author: Lewis, Yioe-Ordinary.

text:
    In the matter of the last will and testament of Isaac Gluckman.
    [Decided September 20th, 1916.]
    1. The evidence in this case held to show the will was properly and sufficiently declared and published.
    2. In the case of an illiterate testator, the burden of proof is upon the proponent to show that the testator understood the contents of the will and approved of them.
    3. A will must be the testator’s freely-intended act; a will drawn by mistake is no more the testamentary act of the testator than a will the product of undue influence.
    4. Under the evidence in this case—I-Ield, that the testator understood the contents of his will, and approved of them.

      On appeal from the Hudson county orphans court.

      Mr. Elmer 17. Demarest and Mr. Lindley M. Garrison, for the appellants.

      Mr. Clarence Linn and Mr. Macc Levy, for the caveators (respondents) .

      Mr. Aaron A. Melniker and Mr. Joseph Noonan, for Rose Gluckman (the widow), respondent.
   Lewis, Yioe-Ordinary.

The appeal in this matter is from an order of the Hudson county orphans court, denying probate of the will of Isaac Oluckman, deceased, said order being dated November 16th, 1915. Caveats to the will were filed by the brother and sister of the decedent, and while the widow did not join therein nor file a separate caveat, she was represented in the proceedings in the orphans court by counsel, who took the chief part in attacking the validity of the document offered for probate.

The two questions raised were—first, whether there had been a sufficient publication of the paper in question as a will in accordance with the .statute, and second, whether the paper presented for probate expresses the intention of the testator. The orphans court found against the former of these contentions, but sustained the latter, and refused to admit the will to probate. The testator was a Hebrew, who had come to this country from Russia. He was about forty-five years of age at the time of his death, which occurred .on March 19th, 1915, two days after he had been operated upon for appendicitis. He was married about twenty-five years ago, and leaves his widow, Rosa, or Eosie, surviving him. They never had any children. Prom the time of their marriage they lived constantly in Bayonne. G-luckman was, originally, a carpenter, but soon after his marriage he went into the building business; and a year or two .later opened a hardware store in Bayonne and continued in that business until his retirement in May, 1914. During all of that period he devoted his attention chiefly to speculation and investments in real estate. Mrs. Gluekman conducted the business in the hardware store, without any help of any sort. During her entire married life she never had a servant but once, and that was only for two months. When she married Gluekman he had no money and she loaned him what money she had to start him in business. Gluekman, at the time of his death, was seized in fee of real estate which, according to an appraisement which he liad made for his own information, was worth $250,000. It 3'ielded him a monthly rental of about $1,675 from ninety-two or ninety-three tenants. The property was encumbered by mortgages aggregating $101,000. There were also outstanding and maturing notes amounting to $16,000, and there were overdue taxes in the sum of $9,000. The value of the property, if sold and all debts paid off, might net $100,000, more or less.

On the 1st of December, 1911, the testator had Mr. Horace Roberson, a law3rer of Ba3ronne, New Jersey, draw up a will for him, in which he left everything to his wife, Rosa Gluekman, her heirs and assigns forever, with the exception of three legacies, namely, $5,000 to Ms brother, Samuel Gluekman; $5,000 to Ms sister, Betsey Gollin, and $1,000 to a sister-in-law in Russia. That will is still in existence.

Pour years later, on March 15th, 1915, he had an attack of appendicitis, and two days later the doctors decided that he must be operated upon without delay. Doctor Corwin told him that they must act right away, and the testator replied: *1 must have a couple of hours, anyway; I want to send to Judge Roberson to make my will.” On Mr. Roberson’s arrival, he found the testator in bed, and he told Ms counsel that he wanted to make a will and to write down his instructions. Counsel then made a memorandum, which was produced at the trial, and reads as follows:

“All to Mrs. G. for life
“R-A-M- Ex.
“All to $40 pr week
“Not to move fm House
"till she die
“Aftr her death
“to home for
“Old”

Counsel then left the bedroom and proceeded to draw up the will. In less than half an hour he returned to the bedroom with two witnesses. Counsel says that he read the will slowly to the testator in the presence of the. witnesses, and signed by the testator and the witnesses in the presence of each other. The will reads as follows:

“I, .Isaac Gluckman of the City of Bayonne, in the County of Hudson and State of New Jersey, being of sound and disposing mind and memory, hereby make, publish and declare my last will and testament as follows:
, “First: I direct that all my just debts and funeral expenses be paid by my executors as soon as reasonable after my death.
“Second: I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal or mixed, of whatever it may consist and wherever it is situate, to my executors in trust, to take possession of the same and to collect all rents and other' assets, and if they deem it advisable to sell, convey and mortgage any or all my real estate in such manner and on such terms as they may deem best, and out of the income of my estate pay to my wife a weekly allowance of forty dollars and such other sum and sums as may be necessary during the term of her natural life. She shall remain in and occupy our present residence as long as it shall be her ■ pleasure to do so. After the death of my wife Rosa said executors shall turn over the entire 'residue of my said estate to any home for aged people that my said wife may designate in a last will and testament or any paper-writing in the nature thereof, and if she shall fail to do so, then to such institution as my said executors deem advisable. This provision for my wife is in lieu of dower in my estate.
“Third: I hereby make, constitute and appoint my friends John Herman Mahnken, Charles E. Annett and Horace Roberson executors of this my last will and testament, hereby revoking all other wills by me made.
“In Witness Wiieeeoe, I have hereunto set my hand and seal this seventeenth day of March, nineteen hundred and fifteen.
“Isaac Gluckman. (Seal)
“Signed, sealed, acknowledged and declared by the said testator as and for his last will and testament in the presence of us (both being present at the same time), who, at his request, in his presence and in the presence of each other, have hereunto subscribed our names as witnesses.
“William Cohen, Bayonne, N. J.
“Louis Zeeii, Bayonne, N. J.”

The brother and the sister of the testator, who would, under the former will of 1911, receive legacies of $5,000 each, are the caveators.

The two attesting witnesses swear that they did not know it was a will that they were witnessing, but the court below would not believe them, and accepted the testimony of Mr. Eoberson, that the paper was properly and sufficiently declared and published as a will. As the court below heard all the testimony in the case, he was in a better position, to judge as to the truth or falsity of their statement than I, and I have no hesitation in sustaining him on that branch of the case.

In regard to the second branch of the case, I have had very much greater difficulty. The testator said, first of all, “Rosie to have the use of everything for life, the whole incorrfe for life.”

It will be noted that that clause does not appear in the will.

The testator was an illiterate man. He could neither read nor write. The burden of proof, therefore, is cn the proponent to satisfy the court that he understood the contents of the will and approved of them. The law requires the will to be the testator’s freely-intended act; a will drawn by mistake is no more the act of the testator than, a will obtained by undue influence. A will may b.e drawn bjr the attorney in a manner different from that in which the testator intended it to be drawn, yet, if the testator under such circumstances fully understood what had taken place, and approved the same, it would be his will. Or a case might arise where the testator intended the will to be as it was drawn, but labored under a misapprehension as to the legal effect of the will as drawn, caused, perhaps, bjr the bad advice of his attorney. And, in such cases, it seems to be the rule that the will must stand as drawn, excepting in cases where the testator cannot read nor write for any reason. Collins v. Elstone (1893), L. R. Prob. 1 (England).

In the case in hand, I do not see the slightest reason to suspect Mr. Roberson of having committed a fraud on the testator. He took notes of what his client desired to be done. He had acted for the testator in all his legal matters for twenty-five rears, and he proceeded to write out a will which he thought would best comply with the testator’s wishes. The testator had been given opiates by his doctor; but the doctor testified that the effect had passed awajr at the time he made his will. The fact that the testator delayed the operation for several hours in order to make his new will, is clear evidence that he was dissatisfied with the terms of the old will. It is evident that he was doterminecl that his brother and sister and sister-in-law, to whom he had left legacies in the will of 1911, should not benefit by his death. What the scrivener figured out to be the testator’s intentions is not important; that is the duty of' the court. Straws show which way the wind blows. After the execution of the will, after leaving his bedroom, he showed great emotion on leaving his wife and told her that he had left everything to her. There is no doubt in my mind that he thought that under the will she would get all the income during her lifetime; in fact, I am very much inclined to believe that he labored under the delusion, common among -persons unversed in law, that a life tenant can do as he pleases with the property, and that only in the event that there is anything left, does it go to the remainderman. This is an exceedingly common delusion, and would hardly be recognized in a court of equity on the question of the construction of the will. Still, it is a fact that should be borne in mind by men who are called upon to draw up wills.

On the other hand, it may well be that the testator had a strong aversion to some other man marrying his wife after his death and enjoying the proceeds of Ms labor and frugality, and, therefore, did not. wish her to have more than was just enough to make her comfortable during the rest of her days.

The testator,' some time preceding his death, had bought a large house, and there is testimony to show that he intended to leave that house as a home for aged Hebrews. It is a perfectly natural thing to leave money for the upkeep of such an institution. I am very loth to refuse probate to such an excellent will. It means that during all the centuries of the future there will be one less “home for the aged” in the land. However, the proponent, owing to the illiteracy of the testator, must prove to the satisfaction of the court that the testator fully understood the contents of the will and approved them.

In the case of Andreas v. Weller et al., 3 N. J. Eq. 604, which is a very similar case to the one we axe now dealing with, the ordinary held that an omission made by a scrivener in preparing a will of real estate cannot be supplied by parole evidence.

Mr. Roberson testified, on his cross-examination in the orphans court, as follows:

“Q. What did you do about it?
“A. After he told me all to his wife for life, and then afterwards said the income would not be enough to keep her on while the debts were pressing him, he told me about the $40.00 a week, ‘and as much more as is necessary.’ I interpreted that instruction of his meant a modification of the first instruction, and I gave it legal force in that form. That was my interpretation, and I disregarded the first instruction.

After an appeal had been taken from the decree of the orphans court to this court, -the parties consented to allow Mr. Roberson to add the following statement to his testimony:

“Then afterwards, when I had consented to become one of the executors to the will, Mr. Gluckman said to me, ‘Now, make it this way: Give Rosie $40.00 a week, and as much more as is necessary.’ I construed this instruction to mean, that the testator had revoked his former instructions given to me. After I had drawn the will and I read to the testator the provision giving the widow $40.00 a week and such other sums as should be necessary, and explained to him that the will as drawn would permit the executors to give and allow her the whole income after the debts were paid, he said ‘All right; that’s good.’ ”

Of course, on the face of it, that was a clear misrepresentation; the attorney clearly misrepresented the effect of the instrument; and I am not satisfied that the proponents have established the fact that the testator fully understood the contents of the will and approved thereof, which duty is cast upon them by the law in the case of those who cannot read or write for any reason.

1 Schoul. Wills (5th ed.) § 317, says:

“The civil law required that the written will of a blind person should be read over to him and approved by him in, the presence of the subscribing witnesses. Our common law lays down no such imperative rule, but with regard to both blind and illiterate, and all who cannot read1 what is written out as their will, requires satisfactory proof to the effect that the testator knew and' approved of the contents of the will'which was executed as his own. Such a will may be read over to the testator before signing, apart from his witnesses; or it may be shown that the contents were correctly made known to him without any formal reading at all, provided it appeal’, on the whole, that the instrument as drawn up and executed constituted his own testamentary disposition as intended by him. Less than this, however, is unacceptable; and where the will, without being read over or examined, is signed by the testator upon an assurance that it has been prepared according to his instructions, when in point of fact it has not been, probate should be refused.”

See Day v. Day, 3 N. J. Eq. 549; Harris v. Vanderveer’s Executor, 21 N. J. Eq. 561; Lyons v. Van Riper, 26 N. J. Eq. 339; Kahl v. Schober, 35 N. J. Eq. 466; Patton v. Hope, 37 N. J. Eq. 527; Elkinton v. Brick, 44 N. J. Eq. 158; Hildreth v. Marshall, 51 N. J. Eq. 250.

The decree of the court below will be affirmed and probate of the will refused.


source: Caselaw Access Project

author: Lewis, Yice-Ordinaky.

license: Public Domain

text:
    In the matter of the estate of Elizabeth Mains, deceased.
    [Decided January 6th, 1917.]
    Under the terms of the will in this case, the proceeds of the real estate for sale of part, of which the testatrix made a valid contract in her lifetime, belong to her half-brother and two nephews, equally.
    On appeal from a decree of the Passaic county orphans court.

      Mr. Francis Scott, for the appellant.

      Mr. William V.■ Rosenkrans and Mr. Robert Peacock, for the respondents.
   Lewis, Yice-Ordinaky.

This is an appeal from a decree of 'distribution made by the Passaic county orphans court on January 31st, 1916.

Elizabeth Mains, the testatrix, died on September 29th, 1912, leaving a will dated May 17th, 1912. By her will the testatrix bequeathed general cash legacies amounting in all to the sum of $2,400, and providing that two of the legacies should become part of her residuary estate in the event of the death of the legatees prior to that of the'testatrix.

By item 1 she devised the premises Nos. 10 and 12 Madison street, in the city of Paterson, to James Whiteley, but it appears that she had a mere life estate in the same. That clause is, therefore, inoperative.

The significant clauses of the will read as' follows:

“Item 8. I direct my. executors, hereinafter named, to sell and dispose of all my real and personal property, wheresoever situate and of whatsoever it may consist (excepting therefrom the property on Madison -Street in the City of Paterson, devised in Item 1 hereof, and the burial plot in Laurel Grove Cemetery), in such manner and at such time and times as in their judgment may be for the best interests of my estate, and convert the same into cash, the same to be divided and distributed as follows;
“A.—Prom the proceeds of my personal estate, I direct that all my just debts, my funeral and testamentary expenses and the specific cash legacies, as set forth in Items 2, 3, 4 and 5 hereof, be first paid and the remainder, if any, to be divided equally, share and share alike, between the afore mentioned Esther Sutherland, Margaret, wife of James Sutherland, hereinafter mentioned, and Ada, wife of Alexander Sutherland, also hereinafter mentioned-
“B.—Should my personal estate not realize sufficient to pay the obligations mentioned in Items 2, 3, 4 and 5 of this will then I direct that so much as may be necessary for their liquidation shall be first-paid out of the proceeds of the sale of my real estate and that the balance be divided into three equal parts. One -part thereof I give to Archibald Archibald of Scotland, half brother of my late husband, Donald Mains, and one part each to James Sutherland and Alexander Sutherland, of Philadelphia, Pa., nephews of my said late husband; Donald Mains.
“Item 8. All the rest, residue and remainder of my estate, I give to the before mentioned- James and Alexander Sutherland, equally, share and share alike.”

The petitioner is Archibald Archibald, now living in Scotland, who claims one-third of the proceeds of the real estate of the deceased under item 6’, paragraph B of the will.

The executors qualified before the surrogate of the county of Passaic, on October 18th, 1912, and .filed an inventory of the estate.

On September 21st, 1912, the testatrix made a valid contract of sale for some of her holdings in real estate, which consisted of a hotel property, three acres of land, the buildings thereon, the furniture therein and the stock of wines, liquors, &c., on the premises, with John E. Dunning, for the sum of $10,000, and in pursuance of this contract the executors executed a deed for the hotel property to the vendee, at his request and on his demand. All the legacies provided for by the will have been paid, and the executors filed their final account, which was confirmed by the orphans court, which showed a balance of $7,415.67.

The executors sold the real estate of which the testatrix 'died seized (outside of the hotel property already mentioned) for the sum of $1,297.78.

The orphans court held that paragraph B of item 6 of the will is'inoperative.

I am unable to agree with the learned judge in regard to that particular finding. I think the testatrix, undoubtedly, intended by her will to leave all the proceeds of her real estate to the three devisees whom she mentions in subsection B of item 6. In the first place, it is highly improbable that anyone would devise real estate only, and in the event that it was found necessary to draw on such real estate for’ the payment of cash legacies, by reason of a shortage of the personal property. According to the contention of the executors, and the finding of the court, before this clause could be operative it must have been proved that the personal" property was not sufficient to pay oif the general legacies', debts, &c., and that it was necessary to draw on the real estate to the extent of at least one cent. After reading the whole of this will many times, I am perfectly satisfied that such was not the intention of the testatrix. According to my reading of the will, she intended all her personal property that remained aftey the payment of her debts, funeral and testamentary expenses, and the cash legacies, if any, to be divided equally between the three Sutherland women; and she intended all of her real estate to go to the three devisees she mentions in subsection B of item 6. - .

By item 8 she merely intended that if any of the legacies lapsed that contingency, would be provided for. The fact that she says, in subsection A of item 6, that “the remainder, if any, to be divided equally, share and share alike,” between the three Sutherland women, would.seem to indicate that, she had some doubt whether there would be anything to divide between them; one may conjecture that she did not intend that the bulk of her whole estate was to be divided between them; however, courts cannot leave the construction of wills to conjecture; that is governed by well-defined principles and acknowledged rules of interpretation. The testatrix must be presumed to know the law, and when, after making her will, she entered into, a valid contract for the sale of a portion of her lands, she must be presumed to have intended that the proceeds of the sale were to go to those to whom she had left the balance of her personal property, and not to those to whom she had left- her real property. Of course, if she had stated in her will that the proceeds of the sale of any of her real estate that might be made after the date of her will should; nevertheless, go to her devisees, that would be a different matter, but she has not done so; and, under this contract of sale of the hotel property heretofore mentioned, there was a.clear case of equitable conversion, and I am bound by this rule; although, personally, I am somewhat inclined to believe that she never, had such an idea in her head.

Under item 9 the testatrix appointed executors of her will with full power to make and execute all deeds oí" conveyance; and, under item 6,- she gave imperative directions to them to sell and dispose of all her real and personal property, which they have done. The only question undisposed of is, what proportion of the estate is to be divided between the three devisees—Archibald Archibald, James Sutherland and Alexander Sutherland? It will be remembered that the testatrix had the legal title to other lands besides the land which she contracted to sell (excepting therefrom the burial plot in Laurel Grove Cemetery, mentioned in item 6, and the property mentioned in item 1). The proceeds of the sale by the executors of this land will be divided equally between the three devisees mentioned in subsection B of item 6, namely, Archibald Archibald, James Sutherland and Alexander Sutherland.

Decree will be advised in accordance with these views.


author: Lewis, Vice-Ordinary.

text:
    In the matter of the estate of Margaret B. Miller, deceased.
    [Decided June 21st, 1916.]
    1. Evidence held to show testamentary capacity of testator.
    2. The burden of proof of proving absence of undue influence rests upon the beneficiary proponent, and not upon, the caveators.
    3. Evidence held to show absence of undue influence or fraud.
    On appeal from a decree of tbe Passaic county orphans court on probate of will.

      Mr. William B. Gourley, representing the proponent.

      Messrs. Whitehead & Appleton, representing the caveator.
   Lewis, Vice-Ordinary.

This is an appeal taken from a decree of the Passaic county orphans court, admitting probate of an instrument offered for probate as the last will and testament of Margaret B. Miller.

Isaac N. Miller was named as executor in the said instrument, and he is the sole beneficiary thereunder.

The will is dated November 16th, 1913. The decedent departed this life on December 18th, 1913. The instrument purporting to be her last will and testament was offered for probate and was allowed by the surrogate. An appeal was taken to the orphans court of Passaic county, which upheld the probate of the will, and thereupon an appeal was taken to this court.

There is no opinion filed in the court below, so I am unable to ascertain without reviewing' the testimony the grounds upon which it arrived, at the conclusion that the instrument offered should be offered for probate.

The testimony shows that the decedent was an elderly woman who had lived with her husband, the beneficiary under her will, for a great many years, in the house in which she died. The will was prepared by her husband, during her last illness. She had previously made another will, bearing date October 31st, 1905, which will, according to the testimony, her husband knew nothing about until November 16th, 1913, the day of the date of the'will under examination. It appears upon that day she sent for her husband, who was in constant attendance upon her during the times he was not at business, and told him about the prior will and that she wanted to malee á new one. He thereupon drew the will, which was executed by his wife, Miss Miller, a niece, and Miss Cole, the nurse in attendance on Mrs. Miller, acting as witnesses.

The property that she disposed of consisted largely of real estate, although there was some money in the banks belonging to her. Many years before, her husband had purchased the property which they lived in at Lakeview, New Jersey, and had put it in her name, together with all other real estate that he held. Much is attempted'to be made of the fact that Mrs. Miller received from her brother, Leonard Blass, six thousand four hundred dollars ($6,400) and some odd, and it is this money which was used to maintain the property at Lakeview and in New York. It appears, however, conclusively, checks and vouchers being offered to sustain the evidence, that altogether on the properties devised by Mrs. Miller under her will, her husband had expended, in' round figures, the sum of twenty-nine thousand dollars ($29,000).

It is also shown that mutual wills were made at the outset of the married life of this couple. Miller had been most attentive and kind to his wife. He lived with her thirty-eight years, and she had no independent estate, save that which came from her brother. The onfy resources she had otherwise came from her husband. An effort-was made to show that Miller and his wife frequently had trouble over a certain woman, not named, who, after the death of Mrs. Miller, became the wife of her husband and the beneficiary under his will, but, upon cross-examination, Jane Van Dorn, who had free access to the home at all times, and who had worked in the Miller home for six years, and being a witness produced by the caveators, stated that she had never heard Miller say a cross or unkind word to his wife. The testimony of Miss Bonney and Miss Rocherfeller, both interested in upsetting the will of November 16th, 1913, being beneficiaries under the prior will, has not the probative force of Miss Van Dorn’s testimony. The evidence of 'the niece, Miss Miller,^ and the nurse, Miss Cole, corroborates Miss Van Dorn’s as to the kindly consideration for and attentive attitude of Miller toward his wife.

. I must conclude, upon all the evidence, that Miller’s conduct indicated both concern and affection for his wife. She was ill for a long time and had abundant opportunity to consider her worldly affairs during her illness. It was but natural that in the contemplation of final dissolution that she should desire to do that which was right and conscientious in disposing of the property which had come to her hands. This, in my view, -she did when she made the last will leaving her entire estate to her husband.

The evidence of Miss Miller, Miss Cole, Miss Van Dorn and Miller, and, indeed, all the witnesses produced, satisfies me as to the testamentary capacity of Mrs. Miller. She knew where all her belongings were, and requested that certain disposition be made of them during her last days of life. She told where the satchel and the jewelry were, and who had the key to the wardrobe. The testimony is, that while she was in a weakened condition, the coma which undertook and overcame her at times, was a natural result of the prolonged and fatal .illness through • which she was passing.

I cannot agree with the court below in its view that the burden of establishing that Miller did not use undue influence over his wife should be borne by the caveator. There is no doubt that the burden shifted to the proponent, he being the chief benefician^ and occupying a position of trust and confidence, he must show that he did not procure the making of the will by undue influence. The proofs lead me'to the conclusion that the proponent has sustained the burden cast upon him.

The execution of the will was established by the subscribing witnesses. The evidence they offered showed that a sufficient compliance was made with the statutory regulations. Miller was called to the witness-stand and examined at considerable length by tire counsel for the caveators about the proceedings at the time of the execution of the will.' His story bears the evidence of verity, and he is corroborated by the subscribing witnesses. There is no evidence whatever to show that he attempted to influence his wife in regard to the making of the will. She sent for him and told him to prepare it. He drew it and read it aloud to her. The witnesses to the execution had stepped into another room during the reading of the will. They returned, however, almost immediately and subscribed to the instrument at her request. It was natural for Miller, who is a member of the bar, and whose confidential and affectionate relationship with his wife is shown throughout all the testimony,. should draw the will and not send for another to do it.

In fact, I do not find upon examination of the entire case a scintilla of evidence indicating any irregularitjr or fraud about the execution of the will.

The decree below must be affirmed.


text:
    In the matter of the estate of Henry R. White, deceased.
    [Decided December 28th, 1916.]
    Under our statutes of distribution (P. L. 1911/ pp. 70, 71) the children and grandchildren of deceased children take their parents’ share, together with the children of testator living at the time of testator’s death.
    On application for an order of distribution. On appeal from a decree of the Passaic county orphans court.

      Mr. Clifford L. Newman, -for the appellants.

      Mr. Arthur B. Seymour, for the respondents.
   Lewis, Vice-Ordinary.

Henry R. White died intestate, December 29th, 1914, leaving him surviving two brothers, Hallett B. White ■ and George R. White; also children of a deceased sister, Margaret Radeliffe (five of whom are the appellants); also children of a deceased brother, William White; also a grandchild of a deceased brother. The orphans court decreed a distribution of the whole estate to the two living brothers. The contention of the appellants is, that the estate should have been divided into five shares, representing the two living brothers, the two deceased brothers and the deceased sister.

The appeal involves a construction of sections -168 and 169 of the Orphans Court act as amended (P. L. 1914 pp. 70, 71), which act was in effect at the time of his death.

It was held by the orphans court that the amendment eliminated children of a deceased brother or sister where there were brothers or sisters living, and this is the question for determination.

My view is, that paragraph 4 of section 169 does not apply in a ease where there is a brother and sister living as well as children of a deceased brother and sister. Paragraph 4, in my judgment, becames applicable only where there is no brother or sister living as well as no husband or widow, child, or representative of a child, or parent. To make this paragraph applicable all .-the relations mentioned must be non-existent.

The third paragraph, however, would cover the case where a brother or sister is living, and also the children of a deceased brother or sister, for it provides that there being no husband or widow and no child, nor any legal representative of a child, then it shall be equally distributed among the parents and brothers and sisters. Obviously, if there were no parents, the distribution would be among the brothers and sisters. This section is silent, however, as to whether children of a deceased brother or sister would take by representation.

Now, here is an apparent casus omissus. Section 168, however, of this same act, must be taken in connection with this paragraph of section 169.

We find, in section 168, a direction to tbe orphans court that the orphans court shall 'order a just and equal distribution among the husband or widow, children, or deceased children’s children, if any such there be; or otherwise to the next of kindred to the intestate, or legally representing their stocks, “pursuant to the laws in such cases, and the rules and liinitations hereinafter set down.”

The general provision of this section shows beyond question that it was in contemplation of the draftsmen of this act that children of deceased persons who would otherwise, under the fule of distribution, take, if living, should take the parent’s share by representation. It would, therefore, be impossible to give effect to the evident intention of section 168, without reading into paragraph 3 of section 169, in substance, a provision that the children of a deceased brother or sister would take by representation. the parent’s share. In no other way could there be a just and equal distribution as is directed; since the statute undoubtedly provides for the right of representation when the estate is being distributed among kindred more remote than nieces or nephews. It would be doing violence to our language to consider it a just and equal distribution as provided for by a statute that would cut off nieces and nephews from the right of representation, when their parents,, if living, would come under the order for distribution, but would give the children of cousins to the remotest degree that right when their parents would, through the absence of brothers and sisters, or nearer relatives, have come in under, the rule of distribution provided by the statute, if living.


author: .Lewis, Tice- Ordinary.

text:
    In the matter of the appeal of the executors of Henry I. Dittman, deceased, for review of an inheritance tax.
    [Decided May 10th, 1917.]
    1. The appeal to the ordinary from an assessment of a-transfer tax, under the Inheritance Transfer Tax act (P. L. 1909 p. 334 § 18) is -an, appeal to the prerogative court, because the ordinary is the judge of that court and the proceedings are in that court.
    2. Although the office of vice-ordinary is the creature of statute, the jurisdiction- of the vice-ordinaries arises from reference to them of matters by the ordinary in virtue of his inherent powers, and- their jurisdiction is complete by delegation from him.
    3. The giving of an appeal to the ordinary in the Inheritance Transfer Tax act is a valid legislative enactment.
    4. An appeal is a judicial proceeding- cognizable in a court.

      5. Semble: That the appeal to the ordinary provided for in the Inheritance Transfer Tax act (P. L. 1909 p. 334 % 18) makes him a statutory tribunal, and that an appeal from a decree of the prerogative court in a case under that act is reviewable by certiorari in the supreme court Instead of by appeal to the court of errors and appeals.
    On appeal from an assessment of a transfer tax.

      Mr. Maximilian T. Rosenberg, for the appellant.

      Mr. Herbert Boggs, assistant attorney-general; for the state.
   .Lewis, Tice- Ordinary.

From an inheritance transfer tax upon the estate passing under the will of the late Henry I. Dittman, deceased, his executors appeal to the ordinary, under section 18 of the Inheritance Transfer Tax act. P. L. 1909 p. 334. That section provides that any person or corporation dissatisfied with an appraisement or assessment under the act may appeal therefrom to the ordinary.

The appellants, Dittmaw’s executors, contend ihat, constitutionally, they could not be compelled to appeal to the ordinary; that they c-ould have recourse to a writ of certiorari to review the assessment of which they complain; that the ordinary is an official to whom they are permitted to resort as an umpire by consent of the state.

The respondent, the comptroller of the treasury, contends that on this appeal the ordinary does not sit as such, exercising the powers and jurisdiction of the ordinary or of the prerogative court; that the apjoeal is not to the prerogative court and that the petition is improperly so entitled; and, also, that the ordinary cannot refer the matter to a vice-ordinary.. These contentions are unsound.

The ordinary is the judge of the prerogative court, and, consequently, the court itself. The constitution so provides. Article 6, section I, paragraph 2.

In England, in former times, the ordinary and the judge of the prerogative court were different functionaries. In 2 Bl. Com. 509, the learned author says:

“If all the goods of the deceased lie within, the same jurisdiction, a probate before the ordinary, or an administration granted by him, are the only proper ones; but if the deceased had Iona ndtaMlia, or chattels to the value of a hundred shillings, in two distinct dioceses or jurisdictions, then the will must be proved, or administration taken out, before the metropolitan of the province, by way of special prerogative; whence the courts where the validity of such wills is tried, and the offices where they are registered, are called the prerogative courts, and prerogative offices.”

And in "3 Bl. Com. .65:

“The prerogative court was established for the trial of all testamentary causes, where the deceased hath left Iona notaliUa within two different dioceses. In which cases the probate of wills belongs, as we have formerly seen, to the archbishop of the province, by -way of special prerogative. And all the causes relating to the wills, administrations, or legacies of such persons are, originally, cognizable herein, before a judge appointed by the archbishop, called the judge of the prerogative court.” .

But in our state the ordinary and judge of the prerogative court are, and alwaj'-s have been, one and the same, and their powers—that is, their jurisdictions, have been blended also. This is expressly stated by Mr. Justice Van Syckel in bis concurring opinion in Harris v. Vanderveer's Executor, 21 N. J. Eq. 424 (at p. 447), where he.sa.ys that “the power of the ordinary and the prerogative court, which existed separately under the English system, have been blended here.”

The blending of the ordinary and judge of the prerogative court into one and the same functionary, and also their powers into one jurisdiction in our state, resulted from the fact that such of the ecclesiastical jurisdiction in England, which was transmitted to the colony, was confided to the governor, whose jurisdiction was, of course, state-wide. Griff. L. R. (N. J.) 11-85, where, in note 1, the author states:

“The jurisdiction, of the governor as the ordinary of New Jersey, before the revolution and since, extended throughout the 'state, and a will, administration or guardianship proved or granted by himself or a surrogate (and he appointed as many as he chose to do), was valid, without regard to the place where the goods lay. Hence he' possessed the prerogative powers of the ecclesiastical jurisdiction,, in these particulars.”

The state, and the colony before it, was divided into counties, and the jurisdiction of the ordinary—there never has been but one at the same time—did, and does, run through all the counties. In colonial times, and later, the surrogates were appointed by the ordinary as his deputies and they had jurisdiction in all cases submitted to them unless some special restrictions were inserted in their commissions. As already remarked, the doctrine of bona notabilia never had any place here. In re Coursen’s Will, 4 N. J. Eq. 408, 413. And, although surrogates were later made county officers with probate jurisdiction limited to their respective counties, that in nowise affects the jurisdiction of the ordinary.

The first act of the legislature concerning the ordinary and the prerogative court, passed December 16th, 1784 (Pa-t. L. p. 59), expressly enacted in section 2, "that “for the more regular hearing and determining of all causes cognizable before the ordinary, he shall statedly hold a prerogative court,” &c. See the present act entitled “An act respecting the prerogative court and the power and authority of the ordinary (Revision of 1900).” Comp. Stat. p. 1722 § 77 et seq. The first; section defines the authority of the ordinary as to granting probate of wills, &c., and the tenth provides that it shall be the duty of the register of the prerogative court to record all wills, ,&c. That the ordinary holds a court in granting probate is bej^ond question. The function is judicial and therefore must be exercised in a gourt. Even the surrogate holds a court when probating a will. Mellor v. Kaighn, 99 Atl. Rep. 207.

The contention that the ordinary is without power to refer tire matter at bar to a vice-ordinary is also unsound. The contention is, that because the appeal is given in terms to the ordinary, and that no power to refer it is given in the sanie statute, the right does not exist. This is fallacious, for, by act of 1913 (P. L. 1913 p. SI), the ordinary is empowered to refer any matter pending in the prerogative court to a vice-ordinary for hearing and advice, but the jurisdiction which the vice-ordinaries exercise, upon reference to them, is not derived from this statute, but by delegation from the ordinary by virtue of his inherent powers.

In an exhaustive' review of the powers of the vice-chancellors (whose office was likewise created by statute)—In re Thompson, 85 N. J. Eq. 221—Chancellor Walker (at p. 857) holds that "their jurisdiction is complete by delegation from the chancellor, under the authority inhering in his general power derived from the high court of chancery in England and devolved upon our court, of chancery by the ordinances of Lord Cornbury and Governor Franklin and -ratified by the constitution of 1776 and 18-14.” '

And (at p. 861) he holds that a perfect analogy exists with reference to the prerogative court, in which the legislature has authorized the appointment of vice-ordinaries, the ancient office of surrogate, as deputy or assistant to the ordinary, being the source of power in the vice-ordinaries.

It is to be observed that in the act creating the office of vice-ordinary (P. L. 1913 p. 81), the 'legislature has provided that the ordinary may refer to -any vice-ordinary any cause or other matter which at- any time may be pending in the' prerogative court, to hear the same for the ordinary and report thereon to him and advise what order or decree should be made therein. Now, if the ordinary is a functionary apart from himself as the' judge of the prerogative court, it is singular that the law-making body did not bestow the power to refer upon the judge of the prerogative court, the only functionary who, in such case, could constitutionally exercise it, instead of casting it upon the ordinary, who could not lawfully do so. In this we have legislative interpretation to the effect that the ordinary and judge of the prerogative court, and likewise their jurisdiction, are one and the same.

.Enough has been shown, I think, to demonstrate that the act under which this assessment was made, and which gives an -appeal to' the ordinary, treats the ordinary and the prerogative court as one and the same—a single judicial entity.

The giving of an appeal to the ordinary in the Inheritance Transfer Tax act is a valid legislative enactment.

It may be that certiorari in the supreme court is a method for the review of an appraisement or tax, made or levied, under the Inheritance Transfer Tax act, but, considering that an appeal has been.provided to the ordinary, the supreme court would probably deny the allocatur on such a writ before, or even after, the time for appeal to the ordinary had expired, as the allowance of an allocatur is discretionary. Florenzie v. East Orange, 88 N. J. Law 438.

In re Prudential Insurance Co. of America, 82 N. J. Eq. 335, the court of errors and appeals held that the statutory scheme providing for the condemnation of the capital stock of a stock life insurance company for certain purposes mentioned, was cast by the legislature upon the chancellor, or the- court of chancery, a distinction which, if it exists, was of'no practical moment to the motion then before the court of errors and appeals; and (at •p. 889) that the statutory proceeding before that court was reviewable by certiorari only, regardless of the fact that one of the agencies that took part in it was the “court of chancery.”

I hold that the proceeding before me is one in the prerogative court, and one which the ordinary could lawfully refer by virtue of the act of 1913 (P. L. 1918 p. 81), empowering him to refer to’any vice-ordinary any cause or other matter which at any time might be pending in the prerogative court.

Now, the act of 1909 (P. L. 1909 p. 325) provides for taxing the transfer of property of decedents by devise, descent, &c., and section 18, as seen, allows anyone dissatisfied with an assessment of such taxes to appeal to the ordinary. The only question raised by such an appeal is as to whether or not the assessment is excessive, and the review of such a question may be devolved upon a court of appeal. Florenzie v. East Orange, supra. There an appeal from an assessment for benefits for a municipal improvement was confided to the circuit court, and the jurisdiction thus given was upheld. Here, an appeal from the assessment of a property transfer tax is confided to the ordinary of the prerogative court. The principle is the same. The grant of appellate .jurisdiction to. this court in tax transfer matters is as valid as that to the circuit courts in assessments for municipal improvements. The reason that legislation establishing special statutory tribunals for the hearing and determining of appeals theretofore cognizable only in the supreme court on certiorari is valid, is, because a review of the decision of the special tribunal is removable into the supreme court by certiorari, and that court’s jurisdiction on certiorari is /therefore not impaired. Certiorari in such cases is in the nature of an appeal, and an appeal is a judicial proceeding cognizable in a court.

It would appear that the decree of the prerogative «court on these appeals is reviewable by cer'tiorcwi in the supreme court, instead of by appeal to the court of errors and appeals. In re Prudential Insurance Co. of America, 82 N. J. Eq. 335, 339; Florenzie v. East Orange, 88 N. J. Law 438, 440. This question is suggested in the briefs, but is not before me for decision.

The jurisdictional question having been determined, I will, upon application of counsel, designate a day for hearing the facts.


author: Backes, Vice-Ordinary.

text:
    In the matter of the estate of Robert Christie, deceased.
    [Submitted April 24th, 1917.
    Decided April 28th, 1917.]
    1. Statutory commissions of testamentary' trustees are proper items of deduction in appraisements of inheritances under the “Transfer of Property Tax” act of 1909. P. L. 1909 p. 828; Mattel• of Gihon, 169 N. T. 448, followed.
    2. The assessment for New Jersey transfer taxes may be surcharged with the amount of these commissions at the proper time, but not before the exact amount of such commissions is ascertained.
    On .appeal from assessment of transfer tax.

      Mr. Herbert M. Lloyd (of the New York bar), pro se, for the appellants.

      Mr. Herbert Boggs, assistant attorney-general, for the state.
   Backes, Vice-Ordinary.

This is an appeal from an appraisement of property transferred by the last will and testament of Eobert Christie, deceased, and an assessment thereon of a tax under the Transfer of Property Tax act of 1909. P.' L. 1909 p. 325.

Tlie decedent died May 12th, 1915, a resident of Montclair, leaving a last will and testament, wherein, after pecuniary legacies, he bequeathed the rest of his estate to his executors in trust, to pay one-third of the net income to his wife for life, remainder over absolutely to his next of kin and heirs-at-law her surviving, and the net income of the remaining two-thirds to his wife so long as she remained his widow, with similar remainder over upon remarriage or death. The taxable interests were appraised at $60,479.17, of which $44,386.20 was apportioned to the residuary estate. The contention of the appellants—the executors and trustees—is that the latter sum should be reduced by five per cent., the amount of commission they estimate will be allowed to them for their services as trustees.

The tax imposed by the act is oil the right of inheritance—on the beneficiary—for the privilege of succeeding to the property (Sawter v. Shoenthal, 83 N. J. Law 499; Carr v. Edwards, 84 N. J. Law 667), and is measured by the “clear market value” of the property transferred, ascertained by deducting from the gross value of the residue all lawful charges, exemptions and costs of winding up the estate. As to remuneration to trustees for administering trusts created by will, inasmuch as the office and duties are separate and distinct from those of executors, and as statutory commissions are allowed in each, although the same person may have acted in both capacities (Pitney v. Everson, 42 N. J. Eq. 361), if I were to follow my own opinion, my judgment would be that they were to be paid out of the estate for whose benefit the services were rendered. But the New Nork courts decided otherwise, and have held that the commissions of testamentary trustees diminish the inheritance, and are to he taken into consideration and allowed in fixing the value of the succession,, and as our Transfer of Tax- act was copied from the statute of that state, it will be presumed that the judicial construction there given to the latter was adopted by our legislature. De Raismes v. De Raismes, 70 N. J. Law 15; Clay v. Edwards, 86 Atl. Rep. 548. In the Matter of Gihon, 64 App. Div. 504, the trust was similar to the one in this case, and on an appeal' from an assessment which included commissions to which the executors would be entitled as trustees, the surrogate held that' “the right to commissions as trustees is statutory, and cannot be taken away except for misconduct in office, or as a penalty for relinquishing office. They are a legal and preferential charge against the trust estate. The property passes to the beneficiarles subject to their payment. Bearing in mind the cardinal principle that-the transfer tax is to be measured by the amount the legatee is legally entitled to receive, and that the law permits the transfer to legatees through the medium of trusts, I can see no reason why the rule which permits the commissions of executors and administrators to be deducted should not apply equally as well to commissions of trustees.” The appellate division of the supreme court affirmed the judgment on the opinion of the surrogate, and on an appeal to the court of appeals, Judge Cullen, speaking for the court, said: “There .is a distinction that may be made between the commissions of executors or administrators whose appointment -is an absolute essential to the lawful 'liquidation of an estate and those of trustees who are appointed solely for the protection of the property of the beneficiary, and it may be urged that such latter commissions should be considered as an expenditure for his benefit. Whatever forcé there may be in this view, we think the deduction of the trustees’ commissions is justified aud required by section 227 of the Tax law itself, which prescribes that any legacy or devise to trustees in excess of their commissions allowed by law shall be taxable, thus necessarily implying that legal commissions shall be exempt.” Matter of Gihon, 169 N. Y. 443. Section 227 referred to corresponds with section 4 of our act. See, also, Matter of Silliman, 79 App. Div. 98. The Gihon Case was decided in 1902 and construed the act of 1896. Chrys. Inh. Tax 437.

The attorney-general argues that this presumption should not . be indulged, because the commissions of testamentary trustees are regulated in New York by statute, whereas in’this state they are fixed by the courts. Section 2753 of the code of civil procedure directs that surrogates

"on the settlement of the account of any executor, administrator, guardian or testamentary trustee, the surrogate * * * must allow to such executor, administrator, guardian or testamentary trustee for his services in such official capacity * * * for receiving and. paying out all sums of money * * * at the rate of five, two and one-half and one per cent., according to the amount.”

Section 128 of our Orphans Court act (Comp. Stat. p. 3859) provides that—

“The allowance of commissions to executors, administrators, guardians or trustees shall be made with reference to their actual pains, trouble and risk in settling such estate, rather than in respect to the quantum of estate,”

and in the next section limits the rate by a sliding scale. As these enactments simply change the rule of the common law by allowing a reward to executors and trustees (Warbass v. Arm strong, 10 N. J. Eq. 263), I am unable to perceive liow the difference in methods of arriving at the amount of compensation can influence in the least the application of the established rule of construction that the adoption of a statute of a sister state is presumed to have been had with reference jx> the previous construction given to such statute by the court of such state, or how it, in any manner, affects the principle involved and the rule laid down in the cases last cited. In the amount of the allowances there is, so far as they ma}r reckon in the assessment, as much uncertainty in the one instance as in the other. In the one the problem encountered is what will be the sums of the corpus passing from the executors to the trustees, and of the accumulations pending the trust, to which the rate applies; and in the other, what amount will the court fix? It must not be overlooked that assessments are made under the respective statutes forthwith after probate, and at a time when these items are wholly problematical and necessarily must be adjusted supple-mentally. Por this purpose New York has correctional facilities as Ave have. There the surrogate may modify the assessment from time to time, as the occasion requires. Matter of Silliman, supra. Here that function is vested in the comptroller by section 15. 'Under section 2 of our act, the tax assessed upon remainders is not payable until the remainderman becomes entitled to the actual possession or enjoyment of the propertjq and under section 15 the comptroller may refund any tax erroneously paid, provided- that application therefor be made within two years from the date of payment. These remedial provisions obviously furnish ample opportunity to trustees to have their compensation settled, upon accounting, and the assessments revised.

Holding, as I do, that at the proper time the assessment may be surcharged with the trustees’ commissions, leads to the conclusion that the appellants were premature in their demands upon the comptroller, and that their appeal must be dismissed.

-A practice prevails in the comptroller’s department of approximating and allowing in the assessment the cost of winding up estates, which course the appellants contend should have been pursued in this instance. All that need be said is that the praetice, notwithstanding its merits in accelerating settlements, is not warranted in law, and resting, as it does, wholly upon conjecture and the merest guesswork, must often work inequities to the state or the party assessed.' Strictly speaking, the department has no more the light to anticipate the probate court’s action than it has to adjust a claim against an estate for unliquidated damages, which, I understand, it never undertakes to do. In either event, it is the duty of the comptroller to await the final judgment of the proper tribunal.

The appeal will be dismissed, with costs.


text:
    In the matter of the appeal from the first intermediate account of Jennie R. Adrian, William H. Leupp and Frank St. John, surviving trustees under the will of William Rowland, deceased.
    [Submitted March 6th, 1917.
    Decided March 20th, 1917.]
    1. The tenant for life of a residue is not entitled to the income accruing during the delay allowed for the payment of legacies on that part of the estate .used for payment of legacies. Such income falls into the residue as capital.
    2. Corle v. Monkhouse, Jf7 N. J. Eq. 73, distinguished.
    On appeal from the Somerset orphans court.

      Mr. August G. Streitwolf, for the appellant.

      Mr. Hugh E. Gaston and Mr. John B. Hardin, for the respondents.
   Backes, Vice-Ordinary.

A brief statement will develop the single question presented for decision. William Rowland, by his will, made numerous pecuniary requests, some outright and others to his executors in trust lor various beneficiaries. The rest, residue and remainder of his estate he gave to the executors, in trust, to pay the income to his widow during her lifetime, and upon her decease to pay the income to his children until a given time, when the principal was to be distributed. Four of the trust legacies, aggregating $395,000, were for the benefit of non-dependents, and, consequently, not payable for a year after the death of the testator. The income of the. estate for the year, upon a sum equal to these'trust funds, amounted to $16,131.36. This sum the appellant contends should be treated as income of the residue, .while, on the other hand, the trustees claim and have charged themselves with it as principal of the residuary estate. From so much of the decree sustaining the trustees in this respect this appeal was taken.

Doubtless, this precise question has been often before our courts, but it seems that the decision is not recorded in any of our reported cases. Elsewhere may be found an abundance of authorities upholding the course pursued by the court below. Lew. Trusts (8th ed.) *801. states the established and guiding rule thus:

“The tenant for life of a residue is not entitled to the income accruing during- the delay allowed for the payment of legacies- on so much of the testator’s property as is subsequently applied in, paying them. Executors, as between themselves and the persons interested in the residue, are at liberty to have recourse to any funds they please for payment of debts and legacies, but in, adjusting the accounts between the tenant for life and the remainderman, they must be taken to have paid the debts and legacies not out of capital only or out of income only, but with such portion of the capital, as together with the income of that portion for one year from the testator’s death, was sufficient for the purpose.”

See, also, Perry Trusts (6th ed.) § 551.

In Allhusen v. Whittell, L. R. Eq. Cas. 295, the testator, Whittell, gave his estate, which was subject to the payment of legacies, to trustees to pay the income to his father for life, with' remainder over in four equal parts. Vice-Chancellor Wood, in illustrating the rule, said that supposing n testator has a large sum, say £50,000 or £60,000, in the funds, and has only £10,000 worth of debts, the executors will be justified, as between themselves and the whole body of persons interested in the estate, in dealing with it as they think best in the administration. But the executors, when they have dealt with the estate, will be taken by the court as having applied in payment of debts such a por- 1 tion of the fund as, together with the income of that portion for one year, was necessary for the payment of the debts. Until the debts and legacies were paid, there would have been no interest from the death of the testator which cóuld by possibility have come to the tenant for life. What I apprehend to be the true principle is, that, in the bookkeeping which the court enters upon for the purpose of adjusting the rights between the parties, it is necessary to ascertain what part, together with the income of such part for a year, will be wanted for the payment of debts, legacies and other charges during the year; and the proper and necessary fund must be ascertained by including the income for one year which may arise upon the fund which may be so wanted. It is clear that the tenant for life ought not to have the income arising from what is wanted for the payment of debts, because that never becomes residue in any way whatever. In Holgate v. Jennings, 24 Beav. 623; 53 English Reprint 498, the testator, whose estate consisted of stocks, gave £16,000 in legacies, payable within six months, and the rest and residue in trust to pay the annual proceeds to his wife for life. On a contest between the liferight holder and the remainderman, it was held that dividends accruing within six months after the testator’s death on stock equal to the amount of the legacies, formed no part of the income of the residuary estate, but fell into the residue and formed a part of the corpus. In Lambert v. Lambert, 16 L. R. Eq. Cas. 320, Vice-Chancellor Bacon followed the principle enunciated in Allhusen v. Whittell, as did the court in In re Whitehead; Peacock v. Lucas (1894), 1 Ch. 678.

In New York we find the same rule adopted. In Williamson v. Williamson, 6 Paige 298, the testator’s will contained pecuniary legacies, and the income on the residuary estate he gave to his wife for life, with the remainder, over to his three sons. In determining the right as between the life tenant and the remainderman to the income of the estate for one year on the amount of the legacies, Chancellor Wadsworth said that it was not the intention of the testator to give his wife the interest or income of his whole personal estate until the debts and legacies should be paid, or for the term of one year, and then the interest upon the residuary estate after that time. But it was his intention to give her the use or income of the same residuary fund, the capital of which was to be distributed to his three sons upon her death or remarriage. He cited the case of Covenhoven v. Shuler, 2 Paige 132, and the authorities there referred to, as settling the principle that where there is a general bequest of a residue of the testator’s personal estate for life, with a remainder over after the death of the first-taker, the whole residuary fund is to be invested for the benefit of the remainderman; and the tenant for life is only entitled to the interest or income of that fund. And to ascertain the amount of such residuary, fund, so as to apportion the capital and the income properly between the remainderman and the tenant for life, the executor, upon settling the estate at the end of the year, must estimate the whole estate at what is then ascertained to have been its cash value, at the testator’s death, after paying all debts, legacies and expenses of administration and other proper charges and commissions. But in making such deduction for legacies payable at a future day and which do not draw interest, the whole amount of the legacies is not to be deducted, but only such a sum as, if properly invested, would, at the time when the legacies become payable, have produced the requisite sum, exclusive of all expenses and risk of loss. To the same effect is Matter of Accounting of Benson et al., 96 N. Y. 499.

It is, therefore, quite clear, both upon principle and authoritjq that the income on the legacies under consideration passed into the residue as principal and not as income thereof.

A clear distinction, however, is drawn between the application of income on a fund applied/to the payment of a vested legacy and accumulations on the principal of an estate from which contingent legacies, or those payable at an indeterminate time in the future, may be payable. In the latter instances, the income falls into the residue as income of the residue. The reason for this is the uncertainty as to whether the estate will over be called upon to pay such legacies, and until it is the whole of the principal is “residue until wanted,”. and the income thereof is, of course, income of residue. See Sandford v. Blake, 45 N. J. Eq. 247. where Mr. Justice Depue discussed the principle and cited the-English authorities, including Allhusen v. Whittell, supra.

Counsel for the appellant, upon the argument and in his brief, cited Corle v. Monkhouse, 47 N. J. Eq. 73, as upholding his contention. That case is authority for one of the exceptions to the general rule that interest on legacies' does net begin to run until one year after the death of the testator, viz., where a gift is made of the interest or income, either of the whole of the residue, or a particular part of it, to one person for life, and the principal is given over to others oh the death of the life tenant, the life tenant is entitled to interest from the date of the death of the testator. This doctrine has been laid down time and again by our courts, and is not at this day even debatable, but, manifestly, it does not involve the point of law raised on this appeal.

The decree below will be affirmed, with costs.


author: •Lane, Vice-Ordinary.

text:
    In the matter of the estate of August Struble, deceased.
    [Decided May 1st, 1917.]
    1. The orphans court has no jurisdiction, to compel an administrator to account for rents collected by him from the property of the intestate.
    2. The fact that the administrator has, in prior accounts, accounted for rents under a tacit agreement with the heirs, does not give the orphans court power to compel him to continue to account, as he is entitled upon his accounting to a decree of a court competent to fully protect him.
    On appeal from the Sussex county orphans court.

      Mr. Charles F. Kocher, for the appellant.
   •Lane, Vice-Ordinary.

This is an appeal from an order of the Sussex county orphans court refusing to strike out exceptions filed to an account :ng of an administrator upon the ground that the exceptions were based upon the neglect of the administrator to account for rents collected by him subsequent to the death of the intestate.

The orphans court while admitting, as it was bound to do, that ordinarily the administrator has no concern with real estate, 3ret held that, because in fact the administrator had in previous accounts accounted for rents, and that there was a tacit agreement between .the heirs that he should account for rents as assets of the estate, the administrator was estopped from denying the jurisdiction of the orphans court to compel him to account. No answer was filed to the petition of appeal, and this court has •not been favored with the views of counsel for the exceptants. The question is one of jurisdiction. The orphans court cannot assume jurisdiction unless conferred b3r statute. If the court transcend its jurisdiction its acts pass for nothing. In re Alexander, 79 N. J. Eq. 226. If the administrator should account in the orphans court and should thereafter be required to account elsewhere by someone dissatisfied with the order of the orphans court, certainly if by someone who had not appeared in the orphans court, he would, if the orphans court had no jurisdiction, be obliged to account again. There may be cases where those interested in the rents are persons over whom the orphans court has no claim of jurisdiction.. Acquiescence will not confer jurisdiction. Certainty, the mistaken prior accounting for rents does not preclude the administrator from now insisting upon his right to account in some tribunal, the decree of which will adequately protect him. The orphans court not having jurisdiction to compel the administrator to account for the rents, the motion to strike out the exceptions should have been granted. The order of the orphans court will be therefore reversed


author: Walker, Chancellor,

text:
    Albert C. Steinmetz, appellant, v. Lena H. Steinmetz, respondent.
    [Argued March Term, 1915.
    Decided April 22d, 1915.]
    Pending an appeal from a decree of the court of chancery dismissing a petition for divorce, a motion to dismiss the appeal on the ground that the parties became reconciled and resumed cohabitation as husband and wife after the date of the decree, will not lie; because, if the decree of the court of chancery be affirmed, the matter will be entirely disposed of in respondent’s favor, and if reversed, the respondent could, in the court below, obtain the relief sought here by a supplemental bill in the nature of a bill of review..
    On motion to dismiss appeal from the court of chancery.

      Mr. Albemco 0. Giccarelli, for the appellant.

      Mr. Abraham Levitan, for the respondent.
   The opinion of the court was delivered by

Walker, Chancellor,

The appellant, who is the husband of the respondent, filed a petition against her for divorce on the ground of adultery. The cause was referred to an advisory master and brought on before him'. After the hearing he advised a decree dismissing the petition, which was filed and entered, and the petitioner appealed and noticed the case for argument at the present term of this court.

The respondent moved to dismiss the appeal, because, as alleged, the parties, appellant and respondent, resumed cohabitation subsequent to the decree. Sundry affidavits in support of the. motion were served by the respondent, and the appellant served his own affidavit in-reply. The proof- submitted on behalf of the respondent was to the effect that she and the appellant became reconciled and resumed cohabitation as bus-' band and wife four days after the entry of the decree of dismissal and remained together for a period of four days, when the appellant again deserted.

The respondent relied upon the case of Moore v. Galupo, 70 N. J. Eq. 801, as authority for the granting of the motion. It was tliere decided that cases may occur in which, to prevent injustice, this court will intervene and determine questions of fact affecting the status of an appeal; hut that such intervention should not be resorted to for the mere convenience of the respondent. It was - observed in the opinion that if the appeal went to hearing, and was decided in favor of the applying party, the matter would be entirely disposed of. And this is now the status of the case at bar, for this court has affirmed the decree below, and the matter is as entirely disposed of in favor of the respondent as if her motion to dismiss the appeal had.prevailed. But if the result had been otherwise, and if the decree had been reversed, she could have obtained in the court below the relief she sought here on the motion to dismiss. That relief could have been obtained by a supplemental bill in the nature of a bill of review, filed with leave of the court (2 Dan. Ch. Pl. & Pr. *1537), which leave would be granted upon a proper state of facts. Moore v. Galupo, supra. And such a bill may be filed by a defendant. O’Donnell v. McCann, 77 N. J. Eq. 188.

In the present posture of the case at bar it is unnecessary to decide whether, if a reversal had resulted in this.court, and a decree had been entered here directing the court below to grant the divorce prayed for by the appellant, a final decree should be entered at once, or whether a decree nisi should be entered in the court of chancery pursuant to the provisions of section 20 of the Divorce act (P. L. 1907 p. 4-80), which would become absolute after the expiration of six months from the entry thereof, unless proceedings for review were pending in that court, or that court before the expiration of the period, for sufficient cause, otherwise ordered. IMd. § 20. Among the causes which may be shown against making a decree of divorce absolute, it may be pertinent to remark, is the reconciliation of the parties and. resumption of cohabitation after the date of the decree nisi. Grant v. Grant, 92 Atl. Rep. 791, 793.

As the respondent has obtained all tire relief she seeks the pending motion is, of necessity, overruled. •

For affirmance—The Chief-Justice, Garrison, Trenciiard, Parker, Bergen, Minturn, Kalisch, Brack, Bogert, Vredenburgii, White, Teri-iune, Williams—13.

For reversal—None.


author: Gummere, Chiee-Justioe.

text:
    Hildreth Granite Company v. Freeholders of Hudson et al.
    [Argued November Term, 1916.
    Decided March 5th, 1917.]
    1. The notice required by the Municipal Lien law (3 Gomp. Stat. p. 8317 § 2) need not be delivered personally to the chairman of the board of freeholders. It is sufficient if it be filed in his office by delivery to a person in charge thereof.
    2. The provision of the Corporation act relative to suits by foreign corporations (2 Oomp. Stat. p. 1658 § 98) does not apply to contracts made outside of this state.
    S. A single sale does not mean transacting business within the meaning of 2 Oomp. Stat. p. 1658 § 98.

      4. The time limit of fifteen days fixed in the Municipal Lien law for the filing of notice of claim (8 Gomp. Stat. p. 8817 § 2) applies not only when the work has been completed, but also when the work has not been completed and the contractor has abandoned it, but what has been done has been accepted by the municipality.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevenson:

      Mr. TIarry ;Lane, for the appellant.

      Mr. Marshall Van Winlcle, for the respondents.
   The opinion of the court was delivered by

Gummere, Chiee-Justioe.

The appeal in this case is from a decree entered in a suit brought under the Municipal Lien law. Comp. Stat. p. 3315. The situation developed, by the proofs was as follows: One Edward P. O’Neill entered into a contract with the board of freeholders for the improvement of a public road in Hudson county. The Hildreth Granite Company furnished to the contractor blocks to be used on the improvement; the firm of Maher & McNiehols furnished curbing to be used on the job, and the Edison Portland Cement Company furnished cement for a like use. O’Neill, the contractor, having completed the work, and having failed to pay these three subcontractors the amounts due them, respectively, they each filed a notice of their claim against the contractor for the purpose of establishing a lien upon funds in the hands of the board appropriated to this work of improvement, but not yet paid over to the contractor, and then instituted proceedings under the statute referred to. IJpon the hearing in the court below it was adjudged that the Hildreth Granite Company was entitled to be paid the amount of its claim out of the fund in the hands of the county, but that neither the firm of Maher & McNiehols nor the Portland Cement Company had established a lien upon the fund, and that they were neither of them entitled to share in its distribution.

The Portland Cement Company is content to abide the judgment of the court of chancery, but the firm of Maher & MeNiehols appeals.

The first ground of appeal is that the decree, so far as it adjudges the right of the Hildreth Granite Company to payment, is without legal support—first, because that company failed to file its notice of claim in the manner required by the statute, and second, because it had no status to maintain a suit in this state for the collection of its debt.

The validity of the first contention depends upon the true construction of section 2 of the act under which the litigation was brought. The provision thereof is that

“at any time before the whole work to be performed by the contractor is completed or accepted by the municipality, and within fifteen days after the same is so completed or accepted, any claimant may file with the chairman or head of the department, council, board, bureau or commission having charge of said work, notices stating the residence of the claimant, verified by his oath or affirmation, stating the amount claimed, from whom due,” &e.

The proofs showed that the Hildreth company notice was filed in the office of the clerk of the board of freeholders within the time limited by the statute. The argument is that in order to make the filing valid it should have been delivered personally to the director of the board of freeholders, who is the chairman of that-board, and that failure in this regard makes the notice a nullity.

We think this contention without merit. The language of the statute is that the claimant may file with the chairman of the board notice of his claim, not that such notice shall be served upon the chairman. The direction to file implies the existence of a place for the keeping of the files of the officer designated. The uncontradicted evidence is that the director of the board of freeholders keeps his files in the office of the clerk of the board. That office, therefore, is the proper place in which to file a claim with the director. The fact that he is not personally present at the time of the filing is immaterial. Its delivery to the person in charge of the office for the purpose of having it there filed is a compliance with the statute, just-as the delivery of a notice of trial at the office of the clerk of the court to a person then in charge thereof is a filing of the notice with the clerk.

The other contention is based upon the fact that the Hildreth Granite Company is a corporation of the State' of Massachusetts; that it has failed to comply with the provisions of the supplement to the Corporation act, approved March 14th, 1895 (Comp. Stat. p. 1658), which requires foreign corporations, before transacting any business in any manner whatsoever in this state, to file certain papers in the department, of state, and thereupon to receive from the secretary of state a certificate showing that it has complied with all the requirements of this supplement; and prohibiting any corporation that has not complied with the statirte from maintaining any action in this state upon any contract made by it in this state. The provisions of this statute, however, are not applicable to the Hildreth -Granite Company so far as its right to maintain the present proceeding is concerned. In the first place, the preponderance of the evidence is in favor of the conclusion that the contract which it made with Mr. O’Neill was entered into not in this state but in the slate of its domicile. The statute only deals with contracts made in this state by a foreign corporation. Faxon v. Lovett, 60 N. J. Law 128; Low v. Davy, 83 N. J. Law 542. But even if the evidence had justified a contrary conclusion, the appellant’s contention is without support. No attempt was made to show that the Hildreth Granite Compairy had ever transacted any business in this'state with anybodjg except in the making of the contract which is the basis of its present claim; and it has already -been decided by this court that a foreign corporation which makes a single sale of its product in this state does not transact business herein. Avithin the meaning of the statute. Delaware and Hudson Canal Co. v. Mahlenbrock, 63 N. J. Law 281.

The appellant also alleges as a reason for reversal that the court of chancery erred in holding that its notice Avas not filed in accordance Avith the statute.

The Avork of the contractor Avas completed on the 31st day of October, 1914. It Avas accepted by the board of freeholders on the 7th day of December folloAving. The appellant’s notice was filed on the 25th day of November—that is, twenty-five days after the Avork Avas completed, and twelve days before' it was accepted. The pertinent provision of the statute, which has been above recited, is that within fifteen days after the work “is completed or accepted,” the claimant may file with the chairman, &e., his notice of claim. It is to be observed that the phrase “completed or accepted” is in the disjunctive, and is intended, as Ave think, to meet two different conditions; one, where the contract has been fully performed by the contractor; and the other where he has defaulted in full performance, but the municipality has accepted the work so far as it has been done. In the first case— that is, where the Avork has been completed, the claimant is required to file his notice within fifteen days after the date of completion. In the other case, AAdiere the work has not been completed, AAdiere the contractor has abandoned it, but where what has been done by him is accepted by the municipality, the claimant must file his notice Avithin fifteen days after such acceptance. In the pending case the work, as has already been stated, was completed on the 31st of October. In order to give validity to the appellants’ notice they were required to file it on or before the 15th of November. They failed to do so until the expiration of ten days beyond that time. We agree with the vice-chancellor, therefore, that the statutory provision was not complied with by them, and that they were not entitled to the lien which they claimed.

The decree under review' will be affirmed.

For affirmance■—The Ci-iiee-Justice, Garrison, Swayze, Trbnci-iard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppeniieimer, Williams, Gardner—13.

For reversal—None.


author: Garrison, J. White, J.

text:
    Harry Freedman, respondent, v. Isaac Fineberg, appellant.
    [Submitted December 15th, 1916.
    Decided March 5th, 1917.]
    Under the special terms of a give and take offer by one equal partner to sell to the other, the words “All moneys which I have in said partnership business in excess of the moneys in said business belonging to you,” means one-half of the difference between the cash withdrawals of the two partners and not the whole of said difference.
    On appeal from a decree of the court of chancery advised by Vice-Chancellor Backes.

      Mr. Scott Scammell and Mr. Charles Be F. Besore, for the appellant.

      Mr. Frank S. Katmihach, J?*., and Mr. George S. Macpherson. for the respondent.
   The opinion of the court was delivered by

Garrison, J.

An equal partnership that had existed foi some time between Freedman & Fineberg having been dissolved by mutual consent, Freedman made in writing a give or take offer to Fineberg-, by which Freedman offered to buy the property and business for $25,000, to be paid in cash to Fineberg,.together with a complete release by Freedman of all claims and demands against Fineberg growing out of the partnership. Freedman also offered to sell to Fineberg on the same terms excepting as to the terms of payment, which were provided as follows:.

“7. In case you elect to purchase all my right, title and interest in and to said partnership, as hereinbefore provided, it is understood and agreed that in addition to the purchase price above named, I shall also receive all moneys which I have in said partnership business in excess of the moneys in said business belonging to you, which moneys are to be paid to me in the same ratio or proportion, as to cash payments and notes, as the above-mentioned purchase price of my one-half interest is to be paid to me under the terms hereof.”

Fineberg elected to buy and paid to Freedman “the purchase price above named,” to wit, $25,000, but made no further payment owing- to irreconcilable differences as to the sum due to Freedman under the seventh section of his accepted offer. This was the question raised in the court below by the cross-bill filed by Fineberg to a bill filed by Freedman to rescind the sale. The learned vice-chancellor conceiving that by section 7 Freedman was entitled to the difference between the sum of his Cash withdrawals and the sum of Fineberg’s cash withdrawals, ascertained each of these sums as follows, viz., Freedman’s withdrawals, $6,-750.40; Fineberg’s withdrawals, $31,145.43; the difference between which, viz., $24,395.03, is the sum which, in the opinion of the court below, Fineberg must pay to Freedman in order to obtain a specific performance of their contract. By an error of subtraction this sum appears in the decree as $24,390.03.

We are unable to concur in this conclusion for two reasons— first, because this sum of $24,395.03 does not represent Freedman’s monied interest in the business in excess of Fineberg’s; on the contrary, such excess was eliminated by the cancellation of the two withdrawals up to the amount of Freedman’s withdrawal ; hence what remained after such cancellation represents a sum in which each of the partners has an equal interest, so that if Fineberg should pay into the firm account the whole of said sum, he would be entitled to one-half of it and Freedman would be entitled to the other half of it.

The other reason is that by Freedman’s offer Fineberg was entitled to buy “on the same terms” on which Freedman offered to buy, which, in a give or take offer, normally, means that the price is the same whichever party buys. The view taken in the court below, which results in two different purchase prices for the same property, violates this meaning, and at the same time denies all force to the words “on the same terms.”

Section 7 of the agreement should, in our opinion, be construed udth reference to the entire agreement, and especially with reference to those sections of it that fix the price to be paid by Freedman in case his offer to buy was accepted.

. The price that Freedman offered to pay to Fineberg, as stated in the offer itself, was made up of two elements, viz., $25,000 in cash and Freedman’s release of Fineberg from all claims growing out of the partnership. The cash sum of $25,000 remains the same in case Fineberg became the purchaser. If, therefore, we ascertain the sum upon which Freedman’s release of Fineberg would operate,' we shall have ascertained the price that Freedman was to pay to Fineberg and also have established from the agreement itself a definite meaning to be given to the equivocal language of its seventh section, which has caused the trouble.

Taking the figures arrived at by the learned vice-chancellor, in the correctness of which we’ concur, Fineberg had withdrawn $31,145.43 and Freedman had withdrawn $6,750.40, which canceled each other excepting as to the differences, viz., $24,395.03, as: to which sum, as we have seen, Freedman had a claim to one-half, viz., $12,197.51. This is the claim, therefore, upon which Freedman’s release of Fineberg would have operated. The addition, therefore, of this sum of $12,197.51 to the $25,000 in cash establishes the price that Freedman offered to pay for the property, viz., $37,197.51.

When, therefore, Fineberg exercised his option to buy the same properly, “upon the same terms,” the price that Fineberg agreed to give and that Freedman agreed to take was $37,197.51, of which sum $25,000 having already been paid in cash, the sum of $12,197.51 remains to be paid by Fineberg in order to complete his purchase under the terms of the seventh section of the agreement. The meaning that is thus given to the language of the seventh section is that-the sum there described as the excess of money Freedman had in the business means all money claims that Freedman had against Fineberg growing out of the business, and, as this is precisely what Freedman’s release of Fineberg would have operated upon, the difference of the two descriptions is one of .words only; the intent thus lamely expressed being that the cash value of Freedman’s release to Fineberg, if Freedman became the purchaser, should be paid in cash by Fineberg to Freedman if Fineberg became the purchaser.

* This construction of the agreement gives weight to all of its unequivocal language, while at the same time it gives to the equivocal language of the seventh section a meaning that is consistent with, and derived from, the agreement itself interpreted within its four corners.

The decree of the court of chancery awarding specific performance is affirmed, with a modification as to the sum to be paid by the appellant to the respondent in accordance with the views herein expressed.

' The appellant is entitled to costs upon this appeal upon which he succeeds-in so far as he challenged the decree of the court below.

White, J.

(dissenting).

I am unable to agree with the foregoing ascertainment of the result of clause 7 in the sale agreement, which clause provides ’ that the selling partner shall, in addition to the “give or take” price of $25,000, receive all moneys which lie had in the partnership business (the subject of the sale) in excess of the moneys in' said business belonging to the purchasing partner. Stripped of confusing details, the case may,, for illustration, be stated, in round figures, as follows: Freedman and Fineberg are equal partners. Each has put into the business, say, $50,000 in cash, and the total assets thus amount to $100,000. Fineberg then draws out $25,000, reducing the assets to $75,000. They then agree to dissolve by Fineberg purchasing Freedman’s interest at $25,000, plus such additional sum as represents the excess of Freedman’s money in the business over Fineberg’s. As I understand it, the majority opinion figures that this excess is only $12,500. I think it is $25,000.

.This would lead me to an affirmance of the conclusions of the learned vice-chancellor were it not for the fact.that he included in the amount to be charged against Fineberg, as withdrawn by him, the amount of a $10,500 note originally given for part of the investment (which was lost) into a separate enterprise, the nature of which investment, whether it was by the firm or only by Fineberg, was the subject of dispute. The vice-chancellor found that this separate investment was not a firm matter, but purely Fineberg’s, and with this I agree, and this would lead to an affirmance in to to were it not for the fact that at the time of the dissolution purchase, this note had been actually taken up by the firm with film money and by clause 4 of the purchase agreement, as made reciprocal on this point by clause 5 thereof, it was expressly stipulated that the seller, Freedman, released the purchaser, Fineberg, from all liability of whatsoever description upon or by reason of this particular note in which firm assets were then invested and then belonging to the firm.

This view leads me to the result that Fineberg is not now chargeable with this note, and that the amount which he should pajr Freedman, in addition to the $25,000 already paid, is $13,-895.03, instead of the $24,390.03 decreed (with a slight arithmetical error of $5) by the court of chancery.

For affirmance—None.

For reversal—Parker, White—2.

For modification—The Chibe-Justice, Garrison, Swayze, Trbnoitard, Bergen, Minturn, Kalisch, Black, Heppeni-ieimer, Williams, Gardner—11.


author: Swayye, J.

text:
    Edward J. Moore, surviving trustee under the will of Thomas C. Barr, deceased, v. Katherine V. Dorey et al.
    [Argued November 23d, 1910.
    Decided March 5th, 1917.]
    A testamentary gift to the issue of the survivor of two persons means to all issue' of such survivor, including issue born after the death of the deceased ■ beneficiary.
    On appeal from a decree advised by Vice-Chancellor Howell.

      Mr. Frank Bergen, for the complainant.

      Mr. Ghauncey G. Parker, for Katherine V. Dorey. and Helen L. Birch.

      Mr. Charles G. Pilgrim, for Dorothy Lorraine Payne.
   The opinion of the court was delivered by

Swayye, J.

The will to be construed is the same of which some' clauses ■were construed in Moore v. Downey, 83 N. J. Eq. 428. By the twelfth clause the testator directed that after the death of his wife, the executor or trustee should pay to his sister-in-law Edith B. Eretz $2,500 annually during her natural life; and to Katherine M. Nippes $2,500 annually during her natural life; that in case of the death of either Eretz or Nippes without leaving issue, the survivor of the two should be entitled to the whole income mentioned above which the deceased would have taken if living. By the thirteenth clause he directed that in case of the death of Nippes or Eretz leaving issue, the executor or trustee should pay over out of the principal of the estate $50,000, to be divided per stirpes among the issue of each of the said beneficiaries so dying leaving issue. Then follows the following provision:

“I further direct that in case of the death of either of the aforesaid Katherine M. Nippes or Edith B. Fretz, without issue, then, and in that event, the issue of the survivor of the aforesaid Katherine M. Nippes or Edith B. Fretz, shall receive the whole sum of fifty thousand ($50,000) dollars bequeathed to the issue of the person dying without issue, as described in this paragraph. It being my intention that the two sums of fifty thousand dollars each shall go only to the issue of the aforesaid Katherine M. Nippes or Edith B. Fretz, or to the survivor of either, leaving issue, otherwise to become a part of my estate.”

Edith B. Fretz has died without issue. Katherine M. Nippes has married and has issue, Dorothy Lorraine Payne, a child about five years old at the time of the hearing in the court of chancery. The learned vice-chancellor rejected the last clause as unintelligible,-and awarded the fund of $50,000 to Dorothy Lorraine Payne to be now paid to her general guardian. He awarded this to her as the issue of Katherine M. Nippes Payne in esse (as the decree says) at the time of the death of Edith B. Fretz. The interpolation of the words in esse is important, since it gives the fund- a destination different from that marked out by the plain words of the will. The will gives the fund to the issue of the survivor of Fretz and Nippes; this can only mean all the issue, and their identity could not be ascertained until the death of the mother. It seems to us perfectly clear that the testator did not mean to shut out after-born issue, as the decree below does. This substitution of the child of Mrs. Payne living at the date of the decree for all the issue to whom the will gives the fund is a strong indication that the vice-chancellor fell into error. We do not have the same difficulty with the will that he felt. The scheme seems plain. The testator gives $2,500 a year each to Fretz and Nippes. He seems to anticipate the investment of $50,000 for each to produce this income. In case of the death of either without issue, the survivor is to have the whole income of $5,000, requiring the investment of both $50,000 funds. In case of either leaving issue, the principal of- the $50,000, of which she had had the income, was to be divided among her issue per stirpes. In case of the death of either without issue, the $50,000 fund held for her, the income of which he had already directed should go to the survivor, was ultimately to go to the issue of the survivor. We think the difficulty felt by the vice-chancellor as to the rejected clause can be solved by making it read:

“It being my intention that the two sums of fifty thousand- dollars each shall go only to the issue of the aforesaid Katherine M. Nippes or Edith B. Eretz, or to [the issue of] the survivor of either, leaving issue.”

We have interpolated the words in brackets. The words “of either” are superfluous but harmless. This interpolation is, we think, justified by the general scheme of the will, as we have above set it forth; by the impossibility of ascertaining who the issue of the survivor will be until the survivor is "herself dead; by the intent to give the whole income to the survivor where one dies without issue; and by the clear intent of the testator that the ultimate destination of the funds shall be the issue, and all the issue, of Edith B. Eretz and Katherine M. Nippesand is not that the survivor of Edith B. Eretz and Katherine M. Nippes shall have the principal as well as the interest of the fund invested for the life of the one who first dies, as would be the case without this interpolation or the entire rejection of the clause; and, finally, by the fact that it disposes of both funds in the same way as the testator evidently intended.

The decree must be reversed and the recoi d remitted in order that a decree may be entered in accordance with this opinion.,

For affirmance—None.

For reversal—The Chief-Justice, Garrison, Swayze.1 Trencitard, Parker, Bergen, Minturn, Kalisci-i, Black, White, Heppenheimer, Williams, Gardner—13.