employed to examine and guarantee the title to a particular piece of property, but has not the right to occupy the office of the clerk for the purpose of making an abstract of the records in order to set up and establish a rival business to the clerk.
    3. Mandamus is the proper remedy to enforce such right.
    On appeal from an order of the court of chancery, advised by Vice-Chancellor Pitney, whose opinion is reported in West Jersey Title and Guaranty Co. v. Barber, 4 Dick. Ch. Rep. 474.

      Mr. David J. Pancoast, for the appellant.

      Mr. Thomas E. French and Mr. Frederic W. Stevens, for the respondent.
   The opinion of the court was delivered by

Van Syckel, J.

The respondent, complainant below, is a corporation of New Jersey organized for

“ the examination, insurance and guaranty of the title to lands and estates, or interests in lands in the several counties of this state, and the issuing of certificates, policies, contracts and undertakings therefor, upon such terms and conditions, restrictions and limitations as may be determined by said company.”

The defendant below, and appellant here, is the county clerk of the county of Camden.

The complainant in its bill claimed the right to have free .access to the public records and files in the office of said county clerk daily during the ordinary business hours of each business day, for the purpose of inspecting and making abstracts therefrom and memoranda of the contents thereof, and prayed an injunction restraining the said clerk from interfering with the complainant in the exercise and enjoyment of such, right. The -decree of the chancellor was in favor of the complainant’s claim, and an injunction was ordered accordingly.

The case of Lum v. McCarty, 10 Vr. 287, is relied upon to support this decree. In that case, Lum was employed to search a specified title, and this court held that he had a right of access to the records in the .clerk’s office, for that purpose, without the .payment of fees to the clerk.

But that case is not authority for the contention that anyone may occupy the offices of the county clerk until he has made -copies of all the records in the care of the clerk for the purpose of setting up a rival office, whereby he will be deprived of the •emoluments of his office.

It is conceded that the corporation complainant is entitled to •the same right of access to and examination of the public records •of. the county as an individual would be.

When employed to examine the title to any particular piece of property such corporation is subrogated to the right of its employer to have such access, •and the fact that it contemplates making a contract of guaranty of the title ■to the land in question does not detract from such right of access.”

Our act respecting conveyances, after providing for the recording of deeds in books to be furnished for that purpose, adds, to which books every person shall have access at proper seasons, and be entitled to transcripts from the same on paying •the fees allowed by law.”

Lum v. McCarty; supra, construed this provision to mean that fees were to be paid to the clerk only when he made re-searches himself, and did not preclude a person interested from making searches for himself. The law makes it the duty of the clerk to take care of the public records in his office, but gives him no special fees for such service. The only compensation to-him are the fees he receives in the ordinary course of his business for searches. To extend the right of search by others beyond this limit will deprive the clerk of the only remuneration he can have for the performance of this duty. In tbeabsence of clear expression, it should not be so enlarged by construction.

In other states, where the statutory provisions are less favorable to the public officer, the courts have denied the right of anyone to make at will an abstract of the official records.

The statute of Michigan provides that the register of deeds-shall furnish proper and reasonable facilities for the inspection and examination of the records in his office and for making-memorandums or transcripts therefrom during the usual business-hours to all persons having occasion to make examination of them for any lawful purpose.

In Webber v. Townley, 43 Mich. 537, the application was to* make an abstract of the titles to lands for the purpose of carrying on the business of furnishing such abstracts to the public for compensation.

The court said that the relators did not ask for an inspection of the record relating to lands in which they claimed to have • any interest, or concerning which they desired to acquire an interest; on the contrary, that the right sought for by the relators was to enable them to furnish information to third parties - for their own emolument, and that, inasmuch as the statute did not, in clear and unmistakable terms, grant such a right, it. would not be given by construction.

In the subsequent case of Burton v. Tuite, 78 Mich. 363, a. mandamus was issued to enforce the right of an individual to search a title in which he had a personal interest.

In Buck v. Collins, 51 Ga. 391, under a statute providing- that all books kept by a public officer shall be subject to the ■ inspection of all citizens,” the supreme court of Georgia denied the right of the relator to inspect and make abstracts to be used'; by him in his business for his own profit-.

The same construction was put upon a like statute in Kansas. Cormack v. Wolcott, 3 87 Kan. 391.

The Prince George’s County Abstract Company was incorporated by an act of the legislature of Maryland, which provided

tbat said corporation may make and may procure copies and abstracts from the public records of the state and gather information therefrom, and from other sources relating to conveyance of property, real and leasehold, make indexes of all deeds, mortgages, judgments, decrees and other records within the State of Maryland, and may examine and guarantee titles to property, real and personal.”

Under this liberal legislation, the supreme court of Maryland, in Belt v. Prince George’s Abstract Co., declared that said company had not the right to make searches and abstracts of title for their business without payment to the clerk of his statutory fees.

The ease of Lum v. McCarty carries the right of the public to its extreme limit.

The respondent, by force of its incorporation, has the same right to inspect the public records which may lawfully be exercised by an individual. Every person, without legislative authority, may engage in the business of examining and guaranteeing titles as fully as this company is empowered to do by its act of incorporation.

When such a person or a company, with such authority, is empowered to examine and guarantee a particular title, the clerk, upon demand, is bound to give access to the records for that purpose, subject to reasonable rules and regulations.

With this limitation upon the right of the relator, it seems clear that a court of equity is not the proper forum in which to enforce the performance of the duty which, in such a case, falls upon the custodian of the records.

“ The doctrine that a court of equity will not act where there is a remedy at law, is fundamental.” New York &c. Railroad Co. v. Montclair, 2 Dick. Ch. Rep. 593.

The proper province of writs of mandamus is to enjoin the doing of particular acts, and not to constrain a person to regulate his whole course of conduct according to some general principle. Rosenfeld v. Einstein, 17 Vr. 479.

In this case, the duty of the clerk being restricted to the performance of a specific act, a complete remedy will be afforded by the writ of mandamus. The rights of the parties being settled, if the clerk refuses to accede to a proper demand made upon •him, the court of law may impose such a penalty as will command obedience to the law.

It may also be within the power of the court to restrain the •company from improperly using its privilege, as well as to coerce the clerk to permit its enjoyment.

In our opinion, the decree below should be reversed, with costs.

Garrison, J.

(concurring).

I vote to reverse upon the single ground that the right of respondent, under color of its incorporation, to engage in an organized competition with the county clerk in the business of making searches and charging for certificates thereof, is not the proper subject of protection by injunction.

In so far as the opinion extends this rule to the respondent’s business of “ insuring titles to land,” I dissent.

For reversal — Dixon, Garrison, Liprincott, Reed, Van Syckel, Bogert, Brown, Krueger, Sims — 9.

For affirmance — Magie—1.


author: Dixon, J.

text:
    West Jersey Traction Company, appellant, v. Camden Horse Railroad Company, respondent. Charles W. Scott et al., appellants, v. Camden Horse Railroad Company, respondent. Charles W. Scott et al., appellants, v. Camden Horse Railroad Company, respondent.
    1. The special act of March 11th, 1872 (P. L. of 1872 p. 512), which authorizes the Camden Horse Eailroad Company to build a railroad or railroads on “any public road or highway extending from the city of Camden unto tiie county of Camden,” does not empower the company to build a rail-toad Upon a public highway, no part of which touches the city of Camden; but does empower it to build more railroads than one upon the highways mentioned in the act.
    2. A municipal consent to the laying of “ a street railroad ” in and along the streets of the municipality, is not a consent to the laying of two distinct street railroads.
    3. When a statute requires “the consent of the township committee” to legalize the laying of a street railroad in the township, it is necessary that the ■consent should be given when the members of the committee or a majority of them are assembled in corporate meeting.
    4. The declarations of individual members of a township committee are not 'legal evidence to prove prior acts of the corporate body, nor is the public •estopped by such declarations.
    5. Under the Traction Companies act of March 14th, 1893, a municipal •consent to “ the location of tracks” is invalid if it does not define the position •of the tracks in the street.
    6. Under the act of March 9th, 1893 (P. L. of 1898 p. 144), the consent of -the township committee is necessary to legalize the construction of street rail-toads in any township.

      7. If a company has legislative power to build a railroad on a designated street, provided the municipal authorities consent thereto, and it commences to build such railroad without municipal consent, the municipal authorities cannot grant to another company the exclusive right to build a railroad in that street, without giving to the first company notice and an opportunity to-be heard.
    On appeal from decrees advised by Vice-Chancellor Pitney,, whose opinion is reported in West Jersey Traction Co. v. Camden Horse Railroad, Co., 7 Dick. Ch. Rep. 452.

      Mr. Thomas E. French, Mr. Mark R. Sooy and Mr. LindleyM. Garrison, of counsel for the West Jersey Traction Company,, appellants.

      Mr. Jonas S. Miller and Mr. Thomas E. French, of counsel with Charles W. Scott et al.

      Mr. Edward A. Armstrong, Mr. David J. Pancoast and Mr.. Thomas N. McCarter, of counsel for the respondent.
   The opinion of the court was delivered by

Dixon, J.

On June 21st, 1893, the West Jersey Traction Company filed-a bill of complaint to restrain the Camden Horse Railroad Company from constructing a street railway in the township of' Stockton, Camden county, from the bridge over Cooper's creek, which divides the township from the city of Camden, along State street to Fourth street, and along Fourth street and the-River road to the line between Stockton and Pensaukentownships. The traction company based its claim upon the ground that by certain proceedings stated in the bill it had become invested with an absolute and exclusive right to lay its tracks along said streets, and that the construction and operation of a railroad thereon by the Camden company would be an invasion of the complainant’s right and would cause the complainant irreparable injury.

On August 14th, 1893, the Camden Horse Railroad Company filed a bill of complaint, and on August 17th, 1893, it filed another bill of complaint, the object of which bills was to enjoin the West Jersey Traction Company, the inhabitants of the township of Stockton, in the county of Camden, and the members of the township committee of said township, from interfering with the construction of a street railroad along Fourth street, in said township, by the Camden company.

After answers filed by all the defendants, these causes were heard together, and resulted in decrees dismissing the bill of the ■traction company, and granting to the Camden company the relief for which it prayed.

The traction company appeals from the decree dismissing its bill, and also from the decree rendered on the bill filed August 17th, in which it was a defendant; the township corporation and the members of the township committee appeal from the decrees rendered on the bills filed August 14th and August 17th, in both ■of which they were defendants.

In disposing of the questions raised by these appeals, it is convenient to consider first the right of the Camden company to ■construct a street railway along Fourth street, as claimed in its bills.

The company was chartered by act of March 23d, 1866 (P. L. of 1866 p. 6/¡.O'), which empowered it to build and operate a railroad on certain streets within the city of Camden only; a supplement to the charter, approved April 2d, 1868 (P. L. of 1868 p. 688), likewise confined it to the city of Camden; another supplement, passed March 11th, 1872 (P. L. of 1878 p. 518), authorized the company

“ to build, maintain and use a railroad or railroads on any public road or highway in the city of Camden, or on any public road or highway extending from said city into the county of Camden.”

Upon the last clause of this supplement the company bases a right to build a railroad along Fourth street.

We cannot concede this claim — Fourth street is not a road •or highway extending from the city of Camden into the county.” It lies wholly in Stockton township, and no part of it touches-the city of Camden. True, it crosses State street, which extends-out of the city into the township, and it ends in Federal street,, which also extends out of the city into the township; but it is as distinct from either State street or Federal street as any two-intersecting streets can be from each other. To support this claim of the company, we must interpret the language of the statute as though it read that the company might build “ a railroad or railroads extending from Camden city into the county om any road or highway,” an interpretation which would require greater latitude of construction than is permissible in public-grants. The legislature defined the highways which the company might use, not the railroads, and the company cannot go-beyond the terms of the definition.

On April 5th, 1878, an act was passed (Rev. Sup. p. 868)< authorizing certain street railway companies to extend their-tracks in any county,

“provided the consent of the township committee * * * of the township, upon the streets or roads of which it is proposed to lay such tracks, shall! first have been had and obtained.”.

Under this act also the company contends it is entitled to lay its tracks along Fourth street in pursuance of a consent given by the township committee on May 12th, 1892, and it produces-a writing of that date, signed - by the three persons who then-composed the committee, certifying that permission had been and' thereby was granted to the Camden Horse Railroad Company “ to lay and Operate in and along the streets, roads, avenues and highways of the township of Stockton, a street railroad.”

Passing by the questions whether this statute is special and’ so unconstitutional, and whether the Camden company is embraced within its provisions, we think that, according to the-terms of the above certificate, only one street railroad was authorized, and that the authority was exhausted by the construction shortly afterwards of the Merchantville line. The fact that the language of the certificate is broad enough to embrace-all the highways in the township does not counteract the restrictive force of the words “ a street railroad,” since a single street railroad may traverse any number of streets. The evidence is that, when this certificate was signed, the Camden company had in contemplation the immediate construction of a railroad through the township from the city of Camden to Merchant-ville, and that forthwith it built such a railroad, which was completed during the summer of 1892, and has been in operation ever since. The proposed railroad along State and Fourth streets is entirely distinct from this Merchantville line. Under the terms of the certificate, the company had the right of selection among all the highways in the township for the building of “ a street railroad,” but the selection being once made and the railroad constructed, the right ended. Morris and Essex Railroad Co. v. Central Railroad Co., 2 Vr. 205; Allen v. Monmouth Freeholders, 2 Beas. 68. A consent that the company might, at all times thereafter, lay as many railroads as it chose on any highways within the township, would, even if legal, be so unreasonable. that it could not be judicially inferred where it was not couched in unquestionable terms.

But, even if the language of this instrument were as bi’oad as the Camden company contends for, we would still be of opinion that the company’s claim must be denied, because it appears that the consent so expressed was not the lawful consent of the township committee.

The second section of “An act concerning townships and township officers,” approved April 21st, 1876 (Rev. p. 1202), provides that the clerk of the township shall act as clerk of the township committee and keep a record of its proceedings and record the same in the town-book. The town-book of the township of Stockton contains no record indicating that the committee ever gave the consent alleged. In view of the public duty of the town clerk, the absence of such a record shows, prima facie at least, under the maxim, “Omnia rite acta prcesumuntur,” that no consent was given by the committee. This presumption of fact is not rebutted by the proofs. According to the evidence the certificate above mentioned was signed by each of the three subscribers in the absence of his fellows. As the statute requires the consent of the township committee,” it. was essential to a valid consent that it should be given when the members or a majority of them were assembled in corporate meeting. Schumm v. Seymour, 9 C. E. Gr. 143; 19 Am. & Eng. Encycl. L. 467. Hence, this certificate cannot be itself the statutory consent. It is argued, however, that since the certificate states that permission had been granted, it is evidence from which the giving of a joint consent at some previous time may be inferred. But this position is untenable, for the reason that the declarations of the several members of the board, whether oral or written, are not, by any statute or by any legal rule, admissible to prove prior acts of the corporate body. The testimony of witnesses at the hearing favors rather than repels the belief that no consent was ever voted by the committee when assembled as a body.

But it is further insisted that, as the Camden company acted upon the supposition that this certificate was the requisite consent, or was conclusive evidence of it, the public authorities are estopped from denying such consent. The answer to this is that neither for the purpose of giving consent, nor for the purpose of making evidence that consent had been given, were the members of the committee, when separated, the l’epresentatives of the public; their conduct, then, was that of private individuals. Moreover, the legislature having provided that the official proceedings of the committee should be recorded in the town-book, the Camden company was not justified in relying on unwarranted assertions as to the acts of the committee, and the public cannot be estopped thereby. Kean v. Elizabeth, 26 Vr. 337.

"With respect to the implied consent growing out of the alleged approval by the township committee of a grade map of Fourth street, in July, 1893, it suffices to say that, previously, the traction company had applied to the committee for permission to construct a street railroad along that street, and the committee had granted or attempted to grant such permission, and that, under these circumstances, a subsequent consent to b.uild such a railroad on the same street could not lawfully be given to the Camden company without notice to the traction company. West Jersey Traction Co. v. Board of Public Works of Camden, 27 Vr. 431; affirmed on error, March Term, 1895.

Our conclusion is that the Camden company has never ac•quired a perfect right to construct a street railway along Fourth street, and therefore that the decrees rendered on the bills filed ■by it on August 14th and August 17th should be reversed and ■the bills dismissed.

We come now to the questions raised by the bill of the West •Jersey Traction Company, the first of which is whether that company has shown itself to be invested with an absolute and exclusive right to lay tracks from the bridge over Cooper’s creek along State street to Fourth street, and along Fourth street and the Eiver road to the easterly line of Stockton township.

The company was formed on May 13th, 1893, by the filing with the secretary of state of a certificate of incorporation under the Traction Companies act of March 14th, 1893. P. L. of 1893 p. 303. Simultaneously with the filing of this certificate there were filed in the same office a description and map of six routes of railway proposed to be- built by said company, one of which covered the streets in question; and on June 20th, 1893, the company filed with the secretary of state a copy of a resolution which, on the previous day, had been adopted by the Stockton township committee, purporting to give the committee’s consent to the location of tracks ” by the traction company along those •streets, and also an acceptance by the company of such location. This consent was evidently designed to be the consent to the location of tracks provided for in the seventh section of the statute last mentioned, but as it utterly fails to indicate the location of the tracks in the streets named, it is invalid as a consent under that section, for the reasons stated in Theberath v. Newark, 30 Atl. Rep. 528. It may be, however, in substance, a consent to the location of the route under section six, and we will proceed to consider it in that aspect. According to the statute, such' a con•sent, if properly granted, secures to the company an exclusive right for a limited time to build the line of railway indicated; that is, an exclusive, right to the route, subject, of course, to the •obtaining of municipal consent to the location of tracks thereon. The question therefore arises whether this consent to the location* of the route was properly granted.

The statute does not require notice to be given of an application for consent to the route, and as such consent does not usually affect private rights, notice to particular persons is not generally necessary. Kennelly v. Jersey City, 30 Atl. Rep. 531. But, in the present instance, we think the relations of the Camden Horse-Railroad Company to the State street portion of the route, at least, were such as to require that notice should be given to that company before this application could lawfully be granted.

As already stated, the supplement to the charter of the Camden, company, passed March 11th, 1872, authorized the company

“to build, maintain and use a railroad or railroads on any public road or highway in the city of Camden, or on any public road or highway extending from, said city into the county of Camden.”

State street is a public highway extending from the city into-the county of Camden, and was therefore within the range of this grant. The traction company contends that, under this-supplement, the Camden company obtained the right to use only one road leading from the city into the county, and that by building the railroad on Federal street from the city through the-township of Stockton to Merchantville, in 1892, it had exhausted the right. But we deem this interpretation of that statute too-strict to satisfy its terms. Its language is “ to build a railroad or railroads on any public highway.” Now, although the words “ any highway ” more aptly denote the selection of a single highway than the selection of several, yet it is not incapable of the-latter signification, and to accord with the context in this statute,, which authorizes the building of railroads, it must have the broader meaning, or else we must suppose that the legislature contemplated the construction of several railroads on the same highway by the same company. That supposition cannot be-entertained, and therefore it follows that the power to build a. railroad on State street remained.

On March 9th, 1893, the legislature passed an act to prohibit the laying or construction of any street or horse railroad along; the streets of any municipality of this stale without the consent of the governing body having the control of the streets in such-municipality, which act repealed all acts, general, special or local,, inconsistent with its provisions. P. L. of 1893 p. 144- This act embraces townships (Reed v. Wiley, 17 Vr. 473), and in view of the act of March 8th, 1893 (P. L. of 1893 p. 130), increasing the powers of township committees, there can be no doubt those-committees are in townships the governing bodies whose consent is required. At the time this act was passed the Camden company had done nothing towards the laying of a railroad along State street, in Stockton township, and as the supplement of 1872, authorizing it to build such a railroad, was subject to-alteration and repeal, it is clear that after March 9th, 1893, the company could not lawfully construct a railroad in that street without the consent of the township committee; it being within, the reserved power of the legislature thus to modify the franchise, which depended wholly upon the repealable statute and under which no property rights had been acquired. Zabriskie v. Hackensack Railroad Co., 3 C. E. Gr. 178; Railroad Co. v. Maine, 96 U. S. 499; Greenwood v. Freight Co., 105 U. S. 13, 21.

It thus appears that, on June 19th, 1893, when the township-committee voted this consent to the traction company, the Camden company had legislative authority to build a railroad on State street, in the township, provided the committee consented thereto. It also appears that, before that time, the Camden company had actually commenced to construct a railroad on that street, and had proceeded so far in the work as to justify the-inference that the township committee had become aware of its-design. Under these circumstances, the committee could not lawfully confer the exclusive right to build such a railroad on the traction company without giving to the Camden company notice and an opportunity to be heard. West Jersey Traction Co. v. Board of Public Works of Camden, ubi supra. Ho such opportunity was afforded. A certain notice had indeed been published in a local newspaper, that the township committee would meet at the time stated to consider the petition of the traction company for the location of its tracks in the township, conformably to the routes described in the office of the secretary of state, but it does not appear that the Camden company had actual notice of that publication, and the statute does not make it constructive notice of an application for a consent to the route. Even if the publication had come to the knowledge of the Camden company, it was too indefinite (the case being one where special notice was necessary) to inform that company of a purpose to consider a route which included State street. It should have been sufficiently explicit to indicate to the company that its interests were involved. Vantilburgh v. Shann, 4 Zab. 740; Coar v. Jersey City, 6 Vr. 404; Bowker v. Wright, 25 Vr. 130.

Consequently, we think the consent given was invalid as to State street, and since the route approved was an entirety, the consent must wholly fail.

For this reason, the traction company had not acquired the right upon which it based its claim for relief, and its bill was properly dismissed.

West Jersey Fraction Co. v. Camden Horse Railroad Co.:

For affirmance — The Chief Justice, Dixon, Gummere, Lippincott, Magie, Reed, Yan Syokel, Bogeet, Sims — 9.

For reversal — None.

Yote on other appeals:

For reversal — The Chief Justice, Dixon, Gummere, Lippincott, Magie, Reed, Yan Syckel, Bogert, Brown, Sims — 10.

For affirmance — None.


text:
    William M. Higbie, appellant, v. Edward L. Morris et al., executors of Rosetta E. Higbie, respondents.
    Testatrix devised to her granddaughter all her right, title and interest in certain land, the land being then, and at the death of testatrix, subject to mortgages securing two bonds of the testatrix. — Held, that the personal property of testatrix was not discharged from its primary liability as a fund for the payment of these bonds in exoneration of the mortgaged premises. — Held, 'also, that the residuary real estate was not chargeable with these debts in exoneration of the mortgaged premises, there being in the will no evidence of an intention that it should be so charged.
    On appeal from a decree advised by Vice-Chancellor Green, who delivered the following opinion :
    The cause was heard on bill and answer.
    Mrs. Rosetta E. Higbie, late of Cranford, died April 11th, 1892, leaving a last will and testament, dated November 10th, 1888, which was duly proved before the surrogate of Union county, by the complainants, the executors therein named. She died seized of a tract of land in Plainfield, subject to two mortgages given by her, one to secure the payment of $1,500 and interest, and also the other of $300 and interest, and also a tract of land in Cranford, subject to a mortgage given by her to secure the payment of $2,500 and interest.
    After several legacies of specific articles and money, the will provides:

      “ The foregoing money bequests are to be paid without interest and entirely from money or negotiable securities belonging to my estate at the time of my death, after the payment of all my just debts and funeral expenses; and if, after such payments, there shall not be sufficient residue to pay said money legacies in full, then, in that event, they are to abate pro rala. I give, devise and bequeath unto my granddaughter, Mary L. Higbie, all my right, title and interest in and to the premises at the corner of Third and Ninth streets, in the city of Plainfield,”
    New Jersey, and to her heirs and assigns forever.
    “All the rest, residue and remainder of my estate, both real and personal, whatever the same may be, I give, devise and bequeath unto my grandson, William M. Higbie, to his heirs, executors, administrators and assigns forever,”
    charging said residuary legacy with certain expenses as to the headstones or marble slabs marking the graves of his father and grandfather.
    The executors ask instructions as to whether the mortgage debts are to be paid out of the personal estate or whether the devisees took the lands cum onere. There is no dispute that the general rule is that the personal estate is the primary fund for the discharge of the debts, and is to be first applied and exhausted even to the payment of debts with which the real estate is charged with mortgage. 4 Kent Com. 420; Whitehead v. Gibbons, 2 Stock. 230; Keene v. Munn, 1 C. E. Gr. 398; McLenahan v. McLenahan, 3 C. E. Gr. 101; Slack v. Emery, 3 Stew. Eq. 458. It is true that this rule is within the control of the testator and is not applicable when his intention to the contrary is either expressed or clearly implied. That intention must be to exonerate the personality. One simply to charge the realty is not sufficient. Whitehead v. Gibbons, 2 Stock. 220, 232.

    It is ingeniously argued by counsel for the residuary legatee that such intention is clearly implied from the terms of the devise of the Plainfield lands — “all my right, title and interest” —which, it was claimed, was only the equity of redemption, and that it is a devise of the lands subject to the lien of the mortgages; that to free the devise from the burden would give the devisee a right more valuable, a title more extensive and an interest of greater worth than that of the testatrix. But it has been held that a devise subject to a mortgage will not exonerate the personal estate of its primary liability to pay the mortgage debt, on the ground that the words used are only descriptive of the property as it is, the master of the rolls, in Serle v. St. Eloy, 2 P. Wms. 386, saying that the devise of the estate subject to the encumbrance is no more than what is implied, for the testator could not do it otherwise. Astley v. Earl Tankerville, 1 Cox 82; Bickham v. Cruttwell, 3 Myl. & C. 763; Hawk. Wills 379; 3 Jarm. Wills (R. & T.) 470; 2 Wms. Exrs. (6 Am. ed.) 1694; 1 White & T. Lead. Cas., notes to Duke of Ancaster v. Mayer (T. B. S.), 723, 752. The personal estate is stated by the bill to be inventoried at $3,278.95, its true value. This, it is to be assumed, includes the articles specifically bequeathed.
    The debts other than those secured by mortgage amount to $600. The mortgages on the Plainfield property devised to Mary L. Higbie amount to $1,800 and interest] that on the ■Cranford property, passing under the residuary clause, to $2,500 •and interest] the pecuniary legacies to $300. These last are ■directed to be paid out of money and negotiable securities after the payment of debts. This means, I think, that these legacies are to be paid from such fund after debts other than those secured by mortgage have been discharged. This is in keeping with the rule applicable to the condition of this estate. The personal estate being inadequate to meet the debts, mortgage and unsecured, and the legacies, general and specific, how are the • assets to be marshaled? As it does not appear how much of the inventory valuation represents the articles specifically given, I am unable to determine if there is enough money and negotiable ■ securities to pay unsecured debts and pecuniary legacies.
    Where the decedent has secured a debt by way of mortgage on the land devised, after the exhaustion of the general residu- . ary fund, the devise of the mortgaged lands cannot call for contributions either on the general or specific legatees. Thomas v. Thomas, 3 C. E. Gr. 356; 2 Rop. Leg. 957; 3 Jarm. Wills (R. & T.) 473.

    I am of opinion that the executors should apply the assets to the payment and discharge, first of the unsecured debts, next of the specific and pecuniary legacies, and apply the balance to the payment of the mortgages on the Plainfield property, as the specific devise has a prior claim over the residuary.

      Mr. Foster M. Voorhees, for the appellant.

      Mr. Oraig A. Marsh, for the respondents.
   The opinion of the court was delivered by

Dixon, J.

By her will, Rosetta E. -Higbie, gave several bequests of" specific articles and of sums of money, and then declared

“the foregoing money bequests are to be paid without interest, and entirely-from money or negotiable securities belonging to my estate at the time of my death after the payment of all my just debts and funeral expenses, and if after such payment there shall not be sufficient residue to pay said money legacies-in full, then in such event they are to abate pro rata.”

Her will then proceeded:

'“ I give, devise and bequeath unto my granddaughter, Mary L. Higbie, all’ my right, title and interest in and to the premises at the corner of Third and-Ninth streets, in Plainfield, and to her heirs and assigns forever.
“All the rest, residue and remainder of my estate, both real and personal,, wherever the same may be, I give, devise and bequeath unto my grandson, William M. Higbie, to his heirs, executors, administrators and assigns forever.”'

When the will was made and when the testatrix died, thePlainfield property was encumbered by two mortgages securing personal bonds of the testatrix.

On bill filed by the executors, the chancellor decreed that Mary L. Higbie was entitled to have these bonds paid out of the ■ residuary estate, both personal and real. From this decree William M. Higbie appeals.

On reading this will with the sole object of discovering the • mind of the testatrix, and without regard to any legal rules-which may have been established for the construction of such instruments, these two purposes seem to be plainly implied — one, that her just debts should be paid out of her money and negotiable securities, the other, that her granddaughter should have • not necessarily an absolute title to the Plainfield property, but the right, title and interest of the testatrix therein. When we - remember that the right, title and interest of the testatrix in the Plainfield property consisted of the fee encumbered by two of her just debts, a doubt at once arises whether she intended those debts to be included among the debts that were to be paid out of her money and negotiable securities, or intended them to remain charged upon the Plainfield property only.

The most satisfactory solution of the doubt thus engendered is found in the legal rule, that the personal estate of a testator is the primary fund for the payment of his debts, even though the debts be secured by mortgage upon his realty, and that the personalty will not be exonerated from this primary liability merely because the testator has evinced a purpose to charge his debts upon his real estate, unless lie has clearly indicated an intention to discharge his personal property therefrom. Whitehead v. Gibbons, 2 Stock. 230; Keene v. Munn, 1 C. E. Gr. 398; Shreve v. Shreve, 2 C. E. Gr. 487; Slack v. Emery, 3 Stew. Eq. 458; 3 Wms. Exrs. (R. & T.) 161, *1578.

While therefore this will does not show that the testatrix intended that her granddaughter should have the Plainfield property discharged of the mortgage debts, it cannot be said to show that she designed to have her personal estate relieved of its legal liability as a primary fund for the payment of those debts; and consequently the residuary legatee can take only so much personal property as may be left after the mortgages are satisfied.

But with regard to the residuary real estate, a different result must be reached.

Aside from statutory provisions, executors have no power to use the lands of the testator for the payment of his debts, except so far as an intent to give them such power appears in the will. The present will gives the executors no power whatever to devote any portion of the realty to the payment of the debts secured by mortgage on the Plainfield property. There is no general direction that debts shall be paid, from which to infer a charge of the debts upon the residuary realty. Except the legal rule as to the payment of debts out of personalty, above mentioned, there is nothing to repel the implication, contained in the form of the devise to Mary L. Higbie, that she was to take the Plainfield property encumbered with the mortgage debts. As between her and the residuary devisee, the law is indifferent, and therefore this implied intention of the testatrix should prevail.

So far as the decree below subjects the residuary real estate to the payment of these debts in exoneration of the mortgaged premises, it must be reversed.

For reversal — Dixon, Garrison, Lippincott, Magie, Reed, Van Syckel, Bogert, Brown, Krueger, Sims — 10.

For affirmance — None.