author: Lloyd, J.

text:
    ORADELL GARDENS, INCORPORATED, PLAINTIFF-APPELLANT, v. WALTER G. MOONEY, JOHN J. MOONEY AND PAUL W. ECKERT, DEFENDANTS-RESPONDENTS.
    Submitted October 12, 1934
    Decided March 25, 1935.
    Before Justices Lloyd, Case and Donges.
    For the appellant, Benjamin J. Spiiz.

    For the respondents, Breslin & Breslin.

   Lloyd, J.

The action was to recover the value of a sign which the defendants were charged with taking off of the premises of the plaintiff, a land development company. There was a nonsuit in the District Court and plaintiff appeals, presenting this action as the sole ground for reversal.

The plaintiff’s proofs disclosed that the sign, a large one, 14 by 28 feet, was erected by the Oradell Gardens, Incorporated, in 1928 or 1929, at a cost of $250; that it was removed at the instance of the defendants. This apparently made out a prima facie case.

The respondents, however, contend first that the possession or title to the sign was not shown to be in the plaintiff. We think the evidence was adequate for the purpose. It established that the sign was constructed by the plaintiff on its own property from which its continued ownership would be presumed, and presumably also this relation continued until a contrary state of the title or ownership was established. It is also suggested that the title or ownership in the plaintiff was defeated by a tax sale of the lands. This, however, was not adequately shown, and if it had been it would not affect personal property, if such the sign should be determined to be. ‘

It is next urged by respondents that the sign in question was not personal property, but a part of the realty. Here again we think the contention is not well founded. An ordinary advertising sign, such as the present one purported to be, is not necessarily a part of the land on which it is located. While the sign was erected on the ground in a substantial fashion, and was intended to serve the purposes of the land company, this did not make it pax't of the realty.

The character which a chattel takes on when annexed to the realty is in no small degree dependent upon the intention with which it is placed, and this is particularly true when the ownership of both the chattel and the realty is in one and the same person. 26 Corp. Jur. 655, 656; Gibbs v. Cooper, 86 N. J. L. 226. That the sign was intended not to become a part of the realty is in some degree evidenced by the form in which this action was instituted, being for the conversion of chattels, and that such was the intention is evident also from the fact that the sign was erected to effect a temporary purpose only. Plaintiff was engaged in the sale of lots as a real estate development. When these lots were disposed of the sign would have no purpose or utility.

Pegar ding the contention that there was not sufficient evidence to connect the defendants with the trespass, it is sufficient 1 o say that the proofs showed that all of them were instrumental in procuring removal of the sign. Against them a prima facie case was established and the nonsuit was improper.

The judgment is reversed.


source: Caselaw Access Project

author: Hartshorne, C. P. J.

license: Public Domain

text:
    Essex County Court of Common Pleas.
    WILLIAM C. KIRSCHLER, PLAINTIFF, v. OTTO H. ALBANESIUS AND LITTLE THEATRE, INCORPORATED, A CORPORATION, DEFENDANTS.
    Decided April 16, 1935.
    Eor the plaintiff, Kalisch ¡& Kalisch.

    Eor the defendants, Levy, Fenster <& McCloskey.

   Hartshorne, C. P. J.

The question here is, whether or not the Court of Common Pleas has jurisdiction to try cases where the right to possession of land is in issue, even where such right is for less than a freehold, as, for instance, a leasehold.

The facts have been stipulated, and, in brief, are, that defendant Albanesius was the owner of the fee of the premises in question on Broad street, Newark. Albanesius first leased the premises to Eine Arts Theatre, Incorporated. Thereafter a receiver for such company was appointed. Ten days later Albanesius leased the same premises to defendant Little Theatre, Incorporated. Shortly thereafter the above receiver sold the first of the above leases to plaintiff, Kirschler. Defendant Little Theatre, Incorporated, otherwise known as Cinema Company, Incorporated, is actually in possession of the premises, while plaintiff Kirschler has never been in possession, hut seeks same by this suit. The rights of the respective parties are, therefore, to he determined by the terms of the leases and the effect thereon of the above receiver’s sale. Upon this state of facts, it is moved to dismiss this action in ejectment for lack of jurisdiction in the Common Pleas Court. This jurisdictional question is raised by the terms of the Ejectment act, and by the statute governing the general jurisdiction of the Common Pleas Court. The latter provides “the Court of Common Pleas shall be a court of record, with general jurisdiction over all suits and actions of a civil nature at law, irrespective of the amount in controversy, save only suits and actions wherein the title to real estate is in question * * Pamph. L. 1900, p. 322; 2 Comp. Stat., lit. “Courts ” p. 1725, § 94.

The Ejectment act provides that a bill of particulars of either party’s “claim or title to the premises in question” may be demanded. This indicates that ejectment lies to assert any right to possession, whether based on a full freehold or not; i. e., it covers a leasehold, as in the case at bar. This is quite in accord with the ancient common law character of ejectment. As was stated by Chief Justice Kirkpatrick, as far back as 1822, in regard to the basis of plaintiff’s claim in ejectment:

“All that he had to show, in order to maintain his suit, was the possession of himself or his ancestor, and this might be overcome by the defendant showing an older and a better possession; for it never was pretended that the defendant’s must be such a possession as established the ultimate right. * * * The action of ejectment * * * was not originally devised as a remedy for injuries done to real estate, that is, to estates of freehold in lands, but as a remedy for injuries done to chattels real, such as terms for years which wore considered as mere chattel interests.” Den v. Morris, 7 N. J. L. 6.

The Ejectment act further gives the justices of the Supreme Court, at least as to mesne profits, the right to' regulate the proceedings “in the Circuit Court, as well as in the Supreme Court.” 2 Comp. Stat., til. “Ejectment” p. 2063, § 45. While this does not clearly exclude the Common Pleas from jurisdiction, particularly as to the main ejectment action, exclusive of that for mesne profits, such would be at least a possible inference. However, since same is but an inference, and not of indubitable clarity, such a lack of judicial jurisdiction should not be rested solely thereon, particularly in view of the fact that the statute governing the general jurisdiction of the court was enacted later than the Ejectment act, and so might well constitute, if inconsistent, an implied modification or repealer.

It is argued that “the title to' real estate,” referred to in the exception to the jurisdiction of the pleas, supra, means solely full freehold title, and does not include a mere right or claim to possession for less than freehold, such as a leasehold or term for years. If this is correct, then this act may well constitute an implied repealer, at least as to ejectments involving less than the freehold, as here, of the inference arising from the Ejectment act, if such inference is, indeed, proper. Since no decision has been found dealing with such present enactment in this regard, this question, as to the meaning of these words, “title to real estate,” in this statute calls for a consideration, not only of the general meaning of such term, but of the preceding similar enactments by the legislature as to the jurisdiction of the Court of Common Pleas, reaching back, as they do, to the earliest colonial times.

The first courts in the colonies of East and West Jersey were established in 1667 in Monmouth county. In 1675 the provincial assembly created the first county courts, called the Sessions, to try both civil and criminal eases, same then being held by the justices of the peace, who' also, apparently, held the local courts. In 1704 Lord Cornbury, empowered by the crown, established, by ordinance, a more general legal system, providing for the creation of courts for the trial of small causes, with appeal to the Court of Sessions, such ordinance further providing for the establishment of a Court of Common Pleas, to be held immediately following the session of the Sessions, and to be held, apparently, by the same magistrates. Schalk v. Wrightson, 58 N. J. L. 50; 4 N. J. Archives 166; 32 Atl. Rep. 820. While some of the judges of the Common Pleas were lawyers, many, if not most, of the Common Pleas judges were laymen, who still continued to hold court even as late as 1896. Gray v. Bastedo, 46 N. J. L. 453, 459.

The lay judges were entitled “Judges;” the law judges “President Judges”—the origin of the present term. So wedded were our forefathers to the theory of lay judges, that two lay judges were originally required to ride the circuits and assist the chief justice in holding the Supreme Court on circuit. But by Pamph. L. 1896, ch. 102, p. 149, all lay judges of the Court of Common Pleas were abolished.

This practical situation, in which the colonists selected their own lay judges, unskilled in the law, was doubtless the reason why it was expressly provided, as to the Court of Common Pleas, in Lord Cornbury’s ordinance of 1704, which first created that court, that though such court should be one of general jurisdiction, an appeal would lie from its decision, or a cause lawfully before it might be removed by a prerogative writ to the Supreme Court in “any action or suit wherein the right or title of, in, or to any land or anything relating thereto, shall be brought into dispute or upon tryal.” This, of course, did not deprive the Common Pleas of jurisdiction over such causes, but gave either an appeal from its decision in that regard, or the right to the parties to remove such cause, at the discretion of the Supreme Court, before such decision. But the same ordinance inconsistently provided, as to the power of the Supreme Court to issue its prerogative writ to the Sessions and the Pleas, that same should issue, in actions of this character, among other conditions, only where “the right or title of any freehold” was concerned. The next court ordinance, of 1714, apparently recognized this inconsistency, for it provided for such removal in cases, among others, where there was concerned “the right or title of any lands, tenements, and hereditaments whatsoever.” Provincial Courts of New Jersey, Field, Ordinance of Eobert Hunter, Appendix D, page 267. This status continued until 1723, when, by the ordinance of George II, it was provided that the Common Pleas should have jurisdiction to hear “all suits * * * (causes wherein the right or title of any lands, tenements, and hereditaments, is in anywise concerned, excepted”). Book C of Commissions, page 57, 1 Hal. Ch. (6 N. J. L.) Appendix A. This regulation of the jurisdiction of the Common Pleas continued on down through the years until the enactment of the above statute of 1900, at present in force. For the intervening state constitutions of 1776 and 1844 did not expressly set forth the jurisdiction of such court, though such court was there referred to. but did provide that “the several courts of law and equity * * * shall continue, with the like powers and jurisdiction as if this constitution had not been adopted.” Constitution of 1844, article 10, section 1.

Clearly, the Common Pleas, from 1723 to 1900, did not have jurisdiction of causes where either freeholds or claims for less than a freehold were involved. This is both because the above ordinance of George II excepts the court’s jurisdiction to causes concerning a “right or title of lands,” and because it includes in such exception “tenements” as well as lands. The word “tenements” means property held by a tenant, including rents and profits a prendre, and when used alone, without other circumstances, has never been construed to pass a fee. 2 Bouvier; Rawles (3d ed.) 3257; Wright v. Page, 10 Wheat. 204; 1 B. & Ad. 161. It was upon the basis of this early restriction upon the court’s jurisdiction that the case of Collins v. Keller, 58 N. J. L. 429; 34 Atl. Rep. 753, was decided, though it does not appear in such case whether or not a claim for less than a freehold was involved.

The only other cases found in which the jurisdiction of the Common Pleas was involved in this regard are those of Messler v. Fleming, 41 N. J. L. 108, and Jeffrey v. Owen, Ibid. 260. Both these cases, however, originated in a Justice’s Court, and were therefrom appealed to the Common Pleas and removed, on certiorari, from the Pleas to the Supreme Court. Thus, while the Supreme Court in such cases concludes that the Pleas, as well as the Justice’s Court, was without jurisdiction, it reached such conclusion, not upon the basis of the statute limiting the jurisdiction of the Pleas, but upon the basis of the similar statute limiting the jurisdiction of the Justice’s Court. This latter statute then provided that the jurisdiction of the Justice’s Court “shall not extend to any action wherein the title to lands, tenements, or hereditaments, or other real estate, shall or may in anywise come in question.” It further provided that when a defendant, as a justification, pleaded title in himself or another under whom he acted or entered (Revision of 1877, page 538, section 1), the suit should be terminated in the Justice’s Court and initiated elsewhere. The great similarity between these limitations on the jurisdiction of the Justice’s Court and the limitation previous to 1900 on the jurisdiction of the Common Pleas Court, is noteworthy. The only difference between them is that in the Common Pleas statute the words are “right or title,” while in the Justice’s Court act the word “title” alone is used, and, further, that in the Justice’s Court act the words “or other real estate” are added. Since the words “or other real estate” clearly can add little to the all-inclusive term “lands, tenements and hereditaments,” the question is whether the use of the word “title” alone in the Justice’s Court act shows that such title has reference solely to freeholds.

A series of decisions of the courts of this state uniformly show that it does not, but that, on the contrary, 'it covers all claims of any quality to the possession of land, in so far as such claims to possession are distinguished from the actual physical possession of the land. In the Messier case, above, the court cites with approval from Hill v. Carter, 16 N. J. L. 87; 1 Harr. 87, and a series of other cases as follows:

“The effect of these provisions is clearly stated by Mr. Justice Everson, in Hill v. Carter, 1 Harr. 87: ‘The justice may try the fact of possession. This is the proper limit of his jurisdiction. He cannot ordinarily inquire into any matter of title to lands, involving the execution, validity or construction of deeds, mortgages, wills, judgments or decrees. They very frequently call for the deepest learning of the law. By title and claim, then, our legislature must have intended to distinguish between such title as a possession alone gives, and title by documents, or other matters conferring title, independent of a present possession such as consanguinity, descent, endorsement and curtesy.’

“With equal precision the rule is stated by Chief Justice Green in Campfield v. Johnson, 21 N. J. L. 83 (1 Zab. 85) : ‘Title is generally applied to signify the right to land and real effects. It is the right of possession, or of property in lands as distinguished from the actual possession, and it is precisely in this sense that the word appears to have been used in the statute now under consideration. The right to try actions concerning real estate, involving the mere fact of possession is vested in the court for the trial of small causes. But the statute excludes from its jurisdiction all cases where, either in support of the action or in maintenance of the defense, any right or title is involved other than the naked fact of possession.”

In the above case of Jeffrey v. Owen, supra, the court says:

“The jurisdiction of a justice of the peace extends no further than to enable him to try the fact of possession— pedis possessio. He has no jurisdiction to inquire into the title to lands, or into the right of possession. He can only take cognizance of possession as a question of fact. Where the plaintiff can maintain his right to sue in trespass, by proof of actual possession, which the justice may determine upon evidence of facts, without any inquiry into title, the action is cognizable in a Justice’s Court; but if the possession be merely constructive, and can be shown only by proof of title, the justice has no jurisdiction. If documentary or other evidence relating to title be relied on, which the justice cannot adjudicate upon, another tribunal must be resorted to. Gregory v. Kanouse, 11 N. J. L. 62 (6 Halst. 62); Hill v. Carter, supra; Campfield v. Johnson, supra; Dickerson v. Wadsworth, 33 N. J. L. 357 (4 Vr. 357).”

Subsequently, this limitation upon the jurisdiction of the Justice’s Court was changed in mere verbiage to except actions “wherein the title to lands shall come in question.” Pamph. L. 1903, p. 251; Pamph. L. 1923, ch. 175, p. 461. But the word “title” was still used alone. This clear continuous construction of the word “title” as it affects the jurisdiction of the Justice’s Court, seems practically dispositive of the construction to be placed upon the same word “title” as it appears in.the 1900 act, limiting the jurisdiction of the Common Pleas Court. 2 Comp. Stat., tit. "Courts,” p. 1725, § 94, supra. Hot only does the Justice’s Court act always use the sole word “title,” but the original act, as thus construed, uses the cumulative word “real estate” exactly as does the present Common Pleas act. It was doubtless in view of this settled construction of such terms that the legislature used the same terms in 1900, relying upon such construction, in limiting the jurisdiction of the Common Pleas. Fritts v. Kuhl, 51 N. J. L. 191, 199; 17 Atl. Rep. 102.

The very fact that appeals from the Justice’s Court ordinarily are to' the Common Pleas (3 Comp. Stat., til. “Justice’s Court,” p. 3004, § 80), but that, wherever the defendant pleads title to lands as a justification, the suit thereon must be brought either in the Supreme Court or the Circuit Court, is further evidence of such legislative intention, since the word “title” in such section of the Justice’s Court act (section 26) must obviously have the same construction that it has in section 1 of such act, limiting the general jurisdiction of the Justice’s Court.

Eeturning, then, to a consideration of the Ejectment act, we find that such act, passed in 1877, fits nicely into the then legislative scheme, to wit, that ejectment lies for any claim whatever to the possession of lands, other than that based on actual possession, and lies, not in the Common Pleas, but in the Supreme and Circuit Courts. 2 Comp. Stat., p. 2053, §§ 25, 45.

Plaintiff’s reliance to the contrary, on Connolly v. Donohue, 35 N. J. L. J. 174; Hankinson v. Baird, 6 N. J. L. 130; Allara v. Stevens, 104 Id. 240; 141 Atl. Rep. 668, seems ill founded, for in the Connolly case there was no' issue as to the paper title, its existence being admitted. As to the Hanhinson case, there is either a misprint or it is overruled by Collins v. Keller, supra. As to the Aliara case, the question here was in nowise in issue.

Further interesting contemporary legislative action along the same lino is evidenced by the restrictions upon the jurisdiction of the District Courts. By the original District Court act, there was excepted from the jurisdiction of such court “any action wherein the title to any lands and real estate shall come in question.” Pamph. L. 1898, ch. 228, p. 556, § 30. The act further provided that where the defendant pleaded title in himself, or one under whom he took, the action would have to proceed in the Supreme or Circuit Courts. These provisions are substantially identical with those as to the jurisdiction of the Justice’s Court, as noted above. But in 1910, subsequent to the enactment of the present limitation upon the jurisdiction of the Common Pleas, the legislature freed the District Courts from the general limitation above, upon their jurisdiction over actions wherein the title to lands might 'come in question (Pamph. L. 1910, p. 228; 2 Comp. Stat., p. 1962, § 30), though the legislature did not change the limitation, where the defendant pleaded title in himself or another under whom he acted, as justification.

The result is, that while the legislature has still prevented the District Court from taking jurisdiction of actions of ejectment, or for waste, where the defense is that the lands belong to the defendant, or the one under whom he acted, it has given the District Court jurisdiction of other actions where the right to the possession of lands may be an incidental issue. Por instance, the District Court would now have jurisdiction of a case of trespass by A against B, where B’s answer was that the lands belonged to C, a third party as to both. But in thus enlarging the jurisdiction of the District Court, the legislature obviously overlooked the fact that it had left the Common Pleas, a court of general and not limited jurisdiction, as is the District Court, entirely without jurisdiction in all cases where any claims of any quality to lands, other than those based on actual possession, were concerned, even where such issues were incidental.

As shown above, the reason for this limitation upon the jurisdiction of the Pleas was obviously the fact that the Pleas were originally held largely by lay judges. These lay judges have been abolished for years. The reason for such jurisdictional limitation is, therefore, gone. The legislature has itself recognized, even as to a court of limited jurisdiction, that, there being no lay judges in such court, its original limitation upon the jurisdiction of such court should be largely removed. Clearly, the present archaic limitation upon the jurisdiction of the Common Pleas, a court, otherwise, of general jurisdiction, should he drawn to the attention of the legislature.

But, since such jurisdictional limitation still exists, the motion of the defendant, to' dismiss the above cause for lack of jurisdiction, is granted.


author: Egan, Y. C.

text:
    Hudson Trust Company, a corporation of New Jersey, as executor of the last will and testament of Timothy D. Murphy, deceased, complainant, v. Mary J. Murphy et al., defendants.
    [Decided May 2d, 1935.]

      Messrs. Hopkins, Vorburger Dickson, for the complainant.

      Messrs. Lichtenstein, Schwartz & Friedenberg, for the defendants.
   Egan, Y. C.

Timothy D. Murphy departed this life on February 19th, 1934, at the age of eighty years. At the time of his death, he left surviving him his widow, Mary J. Murphy, and their two daughters, Irene C. Kennedy and Genevieve McDonald, and a daughter, Mary C. Kelly, by a previous marriage. He left a last will and testament, duly probated, in which he named the complainant his executor. The bill seeks to discover assets of the estate; it also questions the validity of alleged gifts of stocks and bank accounts. The stocks consist of twenty-three shares Standard Oil Company of California and thirteen shares Texas Corporation, which the defendant Genevieve McDonald claims to have received from the decedent on February 16th, 1934, three days before his death; the savings accounts consist of one in the Trust Company of New Jersey amounting to $232.83, and another in the Hudson Trust Company amounting to $1,098.28, both of which on February 17th, 1934, were allegedly given to the defendant Irene C. Kennedy, in trust, to take care of her mother, the said Mary J. Murphy.

The decedent’s marriage to Mary J. Murphy, the defendant herein, created friction between his daughter, the said Mary 0. Kelly, and her step-mother. It resulted in Mary being sent to a boarding school; her board and tuition were paid from money which she inherited from her deceased mother. At the completion of her school days, Mary returned to her father’s home. Due to the unpleasant relations which existed between her and her step-mother, Mary’s stay there was of short duration. The decedent had her placed with other relatives. The step-mother’s treatment of Mary was bitterly resented by the decedent. After her departure from his home, the decedent visited Mary at regular intervals; these visits continued until she married and made her home in Detroit, Michigan, after which the decedent wrote her frequently and visited her, at least, once annually.

The daughter, Irene 0. Kennedy, received a college education, while the education of the other daughter, Genevieve McDonald, was limited to high school and a business course. The expense of their education, unlike Mary’s, was provided by the decedent.

The evidence indicates that the apparent differences between his daughter Mary and his wife made the decedent’s marital career a very unhappy one. There were many quarrels. The evidence of this is supplied, in part, by Genevieve McDonald, the decedent’s daughter, who said: “They weren’t very loving. They did scrap. My mother and father and Mrs. Kelly all had a lot of trouble years ago. I was eight years old when Mrs. Kelly left and my mother and father never got along very well. But the last few years they had been. Well, mother did everything for him when he was sick. The}'" weren’t really lovable, but they had a nice home down there and were comfortable, and my mother did what he wanted.”

The decedent’s widow admitted that she and her husband occupied separate rooms and did not cohabit for many years; he left her bed and slept alone in an attic room of their home; this room was without heat. Mrs. Murphy said that the decedent “selected the room himself. He would leave my bed and go up to the attic. I told him that if he did that again he would never cohabit with me in my room.” “Q. You told him never to come back again? A. If he persisted the third time.”

The lack of marital felicity between the decedent and his wife is traceable to the wife’s attitude towards her stepdaughter Mary. It caused the decedent to leave his home and remain separated for several weeks from his wife. The house occupied by the decedent and his wife was owned by Mrs. Murphy, the defendant. Prior to his death, the decedent’s children, Irene C. Kennedy and Genevieve McDonald, appeared to be comfortably situated. The decedent knew this. He indicated that his daughter, Mary C. Kelly, was not by him afforded the advantages which he had given his daughters, Irene and Genevieve. On several occasions he referred to the fact that Mary’s education was paid for out of her own inheritance from her mother and without aid from him. He often said that she had been driven from his home because of the unpleasant relations that existed between her and her step-mother. He indicated that because of the slights which Mary received he was going to make amends to her, and that he would make provision for her. Pursuant to that expressed determination, he had several wdlls drawn in which he made her the chief beneficiary. Each time he executed a will, he mailed a copy of it to her accompanied by a letter, two of which are as follows:

Exhibit 0-7
“36 Fulton Street, Weehawken, N. J., 5/9/32.
My dearest Mamie:
I am enclosing a copy of a Will which was made out a few days since and which is now the valid one—so destroy the copy of the previous one in writing which I enclosed to you when the first one was made. You will observe that the name of Mr. Harrison W. Delamater is on the most recent one in place of Mr. Clarence Mabie, but Mr. Christian P. Mabie signed the second Will also. Both these gentlemen are amongst my dearest friends and if and when necessary to consult them about the Will and disposition of its contents, will gladly give- you any assistance in their power. This may be at any time, for I am about to go to St. Mary’s Hospital at Hoboken, N. J., for an operation which will be very painful, but so far as I can judge not a dangerous one. I may be confined there a few weeks. Do not be alarmed about this. I will give your address to Genevieve who will keep you informed of my condition from time to time. All my plans for the summer are now changed. Among them the one I looked forward to with greatest pleasure was the time I expected to spend at your home. If you come here for Maria’s graduation be sure to see me and write me on receipt of this to my present residence and Genevieve will bring it to me. I am also enclosing evidence of my ownership of Plot No. 23 or 24 in Mt. Olivet Cemetery, Elizabeth, N. J., also arrangement for its perpetual care. * * * Have not heard from the Hughes family for several weeks. Had intended to visit them Sunday last but due to illness could not do so, but assume they are all well including the baby. You should see them when you arrive here.
iji s.'s *
May God bless you all and anticipate seeing me again amongst you in better health and happy to again see you, I remain,
Your devoted and loving father,
Timothy D. Murphy.”
Exhibit 0-8
“36 Pulton St., Weehawken, N. J.
Dec. 14th, 1932.
Dear daughter Mamie:
I have completed and deposited my last Will and Testament in my deposit of the Hudson Trust Co. Bank of Union City, N. J. I am enclosing a copy of same. It is not usual to place in the hands of anyone the copy of a Will, for many law suits have resulted by heirs and beneficiaries who placed a wrong interpretation on its contents and meaning. Destroy at once all Wills or parts thereof that may be in your possession and attach this letter to the copy I herewith enclose, which you should retain until the final settlement of the Estate as mentioned in the Will is made.
The charge for arranging and settling the bequests by my Executor will be determined by the Court and will be the same in amount as if an individual performed such duties. My Will together with securities is now in deposit box No. 1407, key to same No. 1741 in the Hudson Trust Co. Bank, 52nd St. and Hackensack Plank Road, Union City, N. J. Mr. Banta, Attorney at Law, drew up my Will. He was a former associate of Mr. Clarence Mabie, now deceased. Mr. Banta’s office is on Main Street in a 14 story building on 7th floor, Hackensack, N. J.
The following names and addresses are those who signed my Will as witnesses.
Mr. Harrison W. Delamater
149 49th St., Union City, N. J.
Christian P. Mabie—Bergenfield, N. J.
Should you at any time desire any information of each or both of these witnesses they will gladly comply since they are both among my most devoted and reliable friends.
On my demise the Hudson Trust Co. will place my Will with the Surrogate’s Office where it will remain six months to make note of any claim or claims on my estate made previous to my demise.
With much sorrow I have to advise you I can offer no remembrance this holiday season. Whatever available means one may have it might be judicious to keep in view of the uncertainty of the future. Since my earning power has ceased and expected doctor bills to meet soon, I will have to be very careful of the expenditures to follow.
With usual love to you all, I remain—devotedly yours,
Timothy D. Murphy [father.]”

The decedent’s will (Exhibit C-9), in part, is as follows:

“2. I give and bequeath to my wife, Mary J. Murphy, the sum of One Hundred ($100) Dollars, together with the household goods contained in our residence.

3. I give and bequeath to my daughter, Genevieve McDonald, wife of Joseph N. McDonald, of Tenafly, New Jersey, the sum of Five Plundred ($500.00) Dollars.

If iny said daughter, Genevieve McDonald, shall predecease me, then and in that case, I give and bequeath the said sum of Five Hundred ($500.00) Dollars, to my daughter, Mary Catherine Kelly, wife of James J. Kelly, of Detroit, Michigan.

4. I give and bequeath to my daughter, Irene C. Kennedy, of Scarsdale, New York, the sum of One Hundred ($100.00) Dollars.

6. All the rest, residue and remainder of my estate, I give and bequeath io my daughter, Mary Catherine Kelly, wife of James J. Kelly, to her, her heirs and assigns, forever.

This bequest shall include all stocks and bonds, all securities, cash, jewelry and all other personal effects.

7. It is my desire that my body be interred beside that of my former wife nee Catherine E. Hughes, in Mount Olive Cemetery, Elizabeth, New Jersey, and that the necessary funeral arrangements be made and my burial conducted in accordance with the wishes of my daughter, Mary Catherine Kelly.”

It will be observed that the sixth paragraph of the will contains the following:

“This bequest shall include all stocks and bonds, all securities, cash, jewelry and all other personal effects.”

The above beqnests are qnite significant of the decedent’s state of mind, and, to some extent, is an evidence of his sense of justice. In addition, a letter to his nephew, Peter L. Hughes, Jr., dated December 18th, 1933, Exhibit G-6, indicates to some extent the attitude of the decedent towards his widow. It is as follows:

“My dear Peter:
I had hoped to be able to call to see you ’ere this, but put it off until the near approach of the Holiday season. Unexpected conditions developed that will make it impossible to make the expected visit and I fear I cannot get to your place for some time to come. * * * I suffered a severe heart attack resulting in such shortness of breath that the Dr. cautioned me to remain in doors and rest for the present. In addition to this I am suffering from acute stomach trouble which seems to become more aggravated instead of responding to his medicine. * * * My thoughts now are centered on the disposition of my body. Should I pass away while so seriously afflicted, as you are aware, I wish my remains to be interred in my plot in Mt. Olivet Cemetery in Elizabeth at any and all costs. My present wife has been offered the privilege of occupying a grave in the plot, but declined in a very emphatic manner. Her former home is at Frankfort, N. York in the Mohawk Valley 17 miles this side of Utica, N. Y. or 215 miles from N. Y. City. I am quite sure if opportunity offers she will have my body taken there to be interred among her deceased relatives. This cemetery is in an almost inaccessible place where my grave would not be visited by relatives or friends. This however is no reflection on my wife’s relatives or her friends. Our two daughters would support their mother to have her wishes carried out if possible, but I do not wish to be taken there. In my Will it is specified that my daughter Mamie will supervise and make arrangements for my burial and holds a copy of the Will. My Executor of the Will is Hudson Trust Co., 32d St. and Hackensack Plank Road, Union City, N. J. A receipt for the Will is in my deposit box in that institution. My daughter, Mamie’s address is 1553 Hurl-but Ave., Detroit, Mich. Should I be confined in a hospital, will request that Undertaker Higgins of Elizabeth be sent for at or before my demise to take and prepare my body for burial. I will endeavor to inform you if taken from my present home for treatment. * * * When able will call to see you all, for I am very desirous to make further remarks that toill be more explanatory and must see your little darlings at the earliest opportunity.
Yours in unlimited affection, together with the compliments of the season,
Uncle Timothy.”

After writing this letter to Peter, the decedent, on January 21st, 1934, visited him and his sister, Eleanor Hughes. Eleanor testifying about the visit said: “One thing he particularly asked was if I knew of any institution where he might go to spend his remaining days. I suggested the Alexian Brothers Hospital in Elizabeth, and also I had heard of a home in Denville, New Jersey. He said the conditions in his home were so unbearable that he didn’t care to spend his last days there or die under its roof. He also spoke of the fact that he had made a will and in the will he asked that he be buried in Elizabeth, New Jersey, in Mt. Olivet Cemetery beside his first wife. He said that he wanted to go there. Q. Did he say anything else with respect to the provisions of the will? A. Yes, he said that he wanted us to bear witness to the fact he had made Mrs. Kelly his chief beneficiary, and he wanted us to know it because he knew that after he had gone Mrs. Murphy and her daughters would do everything in their power to keep everything from Mrs. Kelly.”

Peter L. Hughes testifying (pages 110 and 111 of testimony) said: “Well, he came to my home with my sister who preceded me on the stand, and Mrs. Kelly and my wife were present, and we talked, and he did mention about his remains being buried in-Elizabeth in Mt. Olivet Cemetery. In fact he mentioned that very many many times before to me. I procured the plot. At least I as executor of my father conveyed the plot to him about two years ago, so I knew of his intentions at that time. During the conversation in my home Mr. Murphy mentioned again about the will in the presence of all whom I have mentioned, and I am very sorry to say he made this expression. He said, referring to his wife, CI have lived with her above ground for forty years and I don’t want to be buried underground with her.’ That was after he told me he had offered the plot with him, which she had refused.”

On January 24th, 1934, the decedent visited his niece, Elizabeth D. Uhl. She testified they had a conversation; her testimony in part, is as follows: “ ‘I want you all to know I want to be buried right alongside of my first wife in Mt. Olivet Cemetery in Elizabeth,’ and he talked at some length about his first wife, and he broke down and cried. That was the first time I ever saw him cry. He spoke of how unhappy he had been at home with his second wife, and he said he wanted Mamie to be the chief beneficiary of his will, and spoke about him not being able to give her a home when she was young and wanted to make up for her.”

On January 11th, 1934, he wrote two letters, one to Leigh Fritts, a friend of thirty years standing, and another to Harrison W. Delamater. In these letters he indicated that he desired to have his remains interred beside those of his wife and child in Mt. Olivet Cemetery. It was testified to by Fritts that he had had a conversation with the decedent in the course of which the decedent said, “he had left * * * Irene one hundred dollars, Genevieve five hundred dollars, Mrs. Murphy one hundred dollars, and the balance of stocks and bonds and what he had in the bank would go to Mrs. Kelly.” The witness further said that “he told me that Mrs. Kelly had never had a chance and that the two girls had, and while he wasn’t in a position at the time she was a child to do for her what he wanted to do for the others, that he felt he ought to make what amends he could now.” Further testifying, the witnes said: “The morning of the 12th I was on my way to Mr. Sheldon, who is the secretary of the railway conductors, and I met Mr. Murphy on Louisa Place. He told me he was just on his way around to see me. We stood there and talked for a while, and he spoke about the certificates that he had, and he told me who he intended leaving them to, which was Mrs. Kelly. Q. What day was that? A. February 12th. And I asked him if he had the stock transferred to whoever he intended to' leave them to. He said he had not, he didn’t think about it. I said, To whoever you intend to give them have them transferred to them because it will save a lot of expense to you.’ Q. What stocks did he refer to at that time? A. I knew he had Standard Oil of California and Standard Oil of New Jersey, Public Service and Teck Hughes, because he and I bought Teck Hughes at the same time. Q. And did he tell you to whom he intended to give those shares to ? A. He told me in all his conversations it was his will they were to go to Mrs. Kelly.” The conversation with Fritts took place approximately one week before the decedent’s death.

On February 14th, 1934, the decedent accompanied Mrs. McDonald to her home where he died three days later. Mrs. McDonald testifying about the alleged gift of the stock from her father to herself, a day or two before decedent’s death, said: “When I went upstairs he was sitting on the bed, and he called me over to him and he showed me a dark red folder. He put it in my hand and said, ‘Genevieve, this is going to get me—I am through now—this is the end, and I want you to take these stocks because I am not going to get better and I want you to have them.’ ” This incident is alleged to have taken place a day or two before decedent’s death.

In reply to a question by the court, Mrs. McDonald said: “He called me over to the bed. He was in his bedclothes, and he said, ‘Genevieve, I want you to listen to me. I want you to take these stocks and keep them and take care of them because I am not going to get over this cold,’ and I said, ‘oh, dad, don’t be silly. You have had worse colds than this. You just get into bed and take care of it.’ ”

The following day, February 17th, 1934, which is the day following the decedent’s arrival at the home of his daughter, Genevieve McDonald, at approximately six o’clock in the morning of that day, Genevieve discovered the decedent in the bathroom dressed, with his clothes packed, and ready to leave her home and to go to a hospital. She said that she then called her mother and, between them, they dissuaded the decedent from leaving the McDonald homo. In the talk that ensued between the decedent and Genevieve, she said her father then stated, “I am going to die and I am going to a hospital. You have had enough trouble. I am not going to die here.”

The related circumstances surrounding the alleged gift of stock, which had an approximate value of $1,312.48, in my opinion are earmarked with doubt and suspicion, and lacks certainty. Considering the source of the testimony as to the gift, the interest of the parties in the outcome of this suit, the feeling of antagonism between the decedent and the widow; the affection he had for his daughter Mary; the decedent’s declared intention to bequeath the stock to his daughter Mary, and the bequest in the will itself of the stock to Mary, all negative the assertions of the defendants on the tona fides of the gift.

It is to be recalled that the decedent arrived at the home of his daughter, Genevieve, on February 16th, 1934; on the same day, or night, she said the decedent gave her the stock. It must be borne in mind that Mrs. McDonald endeavors to hold the stock; she claims to be the donee and is very much interested in the outcome of this litigation, as are also the other two defendants. The alleged gift of the stock is supported by no testimony excepting that of the donee, Mrs. McDonald, and her mother, Mrs. Murphy. These two' defendants, in testifying on other phases of this suit, materially contradicted each other; that, to some extent, casts suspicion upon their credibility.

Mrs. McDonald, on learning the contents of her father’s will, consulted an attorney about filing a caveat against the probate of the will. She declared she visited the attorney’s office with her mother. The mother flatly contradicted the daughter and said she did not accompany the daughter to the attorney’s office. While a caveat was filed, the probate of the will was not contested and letters testamentary were accordingly issued to the complainant.

The principles mentioned in the case of Matthews v. Hoagland, 48 N. J. Eq. 455; 21 Atl. Rep. 1054, have a bearing on the situation which appears to exist in the instant case; the court there said: “If the decisions in this state did not seem to require an assignment in writing, I would be satisfied that the failure of Henry Matthews to execute the transfer and power of attorney on the back of the certificate was conclusive evidence that he did not intend to make a present gift of the stock, and to divest himself of all control and dominion over it or its proceeds.”

The decedent, a man of unusually keen intellect, was informed by Fritts, approximately one week before his death, that the stock could be transferred only when endorsed. He had fixed and decided notions of what should be done with his estate after his death. He was a man of detail and precision. His failure to legally assign the stock, I feel, can be attributed to the fact that he did not transfer, nor intend to pass title to the stock.

The decedent’s daughter, Irene C. Kennedy, stated that her father made a gift of his bank accounts to her, and that he said: “ ‘Irene, get those bank books out of my coat pocket/ His coat was hanging in the closet in the same room. I went and got the two bank books and handed them to him. He took my hand and he said, ‘now, Irene, I am going to die/ He said, ‘I know this is my end/ He said, ‘I want you to take that money and take care of your mother/ I said, ‘oh, papa, don’t talk such nonsense. In a week or so you will be up around again/ He knew he was sick, but I said, ‘you will be all right,’ and I took the books and I put them in my purse and spent the rest of the day in and out of the room.”

This alleged gift was made at the time the decedent was evidently ill, in the McDonald home, about February 16th, 1934. If the facts are as stated, then the gift would be one in trust for the benefit of the mother of Mrs. Kennedy. It was made “to take care of her mother.” Both Mrs. Kennedy and her mother testified about this gift; they are parties interested in the outcome of this suit.

“The naked and absolutely uncorroborated testimony of a donee will not be accepted as sufficient to sustain a gift as against the estate of a deceased donor.” Heyer v. Sullivan, 88 N. J. Eq. 165; affirmed, Ibid. 595.

In the face of the evidence in this case, does it seem reasonable and probable that the decedent did as alleged ? I cannot so conclude.

In Berg v. Baldwin, 84 N. J. Eq. 90; 92 Atl. Rep. 90, Vice-Chancellor Backes there said:

“To all intents and purposes he was the complaining party and deeply interested in the outcome of the suit. He was striving for a stake, for which he had no living opponent. He feared no contradiction, because the tongue of his real adversary was silenced by death. While his testimony was legally competent, I did not feel, under the circumstances, that I should accept it as true. It was absolutely devoid of corroboration by person or in circumstance, and I regarded myself as not justified in advising a decree depriving a decedent’s estate of its property upon the naked and meagre words of this very much interested person. I have since examined the books and find this view is supported by authority. Taylor, in his work on Evidence, section 965, says:

“ ‘It has sometimes been supposed that it is an absolute rule of law that a court cannot act on the unsupported testimony of any person in his own favour. But there is no actual rule of law to the effect suggested; though a court ought to regard a claim against a dead man’s estate which is only supported by the evidence of the claimant with jealous suspicion, and neither itself act upon it nor allow a jury to do so without corroboration, and this irrespective of persons.’

“The doctrine is applicable, regarding, as I do', the witness as the substantially interested party in the cause.”

This case was affirmed by the court of errors and appeals (84 N. J. Eq. 193; 93 Atl. Rep. 1084), adopting the opinion of Vice-Chancellor Backes.

■ “In a case where the only witness to the alleged gift is the wife of the donee, it is proper for the court to consider surrounding circumstances, personal interest and the actions of the claimant at or immediately subsequent to the alleged gift.” Madison Trust Co. v. Allen, 106 N. J. Eq. 230; 147 Atl. Rep. 546.

“Gifts causa mortis are not favored in the law, and cannot be proven by violent inference from disputed testimony. Cannot be proven by mere hearsay declarations of the alleged donee.” Buecker v. Carr, 60 N. J. Eq. 300; 47 Atl. Rep. 34.

In the case of Provident Institution for Savings v. Mead, 87 N. J. Eq. 424; 100 Atl. Rep. 894; affirmed, 88 N. J. Eq. 349; 100 Atl. Rep. 894, the court there held:

“Mrs. Bowdoin also was in the custody and under the control of the active agents of the alleged donee and her memory had greatly failed. The circumstances under which this gift was made, made it the duty of the claimant, the donee, to produce all the testimony obtainable to show that Mrs. Bowdoin was competent to make the gift, and in fact knew what she was doing and acted without undue influence from the agents of the donee. * * *

“I understand that counsel agree that if this gift was made it was a gift inter vivos and not a gift causa mortis, notwithstanding the fact that the alleged donor was on her dying bed, and if she understood her condition must have known that she had not long to live. Alleged gifts made by old and feeble persons and persons stricken with fatal illness, if valid, often must be classified as gifts inter vivos, nevertheless, being asserted after the death of the alleged donor, they seem to be in many respects in the category with gifts causa mortis in respect of the safeguards and protective conditions which the law should throw around the transaction. There seems to be as much danger in permitting a person to establish a gift inter vivos to himself by producing a key or a savings bank book obtained from the deathbed of an alleged donor, as there is in permitting a person under such circumstances to establish a gift causa mortis.”

I cannot reach the conclusion from the testimony that has been offered in this case that the decedent made the gifts as indicated by the defendants. I am convinced that he did not. The decedent had conversed, had written letters, showing his state of mind and his feeling, all of which were entirely at variance with his attitude as it was declared to have been by the defendants herein. I cannot reconcile the decedent’s last alleged gifts to Mrs. McDonald and Mrs. Kennedy, with his numerous attestations of affection for his daughter, Mrs. Kelly, and his declared desires to make amends to her.” They do not seem just orderly.

In the case of Whitney v. Wheeler, 116 Mass. 492, it was held:

“When there is any ground for doubt as to the intent with which a delivery of property was made, or whether in fact its possession was obtained by delivery as a voluntary gift or in some other mode, evidence tending to show a continuous and apparent fixed state of mind and purpose, inconsistent with such alleged gift, existing previously thereto, may have a legitimate bearing upon the case to affect the inferences to be drawn from the facts and circumstances attending the transaction.”

A gift of stock without endorsement carries no title. In Heyer v. Sullivan, supra, the court said:

“Delivery of a certificate of stock without actual transfer or a written assignment or power to transfer, although accompanied with words of gift, does not constitute a valid gift inter vivos."

“In cases of gifts inter vivos or cama mortis, both delivery and donative intent must clearly appear.” Madison Trust Co. v. Allen, 105 N. J. Eq. 230; 147 Atl. Rep. 546.

In the case of Besson v. Stevens, 94 N. J. Eq. 549 (at p. 563); 120 Atl. Rep. 640, the court of errors and appeals held:

“In addition to' the lack of donative intent, I am satisfied, too, that there was no valid delivery. * * * The transactions took place subsequent to the Uniform Stock Transfer act (P. L. 1916 p. 398), and are therefore subject to its provisions. Section 1 of that act provides that title to a stock certificate, ‘and to the shares represented thereby/ can only be transferred by delivery of the certificate endorsed or accompanied by a written assignment or power to assign, &e.”

Vice-Chancellor Fallon in the case of Pattberg v. Gott, 102 N. J. Eq. 371; 140 Atl. Rep. 796, held:

“Although certificates of stock may be subject to gift, to effect gifts thereof there must be delivery and intent to make gift, together with delivery of certificate endorsed or accompanied by written assignment or power to' assign, under Uniform Stock Transfer act. P. L. 1916 p. 398 § 1.”

“In my judgment the character of the property in shares of a corporation, as well as the distinctive qualities of a gift inter vivos, forbid a departure from the rule, that a valid gift of such property cannot be made by the delivery of the certificate of stock, without formal transfer, or an assignment and power in writing to transfer the shares.” Matthews v. Hoagland, supra.

“The gift is typically ‘cama mortis/ The legal requirements of this form of gift are the same as a gift ‘inter vivos/ The two are alike in composition and legal effect differing only in their consummation. Both are between living persons; the former is made under apprehension of death, the latter is not, and while both gifts must he presently operative, cama mortis is conditional, inter vivos is absolute.” Meyers v. Meyers, 99 N. J. Eq. 560; 134 Atl. Rep. 95.

Considering the advanced age of the decedent; the fact that he had little means; and that he and his wife were dependent upon what appeared to have been his modest accumulation, the gifts, or the distribution of his cash, might properly be termed improvident. Pearce v. Stines, 79 N. J. Eq. 51; 80 Atl. Rep. 941.

Under all the circumstances, I feel that the gifts should be declared void—the gift of the stock and the bank accounts are void. I shall advise a decree to this effect.


author: Egan, V. C.

text:
    Dloss Realty Corporation, a corporation, complainant, v. Schultz Brewing Company, Incorporated, a corporation, defendant.
    [Decided April 23d, 1935.]

      Messrs. Pitney, Hardin \& Shinner, for Jos. Schlitz Brewing Company.

      Mr. William Harris, for trustees o'f defendant company.
   Egan, V. C.

This is a motion to strike or dismiss the petition of Jos. Schlitz Brewing Company filed herein against the defendant, Schultz Brewing Company, Incorporated. The defendant company is now being managed and operated by three trustees appointed by this court. The petitioner alleges that the trustees of the defendant company display on its signs, advertising its product, the word “Schultz” inscribed with a paraph which it claims is a facsimile of the label of its company, the “Schlitz Brewing Company.” Attached to the petition are specimens of the labels and signs used respectively by the defendant company and the Schlitz Brewing Company. The answering affidavit shows that the defendant company is named after Frank Schultz, its principal stockholder; and it is averred that in the use of the name “Schultz Brewing Co., Inc.,” it was not the intention, at any time, of the defendant company to confuse the public by the use of such title with the name “Schlitz Brewing Company.”

The defendant denies that the word “Schultz” with a paraph is by way of imitation of the word “Schlitz” with a paraph; and it further denies that any deception whatever was practiced. Exhibit “A,” attached to the bill, is an exposition of the “Schlitz” label, while Exhibit “C” is a display of the “Schultz” label. In the exhibits the word “Schultz” and the word “Schlitz” are clear, distinct and legible. In my opinion there is no similarity in the script. An examination of the respective exhibits shows that the letters which appear in each name—the “S,” the “H” and the “L” are entirely different. The “H” and “L” in the “Schlitz” sign are straight block letters, while in the “Schultz” sign they are round and open. The paraphs are dissimilar. The paraph in the “Schlitz” sign extends approximately one-third of the name and is triangular in shape; the “Schultz” paraph extends further than the name itself and its shape is entirely different from that in the “Schlitz” sign. The final letter “Z” in each name is by no means alike, and the form and outline is entirely different, and in my opinion would not deceive the average person.

The “Schultz” label has on it the words “Schultz Brewing Co., Inc., Union City, FTew Jersey, The home of quality.” The label is white. Whereas, on the “Schlitz” label, appears the following:

“Jos. Sehlitz Brewing Co., Milwaukee, Wis., U. S. A.” and also “The beer that made Milwaukee famous.”

The word “beer” on the “Schultz” label is gothic, while the lettering of the word “beer” on the “Sehlitz” label is of quite a different character. I fail to see any similarity between the two labels. In my opinion the “Schultz” label does not, and will not, lead to deception; nor is there merit to the contention that it is fraudulent. Hill Bread Co. v. Goodrich Baking Co., 89 Atl. Rep. 863; Hilton v. Hilton, 89 N. J. Eq. 182; 104 Atl. Rep. 375; International Silver v. Rogers, 72 N. J. Eq. 933; 67 Atl. Rep. 105; Medlar & Holmes Shoe Co. v. Delsarte, 68 N. J. Eq. 706; 46 Atl. Rep. 1089; affirmed, 68 N. J. Eq. 706; 61 Atl. Rep. 410; Standard Table Oil Cloth Co. v. Trenton Oil Cloth and Linoleum Co., 71 N. J. Eq. 555; 63 Atl. Rep. 846; Peerless Laundry Co., Inc., v. Peerless Service Laundry, Inc., 111 N. J. Eq. 221; 161 Atl. Rep. 832.

Complainant’s counsel contends that the motion to strike carries with it an admission by the defendant of the truth of the allegations in the petition. Certainly the motion is in the nature of a demurrer; and it is elemental that a demurrer admits those allegations which are well pleaded. There are exceptions to this rule; some of them are notably expressed, as will be observed, in Middlesex Transportation Co. v. Pennsylvania Railroad Co., 82 N. J. Eq. 550; 89 Atl. Rep. 45; In re Queen, 82 N. J. Eq. 583; 89 Atl. Rep. 290.

The allegation of fraud in the petition, which when considered with the facts upon which it is based, and the exhibits in evidence, is not established. It must be borne in mind also that allegations based on information and belief are not admitted by a demurrer. Huselton & Co. v. Durie, 77 N. J. Eq. 437; 77 Atl. Rep. 1042.

Yice-Chancellor Garrison, in Schuler v. Southern Iron and Steel Co., 77 N. J. Eq. 60; 75 Atl. Rep. 352, commenting on such allegations, said:

“The bill sets forth the pleader’s construction of the said plan and agreement; but since a copy thereof is attached to the bill, the allegations of the pleader in this respect are not controlling, but the document itself will be read and construed by the court.”

H* H: H* H* H« *

“As to so much of this paragraph as is on information and belief the demurrer is not an admission of the facts so pleaded.”

See, also, Trimble v. American Sugar-Refining Co., 61 N. J. Eq. 340; 48 Atl. Rep. 912, in which Vice-Chancellor Pitney expounded the principles enunciated in the last cited case. Sullivan v. Browning, 67 N. J. Eq. 391; 58 Atl. Rep. 302; Stimis v. Stimis, 54 N. J. Eq. 17; 33 Atl. Rep. 468.

While the allegation suggests one inference, and the exhibit produces another, the exhibit should, and will, prevail herein. Kaufmann v. Kaufmann, 70 Atl. Rep. 956.

In Guadorff v. Schleisner, 85 Md. 360; 37 Atl. Rep. 170, the court of appeals said:

“The truth of the facts set out in the bill, where they are properly pleaded, will not be questioned; but, where the bill alleges a fact expressly negatived by the contract of partnership filed with the bill, such representation of fact cannot be said to be properly pleaded, nor is it entitled to be accepted as true.” Cornell v. Green, 53 Fed. Rep. 105.

The labels of the “Schlitz” company and the “Schultz” company, respectively, advertise the cities where their product is brewed. No observing eye can make a mistake in noting the “home town” of the beverages clearly indicated in the respective advertising signs. I see no similarity between the respective labels. I am satisfied that the defendant company has indulged in no deceptive or fraudulent practice. Under the circumstances, I shall advise an order granting the motion of the defendant to strike the petition.


author: Heutze, C. P. J.

text:
    Camden County Orphans Court.
    IN THE MATTER OF THE ESTATE OF ALBERT E. CLARK, DECEASED.
    Decided April 24, 1935.
    Proctors, Frank 8. Norcross and Thomas M. Farr.

   Heutze, C. P. J.

The substituted executors and trustees, Camden Safe Deposit and Trust Company and Isabelle Cragin Clark, under the -will of Albert E. Clark, deceased, petition for a decree of distribution of the testator’s estate under the said testator’s will.

The testator, Albert E. Clark, a resident of Camden county, died May 3d, 1904, then him surviving his widow Isabelle Cragin Clark, his son, Herberton Cragin Clark, and his daughter, Isabelle Clark, who has since married, is now past thirty years of age and whose name is now Isabelle C. Blank. The son, Herberton, died on April 3d, 1914, while a minor and unmarried. His mother has letters of administration upon his estate if any. The testator’s widow and daughter are both alive and parties to this petition. With this kaleidoscopic view of the facts as to those persons who can possibly be interested in the terms of the testator’s will, we shall next look at the contents of the testator’s will.

The pertinent provisions of the will, out of which any possible difference in construction might arise as to the relative rights of the parties, are as follows: “I devise and bequeath all my estate, both real and personal unto my executors hereinafter named, in trust for the following purposes: To collect the income arising therefrom and to pay the same unto my beloved wife, Isabelle Cragin Clark, during the minority of our children (it is my desire that my children should be liberally educated and properly maintained during their minority) and when and as soon as each child shall attain the age of twenty-one years, I direct that my executors shall pay unto such child its pro rato share of the said income; and when my eldest child shall attain the age of thirty years, I direct that my executors shall divide my estate between my wife, and children, share and share alike; retaining in trust, however, the share of such child as shall not have attained the age of thirty years until it shall attain the said age of thirty years.

“I direct that if any of my said children shall die, leaving surviving children, before my estate shall be distributed as aforesaid, the heirs of the child or children so deceased shall receive their parent’s share.”

The task of the court in these eases is to ascertain the intention of the testator from the actual terms of the will. The will as a whole and not any of its particular paragraphs. The intention of the testator may override the rule of law which favors the creation of a vested estate rather than a contingent estate if some doubt arises.

The two children of the testator took a contingent interest in his estate at the time of his death. The son’s interest has never vested while the daughter’s interest has vested. An interest is vested in a person when that person has a right to immediate possession on the determination of the preceding or particular estate. An interest is contingent if, in order for it to come into possession, there is necessary the fulfillment of some condition precedent other than the determination of the preceding freehold estate. Looking at the terms of the testator’s will, he provided as to the income, "when and as soon as each child shall attain the age of twenty-one years, I direct that my executor shall pay unto such child its pro rata share of the said income.” As to the principal, he provided “and when my eldest child shall attain the age of thirty years, I direct that my executors shall divide my estate between my wife and children, share and share alike.” Subject to certain exceptions which 1 shall mention, where a testator creates an interest in his estate and uses the words “if” or “when he arrives at the age of twenty-one” or like conditions, he is creating a prima facie contingent interest. Contingent on that person arriving at such age before his interest will vest. This construction was early adopted in the law. Post v. Herbert’s Executors, 27 N. J. Eq. 540; L. R. A. 1918 E 1097.

In the case at bar, the testator imposed such a condition upon the vesting of each child’s interest. Another rule of law that appears to be applicable to this will is what is known as the “divide and pay over” rule. If a testator uses words of such import he is deemed to create a contingent estate unless a clear manifestation exists in the will to the contrary or falls within the exception to the above rules of law. The reason for the “divide and pay over” rule has been stated to be that “as the direction to pay or divide has no reference to the present, and can be executed oniy in the future, if in the meantime the donee indicated shall die, the direction cannot be executed at all.” L. R. A. 1918 E 1097 (at p. 1105), footnote 22, and cases thereunder. The noted exception to the above rules of construction is that rule which says that if pending the arrival of the specified age or time to “divide and pay,” the legatee is entitled to the income from such estate, then his estate is vested immediately from the death of the testator. In such cases, the courts say that the testator has manifested an intention to give such legatee a vested interest and that only the enjoyment is postponed. In this case, the testator, Clark, did not secure to the son or daughter any fixed income from their principal until “when and as soon as each child shall attain the age of twenty-one years.” Eor can the court presume he intended to allow them such income such as was done in the case in Maryland of Savin v. Webb, 96 Md. 504; 54 Atl. Rep. 164, because in this case the testator expressly provides for the disposition of the income pending their attainment of the age of twenty-one years. It went to the widow pending such time and the children had no definite allocation of such funds unto themselves until they reached the age of twenty-one years. The son died before such time and therefore his contingent estate lapsed.

As further evidence that the son only had a contingent interest, one need but refer to the provision of the will which provides for the case of the decease of a child of the testator leaving surviving children in which case such children would take their parents’ portion. If the testator considered his children’s interest as vested, he would 'not have inserted such a clause in his comparatively short will because if their interest was vested, such a clause would be surplusage, in that his children’s children would take their parents’ interest by virtue of the inheritance laws. See L. R. A. 1918 E 1097 (at p. 1131).

The testator provided that the estate was to be divided when his eldest child attained the age of thirty. The testator’s deceased son was the eldest child at the time of his death. To take the testator’s words literally would prevent a distribution under the terms of the will because the son died before thirty. The testator could not have meant such a construction. Let us suppose that the son died above the age of twenty-one leaving him a widow and several children. If the literal construction of the terms were followed his children would not be able to take his estate because he had not reached the age of thirty years. This construction would defeat the intention of the testator and would be a reduction to the absurd. The testator intended that his estate be distributed and such distribution to take place when the eldest child would if living have reached the age of thirty. Such time is past and the estate may be distributed.

As to the interests, since the son only had a contingent interest which has lapsed, the estate is to be divided between the widow and daughter share and share alike. The testator provided that the estate be divided between his wife and children share and share alike when his eldest child attained the age of thirty. At such time, the daughter is the only child alive and she is to take one-half of the estate and the widow is to take the other half of the estate.