text:
    Frank J. Currier v. Ada Dow Currier.
    [Filed November 1st, 1904.]
    1. Where a husband and wife had been living apart by mutual consent, there must be satisfactory proof that the consent thereto was withdrawn and the marital duty was demanded, to turn such separate living into willful desertion.
    2. The letters of the wife, in this case, do not sufficiently corroborate the testimony of the petitioner to establish willful desertion.
    On petition for divorce.

      Messrs. Hudspeth & Puster, for the petitioner.
   Magie, Chancellor.

The petition in this ease was filed November 10th, 1902, and charges that defendant deserted petitioner, in the State of New York, in October or November, of 1896, and that the desertion has since continued.

Defendant not appearing or answering, an order of reference was made. The master reported thereon that the petitioner is entitled to relief because of a desertion which he finds took place in the fall of 1898.

Do the proofs before the master support this report ?

Petitioner’s evidence shows that he and the defendant were in the theatrical profession, and that for some time prior to the fall of 1898 they were engaged in that profession, playing in different traveling companies, one in one part of the country and one in another.

It is clear, from the evidence, that the living apart of the parties while thus engaged was by mutual consent.

To turn such separate living into willful desertion there must be satisfactory proof that the consent thereto was withdrawn and the marital duty was demanded.

Petitioner testifies that he wrote letters to his wife, which, he claims, notified her that he had withdrawn his consent to separate living, 'and that he demanded her return to him. No copies of the letters were retained by the petitioner, nor is any witness called who saw them. What the contents of the letters were can only be discovered from petitioner’s testimony. There is therefore no direct corroboration of petitioner in this respect on this essential point in his case.

It' is urged that there is indirect corroboration thereof. Petitioner testifies that in November or December of 1898 he received a letter from his wife. That letter was not preserved and has not been produced. He swears that a friend, named Head, saw the letter, and that it contained his wife’s refusal to return to him. Head, being called as a witness, swears that the petitioner, about that time, showed him a letter from petitioner’s wife, which witness i*eeognized as being in the same handwriting of other letters that she had written, and that petitioner pointed to one paragraph -thereof, which witness read. He declares that the words he read were, “No, I shall never come back.”

I am unable to accept this evidence as corroborative of petitiongr’s previous demand for his wife’s return to him. Such corroboration is necessary to establish desertion under the circumstances of this case.

But it is further urged that this excerpt from the letter sufficiently establishes that defendant had the intent to desert, and would not have returned to petitioner if her return had been demanded. Where the proof makes it clear that a demand would be ineffectual the husband may possibly be excused from making it. But in the absence of proof of the context of the letter I do not think that a court would be justified in reading the clause testified to by Head as indicating an intention never to return to her husband. It-is quite capable of other and innocuous meaning. It may also well be that the letter, if all its contents were before us, would give a sufficient reason for the statement if it bears the construction contended for.

Counsel have piit in evidence a letter from the defendant to them. If admissible evidence, it fails to show a willful desertion. It indicates that the defendant does not object to her husband’s procuring a divorce, but that is insufficient to justify a decree.

The master’s report cannot be confirmed, and the petition must be dismissed.


source: Caselaw Access Project

author: Magie, Chancellor.

license: Public Domain

text:
    George L. Meier v. Harriet Meier.
    [Argued June 8th, 1904.
    Decided November 9th, 1904.]
    After a wife had willfully deserted her husband, she wrote letters to him indicating repentance and a desire that he should receive her again; he is not entitled to a divorce for desertion without making some effort to obtain a resumption of the marital relation.

      On exceptions to master’s report.

      Mr. Henry M. Nutzhorn, for the complainant.
   Magie, Chancellor.

The bill was filed for a divorce on the ground of desertion. No defence being made, the matter was referred to a master, who lias reported against the relief prayed for.

To this report exceptions were filed by the complainant, and the matter has been brought to hearing ex parte.

The evidence satisfactorily discloses that the defendant left the complainant against his will and his express direction. The desertion was therefore willful, and the only question is whether it was obstinate.

On this subject complainant has produced a number of letters received by him from the defendant after she left him. I have read them with care and am satisfied that the master has correctly concluded that they indicate repentance on the part of the wife for having deserted her husband and a desire that he should receive 'her again. To these letters complainant admits he made no response. The contention of his counsel is that he had ground to believe that the letters were insincere and untruthful, and that he had informed defendant, when she left against his will, that he never would receive any letters from her.

I am unable to view the duty of the complainant in that light. I think he was bound, upon the receipt of these letters, to make some effort for the resumption of the marital relation.

The conclusions of the master cannot, therefore, be disturbed.

The exceptions will be overruled, and the report will be confirmed and the bill dismissed.


text:
    In the matter of the petition of Mary J. Dowe et al.
    [Filed March 14th, 1904.]
    1. A fund, raised by sale of lands under the provisions of the act entitled “An act to authorize the sale of lands limited over to infants or in contingency in cases where such sale would be beneficial,” is substituted for the lands, and every person who had an interest in the lands has an equivalent interest in the fund.
    2. The income from the fund, or such part thereof as is directed to be paid to the tenant for life, is payable up to the day of his death, and so much thereof as has not been paid previously to him must be paid to his personal representative.
    3. The lands sold in this proceeding were affected by the provisions of section 11 of the Descent act; thereby Jasper Cadmus had a vested estate therein for his life only; each of his children had a vested remainder in fee, subject to be divested by the death of such child leaving a child or children during the life of Jasper, but not otherwise. Equivalent interests exist in the fund raised by the sale.
    4. The widow of Jasper Cadmus would have been entitled, under section 11 of the Descent act, to an estate in dower in said lands on the death of her husband, if said lands had not been sold; she is entitled to an equivalent interest in the fund.
    On application for moneys in court derived from the sale of lands tinder the provisions of the act entitled “An act to authorize the sale of lands limited over to infants or in contingency in cases when such sale would be beneficial,”- approved March 20th, 1857.

      Mr. William W. Anderson, for the petitioner.

      Mr. Thomas J. Kennedy, for Sarah M. Cadmus, widow.
   Magie, Chancellor.

Upon the petition filed in this matter an order of reference was made, and upon the coming in of Hie master’s report petitioners filed exceptions thereto, which have now been brought to hearing. The application seeks a distribution of a fund in court arising from a sale of lands made under an order of this court, pursuant to the provisions of the act relating to the sale of lands limited over. The fund has remained in court during the lifetime of Jasper A. Cadmus, to whom, by an order of the court, seven-eighths of the income of the fund has been paid as it accrued. Jasper A. Cadmus is now dead and the fund is to be disposed of. The master’s report is in favor of a distribution'thereof, which is unsatisfactory to the petitioners. The exceptions to the report indicate three points on which it is insisted that the master has erred.

The second exception questions the propriety of the report which favors the payment to the executrix of Jasper A. Cadmus of the seven-eighths of the interest accrued upon the fund between the last payment of interest and his death.

The scheme of the act, as will be more fully stated hereafter, is to substitute for the lands directed to be sold the fund arisiirg from the proceeds of the sale, in which fund every person who had an interest in the lands has an equivalent interest. Jasper A. Cadmus, by the previous proceeding for the sale of those lands, was recognized as a tenant for life of the lands, and after sale as entitled to the larger part of the income of the fund arising from the sale, the remaining income being held, under the provisions of the act, to accumulate for those to whom the fund is to be distributed. If the lands had not been sold it is man if eat that Jasper A. Cadmus would have been entitled to have the use and the rents and profits thereof up to the day of his death, and that his rights would have fallen at his death to his personal representative. It therefore does not admit of a doubt, in my judgment, but that his executrix is entitled to the accrued but unpaid interest which would have been paid to her husband if he had survived.

The third exception attacks the finding of the master which excludes from the distribution the devisees of some of the children of Jasper A. Cadmus, who died in his lifetime, leaving no children.

The only petitioner who may be aggrieved by this finding is Mr. Scull, who claims under the will of one Benjamin F. Cad-mus. Mr. Morgan may have a claim under the will of his deceased wife, who was the original petitioner in the cause, but he made no appearance before the master, and, so far as shown, makes no claim to the share which his wife would have been entitled to. The objection of the petitioner, Mr. Scull, however, brings the matter before me, so that I may indicate my opinion thereon.

I have reached the following conclusions:

1. The lands sold in this case were evidently treated by the chancellor who made the order for the sale as lands devised to Jasper and his issue, with remainder over.on failure of Jasper’s issue, and therefore as lands falling within the provisions of the eleventh section of the Descent act — that is, as lands which would have been held to be an estate in fee tail under the statute of 13 Edw. I. It is conceded in this argument that the provisions of that section are applicable, and that the devise thereunder vested in Jasper an estate for life only, and upon his death the same would go to and be vested in his children, to be divided between them as tenants in common.

2. The language of section 11, describing the estate of those who are to take after the death of the life tenant, is identical with the language used in section 10, which prescribes the mode in which estates formerly affected by the rule in Shelley’s Case should pass.

3. In Hopper v. Demarest, 22 N. J. Law (2 Zab.) 599, the language of section 10 was construed as vesting in the children of the life te.nant an estate in the lands.

4. In Lamprey v. Whitehead, 64. N. J. Eq. (19 Dick.) 408, I was obliged to consider the true construction of that section in the light of the decision in Hopper v. Demarest, but with reference to a situation which had not been disposed of by that decision. I held that the estate of a child of the life tenant must be considered to be so vested as to be a subject of conveyance, but that in pursuance of the express provision of the last clause of section 10 such an estate would be divested by the death of a child during the life of the life tenant, leaving a child or children.

5. It is impossible not to give the same construction to the identical words of section 11 in the same act, and it follows, in my judgment, that (a) any child who has survived the life tenant is no longer subject .to any contingency, but his or her estate has become absolute; (5) any child who died before the life tenant, leaving children, was divested of her estate in favor of the children; and (c) any'estate so vested in a child (though subject to be divested) might be the subject of a conveyance by deed or will and would pass by descent. If not divested by the happening of the contingency contemplated by the statute, viz., death during the life of the life tenant leaving, a child or children, the grantee, devisee or heir-at-law of such child would become entitled thereto.

The report proceeds upon the theory that only the surviving children of Jasper A. Cadmus and the children of a deceased child, who died in his lifetime) are entitled to distribution. As this, in my judgment, is erroneous, the exception must be sustained and the matter referred'to the master to report how the fund should be distributed, and to whom, upon the'principles above stated.

The only remaining exception is that directed to the finding of the master to the effect that Sarah M.- Cadmus, the widow of Jasper A. Cadmus, was entitled to a dower right in the lands and is entitled to such right in the fund, and to his report that one-third of the fund should be retained in this court and the income thereof paid to her during her life.

Assuming that the estate devised to Jasper has been treated, and rightly treated, in this court, as an estate tail, subject to the provisions of the eleventh section of the Descent act, it follows that the widow of the life tenant was entitled to dower therein, because 'that section expressly gives it to 'her, and the report must be confirmed unless some of the contentions of the ex-ceptants are good.

It is first contended that the act under which those lands have been sold impliedly' repeals the provisions of section 11 of the Descent act, so far as dower is concerned, because the dowrer right is not expressly excepted from the provisions of the act or saved from a sale thereunder, and because, by reason of 'the sale, that was made by order o'f the court; Jasper did not die seized of the lands. This contention is wholly inadmissible, for the provision for distribution of the fund, made by section 6 of the act, requires the proceeds of the- sale to go to anyone holding the absolute fee or any share therein after the death of the life tenant. In my judgment, the dower right would be a share in the fee within the meaning of that section, and it is hardly necessary to point out that the proviso of section 11 giving a right of dower does not require that the life tenant should die seized of the property, but only that tire dower granted should be such as a widow would have if the husband died seized in fee-simple.

It is next contended that the life tenant made provision for his widow by way of jointure, and that she is thereby barred of her right of dower. The petitioners presented evidence that during Jasper’s lifetime he made conveyances of lands other than those comprised in the sale in this matter, for a nominal consideration, to two parties, viz., Young and Fleming, and that each of these parties, by deeds of even date with the conveyances to them, reconveyed the same lands to Jasper and his wife (his present widow), for a nominal consideration, habendum to them, their heirs and assigns.

The contention is that by the provisions of section 10 of the Dower act (2 Gen. Stat. p. 1277), which provisions, in the main, are taken from the similar provisions of the statute of uses of 27 Hen. VIII. c. 10, the deeds put in evidence justified the inference that the lands thereby conveyed were intended, so far as his wife was concerned, as a gift to her, and so to have barred her from dower in other lands. That such conveyances still pass an estate, with right of survivorship in the widow, is settled. Buttlar v. Rosenblath, 42 N. J. Eq. (15 Stew.) 651; Vunk v. Raritan River Railroad Co., 56 N. J. Law (27 Vr.) 395. But tire deeds do not express that they were made-or taken for a jointure for her, nor that they were made in satisfaction of the wife’s inchoate dower or any part thereof. That some expression of this intent was necessary to malee a good jointure, has always been recognized by commentators upon the provisions of the statute of uses, and while at one time it was said that the jointure must either be expressed or be averred to be in satisfaction of her dower, it was, after the enactment of the statute of frauds, adjudged and determined that the jointure must be expressed to be in satisfaction of dower. 2 Bl. Com. 138, and notes; Co. Litt. 36b; 14 Vin. Abr. 545; Tinney v. Tinney, 3 Atk. 8; 1 Washb. Real Prop. ch. 8. The gratuity to the wife indicated by these deeds, not being expressed to be in satisfaction of the wife’s dower, she is not barred thereby of her dower in other lands.

It is further urged, as a bar to the dower of the widow, that the life tenant, Jasper A. Cadmus, conveyed all these lands to Rufus Story and Albert Zabriskie and that his wife joined with him in the conveyance, but I find no evidence in this case that justifies me in considering this objection. The deed from Cad-mus to Story and Zabriskie is not before me, and there is a fair inference, from what is stated in the original petition, that it was executed, not by the widow who is now claiming dower, but by the then wife of Jasper A. Cadmus, who was the mother of the children who claim distribution of this fund. If I assume that Jasper A. Cadmus made a conveyance of these lands, it is obvious that the only title which passed thereby was one for his life. Whether or not his then wife, joining with him, released her dower so as to be debarred from afterward claiming it under the provisions of section 11, if she had survived her husband, is open to question. It seems that in New Jersey the wife’s dower may be barred by her joining in her husband’s deed, although the person who claims the dower is not in privity with the grantee in such deed. Frey v. Boylan, 23 N. J. Eq. (8 C. E. Gr.) 90; Boorum v. Tucker, 51 N. J. Eq. (6 Dick.) 149; S. C., 52 N. J. Eq. (7 Dick.) 587; Goodheart v. Goodheart, 63 N. J. Eq. (18 Dick.) 746. But it is also asserted that whatever estate was conveyed to Story and Zabriskie was afterward reconveyed to Jasper A. Cadmus, and the dower right was revived or reinstated. But these deeds are not in evidence.

As this case must go back to the master for consideration, I am disposed to permit petitioners to supplement their evidence so as to raise the question whether the widow’s dower is barred by the conveyance to Story and Zabriskie, and as to the effect of the alleged reconveyance.

The master has stated that a distributive share belongs to children-who are minors. There can be no question, upon the proofs, that the minors are entitled thereto. But the master has reported that it should be paid to their guardian appointed by the orphans court, who is one of the petitioners as such guardian. As the matter is to be reconsidered, I will permit petitioners to be heard on the question whether the amount of the respective distributive shares can be adjudicated upon unless the infant children are brought into court by a guardian ad litem, and whether the guardian appointed by the orphans court may claim the infants’ share in the fund or whether it ought to remain in this court until the infants, respectively, reach full age.

I deem it proper to add that, in my judgment, this petition should have been filed in the original'cause, and not as a separate proceeding. A separate proceeding probably should have been by bill.


text:
    In the matter of the petition of Eleanor E. Cadmus for sale of lands limited over.
    [Filed November 9th, 1904.]
    Under the Descent act, providing- that the grantee or devisee of an estate tail shall have but a life estate therein, and that his widow shall have dower therein as if the grantee had died seized thereof in fee-simple, the widow is entitled to dower in a fund arising from the sale of the estate, thoug-h a previous wife of the life tenant had joined with him in a conveyance thereof in fee, with full covenants, it appearing that whatever estate was thus conveyed was subsequently reeonveyed to the life tenant.
    Ou exceptions to master’s report.

      Mr. William W. Anderson, for the exceptant.

      Mr. Thomas J. Kennedy, contra.

   Magie, Chancellor.

A petition of Mary J. Dowe and others was filed, seeking distribution of a fund, in this court. It was irregularly endorsed but has since been, by order, endorsed as filed in tire above-entitled cause where the fund is.

Upon that petition a reference was made to a master, and upon the coming in of his report exceptions were filed thereto. They were brought to hearing, and on March 14th, 1904, a memorandum was filed by me, expressing my conclusions upon all the points presented thereby except one, which was not in a condition to be determined, because the facts on which it was presented had not then been put in evidence. In re Dowe, supra p. 11.

As my conclusions sustained the exceptions upon some particulars in respect to which another reference became necessary, I directed that in such reference the blaster should take evidence and report in respect to the point previously undecided.

The master has upon such reference made a supplemental report, stating the respective shares of the fund to which each person interested is entitled, upon the principles set forth in the memorandum previously filed; He has also reported that Sarah M. Cadmus, the widow of Jasper, is entitled to dower out of the fund, as had been previously reported.

The previous report was that said widow was entitled to have one-third of the fund retained undistributed and invested, and to taire the interest thereon during her life. Exception has been filed to the report on the subject of dower, and this brings u]d the point which was not completely disposed of before.

The previous exceptions had challenged the widow’s right of dower upon several grounds. All of them except one were dealt with in the previous memorandum. That then omitted is now presented by proof that Jasper A. Cadmus, the life tenant of tire lands out of the sale of which the fund came, had in his lifetime made a conveyance, in which his then wife had joined. The conveyance was in fee, with full covenants, and I think it is the plain inference that both the grantor and the grantees assumed that Jasper had power to convey more than a life estate.

It further appears by the 'evidence that whatever estate jasper had thus conveyed had been reconveyed to him. The contention now is that the widow of Jasper (who was not the wife who joined in the conveyance) is barred of her dower thereby.

I deem it unnecessary to determine what the effect of the wife of Jasper joining in the conveyance of the lands would have been if she had survived her husband.

It is settled, in this case, that the lands by the sale of which this fund has arisen were affected by section 11 of the Descent act. For the reasons given in my previous memorandum, Jasper was only a tenant for life of those lands. That section of the statute provides to whom such lands should go at the death of the life tenant, and expressly declares that the widow of the life tenant should have dower therein as if he had died seized thereof. When the lands affected by this statute were sold under legislative authority, all .estates and interests in the lands were transferred to the fund raised by the sale.

The question is, therefore, whether by the provisions of the eleventh section above referred to the wife of Jasper (the tenant for life), who survived him, became entitled to dower. In my judgment, the terms of the section are applicable to the surviving wife of the tenant for life. Dower is to be allowed as if the tenant for life had died seized. If he had died seized, his widow would have dower in these lands. The conveyance by a previous wife will not bar the wife who survived. Since the widow would be entitled to dower in the lands if they had not been sold, she is entitled to dower in the fund raised by their sale.

The exceptions must therefore be overruled and the master’s report confirmed.

Dpon this conclusion the matter would be ripe for an order of distribution, but for the fact that infants are concerned, and no guardian ad litem has been appointed. -This omission was pointed out in my previous memorandum, and a quaere was made whether any distribution could be ordered barring the infants, in the absence of a guardian ad litem. At present, it seems to me that an order would not be effective as against the claims of the infants.


text:
    George A. Marion et al. v. Royal W. Wolcott.
    [Filed November 12th, 1904.]
    1. Under a contract for the sale of land the equitable beneficial interest passes to the vendee and he’becomes, in the contemplation of equity, the real owner. He takes the benefit of all subsequent improvements and increase of value, but he will also be subject to all losses and depreciations not occasioned by the neglect or default of the vendor in carrying out the contract.
    2. Where a contract for the sale of land required the vendee to insure the buildings against fire, the policy to be delivered to and held by the vendor, as his interest may appear, such loss, to the extent of the vendor’s interest, was payable to him, to be applied on the unpaid purchase-price, and not for the purpose of rebuilding destroyed buildings.
    On bill, answer, replication and proofs.

      Mr. John P. Stockton, for tbe complainant.

      Mr. William L. Clark, for the defendant.
   Magie, Chancellor.

This cause was brought to hearing on bill, answer, replication and proofs.

It appears thereby that defendant, being the owner of a house and lot in Passaic county, on January 1st, 1891, made an agreement in writing for the sale and conveyance thereof to complainants, and complainants agreed thereby to purchase the same. The price was fixed at $1,550; $60 was to be ¡oaid down on signing the agreement, and $5 on the first day of each month thereafter, with interest, at six per cent., on the principal remaining unpaid. When all payments had been made the defendant was to convey to complainants the house and lot by deed, with -warranty and full covenants. By that agreement the complainants contracted to

“insure tile buildings against fire in a responsible fire insurance company in the sum of not less than six hundred and twenty-five dollars, and the policy of insurance is to be delivered and held' by the party of the first part, and loss by fire in his favor or as his interest may appear.”

It further appeared that on October 1st, 1893, complainants procured a policy of insurance upon the house for $650, running for three years, and by its terms any loss thereunder was payable to defendant. When that policy expired, in October, 1896, complainants took no steps for renewing the insurance, as required by their contract. The agent of the insurance company, however, without instructions from complainants, made out a new policy in the same company, which- he sent to defendant. It was returned to the agent as “not wanted.” The reason for its return was that defendant had, before that time, taken out a blanket insurance upon a number of properties, including that in question, at his own expense.

It also appears that complainants made the required down payment, and the monthly payments thereafter of principal and interest, up to October 1st, 1897; that they went into,possession and made improvements upon the lot, and that while in possession the house was totally destroyed by fire, without fault of complainants, on July 9th, 1897.

Defendant afterward collected of the company which had issued his blanket policy $625 for the loss by fire of the house in question. Complainants thereafter made a written demand that defehdant should pay them the $625 so received, or that he should rebuild the destroyed house. This demand was refused, but defendant gave credit to complainants for the $625 as received on the purchase-price named in the contract.

The prayer of the bill is for a decree that the defendant pay to complainants the $625, with interest, or that he be directed to rebuild the house and specifically perform the contract, and that in decreeing specific performance complainants should be awarded compensation for the diminished value of the property and the inconvenience resulting from defendant’s refusal to rebuild, or should be awarded the insurance money as such compensation.

It is the settled doctrine of our courts of equity that under a contract for the sale of lands the purchaser becomes the equitable owner of the lands and the seller the equitable owner of the purchase-money. King v. Ruckman, 21 N. J. Eq. (6 C. E. Gr.) 599; Haughwout v. Murphy, 22 N. J. Eq. (7 C. E. Gr.) 531 Schmidt v. Opie, 33 N. J. Eq. (6 Stew.) 138.

It is also declared to be the doctrine of equity that when under such -a contract of sale the equitable beneficial interest passes to tire buyer and he becomes in the contemplation of equity the real owner, he takes tire benefit of all subsequent improvements and increase of value, but he will also be subject to all losses and depreciations not occasioned by the neglect or default of the seller in carrying out the contract. Pom. Spec. Perf. § 522; Fry Spec. Perf. §§ 895-897; Pom. Eq. Jur. §§ 368, 1406.

The doctrine last mentioned is obviously a mere corollary to that above stated, which has been asserted in our courts in the cases above cited and in numerous others.

Applying that doctrine to the facts of this case, it is clear that the loss by the destruction of the house by fire must fall upon the complainants, unless they are protected by the terms of the contract respecting the procuring of insurance against such loss.

The terms of the contract in that respect afford, in my judgment, no ground for a decree that the insurance money received by defendant should be paid to complainants. On the contrary, the language used makes it clear that in ease of loss under the policy stipulated for the insurance money obtained upon a loss was to be in defendant’s favor, i. e., for his interest as his interest should appear, i. e., to be applied only to indemnify and protect him in case that the amount unpaid' on the contract should not equal the insurance received.

It is not uncommon for parties to such contracts to stipulate therein that insurance money so received should be applied to the rebuilding of the destroyed edifice, if that rebuilding is-entered upon and prosecuted. But in the absence of such stipulation there is no ground on which the alternative prayer of the bill can be based. In passing, it may be mentioned that that prayer is for a decree directing the defendant specifically to. rebuild the house. There is no proof of what such rebuilding would cost. There is therefore no proof that the $625 would suffice for such rebuilding. Obviously the decree asked for cannot be made. But there is a prayer for general relief, and I have assumed that complainants may ask for a decree under this bill requiring defendant to devote the insurance money to rebuilding.

But, in my judgment, if such modified relief is within the prayer of the bill, it cannot be granted upon the facts appearing. In the first place, complainants do not offer to rebuild, or show that such rebuilding can be done so as to preserve defendant’s interest in the purchase-money, which is a lien on the premises, if the insurance money is contributed toward such rebuilding. In the second place, the terms of the contract do not, expressly or by implication, impose any obligation on the defendant to contribute the insurance money toward such rebuilding.

Assuming that the insurance money he received arose from a policy which took the place of insurance which the complainants were bound to, but did not, procure, the insurance was to protect defendant’s interest. Iiis interest was in the unpaid purchase-price. As that exceeded the amount of the insurance received, I think defendant performed every legal and equitable obligation imposed on him by the contract when he credited the' amount received from the insurance on the purchase-price.

As I find no ground for supporting the bill or making any decree thereon, the bill must be dismissed, with coste.


text:
    Franklin S. Carter v. Thomas B. Cryer et al.
    [Argued September 19th, 1904.
    Decided November 19th, 1904.]
    Complainant, on becoming the owner of certain land on which he found a chattel, placed there by one claiming to own it, claimed a lien for storage charges. The chattel had been levied on under judgments in favor of creditors of the alleged owner, and one who claimed ownership of the chattel had demanded possession from complainant, and on being refused had brought replevin.' — Held, that though a bill to determine the title to the chattel, alleging such facts, was not maintainable as a bill of strict interpleader because of complainant’s claim of -lien, it was maintainable as a bill in the nature of an interpleader.
    On motion to dismiss bill.

      Mr. Franklin C. Woolman, for the complainant.

      Mr. Chauncey G. Parker, for the defendant Cryer.
   Magie, Chancellor.

Complainant’s bill in this cause states the facts on which he relies for relief as follows: He is the owner of a lot of land in the city of Burlington, on which are buildings which were erected by a corporation of this state called the Sanitary Enameled Clay Company. In 1901 John A. Qualey obtained from that company, then in possession and presumably owner of the property, a contract for its sale and purchase by him, under which Qualey went into possession, and during the pendency of the contract placed thereon a one-hundred-and-fifty-horsepower air compressor for the purpose of liquefying carbonic acid gas. He obtained permission to place the machine on the premises upon promise to pay for the use and occupation thereof. About or prior to that time, Qualey, as president of the National Carbonate Company, had contracted for work and labor in fitting up the premises for a plant to liquefy carbonic acid gas and in the erection of the compressor. A number of persons brought actions and obtained judgments upon claims for such work and labor against the last-named company, upon which executions were issued and levied upon the compressor. Under them it was advertised for sale, and on the day fixed other persons gave notice of a lien on the compressor, and the sale was adjourned and afterward abandoned. Thomas B. Cryer, Joseph Koons and H. T. Coleman, trustee, claim severally to hold instruments in writing entitling each of them to some interest in the compressor. Prior to the day fixed for the sale under the executions, Qualey left “for parts unknown.”

Afterward the Sanitary Enameled Clay Company conveyed the premises (expressly excepting the compressor) to the Century Carbonate Company, which gave a mortgage thereon to complainant. Afterward, upon default, complainant foreclosed, and upon an execution on the decree of foreclosure he purchased the premises, and they were conveyed to him by the sheriff.

The Sanitary Enameled Clay Company assigned to complainant its claims for storage of the compressor and expenses.

The complainant afterward gave public notice that he would sell the compressor to pay storage due thereon. Thereupon Cryer gave complainant notice that the compressor belonged to him, and the sale was abandoned. Then Cryer issued a writ of replevin for the compressor, which was served on complainant.

Complainant then charges that he is unable to determine to whom the compressor belongs or who is entitled to its possession, but that he is willing and desirous to deliver it to any person who may be decided to be the owner, upon payment of his charges and storage and the costs of suit. He makes parties defendant Qualey, all the judgment creditors of the National Carbonate Company, and all persons asserting ownership or rights in the compressor and named in the bill, and prays for 'a decree that they interplead and settle their rights thereto, that Cryer may be enjoined from prosecuting his action of replevin, and that the other defendants be restrained from any actions at law against complainant for the compressor.

Upon filing the bill and accompanying affidavits an injunction was allowed restraining Cryer from prosecuting his action of replevin until the further order of this court.

Counsel now move, in behalf of Cryer, to dismiss the bill under rule 218, upon grounds of objection stated in the notice of the motion.

The substantial objection (though stated variously in the notice) is that the bill is wanting in equity in that its statements do not make a case for a decree of interpleader and the consequent restraint of a pending action at law.

It was first urged in the argument that the bill is not one of strict interpleader, and that contention must, I think, be conceded as correct. A bill of strict interpleader is one 'in which the complainant asserts his possession of some fund or something in which he claims no personal interest, but in which other persons, made defendants, set up conflicting claims, and complainant cannot safely determine to which claim he should yield. Story Eq. Pl. § 291; Williams v. Matthews, 47 N. J. Eq. (2 Dick.) 196; Aleck v. Jackson, 49 N. J. Eq. (4 Dick.) 507; Packard v. Stevens, 58 N. J. Eq. (13 Dick.) 489; Ireland v. Kelly, 60 N. J. Eq. (15 Dick.) 308. By his bill, complainant does not disavow any interest in 'the compressor which is in his possession. On the contrary, he asserts a claim therein by way of lien for his storage charges.

But the bill, although somewhat inartificially drawn, may be sustained as a bill in the nature of an interpleader bill. Such a bill is one where a complainant, in possession of some fund or thing, seeks relief respecting it, in addition to relief against conflicting claims of other persons to such fund or thing. Story Eq. Pl. § 297b; Wakeman v. Kingsland, 46 N. J. Eq. (1 Dick.) 118; Illingworth v. Rowe, 52 N. J. Eq. (7 Dick.) 360. Nor does the doctrine of First National Bank, Morristown, v. Bininger, 26 N. J. Eq. (11 C. E. Gr.) 345, apply to this case, for the statements of the bill justify the inference that the conflicting claims all arise in the ownership or possession of Qualey, and are not adverse and independent.

Paraphrasing the bill, the case shown is this: Complainant has become the owner of lands on which he finds a chattel which had been previously placed thereon by one who claimed to be the owner of the chattel. Complainant claims a lien on the chattel for storage charges. He finds that it has been levied upon under judgments which show a claim that another person has some leviable right or interest in the chattel. He also has notice that three different persons severally claim the chattel, or some right or interest therein. One of those persons has demanded possession and brought an action at law to enforce such possession. Manifestly complainant cannot yield to any one of these claims without risk of liability to the other claimants of whose claims he has notice and who have' made demands on him. A judgment in the action of Cryer will not protect complainant against the claims of others who are not parties thereto. If complainant could protect himself against the claims of others by giving the claimants notice of the pendency of Cryer’s action, SO' as to estop them by such judgment as may pass thereon, I do not think he is bound to take that course, which will compel notice to many parties, some of whom are residents of foreign- states.

Under these circumstances I think complainant has a right to the protection of his claim and to the determination in this cause, in which all claimants to the compressor are parties, as to which one has a right of ownership therein upon which the lien of complainant’s claim can be enforced.

It results that the motion to dismiss the bill will be denied.


text:
    John Inglis, surviving executor of Henry Day, deceased, v. John J. McCook et al., trustees, and others.
    [Argued November 7th, 1904.
    Decided December 27th, 1904.]
    By his will a testator gave one-half of his residuary estate to trustees, for the use of his wife, for life, and upon her death to divide the same among his lawful issue, or to trustees for their use. respectively, as his wife should direct by any will duly executed. In default of any such will he gave the same to the persons then entitled to the other half of his residuary estate, to be distributed in the same proportions and held upon the same trusts and with like powers as were mentioned in another clause of his will. — Held, (1) that the phrase “lawful issue” includes, in its primary meaning, not only children, but descendants; (2) that when used in a will a more restricted meaning may be attributed to it if, from the terms of the testamentary disposition, it clearly appears that testator used the phrase in a particular meaning less general thian its ordinary meaning, as, e. g., to children then living, or to children then living and to the representatives of any deceased child. By the other clause referred to .testator had provided that the share of his residuary estate thereby disposed of should, under certain circumstances, go to the “lawful issue” of his children, or to his “lawful issue,” and had expressly provided that in each case the share should go to lawful issue per stirpes, and not per capita. — Held, further, (3) that the use of the phrase in the clause first referred to, without any restricting words, and the use of the same phrase in the subsequent clause with words restricting its meaning, leads to the conclusion that testator intended a different and unrestricted meaning in the first use, and in the absence of any indication of a contrary intent will require such meaning to be attributed to it; (4) a will duly executed by testator’s widow providing for a division of the share she was empowered to appoint, which excluded some of testator’s lawful issue then living, was not a valid execution of the power conferred and the disposition over took effect. By the clause secondly referred to, testator gave one-half of his residuary estate in trust for his surviving children, in equal shares, to their use for life. Each of them was empowered, under certain circumstances, to appoint out of his or her share $150,000, by will. — Held, further, (5) that a like power was conferred when, by failure of the widow to make a valid appointment of the other share, the same was disposed of to the persons entitled under the other clause, and upon the same trusts and with like powers.
    On bill for construction of wills and direction, &c.

      Mr. Elmer King, for the complainant.

      Mr. Charlton A. Reed (with whom was Mr. Thomas Thacher, of the New York bar), for Malcolm Campbell and Spencer M. Mumby, trustees.

      Mr. George Holmes (with whom was Mr. Robert DeForest, of the New York bar), for Henry W. DeForest and Robert Hall McCormick, trustees.

      Mr. Charles L. Corbin, for Adele Mittant Mills.

      Mr. William A. Barhalow, guardian ad litem for Mildred Day McCormick.
   Magie, Chancellor.

The bill in this cause is filed by the surviving executor of the last will and testament and two codicils thereto of Henry Day, late of the county of Morris, in this state. It seeks the direction of the court respecting the distribution of so much of the estate of the said Henry Day as remains in his hands undistributed, and to that end asks the court to determine the true meaning of.said will and codicil, and also the true meaning of the will of Phebe Lord Day, and of the will of George Lord Day, all of which, complainant claims, have variant constructions attributed to them by parties interested in the estate, so that he cannot safely distribute the estate in his hands except upon a judicial construction of the several wills and a determination of the meaning thereof.

The bill sets forth in full the will and codicil of Henry Day. It asserts the death of Phebe Lord Day, the widow of Henry Day, in whose behalf a trust fund was created by his will, and sets out in full her will. It also asserts the death of George Lord Day, who was a beneficiary under the will of Henry Day, in whose behalf a trust fund was created by his will, and sets out in full the will of George Lord Day.

The bill makes parties defendant Spencer M. Mumby and Malcolm Campbell, executors of and trustees under the will of George Lord Day, deceased; Adele Mittant Mills, widow of George Lord Day; Susan DeForest Day Parker, a daughter of Henry Day; Sarah Lord McCormick, also a daughter of Henry Day; Henry W. DeForest and E. Hall McCormick, trustees under the will of Henry Day for the benefit of Sarah Lord McCormick; William T. Lawson and John J. McCook, trustees under the will of Henry Day for the benefit of George Lord Day; Henry W. DeForest and Malcolm Campbell, trustees under the will óf Henry Day for the benefit of Susan DeForest Day Parker; J ohn. Inglis and Malcolm Campbell, trustees under the will of Henry Day for the benefit of Phebe Lord Day, deceased; Sarah Lord McCormick and Susan DeForest Parker, surviving executrices and trustees under the will of Phebe Lord Day; Robert Hall McCormick, Henrietta Hamilton McCormick, Elizabeth Day McCormick, Phebe Lord McCormick and Mildred Dajr McCormick, who are the children of Sarah Lord McCormick.

To this bill Malcolm Campbell and Spencer M. Mumby, executors of and trustees under the will of George Lord Day, filed an answer and a cross-bill against the complainant and against the other defendants, thereby setting up claims in respect to the distribution of the estate of Henry Day, deceased, and seeking a decree directing complainant to pay over certain portions or shares of the estate in such manner that they should be' eventually received by them as executors and trustees of George Lord Day.

John J. McCook and William T. Lawson, trustees under the will of Henry Day for the benefit of George Lord Day, filed an answer, and thereby substantially admitted the allegations of the bill and submitted to the judgment of the court in respect to their duty as such trustees.

Adele Mittant Mills filed an answer to the bill of complainant and a cross-bill against the complainant and other defendants therein, and thereby seeks relief by an accounting from complainant, as surviving executor of Henry Day, and from him and Malcolm Campbell, as trustees under .the will of Henry Day for the benefit of Phebe Lord Day, and direction as to the payment of distributive shares under said will.

To this cross-bill the defendants Susan DeForest Day Parker, as one of the executrices of Phebe Lord Day and individually; Malcolm Campbell, one of the trustees for Susan D. F. D. Parker, under the will of Henry Day, and John Inglis and Malcolm Campbell, trustees under the will of Henry Day for the benefit of Phebe Lord Day, filed an answer.

Sarah Lord McCormick, as one of the executrices of Phebe Loikl Day and individually, Robert Hall McCormick, Henrietta Hamilton McCormick, Elizabeth Day McCormick and Phebe Lord McCormick, filed an answer to the original bill, setting up their claims in respect to the distribution of the estate of Henry Day, and also a separate reply to the various cross-bills of their co-defendants.

William A. Barkalow, appointed guardian ad litem for Mildred Day McCormick, an infant defendant, filed an answer in her behalf, setting up her claim in respect to the distribution of the estate of Henry Day, and also a reply to the several cross-bills of her co-defendants.

Susan DeForest Day Parker, as one of the executrices of Phebe Lord Day and individually, Malcolm Campbell, as one of the trustees under the will of Henry Day for the benefit of Susan DeForest Day Parker, and Malcolm Campbell and John Inglis, trustees under the will of Henry Day for the benefit of Phebe Lord Day, filed an answer to the original bill, setting up their claims as to the distribution of the estate of Henry Day.

Eobert Hall McCormick and Henry W. DeForest) trustees under the will of Henry Day for the benefit of Sarah Lord McCormick, and Henry W. DeForest, trustee under said will for the benefit of Susan DeForest Day Parker, filed an answer to the original bill and a cross-bill against the complainants and their co-defendants, setting up their claims as to the distribution of the estate of Henry Day, and also a reply to the cross-bills of their co-defendants.

Malcolm Campbell and Spencer M. Mumby, executors of and trustees under the will of George Lord Day, filed an answer to the cross-bill of Adele Mittant Mills.

Malcolm Campbell and Spencer M. Mumby, executors of and trustees under the will of George Lord Day, Susan DeForest Day Parker, one of the executrices of Phebe Lord Day, and individually, Malcolm Campbell, .one of the trustees under the will of Henry Day for the benefit of Susan DeForest Day Parker, and Malcolm Campbell and John Inglis, trustees under the will of Henry Day for the benefit of Phebe Lord Day, filed an answer to the cross-bill of the defendants Eobert Hall McCormick and Henry W. DeForest, trustees for Sarah Lord McCormick,'and Henry W. DeForest, one of the trustees for Susan DeForest Day Parker.

John McCook and William T. Lawson, trustees under the will of Henry Day for the benefit of George Lord Day, filed an answer to the various cross-bills of their co-defendants.

Susan DeEorest Day Parker, as one of the executrices of Phebe Lord Day and individually, Malcolm Campbell, one of the trustees under the will of Henry Day for Susan DeForest Day Parker, Malcolm Campbell and John Inglis, trustees under the will of Henry Day for Phebe Lord Day, filed an answer to the cross-bill of Malcolm Campbell and Spencer M. Mumby, executors of and trustees under the will of George Lord Day, deceased.

Adele Mittant Mills filed a reply to the various cross-bills of her co-defendants.

Replications to the various answers seem to put the whole matter at issue.

It will be observed that the primary question relates to the will of Henry Day. By that will various trusts were created in behalf of different beneficiaries, the trustees of each trust fund being also different, and a construction of his will is sought to determine, in the first place, how what remains of his estate is to be distributed. But, by the terms of his will, his widow was empowered to appoint out of the trust fund created thereby for her benefit, and as by her will such an appointment was attempted to be made, the question how. that fund is to be distributed involves the construction of the will of Phebe Lord Day. In like manner, and because a power of appointment out of the trust fund created for his benefit was conferred upon George Lord Day by Henry Day’s will, which power he attempted to exercise by his last will, the question how the share which was set apart by the will of Henry Day for the benefit of George Lord Day should be distributed involves the construction of the will of George Lord Day.

We have therefore in this involved matter the necessity of dealing with three separate testamentary dispositions, viz., that of Henry Day primarily, and those of Phebe Lord Day and George Lord Day secondarily and incidentálly, and the questions thus arising seem to be represented upon the pleadings, no testimony having been taken, except that presented orally on final hearing and hereafter dealt with. The pertinent facts involved are substantially admitted by all the parties.

Another question is presented, which may be briefly stated thus: Upon certain constructions of the various wills in question it would seem that the surviving executor of Henry Day might be directed to pay one or more of the shares of Henry Day’s estate to trustees appointed by his will and codicils, and that the last-named trustees might be directed to pay the same to the persons to whom the same is eventually to go; and in one instance that the last-named trustees might be directed to pay the same, or some part thereof, to the trustees appointed by George Lord Day by his will. It is claimed by persons interested therein that, if the constructions contended for are admitted, the decree should direct the complainant, the surviving executor of Henry Day’s will, to pay, in such cases, the share or shares in question, or so much thereof as has not been paid, to the persons or trustees to whom the same is eventually to go. This contention seems to involve only the question of the claims of successive, trustees to commissions upon the successive payments.

The matters calling for consideration and judicial construction primarily arise under the fifth and sixth paragraphs of the will of Henry Da)q which are expressed in these words:

“Fifth. One-half of all the rest and residue of my estate I give to my executors, not including my wife, to have and to hold upon trust, to keep the same invested in securities by them considered safe, to receive the rents, issues and profits of the same, and to pay over the net proceeds of spch income half yearly to the use of my said wife during her natural life, and upon her death to divide the same among my lawful issue or to trustees for their use, respectively, as my said wife shall direct by any last will or testament duly executed, and in default of any such will I give the same to the same persons who shall-then be entitled to the other undivided half of said residuary mentioned in the next clause of this will, to be distributed in the same proportions and held upon the same trusts and with like powers as are therein mentioned.
“Sixth. The remaining half of my residuary estate, real and personal, and in case my said wife should not survive me, the whole thereof, I direct to be disposed of in the following manner: I direct it to be divided into as many shares as I may leave children me surviving and children who may then be deceased leaving issue me surviving; one of these shares' I give to be divided equally among the issue of each of my then -deceased children per stirpes and not per capita.
“The other shares I direct my executors to hold each as a separate trust estate, one for the use of each child me surviving, during the life of such child, to keep the same invested in securities by them considered good, to receive the rents, profits and income of the same and to pay over the net proceeds of the same to the use of such child half yearly or oftener during his or her life, and upon his or her death I give the said sum so held for the use of such child to be disposed of as shall be directed by the last will and testament or appointment of any such child, made according to the powers hereinafter named and duly executed, and in default of any such will or appointment I give said sum to the lawful issue of such child, to be divided among them per stirpes and not per capita, and in default of any such will, appointment or issue, then to my lawful issue then living, such issue taking per stirpes and not per capita. And I hereby authorize any such child last named to dispose of the share limited to his or her use by will or appointment to or among his or her or my lawful issue, in such shares and upon such legal trusts as each child, respectively, may direct, and in default of any such issue of such child, then I authorize said child to dispose of one hundred and fifty thousand dollars of said fund held in trust for his or her use, to any person or persons or charities he or she may see fit, and the remainder of said fund I give to my lawful issue then living, such issue taking per stirpes and not per capita.
“The share appropriated to the use of my son George under this clause shall be held by my remaining- executrix and executors, but the investments of the same shall be made by and with the consent of my said son:”

It will be convenient, first, to consider the disposition made by the sixth paragraph of this will. As the wife of testator survived him, the provisions of this paragraph operated upon the one-half of his residuary estate. It also appears that one of the children of Henry Day, viz., Eliza .D- Inglis, predeceased him, leaving no children. Henry Day left surviving him only three children, viz., Mrs. Parker, Mrs. McCormick and George Lord Day. The intent of testator, as expressed in the sixth paragraph, does not seem to be open to any serious question. Under the circumstances at his death, the one-half of the residuary estate thereby disposed of was to be divided by his executors into three shares. Each share was to be held by them in trust for one of the three children. The income of such share was to be paid to the child for whom it was held in trust during his or her life. Each child was also given a power to dispose of his or her share “by will or appointment” among “his or her or testator’s lawful issue.” In default of any will or appointment by such child, his or her share was given to the lawful issue of such child per stirpes and not per capita. In default of any issue of such child, authority was given to him or her to dispose of $150,000 of such share to any person, and the remainder of the share was given to the lawful issue of testator then living, who were to take per stirpes and not per capita.

In McCook v. Mumby, 64 N. J. Eq. (19 Dick.) 394, I had occasion to examine this paragraph in connection with the seventh paragraph of the will, whereby power was given to the executors, in their discretion, to advance and pay to George Lord Day, out of the share limited to his use, any sum not exceeding $100,000, and in connection also with the will of George Lord Day, whereby he gave to his executors, as trustees, all his property which was in his absolute ownership, and all which he had power to dispose of'under the will of his father, to hold the same as a' trust fund, and pay the income thereof to his widow, Adele Mittant Day (now Adele'Mittant Mills) for her life, and with a provision for a disposition of the remainder after her death to his children or their children, and in default of any such surviving his wife, to the lawful issue then living of his father, to take per stirpes and not per capita.

My conclusion then was that by his will George Lord Day had exercised his power of appointment conferred on him by his father’s will over the.sura of $150,000 (he having died without children or grandchildren) by the devise and bequest of his estate, and whatever he was empowered to appoint, under his father’s will, to trustees, to hold and invest as' a trust fund, and to pay the income thereof to his wife for life, and at her death to pay the whole to the then surviving issue of his father, and that his gift operated upon the whole $150,000, notwithstanding there had been advanced to him out of the share limited to his use a large amount under the seventh paragraph of the will of Heniy Day. The correctness of that conclusion does not seem to be questioned in this' case, and upon the review I have been compelled to make I can see no reason to doubt it.

It results that with respect to the undistributed fund arising under the sixth paragraph of Henry Day’s will the surviving executor is accountable for so much of the share of George Lord Day, under the sixth paragraph, as will make up the sum of $150,000, and that he must make payment of so much of said sum, either directly to the executors and trustees under the will of George Lord Day or through the medium of the trustees of his share appointed under the will of Henry Day. To which of them the payment should be made will hereafter be discussed.

It also follows that the remainder of the share of George Lord Day, under the sixth paragraph, is to be paid by the surviving executor to Mrs. Parker and Mrs. McCormick, the issue of Henry Day living at the death of George Lord Dajg who take the same per stirpes, unless the same is affected by the instrument executed by them and hereafter to be considered.

The shares of Mrs. Parker and Mrs. McCormick under this paragraph not accounted for or distributed, are to be paid to and held by the trustees for them respectively appointed by said will and codicil.

The questions presented under the fifth paragraph of the will of Henry Dajr are by no means so easy of solution. By its terms one-half of testator’s residuary estate was given to his executors, not including his wife, in trust, to pay the income therefrom to his wife’s use for her life, and upon her death “to divide the same among my lawful issue, or to trustees for their use, respectively, as my said wife shall direct by any last will, duly executed.” There is then a provision, that “in default of any such will” the said one-half of the said residuary estate shall go to the persons then entitled to the one-half which was disposed of by the sixth paragraph, to be distributed in the same proportions and held upon the same trusts and with like powers as are therein mentioned. There can be no question but that this paragraph constituted his executors, excluding his wife, who was an executrix, trustees of the one-half of testator’s residuary estate, and that the surviving executor is the trustee, and is accountable therefor.

It is equally clear that by the provisions of the fifth paragraph Mrs. Day acquired no interest in the fund thereby placed in trust other than an interest for life in the net proceeds of the income thereof. But there was a superadded power of appointment of the fund, upon her death, of a limited character. Wright v. Wright, 41 N. J. Eq. (14 Stew.) 382; Downey v. Borden, 36 N. J. Law (7 Vr.) 460. Her appointment was required to be made by last will and testament, duly executed, and it was to direct a division thereof among testator’s “lawful issue,” or to trustees to their use, respectively. If she has made the required appointment, the surviving trustee must account to the persons to whom she has appointed and 'directed the fund to be paid; if not, the testator has otherwise disposed of the fund.

Mrs. Day died January 2d, 1895, leaving surviving her daughters, Mrs. Parker, and Mrs. McCormick, and her son, George Lord Day. Mrs. Parker had then, and has now, no children. George Lord Day had no children, and has since died, leaving no children. Mrs. McCormick had then, and has now, five children, who are parties to this suit, one of them being an infant.

Mrs. Day left a last will, duly executed, and which has been admitted to probate. It commenced with the following words:

“I, Phebe Lord Day, widow of Henry Day, of the city of Morristown, in the State of New Jersey, intending- to dispose of ali the estate, real and personal, of which I may be seized or possessed at the time of my decease or which 1 may be entitled to dispose of by will by virtue of any power of appointment in the will of my mother or of my said husband, do make and publish this my last will and testament, as follows

With this preamble she made a disposition, by the fifth paragraph of her will, which is in- the following language:

“Fifth. All the rest, residue and remainder of my estate and other property which I am entitled to dispose of by will I direct my executors to divide into three equal parts. One of said three parts or shares I give to my executors, to hold as a separate trust for the benefit of each of my three children, Sarah, Susan and George, during his or her life, to invest the same and keep the same invested, and pay over the net income thereof (after deducting taxes, insurance premiums and all other lawful charges) to the child for whose benefit the same is held, and upon the death of such child, I give the principal of his or her share so held in trust to such person or persons as he or she shall direct by last will and testament, and in default of such last will and testament, then to the issue of such child per stirpes, and in default of such issue then to my issue per stirpes."

From tliis it seems clear that the purpose of Mrs. Day was to execute the power conferred upon her by the fifth paragraph of the will of Henry Day. Although she has combined therewith a testamentary disposition of property which was her own, and a disposition by way of appointment under power conferred by the will of her mother, I .think such a combination can in no way afEect her testamentary action as an appointment under the fifth paragraph of Henry Day’s will, if we can find therein a compliance with the requirement of that paragraph.

This compels the determination of the intent of Henry Day, as expressed by the fifth paragraph of his will. He was the donor of the power to appoint or direct a division of the fund and we must look to the language of his grant for the extent of the ¡Dower conferred, and the limitations, if any, which he imposed on its exercise.

The first question suggested is whether the operative words conferring Hie power, viz., “as my said wife shall direct by any last will,” &e., relate to and qualify the division of the fund among testator’s lawful issue, or only those words which immediately precede, and which provide for the payment of the sums into which the fund is to be divided to such issue or to trustees for their use, respectively. The qualifjdng words are added to a single sentence. Testator did not require his trustees of this fund to divide it among his lawful issue and to pay the sums into which they divided it to each of his lawful issue, or to trustees to his or her use, as Ms wife should direct. But he required them to divide the fund among his lawful issue or to trustees for their use, as his wife should direct. In my judgment, he thereby conferred on her a power to direct what division should be made, and to whom the division was to' be paid.

Nor am I able to discover any ground for the contention that the power conferred by the paragraph was in the alternative, so that if the widow directed, by her will, a .division of the fund, she was without power to direct that the sums into which the fund should be divided should be, or some one of them should be, paid to trustees. On the contrary, the language, in my judgment, expresses an intent'to confer power to direct a division, and also to direct the payment of. the individual sums either to the persons selected or to trustees for their use.

When this cause was first argued the guardian ad Ulem of tbe infant defendant (who is a grandchild of Henry Day, whose mother is yet living) urged (1) that by the words “lawful issue,” in the fifth paragraph of his will, Henry Day must be considered to have intended to include his grandchildren as well as his children, and (2) that if such was his expressed intent the appointment attempted to be made by the will of his widow was ineffective and invalid, and because of the default of a will making the required appointment the bequest over took effect.

No such contention was made by counsel for the adult grandchildren, nor was the question discussed in the able arguments submitted by the counsel for the other parties.

When I took up the will for consideration I was greatly impressed by the fact that Henry Day, who was a lawyer of great reputation, in framing the sixth paragraph of his will, and providing for the disposition of the fund thereby created, in certain eventualities, to the lawful issue of his children or of himself, had taken care to express that such issue should take per stirpes and not per capita. Such a disposition, it cannot be doubted, would have excluded from any benefit thereunder the descendants of any living stirps. When the testator, in framing the fifth -paragraph of his will, made a disposition of the fund thereby created, upon the death of his wife, to his “lawful issue,” without any qualifying phrase, the omission seemed to me to be so significant in respect to his intent as to justify me in requiring a reargument, and I have had the benefit thereof.

The question thus presented is whether Henry Day intended, by the words “my lawful issue,” as used in the fifth paragraph, to include all his lineal descendants living at the time the will took effect, or at the time the power was to be exercised, or only his children then living, or his children then living and the representatives of any deceased child.

The word “issue,” in its ordinary legal meaning, embraces grandchildren and remoter descendants, as well as children. When used in deeds, it has been adjudged to have a technical sense to that effect. Weehawken Ferry Co. v. Sisson, 17 N. J. Eq. (2 C. E. Gr.) 475. But when used in a will a more restricted meaning may be attributed if, from the terms of the testamentary disposition, it clearly appears that the testator used the word in a particular meaning less general than its ordinary meaning. 2 Wms. Ex. 953; Sibley v. Perry, 7 Ves. 531; Leigh v. Norbury, 13 Ves. 340; Dalzell v. Welch, 2 Sim, 320; Emans v. Emans, 3 N. J. Law (2 Penn,) 968; Den v. Schenck, 8 N. J. Law (3 Halst.) 39; Ballentine v. De Camp, 39 N. J. Eq. (12 Stew.) 87.

To properly pursue this inquiry, it is obvious that we must start with the assumption that the testator used the word in its ordinary signification. We must then examine the whole will, and we will not be able to attribute to the word a more restricted meaning unless we find in the will itself clear indication that the testator used it in this case in such restricted meaning.

It is argued that by the word “issue” the testator could not have intended to include his grandchildren as beneficiaries under the appointment of his widow, because by this paragraph he provided that on failure to appoint the fund is immediately to go to trustees, under the sixth paragraph, whereby the grandchildren will not obtain an immediate, but only a remote and precarious interest. 'But this reasoning is founded not on any expression of the testator, but rather upon our judgment of what would have been expressed by him if he had intended to include grandchildren under the word “issue.” It is by no means clear that if such was his intent that he did not consider the provision made, on failure of appointment, whereby the grandchildren might attain a future interest in the fluid, a sufficient and satisfactory benefit to them.

If we are to draw an inference that testator intended to restrict the meaning of the word “issue” in this paragraph, it cannot be an accepted inference unless the degree of restriction is expressed thereby. The inference sought to be drawn from the omission of the grandchildren from some immediate benefit on failure of appointment leaves the degree of restriction wholly undisclosed. Whether only children of testator living at the death of the donee of the power or such children and the issue of deceased children are objects of the power, is left to mere conjecture. The latter conjecture is forbidden by the comparison of the provision whereby testator has made slirpital disposition, with the provision which, is without qualification. The former conjecture assumes, without any supporting ground, that testator intended that his grandchildren should take no interest in the fund created by paragraph 5, even if their parent was dead before the power of appointment was exercised.

Upon consideration of the whole will, I am unable to discover in it any reason for attributing to the word “issue,” in the fifth paragraph, any restricted meaning. It’therefore includes testator’s grandchildren, although children of a living child.

That the power of division conferred on testator’s widow by paragraph 5 was not exclusive, i. e., did not permit her to exclude from such division any of the objects of the appointment, was not contested by any of the counsel. The doctrine of exclusion, and the instances in which it is applicable, need not be here discussed. See Sugd. Pow. ch. 7 § 6; Chance Pow. pp. 1013, 1055 et seq. As the grandchildren were wholly excluded and appointed to no substantial part of the fund, the questions so much discussed elsewhere respecting what are termed illusory appointments do not require attention. Sugd. Pow. ch. 7 § 6, app. 19; Chance Pow. pp. 1108, 1115.

The construction given to paragraph 5 makes it include as objects of the appointment thereby conferred on Mrs. Day the three living children of testator and the five then living children of Mrs. McCormick. But Mrs. Day, by her will, in attempting to exercise the power conferred, ignores tire grandchildren and excludes them from any benefit. It is settled in this court that such an exclusion makes the execution of the power invalid.

In Lippincott v. Ridgway, 10 N. J. Eq. (2 Stock.) 164, Chancellor Williamson dealt with a will whereby the testator conferred power upon a daughter to appoint a trust fund, under circumstances which came into existence, to such of her brothers and sisters and their children, and in such proportions as the daughter by her will should direct and appoint, This language, if standing alone and unexplained, conferred upon the daughter a discretion to select among the persons named. But it was followed by language explaining that testator’s will was that the daughter should have power to dispose of the fund among the brothers and sisters and their children in such proportions as she should think fit. This explanatory clause was held by the learned chancellor to limit the powers conferred so that each of the brothers and sisters was entitled to a portion of the fund. It appearing that the daughter, by her will, had excluded a sister and had appointed the fund to a child of a sister who had deceased, the conclusion was reached that there had been no valid execution of the power conferred, and that the gift over took effect.

In Wright v. Wright, 41 N. J. Eq. (14 Stew.) 382, Chancellor Runyon dealt with the will of a husband giving all Ms property, real and personal, to his wife, with power to dispose of the same in any manner she should think proper during her lifetime, and providing that at her death she might by will dispose of the same among his children and grandchildren as she should think proper. The learned chancellor held that the wife took only a life interest, with power of testamentary disposition among testator’s children and grandchildren, but without power to exclude any of them. It was concluded that a will of the wife, which excluded one of the grandchildren from any share, was an invalid appointment under the power conferred.

It being determined that the gift over took effect, the next question is, to whom niust the trustees account for the fund which was created by the fifth paragraph of Henry Day’s will? The gift over is expressed in the following language, viz.:

“In default of any sueli will [of Mrs. Day], I give the same [the fund] to the same persons who shall then be entitled to the other undivided half of the said residuary mentioned in the next clause of this will [i. e., the sixth paragraph], to be divided in the same proportions and held upon the same trusts and with like powers as are therein mentioned.”

At the death of Mrs. Day the fund created under paragraph 6 was in the hands of trustees for the benefit of the three children — Mrs. Parker, Mrs. McCormick and George Lord Day. All were then living, and by the gift over, under the fifth paragraph, the one-half of the residuary estate therein disposed of was vested in the trustees for the benefit of those three children, to each one a third thereof. As Mrs. Parker and Mrs. MeCormick are still living, their shares must be held by the trustees for each of them, respectively, to be disposed of at their deaths under the powers and with the restrictions named in the sixth paragraph.

Á different and more difficult question arises with respect to the one-third of this fund which, at Mrs. Day’s death, the trustees were to hold for the benefit of George Lord Day. He has since died, leaving a widow, but no children. He died testate, and by his last will made a disposition of property in the following language:

“All other property of which I shall be seized or-possessed at the time of my death, whether such property be real or personal, and whether it shall be mine in absolute ownership or held in trust for my benefit by trustees under the will of my father or my mother, with powers granted to me to dispose thereof by my. will, I give (intending hereby to exercise the said powers of disposition by my will) to my executors hereinafter named (acting as trustees), to have and to hold, unto them, their successor or successors, upon the following trusts, viz.:
“To invest the same and keep the same invested as a trust fund, and to hold the capital of said trust fund during the life of my wife, Adele Mittant Day, and to pay over to her the net income thereof (after deduction of all necessary and proper expenses of said trust) in equal quarterly or semi-annual payments, according as my said wife shall desire ; and upon the death of piy said wife to pay over the capital of said trust fund, in equal shares, to any child or children of mine, and any child or children of any deceased child or children of mine, who shall be living at the decease of my said wife, such children and grandchildren to take per stirpes and not per capita; and if but one child of mine and no grandchildren, or but one grandchild and no children, shall survive my said wife, then upon the death of my said wife to pay over the entire capital of said trust fund to such child or grandchild.
“Should no child or children, grandchild or grandchildren of mine survive my said wife, then upon the death of my said wife I give the entire capital of said trust fund to the issue, then living, of my father, Henry Day, such issue to take per stirpes and not per capita.”

In the case of McCook v. Mumby, ubi supra,, it wa's held that George Lord Day thereby exercised such power as had been conferred upon him by the sixth paragraph of the will of Henry Day with respect to a part of the fund created by that paragraph. No consideration was then required or given to the power conferred with respect to the fund created under the fifth paragraph, which is now under consideration. Upon failure of appointment, the fund under that paragraph was to be held by trustees upon the trusts created by the sixth paragraph. With respect to the share of George Lord Day in the fund, created by the sixth paragraph, it was then held that power was conferred upon him to appoint, in case, of his death without children, $150,000 of the fund to any person he should see fit, and that by his will directing the property which he had power to dispose of under his father’s will to be held in trust for his wife, Adele Mittant Day, during her life, and at her death, if there were then no children or grandchildren of his living, the whole fund to go to the issue of Henry Day then living, such issue to take per stirpes and not per capita, he exercised the power of appointment validly and-effectually as to the $150,000 over which his power extended as to persons not his father’s issue by the provisions for the use by his wife for life, and as to that sum, after her death, by the appointment thereof to his father’s issue, which was also within the power conferred upon him.

By the failure of appointment by Mrs. Day as to the fund created by the fifth paragraph and the consequent gift o'ver, that fund is to go to trustees for the persons named in the sixth paragraph. It is expressly directed to be distributed in the same proportions and to be held upon the same trusts and with like powers as are mentioned in the sixth paragraph.

Therefore, upon the death of Mrs. Day without having made a valid disposition by way of appointment of the fund created by the fifth paragraph, it became the duty of Henry Day’s executors to divide that fund into three equal shares, one for each of his children then living, viz., Mrs. Parker, Mrs. McCormick and George Lord Day, and to pay over each of such shares to the trustees, respectively, appointed by Henry Day’s will and codicils for each of said children. Those trustees were to hold such shares upon the trusts set forth in the sixth paragraph.

As Mrs. Parker and Mrs. McCormick are still living, their respective shares are to be held by their respective trustees upon those trusts.

George Lord Day has died, but leaving a will disclosing air intent to thereby appoint whatever he was empowered to appoint by Henry Day’s will to trustees to the use of his wife for life. By the sixth paragraph he was endowed with power to appoint, in default of issue, $150,000 to any person he should see fit. This has been already held to empower him to appoint to the use of his wife for life $150,000 out of the fund arising under the sixth paragraph. As the fund arising under tire fifth paragraph is to go upon the same trusts with like powers, it follows that he had a power of appointment as to $150,000 of that fund, and to that extent his will has executed that power.

But he also had power to appoint to Iris own or his father’s issue, and his will has executed that power as to the $150,000 after his wife’s death. It follows that $150,000 out of the fund created by the fifth paragraph is to be paid to trustees appointed by his will, and to be held by them on the trusts therein created, and the remainder of the share is to be paid to Mrs. Parker and Mrs. McCormick, Henry Day’s lawful issue, taking per stirpes.

There are two questions remaining to be considered. The first is as to the effect to be given to an instrument alleged to have been executed by Mrs. Parker and Mrs. McCormick, and which is set up by the answer and cross-bill of Mrs. Mills, the widow of George Lord Day.

As has been stated, the funds created by both the fifth and sixth paragraphs, after the death of Mrs. Day, and in default of her making an appointment within the power conferred on her by the fifth paragraph, are held by the trustees under the will and codicils of Henry Day, upon the trusts declared in the sixth paragraph. One-third thereof was held for George Lord Day for life, with power of appointment to the extent of $150,000 out of each fund, which power he executed by his will in favor of his wife for life, and at her death in favor of the lawful issue of his father, Henry Da}"-, living at his wife’s death.

The share of George Lord Day in excess of his appointment went, at his death, to the lawful issue of Henry Day, then living, per stirpes and not per capita.

At the death of George Lord Day, Mrs. Parker and Mrs. McCormick were then the surviving children of Henry Day; each was a slirps or root. If either had then died leaving children, lawful issue of Henry Day, those children would have represented the deceased, and taken the share of the excess which the deceased would have taken if living. But as both children survived George, each took a share of the excess absolutely. What each thus acquired, she could dispose of as she saw fit.

The cross-bill of Mrs. Mills has appended to it an instrument alleged to transfer the interest which Mrs. Parker and Mrs. McCormick thus acquired in the share of George Lord Day, unappointed by him to trustees for the use of Mrs. Mills for her life. She also appends to her cross-bill another instrument purporting to be executed by the children of Mrs. McCormick and making a similar transfer for her benefit.

The answers to this cross-bill fail to admit or deny the execution of these instruments. When the cause was brought to final hearing before me counsel for Mrs. Mills produced and proved the execution of the first-mentioned of these two instruments. The other was not produced or proved.

There was no exception to the answers to the cross-bill of Mrs. Mills for insufficiency in respect to the allegations respecting these instruments. No proofs were taken in accord with the usual practice in this court. The proof offered at the hearing was objected to and was taken subject to objection.

Is that instrument thus presented at the final hearing admissible, and is it to be considered in the determination of 'this ease ?

By section 45 of the Chancery act of 1874, all examinations, after a ’cause was at issue, were to be taken before an examiner in chancery, except such examination as should be taken before a vice-chancellor in an issue referred to him. By section 33 of the Chancery act of 1902 (P. L. of 1902 p. 521), this exception was extended so as to exclude from the requirement’ to take examinations before an examiner’ such examinations as should be taken before the chancellor. By section 109 of the last-cited act the chancellor was authorized to employ a sténographer when he should take and hear evidence of witnesses orally. The plain purpose of this legislation was to' enable the chancellor to adopt, in any case, the practice of hearing causes at issue by oral evidence, as tbe vice-chancellors are expressly required to do. But it has never been interpreted, nor do I think it bears the meaning, that parties may come to a final hearing and then require the chancellor, without any previous direction on his- part, to hear evidence orally. When application for that purpose is made upon notice he may direct such a mode of trial, but without an application and direction thereon evidence ought not to be received orally. Any other course would occasion surprise to tire other parties.

Under these circumstances, I think the objection made to the reception of this evidence required it to be dismissed from consideration. It may well be questioned, besides, whether the charge in the cross-bill of Mrs. Mills respecting these instruments called for an answer. They seem to be referred to solely as recognizing the power of disposition which the cross-bill claims had been conferred on George Lord Day. For these reasons no consideration has been given to the 'proof on this subject.

The only remaining question is to whom the surviving trustee under the will of Henry Day should account and pay over the trust funds in his hands. With respect to so much thereof as under the construction given heretofore is to be held in trust for Mrs. Parker and Mrs. McCormick for their lives, respectively, no difficulty can arise. They are to be held by the respective trustees appointed by the codicils to the will of Henry Dajr, or such persons as now, by proper appointment, have been made trustees thereof. With respect to the excess of the share of George Lord Day ¿rising under both paragraphs 5 and 6 over and above what he has appointed thereout, that is to be divided and paid over to Mrs. Parker and Mrs. McCormick, respectively.'

The shares of the funds arising under both paragraphs, which were put in trust for George Lord Day for life, with a limited power of appointment, which as to $150,000 out of each fund he exercised by creating a trust of those amounts in favor of his wife for life, and, at her death, failing his own issue, in favor of the then living lawful issue of his father, Henry Day, are also to be paid over.

It appears, and is conceded, that the trustees under Henry Day’s will, of whom the complainant is the survivor, have not paid over the whole amount of the shares under paragraph 6 to the respective trustees thereof. George Lord Day being-dead, if the unpaid balance of his share were now paid to his trustees, it would be their duty to immediately pay over $150,000 out of the same, or so much thereof as is unpaid, to the trustees to whom the same was appointed by his will for the benefit of his wife for life. With respect to the fund created under paragraph 5, it is left uncertain whether that fund was ever segregated from the estate by the executors and trustees. If not, upon its being now done, the surviving trustee would be under obligation to pay such share thereof as, under the construction heretofore declared, was given for tire benefit of George Lord Day for life, to his trustees, appointed under the codicils, and it would then be their duty to pay $150,000 out of the same to the trustees appointed by George Lord Day by his will. These successive trustees would be charged with no duty except that of paying over the funds to the trustees appointed by the will of George Lord Day. They might, however, be entitled to demand, and possibly .to receive, commissions upon these funds. To adopt a circuitous course of payment through successive trustees might open a way to a demand to two or three successive commissions for services which, upon the construction given, would be merely perfunctory.

Under such circumstances, and as all the successive trustees • arc parties to this suit, it is my judgment that the payment may be made directly to those now entitled to receive the same.

A decree embodying the conclusions above expressed will be made. Considering the many questions passed upon, I think the terms of the decree should be settled upon notice.