text:
    Public Service Gas Company v. The Mayor and Common Council of the City of Newark and Public Lighting Service Corporation.
    [Submitted June 27th, 1916.
    Decided July 20th, 1916.]
    1. A gas company enjoying a franchise to lay and maintain mains in city streets is under the duty to furnish gas to the citizens and the city.
    2. The charges of a gas company for gas must be reasonable.
    3. When a gas company demands an unreasonable price from a city for gas, the city may offer a reasonable price, and upon refusal of the company to furnish gas at that price, the city may bring mandamus, where the supply has not yet been commenced, or may sue in equity to enjoin stoppage of supply being furnished.
    4. A city'cannot compel a gas company to furnish gas for street lamps supplied and lighted and extinguished by a foreign lighting corporation furnishing the city with lighting equipment, and to depend upon and accept the foreign company’s records of the gas consumed as the basis for compensation, these records to be based on estimates, or else, if the records are not satisfactory to it, to install meters or employ inspectors at its own expense to check up or measure the quantity of gas consumed, since such method does not ascertain with reasonable certainty the quantity of gas consumed, and the gas company is not obliged to go to the extra expense of meters or inspectors unless compensated therefor.
    On order to show cause why injunction should not issue. Heard on bill and affidavits of complainant and answering affidavits of . the defendants.

      Mr. Frank Bergen, for the complainant.

      Mr. Spaulding Frazer, for city of Newark.

      Mr. Jerome T. Gongleton, for the defendant, Public Lighting Service Corporation.
   Foster, V. C.

The complainant has- been since October 1st, 1909,. and still is, engaged in supplying gas in the city of Newark, for public and private use, and lighting some of the public streets of the city with gas, by means of posts, lamps and burners, connected with its mains by service pipes.

It. is the only company engaged in that business in the city, and it is the owner of gas works and many miles of gas mains in the city.

Gas is furnished by complainant to consumers in the city of Newark by means of meters at a uniform standard’ of prices, which is on file with the board of public utility commissioners of the state, and no gas is furnished to any consumer unless measured by meter, except in cases where complainant lights the streets and other public places of the city under contract.

The contract between complainant and the city for municipal lighting expired March 1st, 1916.

About May 15th, 1916, the city awarded a contract to the defendant, Public Lighting Service Corporation, for the equipment, with burners, of about two thousand lamp posts, owned by the city, for the supplying of street gas light. By the terms of this contract the defendant, Public Lighting Service Corporation, agreed for the period of about three years from the date thereof, to supply and maintain certain standard burners upon the city’s posts, and to light and extinguish these lamps according to the specifications of the contract. ■

This contract was awarded after the city had advertised for proposals for street lighting in two forms, viz.:

The first proposal asked for the supplying of gas lamps, the maintenance thereof and the lighting and extinguishing of the same; and secondly, for the supplying of gas at such fixtures.

On April 6th, 1916, complainant sent the city a proposal for the maintenance of two thousand or more street gas lamps, including the supplying of gas therefor, and providing the necessary fixtures in accordance with the contract between it and the city which had recently expired, and offered this service upon its standard rates filed with the public utility commissioners. This proposal was not in accordance with the advertised specifications of the city and was not considered as a formal bid by the city authorities.

As a result of the contract between the city and the lighting corporation, on June 5th, 1916, the equipment of complainant on the lamp posts was directed by the city authorities to be removed forthwith, so that the equipment of the Public Lighting Service Corporation could be installed in its place. Complainant objected to the installation of other lamps than its own, to use gas from its mains, unless an agreement was previously made for installing meters at suitable places to lie provided by the city to measure the quantity of gas used by the substituted lamps.

Under date of June 16th complainant was again notified by the city engineer to remove its lanterns and fixtures from approximately two hundred lamp posts, the work of removal being directed to commence the following morning at eight o’clock, and complainant was at the same time notified that if it desired that the gas'consumed by the substituted burners should be measured by meter, that it immediately install meters upon the services supplying these lamps.

Complainant, in acknowledging the receipt of this last notice, again objected to the installation of the lighting corporation’s lamps, to use gas from it mains, until the city had provided, as previously requested, suitable places in which meters could be installed.

About June 17th the defendant, Public Lighting Service Corporation, removed over fifty of complainant’s lamps and substituted its own lamps therefor, and lighted and kept the same lighted on the nights of June 17th and 18th, with gas from the mains of complainant, and it is admitted that the defendants intend, unless restrained, to remove all of complainant’s lamps from the city’s posts and substitute other lamps of the lighting corporation’s in their place, and have these lights supplied by gas from complainant’s mains. On this showing, a rule to show cause with interim restraint was issued by Vice-Chancellor Howell, preventing defendants, from taking gas from complainant’s mains except on the conditions stated therein.

The defendant, Public Lighting Service Corporation, is a corporation of the State of New York, authorized to manufacture, furnish, maintain, light and extinguish gas lamps for street lighting purposes, but it has no franchise for carrying on a public lighting business or for supplying gas.

It has filed a certificate to authorize it to do business in this state. It claims to own or control a lamp, or burner, equipped with a governor to regulate the supply of gas and to insure uniformity thereof, and in the opinion of its engineers, the gas consumption, as determined by means of governors, is as accurate as the measurement of gas by meters.

The dual contract system, which the city of Newark desires to adopt for street lighting, whereby one contract calls for the equipment of the lamps and the lighting and extinguishing of the same, and another contract provides for supplying gas to such lamps, is in force, to some extent, in New York, Chicago and a number of other cities, and the average consumption of gas in these cities ranges from three to three and five-tenths- cubic feet per lamp per hour, and it is claimed by defendants tjiat their lamps are of such a character that each lamp in effect constitutes a meter, provided the number of hours which each lamp is burning is ascertained, and that the construction of the governors on these burners is such that a uniform flow of gas is maintained to the lamps, despite variances in pressure from one and five-tenths to six inches water pressure, and the defendants further claim that the pressure maintained by complainant in Newark never shows a variance as great as this, and that each of their lamps installed, or to be installed, in Newark will consume a uniform quantity of gas amounting to three and three-tenths cubic feet per hour, and that in order to ascertain the quantity of gas consumed, it is only necessary to know the total number of lamps and the total number of hours during which they are burning.

Complainant claims that the gas used by defendants cannot be measured accurately by merely ascertaining the' quantity that passes through a burner at a particular time, for the following reasons, among others- — first, that the pressure of gas in the mains of a gas company, and particularly in Newark, varies in different localities, according to t-lie elevation of the land; second,■ that the pressure varies according to the distance from the holders or source of supply; • third, according to the quantity that is being taken throughout the territory served by the company at a given tune, which causes variations of pressure; and fourth, according to the variation in the opening of the burner, sometimes, the flow of gas being reduced by carbon or other deposits, and at other times when the opening is unobstructed, a much larger quantity of gas will pass through. And it further claims that by the contract between defendants, complainant will have no control or supervision over the number of hours the lamps will burn,, or the time when its gas will be turned on or off from the lamps already installed, or from the two thousand lamps which it claims defendants intend-to install; that the lamps so installed cannot all be turned on or off at the same time, and that in consequence the quantity of gas used would not be the same on any two days; that there is no certain way by which the quantity of gas consumed by these lamps can be ascertained without meters, and that there is no practical way of installing meters on or near the lamp posts.

Defendants admit that these objections are “verbally true,” but are inaccurate as applied to the conditions in this case, because they claim the variances mentioned are not great enough to affect the accuracy of their governors, and because the reduction of the flow of gas by carbon or other deposit would not’ be injurious to complainant.

The situation presented is quite similar to that in the case of Public Service Corporation v. American Lighting Co. et al., 67 N. J. Eq. 122, except that in this case the city, instead of the lighting company, is the active litigant, although in that case Vice-Chancellor Pitney treated the defendants’ contention the same as if urged by the city alone, and applied to this contention, and decided the case by the test of reasonableness.

Applying the same test to the fact exhibited here, we find complainant in the enjoyment of a monopoly in street lighting by gas, in the city of Newark, under a contract which it evidently found profitable, and which, by its proposal to the city authorities it sought to continue; we find the defendant, Public Lighting Service Corporation, entering complainant’s field as a competitor, for part of complainant’s' contract with the city, and anxious to supersede complainant’s lamps and burners with lamps and burners of its own, and offering, it is claimed, this service at 'less cost to the city; we find the city of Fewark anxious to make this contract with its co-defendant, -believing it will obtain as good, if not better service, at a reduced cost to the city per year, and we find complainant contending that this saving to the city, if it occurs, will result from the illegal appropriation of its property without just compensation.

By reason of the franchise which complainant enjoys of laying and maintaining mains in the streets of the city to furnish gas, the obligation is imposed on it to furnish gas to the citizens of the city and to the municipality, but as Vice-Chancellor Pitney held in the case mentioned, “the right to demand and the obligation to furnish gas must be subjected to reasonable terms. One of those terms, is that a reasonable price shall be paid. But, as before remarked, the city is not at the mercy of the gas-producing company; for, if the latter demands an unreasonable price, the city may offer what it conceives to be a reasonable price, and in case the gas company refuses to furnish gas at that price, the city has its remedy in the courts either by mandamus, where the supply has not yet been commenced, or in equity for an injunction, where such supply is being furnished, to enjoin its stoppage.”

Prom the facts stated, it appears that this controversy has not reached the stage where the gas company has refused to furnish gas to the city, but that the, city’s insistmént is that complainant must furnish gas for the lamps supplied and lighted and extinguished by the city’s co-defendant, the lighting corporation, and that complainant must depend upon and accept the lighting company’s records of the gas consumed, as the basis for its compensation, without any rate being specified, unless we assume the rates of complainant on file with the public utility commissioners are to be accepted by the city for such purpose. And as the records of the lighting corporation are to be based on the estimated average consumption of gas by their burners of three and three-tenths cubic feet per lamp per hour, we are thus brought to the consideration of the real questions in this case, viz.: Are the demands of the city fair and reasonable when it insists that complainant must furnish gas to light all the lamps the lighting corporation may install under contract with the city, and that complainant must accept the records of the lighting corporation as to the quantity of gas consumed per lamp per hour, and also the number of hours each lamp was burning each night; or, as an alternative, that if such records are not satisfactory to complainant, it must then install meters to measure the quantity of gas consumed; or, that if it is not practicable to install meters, complainant, as a further alternative, must then accept defendants’ statement that the new lamps will only consume three and three-tenths cubic feet of gas per hour, and with this as a basis, that complainant can then employ a staff of inspectors to keep a record of the time when each lamp is lighted and extinguished every night.

All the parties recognize that as a basis for determining what is a reasonable price to be paid by the city for the gas it asks complainant to supply, it is essential to ascertain with reasonable certainty the quantity of gas consumed. This is usually done by means of gas meters, and these meters determine the quantity of gas used by all consumers in Newark, except the gas supplied for street lighting purposes, and gas for this purpose is supplied under contract, in which it is to be presumed the gas company adequately protects itself from loss by its control over the supply, and in the prevention of waste, as well as over the hours of consumption and like elements entering into the manufacture and sale of its product.

The method suggested by defendants for ascertaining the quantity of gas that will be consumed by each of the lamps they intend to install, is'open to the objection that it is based on an estimated average of the consumption per lamp per hour, said to be the result of experience covering a number of years in other municipalities, and which estimated average defendants claim would not be affected by the variation in pressure in complainant’s gas system. This claim, strongly disputed by complainant, appears to be largely a matter of engineering speculation based on data, about which we have no information. In every city in which it is claimed these burners of defendants have proven satisfactory to the city and the gas company, the defendants’ affidavits disclose that a definite contract has been entered into between the city and the gas company for the supply of gas to these lamps, on terms presumably mutually satisfactory. No such contract exists in this case, and none has been proposed. A further objection to defendants’ demand is the suggestion to have the quantity of gas consumed determined by records kept by the lighting corporation, the competitor in part at least of complainant.

What assurance has complainant that these records will be accurately or completely kept. It will be to the interest of the lighting corporation to show the smallest possible consumption of gas for satisfactory service; it will have no interest to stop waste, or to see to it that lamps are not lighted earlier or extinguished later than its contract with the city calls for; it will have every incentive to show results indicating as good, if not better service to the city, at less cost than formerly, and there will be nothing to show that this saving to the city, if it takes place, is not at complainant’s expense. The alternative suggested, if complainant does not like this method of ascertaining how much of its property defendants are taking, that it can install 'meters at any or all lamp posts and measure the gas consumed, is both impracticable and unreasonable. The city owns the posts and there is no receptacle in or near any of them in which a meter could be installed without danger of injury to it, or its possible destruction, or where the meters would be free from interference; furthermore, it has not been suggested bow complainant is to be compensated for the cost of furnishing and installing each of the two thousand meters that nmy be required for lamps the city may install. Complainant’s rates on file were evidently made without such expenditure as the installation of these meters would involve being contemplated, and no suggestion has been made by defendants regarding the rate complainant should charge the city, in case such meters were installed. The further suggestion of the defendants that complainant can, instead of installing meters, emplo}r a staff of inspectors to make a record of the hours when the lamps were lighted and extinguished, is also unreasonable, and would only, result in disputes and discord between the lighting corporation and the gas company, and in case their records did not agree, in trouble between the city and the gas company, and besides, no arrangement or rate has been suggested to reimburse complainant for the expenses involved in maintaining the corps of men that would be required for such purpose.

I do not find any of the methods suggested by defendants for compensating complainant to be certain, fair or reasonable. The city admits it is acting arbitrarily in the matter in removing complainant’s lamps from the posts and substituting those of the lighting corporation, and in demanding that complainant furnish gas for such lamps, and seeks to justify its action by the claim that complainant having a monopoly by its ownership of the only gas plant in the city, is also acting arbitrarily in refusing to make separate proposals or contracts for street lighting in the manner desired by the city.

This attitude of complainant does not alter the rights and obligations of the parties. Since the termination of its contract in March last,' complainant has continued to light the streets of the city with gas, and it can be compelled to continue for a proper compensation, to supply gas to the city for lamps which the city owns or controls. Such compensation must, however, be reasonable and just, and must be based on some method that will correctly ascertain the fair and reasonable value of complainant’s property taken by the city.

There has been nothing shown or suggested in the case to indicate that complainant is not ready and willing to furnish gas as desired to the city, or to the lighting corporation, if properly paid therefor; nor has anything been shown that would indicate that complainant is unwilling to enter into a contract for supplying gas-on terms and conditions similar to those prevailing in other municipalities, where the dual contract system for street lighting is in force.

Eor the reasons stated I will advise that the restraint be continued until the final hearing of the cause.


source: Caselaw Access Project

author: Foster, V. C.

license: Public Domain

text:
    Connecticut Mutual Life Insurance Company v. Adrianna S. Fields, executrix, &c., et al.
    [Submitted August 5th, 1916.
    Decided August 8th, 1916.]
    Under the law of New York governing an alleged gift inter vivos of a policy of life insurance, the delivery, whether actual or constructive, must be such as to divest the possession and title of the donor beyond his power to recall and to vest the donee with the control and dominion over the subject-matter of the gift, so that, where neither the policy nor the assignment thereof was delivered to the alleged donee or to anyone for her, but the donor retained possession of them and control over the policy and its proceeds and paid the premium, there was no completed gift of the policy.

      Messrs. Griggs & Baldwin, for the complainant.

      Messrs. Vredenburgh,' Wall & Ga/rey, for the defendantsclaimauts, Charlotte A. Cocks, Estelle Butts and Johu J. Fields.

      Messrs. King & Vogt, for the defendant-claimant, Adrianna S. Fields, executrix.
   Foster, V. C.

This is a bill of interpleader filed to have determined to whom the amount of an insurance policy for $5,000, issued by complainant on the life of John J. Fields, should be paid.

Decree was entered in favor of complainant on February 20th, 1916, and'the fund was directed to be paid into court. The facts established on the hearing are that on May 28th, 1866, the Connecticut Mutual Life Insurance Company issued to John J. Fields a policy of life insurance for $5,000, payable to his estate, in consideration of an annual premium of $192, which was regularly paid up to and including the year 1910.

Mr. Eields died on March 27th, 1910. After his death the policy of insurance was found in the safe in his home at Schooley’s Mountain, in this state, and to it there was attached by a pin a paper which read as follows:

“W. S. Dunham. Geo. Sherman.
“Connecticut Mutual Life Insubance Co.
“Assets — $35,000.00.
“Dunham & Sherman, General Agents,
“194 ¡Broadway,
“New Yoke:, Sept.. 4, 1874.
“In consideration of One dollar to me in hand paid the receipt whereof is hereby acknowledged I hereby assign, transfer and make over unto my wife Ann Fields the policy of insurance issued by the Connecticut Mutual Life Insurance Company on my life May 28th, 1866, and numbered 57366.
“Witness “J. J. Fields.
“Geo. Shebman.”

The Ann Eields mentioned in this paper was the first wife of John J. Eields, and the defendant Adrianna S. Eields was his second wife, and is the executrix of his last will and testament.

Ann Eields died November 11th, 1902, intestate, at her home in Brooklyn, New York, where Mr. Eields was living when the policy was issued in 1866, and where he continued to reside for a number of years thereafter. She was survived by her husband and three children — Charlotte A. Cocks, Estelle- Butts and John J. Eields — parties defendants and claimants to the fund, by virtue of the above-mentioned paper, which they claim assigned the policy to- their mother. The defendant Adrianna S. Eields claims the fund as executrix, of Mr. Eields’ will and as part of his estate.

In 1874, Mr. Eields was in financial difficulties and he surrendered all his life insurance policies except the one in question, and at this time Mrs. Cocks heard him tell her mother, speaking of this policy: “Mother, I leave you this; I will hold up this life insurance for you and the children; it is about all that will be left to take care of you if the crisis comes.” And later he told her, “You will have something left when I am gone,” and “Mother, I have kept the life insurance for you and the children; I am afraid that will be all that will be- left for you.”

There was no evidence of the actual delivery of the policy, or of the paper purporting to assign it, to Mrs. Ann Fields, or to anyone for her.

It. was stipulated at the hearing that George Sherman, whose name appears as subscribing witness to the signature of John J. Fields on the above-mentioned paper, was the general agent of the complainant at the time, and that he died on May 1st, 1877.

And it was further agreed that the policy, by its terms, did not require that the insurance company should be advised of any assignment of it. And it does not appear that the company was advised of this attempted assignment.

Counsel for all parties agree that as all the transactions relating to the issuance of the policy, and the attempted assignment and gift of it, took place in Yew York, the validity of the assignment and gift is governed by the law of that state.

On behalf of the claimants Charlotte A. Cocks, Estelle Butts and John J. Fields, it is contended that the paper signed by Mr. Fields, in the presence of Mr. Sherman, on September 4th, 1874, is a valid assignment of the policy, and that the proceeds thereof are therefore payable to them as the next of kin and representatives of their mother, Mrs. Ann Fields, the assignee of the policy. The argument supporting this contention is, that although it was not necessary to notify the company of the intended assignment, Mr. Fields took the precaution to bring the general agents of the company into the transaction, by writing the assignment on one of their letter-heads, and by having Mr. Sherman, one of the general agents, witness his signature thereto. From this it is assumed the company had notice of the assignment, and that such notice constituted a constructive delivery of the policy and assignment and made the gift thereof complete.

The answer to this is, that there is nothing in the record to show that Mr. Sherman had the, slightest knowledge of the contents of the paper to which he put his name as a subscribing witness; and if it be assumed that he had such knowledge, there is nothing to show that his agency was of such nature that knowledge to him as agent would import such knowledge to his principal, the insurance company.

It is conceded by counsel for all the parties that delivery is a necessary requisite of a valid gift inter vivos, and that such delivery may be actual or constructive; and, as it is admitted that no actual delivery was made in this case, the three children of Mrs. Ann'Fields must establish a constructive delivery of the policy and assignment as the basis for their claims to this fund.

■ In support of their contention, counsel for these claimants has referred me to the following New York-cases: Hurlbut v. Hurlbut, 49 Hun. 189, which holds that where the owner of a life insurance policy formally assigned all his interest therein to his daughter, at the office of the company’s agent, and the assignment was forwarded to the company, and the policyholder notified his daughter of the assignment and that he had attached it to the policy, the -interest in the policy vested in the daughter and she could recover from the company on the death of her father, though the policy'and assignment had not been delivered to her.

In this case the court further held:

“It is not necessary that the delivery of the thing intended to be given 'should be made directly to the person intended to receive or be invested with the gift, but it may be made to another person for him, when that is done so as to divest the possession and title of the donor. Young v. Young, 80 N. Y. 422, 430. And what took place concerning this insurance seems to have been attended with that effect. Hutchings v. Miner, 46 N. Y. 456.”

The case of McDonough v. Athens Life Insurance Co., 178 N. Y. Supp. 217, holds that where an assignment of a life insurance policy is filed with the company, it is not necessary for the assignment to be delivered to the assignee; and, it is claimed that under the doctrine of this case, the lodging of the assignment with the company amounts to a constructive delivery to the assignee, or in the language of the court: “If that was the only delivery (the filing of the assignment with the company) it would be a good delivery, being for the benefit of the assignee.”

My attention has also been directed to cases in Maryland, Illinois and in other states, and in the federal courts, to the same effect.

All of these cases, and the cases of Beaver v. Beaver, 117 N. Y. 421; Olmstead v. Keyes, 85 N. Y. 593; St. John v. Insurance Company, 13 N. Y. 31; In re Parson's Estate, 51 Misc. 370; Young v. Young, 80 N. Y. 422; In re Crawford, 113 N. Y. 560; Huestis v. Prudential Life Insurance Co., 127 N. Y. App. Div. 903, and others to which my attention has been di-. rected by counsel for the executrix, not only recognize delivery as an essential element of a valid gift inter vivos, but hold that the delivery of the gift, whether actual or constructive, must be such as to divest the possession and title of the donor beyond his power to recall, and to vest the donee with the control and dominion over the subject-matter of the gift.

No such delivery has been established in this case; the company was never notified of the attempted assignment of the policy to Mrs. Ann Eields; neither the policy nor the assignment was delivered to her, or to anyone for her; Mr. Eields retained possession of the policy and of the assignment, and retained control over the policy and its proceeds; he paid the premium annually, and it was always within his power to cause the policy to lapse by the non-payment of the premium, or by the violation of some of its provisions. Whatever his intentions may have been, he never divested himself of the possession and title to the policy beyond his power to recall; and, in consequence, he never completed the gift of the policy to his wife. It follows, therefore, that as the policy was not effectually assigned, the amount of it should be paid, according to its terms, to his estate.

A decree will be advised directing the payment of the fund to the defendant Adrianna S. Eields, as executrix of the estate of John J. Eields, deceased.


author: Gummere, Chief-Justice.

text:
    Samuel Propper, appellant, v. Asa L. Colson et al., respondents.
    [Submitted July 10th, 1916.
    Decided November 20th, 1916.]
    1. A covenant or agreement restricting the use of lands in favor of or ,on account of other lands creates an easement upon the land subjected to the restriction.
    2. The existence of an easement upon premises conveyed is a breach of a covenant against encumbrances.
    ■3. Knowledge by a grantee, at the time of delivery of the deed, that there are outstanding encumbrances upon the property conveyed- is no bar to his right of action on the covenant against encumbrances.

      On appeal from a decree of the court of chancery, dismissing the complainant’s bill, advised by Vice-Chancellor Learning.

      Mr. 8. Stcmger Ismrd and Messrs. Wescott & Weaver, for the appellant.

      Mr. Loúis II. Miller, for the respondents.
   The opinion of the court was delivered by

Gummere, Chief-Justice.

The complainant purchased one of a number of lots in the borough of Wildwood, offered for sale at public auction by the defendants Colson and Davis, who were the owners thereof. By his bill he' seeks to be relieved of his purchase, to have his contract of sale canceled, and the deposit on the purchase price paid by him refunded. The primary ground upon which he bases his right to the relief sought, and' the only one which we find it necessary to consider, is that public announcement was made prior to the sale by the owners, through the circulation of printed catalogues among prospective buyers, that the property to be offered would be sold free and clear of all encumbrances, and that his contract of sale, signed after the property was struck off to him, expressly so provided; whereas, in fact, there were, and are, several restrictive covenants, arising out of a general building scheme, which run with the land purchased by him, and which constitute a breach of the defendants’ promise contained in the catalogue, and of his contract of sale, that the purchasers should have a title free of encumbrances. The court below held that this contention was unsound; that restrictive covenants arising out of a general building scheme are not what are popularly called encumbrances; and that when a layman makes an agreement that he will convey property free and clear of all encumbrances, he does not mean, nor does a purchaser who is seeking to acquire that property understand him to mean, that it shall be free from the operation of restrictive covenants already forming part of the title.

We are not able to concur in the view entertained by the lower court. A covenant or agreement restricting the use of any lands or tenements in favor of, or on account of, other lands, creates an easement that makes one tenement subservient, and the other dominant. All that is necessary to create such an easement is a clear manifestation of the intention of the person who is the source of title to subject one parcel of land to a restriction in its use for the benefit of another, and efficient language to make that restriction perpetual. Washb. Easem. 63. And the general doctrine of the law is that an easement upon the premises conveyed is a breach of the covenant against encumbrances. DeLong v. Spring Lake, &c., Co., 65 N. J. Law 1.

It may be conceded'that laymen, in ordinary conversation between themselves with relation to the existence of encumbrances upon land, do not have in mind covenants restricting the full and free user thereof. The present case, however, does not involve the meaning of words in a conversation between laymen, but of words used in a formal written instrument, the purpose of which is to express the mutual right and obligations of the parties to it. In construing such instruments the general rule, subject to few exceptions, is that the words contained therein shall be given their ordinary legal significance. The complainant, in the present ease, if a deed had been delivered to him in consummation of his purchase, would have been entitled to have it conform to the prior agreement; in other words, to have written into it a covenant against encumbrances; and an easement such as is created by the building restrictions existing in the present case would be a breach of that covenant. A citation of authorities to support this proposition is hardly necessary. Many of the cases upon the subject will be found collated in the footnote to the article on Covenants in 11 Cyc. (at p. 1117). See, also; DeLong v. Spring Lake Co., 72 N. J. Law 125.

It is further argued on behalf of the respondents that at the time of his purchase Mr. Propper was fully aware of the existence of the building restrictions upon the land which was bid in by him, and that, therefore, he is to be presumed to have waived any objection to the title because of them. But, knowledge by a grantee, at the time of the delivery of the deed, that there are outstanding encumbrances upon the property conveyed, is no bar to his right of action on the covenant against encumbrances (Demars v. Koehler, 62 N. J. Law 203; DeLong v. Spring Lake Co., supra), and therefore cannot estop him from insisting that he shall receive by the conveyance to him what his vendor contracted to give him — that is, a title free and clear of all encumbrances.

The conclusion which we reach, and upon the reasoning above set forth, is that the complainant, by the proofs in the case, established a right to the relief which he sought; that the decree under review should be reversed, and the record remitted to the court of chancery in order that a decree may be there entered in conformity to the views which we have expressed.

For affirmance — None.

For reversal — Tim Chief-Justice, Garrison, ' Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisci-i, Black, Wi-iite, EIeppeni-ieimer, Taylor, Gardner — 13.


author: Garrison, J.

text:
    William H. Jeffers, appellant, v. The New Jersey and Pennsylvania Railroad Company, respondent.
    [Submitted July 5th, 1916.
    Decided November 20th, 1916.]
    An order of the chancellor authorized a receiver of railroad property to issue certificates of indebtedness, which should be a first lien “in preference to any mortgage, judgment or other liens or claims.” — Held, that the allowance to the receiver and his counsel had priority over such certificates which in turn had priority over claims for operating expenses.

      On appeal from an order of the court of chancery advised by Vice-Chancellor Howell and reported ante p. 68.

      Messrs. Vreelmd & Wilson, Mr. Alfred Elmer Mills and Mr. Elmer King, for the appellant.

      Mr. John R. Hardin and Mr. Corwin Howell, for the respondent.
   The opinion of the court was delivered by

Garrison, J.

The only question argued upon this appeal is that of priority between the allowances made to the receiver and his counsel and the amount fixed by an order made in this cause as the sum due upon two certificates issued by the receiver for money advanced to him by the National Iron Bank of Morristown. The decree which accords priority to the allowances made to the court officers rests largely upon our decision in the case of Chesapeake and Ohio Railway v. Atlantic Transportation Co., 62 N. J. Eq. 751. While we approve of the result reached by the learned vice-chancellor, we do not give so much force as he did to the case cited, in which the question of receiver’s certificates was not directly considered. Even if the case showed that such certificates were included in the liabilities of the receiver which were postponed to his allowances, a great deal would depend upon the precise language of such certificates or of the order of the chancellor that -authorized their issuance. It is chiefly upon this latter consideration that we think that the present decree should be affirmed, although we do not, of course, question the policy that gives priority to the compensation of those officers and agents upon whom the court must necessarily rely in the administration of its functions. In the present casé the chancellor by his order determined, and the certificates recited, the liens over which a preference was given, viz., “mortgages, judgments or other liens and claims.” Under the maxim of “a sociis,’1 &c.,1 the liens and claims referred to are similar to those mentioned, and hence do not include court costs or the expenses of administration; and by the maxim “expressio unius” &c., a preference that is not expressed is excluded. The order of the chancellor, therefore, on which the money was advanced on these certificates, gives them only the preferences stated in such order and postpones them as to recognized charges that are not within such preferences.

Upon the construction of the contract of the bank, therefore, we think that the order appealed from was correct and should be affirmed.

There is another question in the case in which the receiver, as respondent, is not interested. The order directs that the receiver’s certificates and the claims for operating expenses should be paid pro rata. We think that this is error and that the receiver’s certificates are entitled to priority. Again, we are guided by the order recited in the certificates by which these claims either are postponed or would be if reduced to judgments, and it cannot be that a simple contract debt enjoys under this order a priority that is denied to the same claim in the form of a debt of record.

The order should be modified in this respect; in other respects it is affirmed, with costs.

For affirmmce (with modification) — Ti-ie Chief-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppeni-ieimer, Williams, Tay_lor, Gardner — 14.

For reversal — None.


author: Swayze, J.

text:
    In re estate of George G. Hardy.
    [Argued June 29th, 1916.
    Decided November 20th, 1916.]
    A testator directed his executors to pay his sister $400 annually during the lifetime of his wife. After making other bequests, he gave the residue of his estate to his wife for life and at her death to his sisters in equal shares. He gave no direction to set aside a fund to produce the amount of the annual payments. — Held, that the annuity was charged on the general estate, corpus and income, not on income alone, and that it was proper for the executors, of whom the widow was one, with her assent, to pay the annual sum out of the corpus of the estate.
    On appeal of George H. Lambert, surviving executor, from decree of the prerogative court.
    George G. Hardy, by his will, after directing the payment of his debts and funeral expenses, gave legacies immediately payable, amounting to $2,200, and then provided as follows:
    “I direct my executors to pay to my sister Clara J. Cook, the sum of four hundred dollars annually in equal quarterly payments on the first day of the months of January, April, July and October, respectively in each year, the said payments not to commence until one year after my decease and to continue during the lifetime of my wife and no longer, and if my said sister shall not be living at the time of my decease, then I direct my executors to pay said sums at the times aforesaid, to her daughter, Lilian L, Cook. In case my wife shall die before my said sister or her said daughter shall have received the sum of one thousand dollars in annuities, then I direct that a sum equal to the difference between the total annuities paid and the sum of one thousand dollars be paid to my said sister if she be then living, and if not then to her said daughter, and in case my said sister shall die after me and before my said wife then I direct said annuities to be paid to said Lilian L. Cook until the decease of my wife. In case both my said sister and her said daughter shall die before me then the above legacies to lapse and go into the residue of my estate.”
    He then gave legacies, amounting to $5,000, to be paid at the decease of his wife. He then provided as follows:
    “All the residue of my estate, real and personal, I give, bequeath and devise to my wife, Charlotte C. Hardy, for her use for and during the term of her natural life, and at her decease any and all of my estate then remaining to go to my said sisters, Chastina A. Duren and Clara J. Cook, in equal shares, and should either be then deceased, the representatives of such deceased sister to take her share.”
    The amount' given to Clara J. Cook has been paid. The' executors by their accounts charged these payments to the corpus of the estate, beginning with their final account as executors, in 1894, and continuing with their first account as trustees in 1904. No objection was made (although the residuary legatees were represented by counsel), until exceptions were filed in 1911 to the second account as trustees, by Chasie L. Philips, daughter of the then deceased sister of the testator, Chastina A. Duren. The judge of the Essex orphans court held that the $400 per annum given to Mrs. Cook should have been charged to the income of the estate, and he therefore surcharged the executors. Afterward he opened the account of 1904 in order to allow exceptions to be filed and surcharged the trustees on that account. Subsequently, the surviving trustee filed an account in 1914, and upon exceptions he also was surcharged. The decree on the last account surcharged the trustee with $7,-500, being the sum of the surcharges on the accounts of 1904, 1911 and 1914. The prerogative court affirmed the Essex orphans court and the surviving trustee appealed.

      Mr. Alfred F. Skinner (Mr. Charles II. Stewart on the brief), for the appellant.

      Mr. Ralph E. Lum (Mr. Egbert J. Tamblyn on the brief), for the respondent.
   The opinion of the court was delivered by

Swayze, J.

The real controversy in this case is between the life tenant of the residue and the remaindermen. The court below held that the gift to Mrs. Cook should be paid wholly out of the income of the residue; the appellant contends that it should be paid out of the estate generally, thus reducing from year to year the life tenant’s income by the amount of the income on the $400 paid Mrs. Cook, and, in effect, therefore, making it payable in part out of the corpus — in part out of the income. The argument to sustain the decree rests upon the theory that annuities must necessarily be paid out of income. Stephens’ Executors v. Milnor, 24. N. J. Eq. 358, is relied on as authority. It is not in point. In that case the testator directed his executors and trustees to set apart so much of his real and personal estate as should be sufficient to constitute a fund, the income of which should be appropriated to the payment of the annuities; and there was a subsequent bequest of the residue. In this case there is no fund directed to be set aside to produce the amount of the annual payments. All that is given to Mrs. Cook is $400 per annum. The residue of the estate is given to the widow for life. This residue necessarily is what remains after paying the legacies immediately payable ($2,200) and the legacy or annuity to Mrs. Cook. It makes no difference by what name the gift to Mrs. Cook is called. The testator calls it in one place an annuity and in another place a legacy. The result is the same. All that can be deducted on this account, in order to ascertain the residue on which the widow is entitled to income, is the value of the legacy to Mrs. Cook. The courts below have deducted more; they have, in effect, deducted not only the payments directed to be made to Mrs. Cook, but a capital sum necessary to produce such an income forever. In other words, they have deducted not merely the present value of $400 per year, but its capitalized value. The difference is illustrated by the table adopted by the court of chancery (Corbin’s Rules 258) showing the present value of one dollar per annum with interest at four per cent. At age fifty, for instance, $400 per annum is worth $5,143.32, little' more than half the amount required to produce $400 per annum at four per cent. No matter what Mrs. Cook’s age, her legacy could by no possibility be worth $10,000. The error has arisen from the failure to distinguish between an annual sum charged on the general estate and the income of a trust fund sufficient to produce the amount. Where, as in the present case, the testator omits to direct that a fund be set apart to produce the amount needed, the legacy is chargeable on the general estate (3 Pom. Eq. Jur. 1134) — that is, on the whole estate, corpus and income, not on income alone. This rule is to the advantage of the annuitant, since she must be paid, whether there is any residue left or not, and cannot be limited to the income of the estate for the satisfaction of her annuity. So well settled is this- that the only question raised in the books is whether the annuitant is limited to a satisfaction out of the income of a fund expressly created for the payment of the annuity. Ordinarily, where the annuity is given, as here, in general terms, the annuitant is not thus limited. In re Mason (Jessel, M. R.), 47 L. J. Ch. 660. The executors and trustees have followed the rale and paid this annuity out of general assets. In any event, the life tenant necessarily contributes to the payment. In the twenty j^ears that elapsed between the account of 1894 and the account of 1914, the corpus was reduced $8,000, and the income of the life tenant was necessarily less by the income on that amount. The loss would increase as time went on; with a smaller estate, the principal might easily be exhausted and the widow left without income unless she had saved out of her interest in the earlier dáys to make good the gradually-wasting principal. Uo question is made in the authorities that the burden must be apportioned between life tenant and remaindermen — -that is, between income and corpus.

In the English courts four different rules have been suggested for this apportionment. Strac. Law Tr. Accts. 109, á recent excellent English work. The third rule is the one adopted by the trustees in the present ease. It has the authority of Re Henry (1907), 1 Ch. 80; Re Bacon, 62 L. J. Ch. 445. Mr. Strachan points out that it may work injustice to the life tenant and prefers the rule of Re Perkins (1907), 2 Ch. 596, by which there is calculated “what sum with simple interest to the day of payment would have met the particular installment, and charge that sum to capital, the balance to income.” This rule is certainly more in harmony with the view expressed by Sir William Page Wood (afterward Lord Hatherley) in the leading ease of Allhusen v. Whittell, L. R. 4 Eq. 295; 36 L. J. Ch. 929. -We need not now decide between these rules. It is enough that the method adopted by the trustees, of whom the widow herself was one, did no injustice to the remaindermen. The decrees of December 9th, 1914, and of April 9th, 1915, must be reversed. The decree of July 17th, 1913, on the account of 1911 is open to the same objection, but has not been appealed from. With the reversal of the decrees on the main question, it becomes unnecessary to pass on those parts of the decrees which provides for the payment of counsel fees out of the “funds to be added to the corpus of the estate.”

Let the record be remitted for further proceeding in accordance with this opinion.

For affirmance — None,

For reversal — -The Chief-Justice, Garrison, Swayze, Parker, Bergen, Minturn, Kalisoh, Black, White, Heppenheimeu, Williams, Gardner — 12.


text:
    Charles A. Lippincott et al., complainants-appellants, v. Harvey A. Shivers et al., defendants-respondents.
    [Argued June 26th, 1916.
    Decided November 20th, 1916.]
    Under the facts in this case, held, 'that the affidavit to the chattel mortgage is sufficient, but the right of the complainant to maintain his bill must not be understood to be sustained.
    On appeal from an order of the court of chancery advised .by Vice-Chancellor Learning and reported ante p. 59.

      Mr. George B. Brans, for the appellants.

      Mr. James Mercer Davis, for the respondents.
   The opinion of the court was delivered hy

Swayze, J.

We agree with the vice-chancellor that the affidavit to the chattel mortgage in this case was sufficient under the rule of Howell v. Stone, 75 N. Eq. 289. It is also good under Blade v. Pidgeon, 70 N. J. Law 802. The order must therefore he affirmed, with costs.

In deciding the case upon this point, we must not he understood as sustaining the right of the complainants to maintain the bill. They are judgment creditors of Harvey A. Shivers. The chattels covered by the mortgage were the property of Joseph C. Shivers, deceased. As there was no administration, and the widow and son of Joseph acted as executors de son tort, and Middleton was a creditor of the deceased, it is difficult to see how a good title to the chattels could be conveyed by the executors de son tort to one of themselves as against Middleton. Such a conveyance would be in fraud of Middleton’s rights. If no title was conveyed to Harvey the complainants could have no lien by virtue of a judgment and execution against him, and without such a lien could not maintain this bill, nor could their rights in equity be superior to the rights of Middleton as a creditor of the decedent.

For affirmance — The Chibe-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisoh, Black, White, Heebbnheimer, Williams, Gardner — 13.

For reversad — Hone.


author: Bergen, J.

text:
    Arthur Brisbane, complainant-respondent, v. James A. Sullivan et al., defendants-appellants.
    [Submitted July 10th, 1916.
    Decided November 20th, 1916.]
    1. A court of equity will not decree the specific performance of a contract with compensation unless it can do equity to all the parties before it.
    2. Where it appears, at the hearing on a bill filed by the vendee for the specific performance of a contract for the conveyance of land in fee-simple, that the vendor’s title depends upon the legality of a tax sale, which, if illegal, leaves the vendor with a life estate only, although his grantor, not a party to the suit, conveyed a fee-simple estate, and where the tax proceedings and sale are not set aside, a decree that the vendor convey all the estate he has in the land, which will be a fee-simple if the tax sale should be sustained in a direct proceeding to test its validity, with an abatement of the purchase price based upon the assumption that a life estate only is to be compensated for, is inequitable, for it may give the vendee a greater estate than he pays for, and deprive the vendor of his property without fair compensation. Under such circumstances the court cannot, by enforcing a substituted contract with compensation, do equity, and therefore the vendee will be left to his remedy at law.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Howell and reported in 83 N. J. Eq. 182.

      Mr. Randolph Per1cins> for the appellants.

      Messrs. Rilcer Riher, for the respondent.
   The opinion of the court was delivered by

Bergen, J.

The owner of a tract of land devised it to his daughter for life with remainder to the heirs of her body living at her death, and in default of such heirs over to other persons. The daughter intermarried with William P. Kastenhuber and now has two infant children living. After the death of the testator she neglected to pay the taxes assessed against the property and it was sold for their payment. At the sale one Dieffenbach became the purchaser to whom a deed was made for the lands by the municipality making the sale. Dieffenbach then conveyed the land to the husband of the life tenant, and he, by a deed in which his wife, Dora, joined, to one Billington, and-he to Ella J. Sullivan in trust for James A. Sullivan. All of the'deeds, subsequent to that of the city, contained full covenants with warranty, and each undertook to convey a title in fee-simple. James A. Sullivan, for whom1 the title was held by Ella J. Sullivan, entered into a contract with one Milnor, who assigned it to the complainant, by the terms of which Sullivan agreed to sell the land in fee for $4,800, subject to a mortgage of $2,000, given by William P. Kastenhuber after the tax sale, the balance of the consideration to be paid by a second mortgage on the property for $800 and $2,000 in cash. When the mortgage of $2,000 was given, and the subsequent deeds executed and delivered, all the parties supposed that by the tax sale Dieffenbach acquired a title in fee-simple. After the making of this contract, the complainant had the title examined by a title guaranty company, which reported to him that the proceedings which resulted in the tax sale were irregular, and that the tax deed passed no estate, whereupon the complainant refused to take the title unless this alleged defect was removed, and this not being done, he filed his bill of complaint for the specific performance of the contract. The vice-chancellor who heard the case determined that the proceedings resulting in the tax sale were irregular and that the tax deed passed no title, and that all the title which Sullivan had acquired was the life estate of Dora Kastenhuber, which he held had been conveyed by the deed of her husband, in which she joined, to Billington, and advised a decree that the defendants convey to the complainant not a life estate but “all of their respective right, title and'interest in and to the premises herein above described,” with compensation for the alleged deficiencies in title, by the abatement of the agreed consideration from $4,-800 to $39.88.

This result was reached by crediting the defendants with the estimated value of a life estate, with interest from the date when the contract required the deed to be delivered, and also with the cost of repairs made to the property.

Against this the defendants were charged with the mortgage of $2,000, as though limited to a life interest; the rental value of the property, and $200 paid on account of the purchase price when the contract was signed, leaving a balance of $39.88. From this decree defendants appeal.

The contract which this decree requires be specifically performed is materially variant from the one entered into by the parties. The estate is reduced from a fee-simple to one for life, subject to a mortgage given to cover the fee-simple, without affording the mortgagee a hearing, and the vendor is required to abate the contract price upon the theory that he has only a life estate from his vendor who conveyed to him a fee-simple with full covenants subject to the mortgage. If it should be here-. after held, in a direct proceeding by the remaindermen to recover the land after the termination of the life estate, that the tax sale was regular and passed the fee to_ Dieffenbach, then the complainant would, under this decree, have the entire estate, and the defendants be deprived of their property, without compensation. For, in an action at law by defendants against their grantor for a breach of the covenant in his deed, would their 'grantor be estopped by this deci'ee from showing the regularity of the tax sale and that he had a perfect title when he conveyed.

While relief by specific performance is said to rest on the sound discretion of a court of equity, still, if the contract be certain, for a fair consideration, and the party seeking enforcement is not in default, performance will be decreed.

Mr. Justice Garrison, speaking for this court in Page v. Martin, 46 N. J. Eq. 585, said: “That relief rests not upon what the court must do, but rather what, in view of all the circumstances, it ought to do. * * * In every case of this character the court is chiefly concerned with the equities of the parties before it.” In the case under review, the defendant Sullivan, supposing in good faith that he had a title in fee-simple, subject to a mortgage of $2,000, agreed, in writing, to convey such a title, and the purchaser, claiming that the title was defective because of imperfections alleged to exist in the tax sale proceedings, at first refused to accept the title until the defect was removed, but, this not being done, he filed his bill for the specific performance of a contract which he knew when the bill was filed could not be performed in a material part if his claim concerning the tax sale was correct, and, under a prayer for general relief, asked for and obtained a decree that the vendor should convey through his trustee, who is a defendant, all his interest, whatever it may be, with an abatement of the consideration price based upon the inefficacy of the tax sale deed, which is not set aside hy the decree, and cannot be for want of proper parties. If this substituted contract be enforced, Sullivan will be deprived of his property for an inadequate price if, when he sues his vendor for breach of his covenants, such vendor demonstrates the legality of the tax sale.

The doubt concerning the defendant’s title might be sufficient to refuse him relief if he were seeking performance, for his vendee is not bound to take a doubtful or unmarketable title, nor to buy a law suit, and he would only lose the benefit of his bargain by the refusal of performance by the vendee, but, in the present case, the coux't cannot do equity between all the parties, which is the matter with which the court is chiefly concerned in giving relief in cases of this character. It cannot estop the complainant from inaintaining the perfection of the tax title if assailed by the remaindermen, nor can it protect the defendant from a like condition should he proceed against his grantor for damages for breach of his covenant, neither can it restrain the mortgagee from maintaining that the mortgage encumbers the entire estate and that it is not limited to a life estate. The wrong that the defendant suffers is that by this substituted contract he is required to convey his property for a price fixed with reference to an estate which may be hereafter-, in a direct proceeding between proper parties, established to be greater than that upon which it is based, thus allowing complainaxxt to acquire an estate for which he has paid no compensation to the injury of the defendants. We ax*e of opinion that under the circumstances present in this case we cannot do equity to all of the parties by decreeing specific performance of the substituted contract with compensation.

There is nothing in this case which shows that the complainant requires this property for any special or unusual reason, which would put this case out of the ordinary class in which this special relief is sought, or that his legal remedy is insufficient.

The result which we have reached makes it unnecessary to consider the question, so earnestly argued by the appellant, whether the complainant can have specific performance with compensation when he knows, before he files his bill, of the alleged imperfections in title, and which, if true, prevents vendor from performance, and no opinion is expressed on this question.

The bill should be dismissed, and for that purpose the decree reversed.

For affirmance — Minturn, Kalisch — 2.

For reversal — The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Black, White, Heppeni-ieimer, Williams, Taylor, Gardner — 12.


author: Minturn, J.

text:
    William Schlemm, complainant-respondent, v. Stephen Whittle and Louisa M. Schlemm, defendants-appellants.
    [Argued June Term, 1916.
    Decided November Term, 1916.]
    The bill of complaint prayed for the reformation or cancellation of a contract between husband and wife, through her trustee, providing support for the wife and child, because by inadvertence the agreement failed to include the true agreement between the parties; and also prayed for an injunction to stay the proceedings in a suit at law, brought by the trustee to collect arrears due to the wife upon the agreement. — Held, that a preliminary injunction staying the suit at law was improperly ordered, since the allegations of the bill were fully met by the answer, and neither the pleadings nor proof, upon which the order was made, presented a case showing either an urgent necessity for an injunction, nor the probability of irreparable injury resulting because of failure to issue it. ,,
    On appeal from a decree advised by Vice-Chancellor Lewis.

      Mr. J. Emil Walscheid, for the complainant.

      Messrs. Weller .& Lichtenstein, for the defendants.
   The opinion of the court was delivered by

Minturn, J.

The complainant filed his bill, alleging the execution of a tripartite agreement, in writing, between himself and his wife, and her trustee, Stephen Whittle, by the terms of which, through the trustee, he agreed to pay his wife, Louisa M. Schlemm, who was then living in a state of separation from him, a stated weekly allowance, for the support of her and their child; that he continued these payments until he discovered that she had been guilty, during the separation, of acts of adultery, when he discontinued the payments; that thereafter she, through her trustee, had instituted a suit at law upon the agreement to recover the payments due.

The bill contained the further allegation that at the time of the execution of the agreement it was mutually agreed between the husband and wife that during the separation she would live a virtuous life, and not commit adultery, and that a breach of the agreement upon her part, in the respect referred to, would terminate the complainant’s obligation to continue the payments; that by mistake or inadvertence, this provision was omitted from the written contract; that as a result of the adultery complained of, a suit for divorce has been instituted by the complainant against his wife; that during the pendency of that suit the said trustee has commenced a suit at law to recover the payments due upon the written agreement.

An injunction was prayed for enjoining the trustee and Louisa M. Schlemm from prosecuting their legal action, and a decree in the alternative was sought requiring the surrendering up and the cancellation of the written agreement, or its reformation by the insertion therein of a provision in consonance with the alleged omitted stipulation of the parties.

The answer of the defendants denied the material allegation of the bill,. and specifically denied the making of the verbal agreement, and its inadvertent omission from the written contract. Upon the filing of the bill an'order to" show cause, containing an ad. interim restraint, was granted why an injunction should not issue to restrain the suit at law. Upon the hearing of that order upon bill and answer and affidavits, a temporary injunction or restraining order was issued whereby the defendants were enjoined from further prosecuting their action at law until the determination of this suit. Erom that order this appeal is taken.

We find it unnecessary for the determination of the propriety of making the order appealed from to discuss the merits of the issue presented, from the viewpoint of equitable jurisdiction, further than to reiterate the fact that every material allegation in the bill has been met by a specific denial in the answer.

To warrant the issuing of a preliminary injunction, in such a situation, it must be reasonably apparent that the damage which the complaining party is liable to suffer will be irreparable in character, or that the urgent necessity of the case requires the intervention of the protecting arm of the court to save the subject-matter of the controversy from impairment or destruction. Willard Eq. Jur. 343.

This statement of the equitable doctrine has frequently received the consideration of this court, in reported cases, which may be found collected' in the digests. 4 N. J. Dig. 6902; supplement N. J. Dig. 1155.

But the ratio decidendi, and the logical analysis of the equitable philosophy underlying the doctrine, was presented in this court with that singular acumen and learned lucidity which invariably distinguished the pronouncements of Chief-Justice Beasley in Citizens Coach Co. v. Camden Horse Railroad Co., 29 N. J. Eq. 299. That case is the exponent cf three settled rules of equity procedure which appear to us to be dispositive of the case at bar. (1) A preliminary injunction is never granted unless the act threatened to be done will inflict an irreparable injury on the complainant.- (2) Nor will the writ be issued where the right of the complainant depends on an unsettled question of law. (3) It is a general rule that when the equity of the complainant is disproved by the answer and affidavits, a preliminary injunction is not proper.

The present chief-justice, in McMillan v. Kuehnle, 78 N. J. Eq. 253, speaking for this court over thirty years after the determination in the Citizens Coach Co. Case, emphasized the importancé of a rigid adherence to this rule in the case of an alleged recurring weekly nuisance, and there declared the settled corollary of the rule that: “It is not necessary now to consider whether the disturbance of the complainant’s rights is of such a character as to entitle them to an injunction upon a final hearing of the cause.”

The present chancellor, in Aldrich v. Union Bag and Paper Co., 81 N. J. Eq. 247, adverting to this adjudication, observed that the court of chancer y “was recently admonished in McMillan v. Euehnle not to award' preliminary injunctions except to prevent irreparable’injury,” which, in effect, was but another method of emphasizing the long established equitable doctrine that such injunctive relief should be exercised onfy “with extreme caution.” Citizens Coach Co. Case, ubi supra; Ramsey v. Erie Railroad, 38 How. 193; Willard Eq. Jur. 344.

It must suffice to observe here under the rule adverted to that the gravamen of the complainant’s alleged right, i. e., the existence of the agreement, is disputed in toto by the defendants’ answer and affidavits. This status renders the complainant’s right to the relief prayed for 'upon this application a controverted question, the settlement of which must be postponed until final hearing,' and, in such a situation as a general rule, the injunctive power of a court of equity will not be exercised unless the controversy can be brought within the exceptions referred to, based upon the notion of urgent necessity,' or irreparable loss, for the purpose of preserving the res or the status quo ante, as an indispensable condition for the preservation of the rights of the parties.

In the case at bar, the legal liability of the complainant to support his wife and child is accentuated by his written contract for that purpose, and his performance of the covenant for a comparatively lengthy period. The failure of the court to repudiate the contract upon his petition m limine, may result in temporary inconvenience to him, and, perhaps, from his viewpoint, to an unnecessary financial expenditure, but in no sense can that situation be magnified into a status of urgent necessity or irreparable loss.

The status presented is one of complainant's own making; and, perhaps, as he contends, and as the sequel may prove, a situation brought upon him by his own mistake or .inadvertence, but none the less of his own creation, the burden of which he must in equity continue to assume until his rights shall have been, adjudicated upon final hearing of the cause.

The order appealed from will be reversed.

For affirmance — None.

For reversal — The Chief-Justice, Garrison, Swayze, Trenohard, Parker, Bergen, Minturn, Kalisoh, Black, White, Heppenheimer, Williams, Taylor — 13.


author: Black, J.

text:
    James H. Marsh, petitioner-appellant, v. Helen Bennett Marsh, defendant-respondent.
    [Argued June 23d, 1916.
    Decided November 20th, 1916.]
    1. The evidence in this case is sufficient to show a tona fide residence in this state by the petitioner.

      2. A 'husband, in a suit for desertion by his wife, is not bound to attempt to induce her to return, when it is clear, that ,any effort in that direction by the husband will be unavailing to terminate the desertion; the duty of making advances and concessions on his part does not then exist.
    On appeal from the court of chancery.

      Mr. Charles M. Mason, for the petitioner-appellant.

      Messrs. McCarter & English, .for the defendant-respondent.
   The opinion of the court was delivered by

Black, J.

The petition in this case was filed, seeking to have the marriage between the appellant and respondent dissolved on the ground, that the respondent willfully, continuously and obstinately deserted the appellant, for more than two years before the filing of the petition. The petition was filed on May 18th, 1914. A decree of dismissal was entered m the court of chancery, as advised by the learned advisory master, before whom the case was tried. Hence this appeal on the part of the appellant, the husband. The master, in the conclusion filed by him, based his refusal to advise a decree of divorce on the ground, that the husband never made, any honest and sincere effort to secure the wife’s return to him, and that it was not shown, that if such effort on his part had been made it would not have been accepted by the defendant. The learned advisory master applied the rule, that it was incumbent upon the husband to endeavor to secure his wife’s return to him; the duty was upon him to make the advances, looking to reconciliation, unless such an effort would be evidently useless, the desertion of the wife having been established. We do not agree with the view taken by the learned advisory master of the facts of this case. We think a decree of divorce should have been entered in favor of the appellant, the husband, on the facts as disclosed by the record. The case is peculiarly one of fact. It will be necessary for us, therefore, to briefly review the facts showing the basis on which we rest our conclusion. First, as to residence. The parties were married the first time on April 10th, 1900, by a justice of the peace, in Paterson, New Jersey. Subsequently, for some unexplained reason, they were remarried (just why it does not appear) on March 1st, 1912, by a minister in Jersey City. They were both counselors-at-law of the State of New York. They subsequently lived in New York City. They lived for four years at Long Branch, New Jersey. On or about March 19th, 1912, the appellant went to Newark and. arranged with a Mrs. Eothenberg, at No. 687 Eidge street, Newark, for rooms, which he occupied from March, 1912, to April, 1914. Then he moved to Hoboken, at Mrs. Klug’s, first at No. 722 Bloomfield street and then, at No. 215 Tenth street. The petitioner tried to get his wife and child to live with him at the Newark residence. Shortly after the appellant went to Newark, the respondent went to Kentucky and there began the practice of law. She remained there until her return to New York in June, 1914, when she was served with papers in this action. The record also shows the appellant voted in Newark, at the election in . 1913. He also voted at another time in Hoboken. The evidence further shows he tried, to get his wife to come to New Jersey to live with him. The petitioner was married in New Jersey; he was living in New Jersey at the time the wife went to Kentucky; he was living in New Jersey at the time of the filing of the petition, and was living in New Jersey at the time of the hearing before the advisory master, nearly four years after the wife went to live and practice law in Kentucky. Meanwhile, he voted both in Newark and Hoboken. This evidence is plenary of the fact of residence and of the animus manendi, which proves the domicile. Wallace v. Wallace, 65 N. J. Eq. 359; 54. Atl. Rep. 433. Second, the next and only other point in the case is what advances or concessions, if any, the law exacted from the husband to the wife to induce her to return. The rule of law applied to that class of cases where the wife’s desertion is induced, though not justified by his conduct to her, is stated in the case of Bowlby v. Bowlby, 25 N. J. Eq. 406; affirmed, Ibid. 570, and restated in the case of Van Wart v. Van Wart, 57 N. J. Eq. 598. Thie rule is, the husband-is bound to do those things which might reasonably be expected to remove the trouble and induce the wife to return.

This court, in the case of Hall v. Hall, 60 N. J. Eq. 470, formulated the rule on the subject and said: “But the law does not impose this duty upon the husband in every ease arbitrarily and without regard to the facts and circumstances by which it is surrounded. The husband is bound to make such advances and concessions only where there is reasonable ground to suppose that such action on his part will terminate the wife’s desertion. Where it is manifest, from the circumstances under which the desertion took place, or from her temper or disposition, or from any other fact in the case, that honest effort on the husband’s part to terminate the separation would be unavailing; or, if successful in bringing the desertion to an end, would be so only temporarily, the duty of making it does not exist.” Citing Trall v. Trall, 32 N. J. Eq. 231; Lammertz v. Lammertz, 59 N. J. Eq. 649. It would serve no useful purpose, to state the evidence in detail, showing the wife’s attitude toward her husband. It is sufficient, by way of illustration, to refer to a passage from one of the wife’s letters, known as the “Hound of Hell” letter (Exhibit PS), which reveals the attitude of her mind and the promptings of her heart toward her husband. It demonstrates, to our satisfaction, the utter futility of any attempted reconciliation by him.

In view of this letter, which is in accord with much of the testimony in the case, on this point under discussion, any attempted reconciliation on the part of the husband, it seems to us, would have been a meaningless formality. In this case no such duty existed on.the part of the husband. In cases of this kind the law exacts no such formality.

We think the decree of the court of chancery should be reversed and the case remitted to that court, to enter a decree of divorce in favor of the appellant and against the respondent, in accordance with the views expressed in this opinion.

For affirmance — None.

For reversal — The Ci-iiee-Justice, Garrison, Swayze, Tbenchard, Parker, Bergen, Minturn, EIalisch, Black, White, Heppenheimer, Taylor, Gardner — 13.


author: Per Curiam.

text:
    Frederick S. Dennis et al., trustees, &c., complainants-appellants, v. Alfred L. Pinneo Dennis et al., defendants-respondents.
    [Argued June 28th, 1916.
    Decided November 20th, 1916.]
    On appeal of Mary Elizabeth Dennis et al. from a decree advised by Vice-Chancellor Howell, who filed the following opinion:
    The bill in this case was filed to obtain a construction of the will of Alfred L. Dennis, late of Newark, who died December 8th, 1890. He left four sons and one daughter, whose names are, respectively, James S. Dennis, Frederick S. Dennis, Samuel S. Dennis, Warren E. Dennis and Mary Louise Bell. At the time of the testator’s death his son James S. had one son, Alfred L. P. Dennis, the defendant, a grandson of the testator, and he in turn now has two infant daughters, born since the death of the testator. Frederick has no children. At the time of the testator’s death Samuel had two children, Helen and James, and the third son has since been born. ■ Samuel has no grandchildren, neither has Warren. Mildred is not married. Mrs. Bell has three children, Alfred D., James C. and Samuel D. Her son Alfred D. has a son, Alfred D. Bell, Jr. All of them are parties to the suit.
    The controversy which is raised by the Dill is between Alfred L. P. Dennis, a, grandchild of the testator, and his own two infant children, Elizabeth and Louise, who are great grandchildren of the testator. Their ancestor, James S. Dennis, who was a son of the testator, died March 21st, 1914, and the share of which he had the income for life is available for distribution, and the question is under the terms of the will whether the share of the testator’s estate, which was enjoyed by James S. Dennis in his lifetime, shall go to James' S. Dennis’ son, Alfred L. P. Dennis, or whether Alfred L. P. Dennis’ two infant children take equally with their parent, so that each receives an undivided one-third of the James S. Dennis share. The portions of the will out of which this controversy arises are paragraphs 11 and 13, and tire codicil dated April 15th, 1890. They-are as follows:
    “11. I hereby direct my executors to pay to each of my children, or the issue of each, if dead (the issue representing the parent) during the four years my estate is held in trust by my said executors, sums amounting yearly to three thousand dollars each.”
    “13. At the termination of the period of four years from my death as mentioned in the second clause foregoing, I hereby give, bequeath and devise all the rest, residue and remainder of my estate of every description, personal and real, unto- all my children, living at my death, and the issue of any of my children who may have died before me, said children and issue to take share and share alike, the issue representing the parent, and entitled only to the share that the parent would be, if alive, — The right to each of said shares to become vested at my death, subject to the trust aforesaid, and two-thirds of the share of my daughter Mary Eliza, to be subject also to the further trust following— I direct that the said two-thirds of the share of my said daughter shall continue to be held and shall be held by my executors, the survivors and survivor of them, in trust for and during her natural life, and to pay the income and proceeds thereof when received unto her during that time, for her sole and separate use, and as her separate estate exclusively, and at her death the said two-thirds to be relieved from said trust, and go to her issue, to whom I then give, bequeath and devise the same, and in default of such issue at her death, I give, bequeath and devise the same to her next of kin and heirs. Nothing in this last trust contained shall affect the absolute right of my said daughter in and to the other one-third of her share.”
    CODICIL,
    “Two-thirds part of the shares of the residue and remainder of my estate, personal and real, which in said Will I have given, bequeathed and devised unto my four sons respectively and their issue, as mentioned in the thirteenth paragraph thereof, I give, bequeath and devise, upon a like trust as that provided in said will for my daughter, the income and proceeds thereof when received, to be paid unto my said sons respectively during the natural life of each, and at the death of each, the said two-thirds to be relieved from said trust and go absolutely to the issue of the son so dying. The trustees of said two-thirds for either of my said sons shall be the remaining three of my sons, their survivors and survivor, and for that purpose, the two-thirds part aforesaid of either son, shall vest in the other three sons as trustees, their survivors and survivor. In case of default of issue at the death of any of my sons I give, bequeath and devise his said two-thirds part held in trust as aforesaid, to his next of kin and heirs, according to the nature of the estate, whether personal or real.”

      The dispute arises out of the interpretation which should be given to the word “issue” in the codicil. This instrument provides that “at the death of each, the said two-thirds to be relieved from said trust and go absolutely to the issue of the son so dying.” Does the word “issue,” as used by the testator, mean children, or does it mean descendants to the remotest degree? Is it'to be divided per capita or per stirpes ?
    It seems to be well settled in this state that the word “issue/’ which is so indefinite and capable of so many interpretations, in its first and primary sense, means descendants and comprises objects of every degree. The court of errors and appeals, in Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. 486, adopts the definition given by Mr. Jarman as follows: “When not restrained by the context (issue) is co-extensrve and synonymous with descendants, comprehending objects of every degree, and here the distribution is per capita and not per stirpes.” And “where the description ‘issue’ is employed in a will as a word of purchase, it will, in its ordinary import, comprise all those who claim as descendants from or through the person to whose issue the bequest is made, i. e., grandchildren and great grandchildren, as well as children; and in order to restrain this usual sense of the word, a clear intention' must appear upon the will.” 2 Will. Ex. 999. See, also, Ballantine v. DeCamp, 39 N. J. Eq. 87; Coyle v. Coyle, 73 N. J. Eq. 528. This appears to be the universal interpretation. The Matter of Farmers Loan and Trust Co., 213 N. Y. 168; Jackson v. Jackson, 153 Mass. 374; Ralph v. Carrick, L. R., 11 C. D. 873; 48 L. J. Ch. 801, and in this interpretation all the text-books coincide. Theoio. Wills (1908) 313; 2 Jarm. Wills (6th English ed.) 1590. See, also, Davenport v. Hanbury, 3 Ves. 257; Gardn. Wills 435. Applying the broad, general rule laid down by these authorities to the case in hand, we would have Alfred L. P. Dennis sharing with his two infant children in the final distribution of the portion of the testator’s estate which has hitherto been enjoyed by James S. Dennis, their ancestor, as life tenant. Such will have to be the interpretation of the will in question unless we can find some expression in the document which indicates that the testator intended no such result, but that, on the contrary thereof, he meant to make a stirpital distribution of his estate, and if such intention can be found within the four corners of the instrument, then it is quite clear that J ames S. Dennis’ share would be distributed to Alfred L. P. Dennis alone, and that his children would be entitled to nothing as devisees under the will.
    In my opinion, such an expression is found in the codicil and in the very sentence which provides for a distribution of the fund. By the original scheme of the will the whole of the estate of the testator was trusteed for a period of four years, at the termination of which period there was to be an equal distribution of the estate, the four male children taking their shares outright and the daughter being made a life tenant of two-thirds of another share with remainder to her children. The first indication of the desire of the testator for a stirpital division of his estate appears in the eleventh paragraph where he gives the sum of $3,000 each to his five children annually during the four years that the estate is held in trust, and in making this division the executors are to distribute to each of the children, or to the issue of each, if any are dead "the issue representing the parent,” and this same intention is evidenced by a similar expression in the thirteenth paragraph which provides the original scheme for the division of the estate; then, at the end of four years, there was to be a division
    “unto all my children, living at my death, and the issue of any of my children who may have died before me, said children and issue to take share and share alike, the issue representing the parent, and entitled only to the share that the parent would be, if alive.” *
    Thus it appears that under the original scheme of the will there was a clearly-expressed intention on the part of the testator to treat the word "issue” as if it were "children,” and to provide for a division per stirpes. The codicil, made several years after the making of the will, to my mind, gives forth the same intention. Ey it the testator abandoned his original idea of dividing his estate among his five children, trusteeing the daughter’s share, and he made instead thereof a provision for trusteeing two-thirds of the whole estate, or each of the shares, during the lifetime of his several children, treating them all in the same manner in which he had treated his daughter under his first scheme of distribution. By the codicil he gives, bequeaths and devises two-thirds part of the shares of the residue and remainder of the estate “upon a like trust as that provided in said will for my daughter, the income and proceeds thereof, when received, to be paid unto my said sons, respectively, during the natural life of each.” And, in order that there might be no doubt about his intention, he provides “at the death of each (of his children) the said two-thirds to be relieved from said trust and go absolutely to the issue of the son so dying.” And finally in the same codicil he provides for a default of issue at the death of any of his sons. In such case he gave his said two-thirds part, held in trust as aforesaid, to his next of kin and heirs, according to the nature of the estate, whether personal or real, indicating, conclusively, to my mind, that he had in contemplation a stirpital distribution of his estate, of the same stirpital character as that provided for by our statutes of descents and distributions. I do not see how there could be a clearer expression of an intention to divide per stirpes. I can think of no words which would make the provision more certain or more easily understood.
    Up to this point I have endeavored to reach a conclusion from an examination of the will itself without resort to any of the many authorities which might be cited in favor of the view that I have taken. It appears to have been frequently held that where a “parent” of issue is spoken of the word is prima facie restricted to children of the parent. It was so held in Coyle v. Coyle, supra, where the rule is stated and the authorities collected. See Pruen v. Osborn, 11 Sim. 132. There the testator bequeathed the residue of his estate to the children then living of B. and 0., and the lawful issue then living of such of their children as were dead, as tenants in common, so, nevertheless, that such issue should, as amongst themselves, take as tenants in common, and per stirpes and not per capita; it being his intention that such issue should have only the shares which their respective parents would have been entitled to if living. It was held that the word “issue” must be taken in the restricted sense of “children.” Vice-Chancellor Shadwell says: “Moreover, I am of the opinion that if there be nothing more in a will, or other written instrument, whereby to construe the term ‘issue’ than a direction that the issue are to take the shares of their parents, that is enough to confine the general meaning of the word ‘issue’ to the particular meaning of children of that parent.” And it was so held in Leigh v. Norbury, 13 Ves. 340. In Sibley v. Perry, 7 Ves. 522, Lord Eldon put the same construction on the word “issue” because he found that in a particular clause the use of the word “parent” restricted the meaning of the word “issue,” and the same construction was adopted in a case which came before Sir William Grant at the rolls on the 2d of March, 1814. Earrmgton v. Lawrence, not reported. There, by an indenture, a fund was declared to be in trust for the children of a marriage, living at the death of the husband and wife, and the deed then provided that if any should die in the lifetime of the husband and wife leaving issue, such issue should take such share as their parent would have been entitled to in case he or she had survived the husband and wife. A grandchild of a child of the marriage was excluded.” It may be said that the case of Sibley v. Perry has been much criticised (Coyle v. Coyle, supra), but it has been followed with very little, if any, diminution of its force as a precedent. In Maynard v. Wright, 26 Rev. 285, Sir John Romilly, M. R., says: “It is clear that the word ‘issue’ is nomen generalissimvm, and that it includes the latest descendants unless its meaning be restricted and cut down by words to be found in the will. On the other hand, it is also clear that where issue are substituted for parent, the word ‘issue’ is restricted to the children of the parent spoken of. But this rule of construction may again be controlled by the general nature and scope of the whole will and by the use of the word ‘issue’ in other parts of the will which may enlarge this construction and restore the word to its original comprehensive meaning.”
    It was strongly argued on principle and authority that when the testator used the word “issue” in any particular sense in one part of the will, he must be held to have used the same word in the same sense in all other parts of the will. Unless there is something to indicate a contrary intention, I have no doubt of the proposition and agree entirely with the argument made on behalf of Alfred L. P. Dennis on- this point. And I find, as a matter of fact, that in this case the testator did use the word “issue” in the same sense in every part of the will.
    I- am, therefore, of the opinion that the testator used the word “issue” in the sense of “children,” and that he meant to have his estate divided per stirpes and not per capita. This will result in a. decree giving the share in question to Alfred L. P. Dennis and excluding his .two children from participation therein.

      Mr. Charles B. Bradley, for the appellants.

      Mr. John O. II. Pitney, for the respondents.
   Per Curiam.

We conclude that the decree below should be affirmed, and substantially for the reasons contained in the opinion of the- learned vice-chancellor, though we are hardly willing to concede that testator’s intent could not have been expressed more certainly or intelligibly.

Appellants urge that the vice-chancellor did not allude to the decision in Inglis v. McCook, 68 N. J. Eq. 27, and that the decision in that case must be overruled in order to reach an affirmance herein.

Applying the fundamental rules that the testator’s intention is to be gathered from a reading of the entire will, and that such intention, when ascertained, must control phraseology which taken alone would have a definite legal meaning, it was entirely open to the vice-chancellor to interpret the will in the case at bar as he did, without impugning the correctness of the result reached by Chancellor Magie in the Inglis Case respecting a different will.

The decree appealed from will be affirmed.

For affirmance — The Chibe-Justice, Garrison, Swayze, Trbnohard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams- — 12.

For reversal — Hone.


text:
    Isidor Engel, respondent, v. Central Building and Construction Company et al. (Newark Mason Contractors Company, appellant).
    [Submitted July 10th, 1916.
    Decided November 20th, 1916.]
    On appeal from a decree advised by Vice-Chancellor Foster, whose opinion is reported in 97 Atl. Rep. 956.

      Mu. Franklin W. Fort, for the appellant.

      Mr. Joseph Cheskin and Mr. Joseph Krdemer, for the respondent.
   Per Curiam.

The vice-chancellor held that the stop-notice or notices served by the appellant did not comply with statutory requirements, in that it failed to set out a demand by the claimant upon the principal contractor, and a refusal by him to pay, as contemplated by section 3 of the Mechanics’ Lien act. He further held that there had been in fact no refusal of the principal contractor to pay.

With the first conclusion we agree, and find it unnecessary to add to or modify the opinion of the vice-chancellor in that regard. This is sufficient for an affirmance of the decree below, without passing on the second conclusion of the vice-chancellor.

The decree is accordingly affirmed.

For affirmance — The Chibe-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Kalisoh, Black, White, Heppenpleimer, Williams, Gardner — 13.

For reversal — None.


text:
    Mathias Last, appellant, v. John Winkel et al., respondents.
    [Submitted July 10th, 1916.
    Decided November 20th, 1916.]
    On appeal .from a decree of the court of chancery advised by Vice-Chancellor Griffin and reported ande p. 356.

      Messrs. Gross ,& Gross, for the appellant.

      Mr. Peter Stillwell and Messrs. Herrmann & Steelman, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Griffin.

For affirmance — The Chief-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalis ch, Black, White, Heppenpieimer, Williams, Taylor — 13.

For reversal — None.


text:
    Aubrey H. Martin, complainant-appellant, v. Charles E. Kimball, substituted trustee, et al., defendants-respondents.
    [Submitted July 10th, 1916.
    Decided November 20th, 1916.]
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens-and reported cunte p. 10.

      Messrs. Church .& Harrison, for the appellant.

      Mr. William Byrd, Mr. Stuart A. Young, and Mr. James F. Mooney, for the respondents.
   Per Curiam.

The decree appealed from will be affirmed, for the reasons stated in -the opinion filed in the court below by Vice-Chancellor Stevens.

For affirmance — The Chibe-Justice, Garrison, Swayze, Trbnchard, Parker, Bergen, Minturn, Black, White, Hee-EENHEIMBR, TAYLOR, GARDNER-12.

For reversal — None.


text:
    Elizabeth C. Norton, complainant-appellant, v. Samuel Nathanson, defendant-respondent.
    [Argued June 23d, 1916.
    Decided November 20th, 1916.]
    On appeal from a decree of the court of chancery reported in 85 N. J. Eq. Jf.09.

      Mr. Aaron V. Dawes, for the appellant.

      Messrs. McDermott & Enright, for the respondent.
   Per Curiam.

Vice-Chancellor Baches, after a careful review of the testimony, reached the conclusion that the complainant had not sustained the burden of proving usury in the transactions set forth in her bill. In this conclusion we concur.

The decree of the court óf chancery is affirmed.

For affirmance — The Ci-iiee-Justice, Garrison, Swayze, Trenci-iaed, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Tayloe, Gardner — 14.

For reversal — None.


text:
    Samuel Nathanson, respondent, v. Elizabeth C. Norton, appellant.
    [Argued June 23d, 1916.
    Decided November 20th, 1916.]
    On appeal from a decree of the court of chancery.

      Mr. Aaron V. Dawes, for the appellant.

      Messrs. McDermott .& FnrigM, for the respondent.
   Per Curiam.

This case is controlled by the decision of No. 19 at this term. The decree is affirmed.

For affirmance — The Ci-iiee-Justioe, Garrison, Swayze, Trenohard, Pírker, Bergen, Minturn, Kalisci-i, Black, White, Heppeniieimer, Williams, Taylor, Gardner — 14.

For reversal — None.


text:
    Samuel Nathanson, respondent, v. Elizabeth C. Norton, appellant.
    [Argued June 23d, 1916.
    Decided November 20th, 1916.]
    On appeal from a decree of the court of chancery.

      Mr. Aaron V. Dawes, for the appellant.

      Messrs. McDermott <& Enright, for the respondent.
   Per Curiam.

This ease is controlled by the decision of No. 19 at this term. The decree is affirmed.

For affirmance — The Chiee-Justioe, Garrison, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner — 14.

For reversal — None.


text:
    Grace Riesenberger, complainant-appellant, v. Richard C. Sheldon, Jr., defendant-respondent.
    L.Submitted July 10th, 1916.
    Decided November 20th, 1916.]
    On appeal from a decree in the court of chancery, dismissing complainant’s hill, by Vice-Chancellor Lewis, reported ante p. 92.

      Messrs. Smith, Mob on .<& Herr, for the appellant.

      Mr. Maximilian T. Rosenberg, for the respondent.
   Per Curiam.

The complainant, by her bill in this cause, sought to have a resulting trust declared in favor of her mother (who is now dead and whose heir-at-law the complainant is) in a house and lot in West Hoboken, which is now in the possession of Sheldon, the respondent.

The property in question was purchased in May, 1918, by a Mr. Berger, with money furnished by Mrs. Fonda, the complainant’s mother. The deed was tahen in Berger’s name at Mrs. Fonda’s request, and in August of the same year, under instructions from Mrs. Fonda, a deed was executed for the property by Berger to Sheldon, the respondent. For some time prior to this transaction Mr. Sheldon had been assisting Mrs. Fonda in her business affairs as a matter of friendship and without compensation. The testimony shows that Mrs. -Fonda’s purpose in purchasing this property was to convey it to Sheldon as a gift for the purpose of testifying her appreciation of the services rendered by him to her; and that in taking title in his own name, and afterward in conveying the property to Sheldon, Berger was acting solely as the agent of Mrs. Fonda in the execution of her wishes. The conveyance to Sheldon was in fact a gift to him by Mrs. Eonda, made of her own volition, and executed in accordance with her preconceived intention. This being so, the property never was charged with any trust except that subject to which it was held by Berger, and when that trust was executed by him by the conveyance to the respondent, the title which the latter received was for his own sole use and benefit.

The decree appealed from should be affirmed.

For affirmance — Ti-ie Chief-Justice, Garrison, Swayze, Trenci-iard, Parker, Bergen, Minturn, Ealisch, Black, White, Hefpeni-ieimer, Williams, Taylor, Gardner — 14.

For reversal — None.