text:
    Herbert P. Baker, executor, &c., v. E. Sophia Baker.
    [Decided July 11th, 1913.]
    1. A testator devised to his wife the use of bis dwelling-ihouse and lot of laud whereon the same was erected and directed, “that in case said bouse shall be destroyed by fire, wind or otherwise become untenantable, I direct my executor to pay to my said wife thirty dollars ($30) a month until said house is rebuilt or put in tenantahle condition and occupied.”—Held, that she is under the obligations of a life tenant and may not permit the premises to fall into a state of non-repair and claim thirty dollars ($30) per month until the repairs shall have been made by the executor, and that it is not his duty, but hers, to keep the premises in repair and to pay the taxes.
    2. In the construction of the words “or otherwise become untenantable” the doctrine ejusdem generis must be applied, which is to the effect that where general words follow particular ones the rule is to construe them as applicable to persons ejusdem generis.

    3. Where a statute or other document enumerates several classes of persons or things, and immediately following and classed with such enumeration the clause then embraces other persons or things, the word “other” will generally be read as “other such like,” so that the persons or things therein comprised may be read as ejusdem generis and not with a quality peculiar to or differing from those specifically enumerated.
    4. When the testator used the words “or otherwise become untenantable” he had in mind the destruction of the building by some superior force or vis major, of the kind that fire and wind belong to, or in other words, destruction of the buildings by the elemental forces.
    On final hearing on bill, answer, replication and proofs.

      Mr. Sidney IF. Eldridge and Mr. Ciarle McK. WMtiemore, for the complainant.

      Mr. Patríele II. Gilhooly, for the defendant.
   Howell, V. C.

The pleadings and proofs in this case show that on August 3d, 1909, Abram P. Baker died seized of a tract of land in the city of Elizabeth, on a portion of which was a dwelling-house, the remainder being occupied for other purposes. He left a will, dated March 10th, 1900, and a codicil thereto, dated February 20th, 1907, both of which were admitted to probate, and in and by which he made the following provisions:

“Fifth. I direct that my beloved wife, Sophia IS. Baker, shall have the use of the house in which I now (3900) reside, together with the lot on which it stands, being thirty feet front and rear by one hundred and fifty feet deep, and adjoining the property of William O. Tubbs, for the term of her natural life, provided she does not again marry; in case of her remarriage all her rights under this bequest shall terminate and cease. After the death or marriage of my said wife I give and devise and bequeath the same to my son Herbert I?. Baker, his heirs and assigns forever. The above bequests to my said wife are in lieu of dower or thirds in my estate.
“Second. In and by the fifth clause of my said will I did give and bequeath to my wife E. Sophia Baker the use of the house and lot on Cherry street in Elizabeth, N. J., in which I resided in the year nineteen hundred; I do now direct that in case said house shall be destroyed by fire, wind, or otherwise become untenantable, I direct my executor to pay to my said wife thirty dollars a month until said house is rebuilt or put in tenantablo condition and occupied.”

These provisions were declared to be in lien of dower. After the death of the testator his widow entered into possession of the property so devised to her and rented the same; she has been in receipt of the rents from his death hitherto and has paid some of the charges incident to her possession of the premises as if she were a life tenant. She has permitted the property to fall into a condition of disrepair, so that the second floor of the house is not now rented. The first floor is rented for a very small amount and not for a sum which it would rent for if the property was put in a tenantable condition. At the time of the death of the testator the property was renting for $30 a month.

The executor now files his bill, alleging that the property is in a state of disrepair and that it is the duty of the defendant as life tenant to keep the same in good condition and repair and pay all the taxes and other municipal charges levied against it; that she has allowed the premises to fall into disrepair to such an extent that they are hardly tenantable for the class of tenants which reside in the neighborhood, and he describes the condition of the building quite fully and insists that the defendant is under obligation to keep the premises in repair and pay all the taxes assessed against them, and that she is obligated in the same manner as any other, life tenant.

She responds that she is excused from making repairs by the terms of the codicil, which provide that in ease the said house should be destroyed by fire, wind, or otherwise become untenantable, the executor should then pay to her $30 a month until the house should be rebuilt or put in tenantable condition by him and occupied.

The difficulty arises out of the use of the words "or otherwise become untenantable” in the second item of the codicil. The defendant insists that she is trot under the obligations of a life tenant and that she may permit the premises to fall into a state of non-repair and claim $30 per month until the repairs shall have been made by the executor, and that it is his duty and not hers to keep the premises in repair and to pay the taxes.

In my opinion, in the construction of these words, the doctrine of ejusdem generis must be applied.. That rule was well expressed by Lord Tenterden in Sandiman v. Breach, 7 B. & C. 99. He says: “Where general words follow particular ones the rule is to construe them as applicable to persons ejusdem, generis." It is, therefore, sometimes called Lord Tenterden’s rule, which, as to the word “other,” may perhaps be more fully stated thus: “Where a statute or other document enumerates several classes of persons or things and immediately following and classed with such enumeration, the clause then embraces other persons or things the word ‘other’ will generally be read as ‘other such like,’ so that the persons or things therein comprised may be read as ejusdem generis and not with a quality peculiar to or differing from those specifically enumerated.”

The.doctrine is well illustrated by the case of Saner v. Bilton, 7 C. D. 815; 47 L. J. Ch. 267. There the lease contained this provision:

“That in case the said warehouse and building or any part thereof respectively shall at any time during tibe said term he destroyed or damaged by fire, flood, storm, tempest or other inevitable accident, then the said yearly rent hereby reserved or a just proportion thereof shall cease or abate, so long as the premises shall - continue wholly or partially untenantable or unfit for use and occupation in consequence of such destruction or damage.”

During the term a beam broke, the walls bulged and other defects appeared in the building. The landlord made repairs and sued the tenant for the amount thereof. Mr. Justice Fry held that the phrase “other inevitable accident” used in the" lease was one of a kin to flood, fire, storm or tempest referred to in the immediately preceding words, and that the injury sustained to the building was not inevitable accident, within the meaning of these words. Later on came the case of Manchester Bonding Warehouse Co. v. Carr, 5 C. P. D. 507; 49 L. J. C. P. 809. There a tenant covenanted to deliver up the leased premises at the end of the term, damage by fire, storm or tempest or other inevitable accident and reasonable wear and tear only excepted. The building fell during the term, and the question was whether the phrase “other inevitable accident” included the fall of the building. It was held that it did not, and that the “inevitable accident” referred to meant mere accident ejusdem generis, and did not extend to the use of the property by the tenant. The case was decided upon the authority of Saner v. Bilton, supra. To the same effect is the case In re Richardson et al., 66 L. J. Q. B. 868. The American cases cited in the complainant’s brief are generally on the same line. Sims v. United States Trust Co., 103 N. Y. 472; Donley v. Bank, 40 Ohio St. 47.

It is said that care must be taken in the application of the doctrine to the construction of wills, and that the best rule for the construction of such documents is that which takes the words to comprehend a subject that falls within their usual sense, unless there is something like a declaration plain to the contrary. Parker v. Marchant, I. Y. & C. 290; 11 L. J. Ch. 223, the reason being that in the constructions of a will the words should bo held to their plain, common, ordinary meaning. While this must be true, so far as tire donative words of a will are concerned, yet when a cons!ruction is sought of testamentary words that are not purely donative, I see no reason why the doctrine should not be invoked.

I am, therefore, of opinion that when the testator used the words “or otherwise become untenantable,” he had in mind the destruction of the building by some superior force or vis major, of the kind that fire and wind belong to, or, in other words, destruction of the buildings by the elemental forces.

Unless the meaning of the words in question can be confined within the limits above indicated, it would be possible for the defendant by her own act to permit spoliation and waste to such an extent as to make the premises untenantable, and then as a result of her own act call upon the executor to pay the monthly stipend provided for by the codicil until he should rebuild the premises or put them in condition where they could be rented. I do not think that the testator meant to absolve his widow from the usual duties and obligations attending a life tenancy. If he had meant that it would have been very easjr for him to have expressed it. He put her to her election whether she would take dower or the testamentary provision. If she had elected to take dower she would have been bound to pay taxes and keep the buildings in repair, and I am driven to the conclusion that the testator meant by the provisions of his will in her favor to put her under the same obligation. The result is that unless the widow shall put the premises in proper repair, a receiver of the rents will be appointed according to the common practice.


source: Caselaw Access Project

author: Howull, V. C.

license: Public Domain

text:
    John Schilstra et al. v. Arie J. Van Den Heuvel et al.
    [Decided July 14th, 1913.]
    3.. Where a bill was filed for the regulation of the affairs of a religious society, known as the Northside Christian Reformed Church of Passaic, upon the ground that there was a misappropriation of the property and temporalities of that society, the same having been diverted by a faction of the church to the denomination known as the Reformed Church in America, and the bill is filed by the complainants not only on their own behalf, but also on behalf of all members of the same congregation wiho are similarly situated, and alleges there is a schism in the church, and that a faction represented by the defendants has seceded therefrom and joined another denomination; that the seceders have obtained possession of the church property, and, without the consent of the complainants and their adherents, are attempting to carry the church property with them and place it under the control of such other denomination, and the complainants claim that this is being attempted not only against the substantive rules of law regulating affairs of religious societies, blit that it is done and is being done, in an unlawful and irregular maimer, and that the result is, that the defendants committed a breach of their trust as trustees of the Northside congregation in despoiling it of its property, and the bill seeks a restoration of the property to the denomination to which it originally belonged, and to enjoin the defendants from intermeddling with it or its possession or use as one of the churches affiliated with the Christian Reformed Church of America; and at the instance of this court proceedings by way of quo warranto were taken at law, in the form of a rule to show cause why the writ should not issue for the purpose of testing the right of certain of the defendants to hold the offices of elder and deacon, and consequently, the office of trustee, resulting in a rule of the law court discharging tike rule to show cause in favor of the respondents, upon the ground that their title to their offices was unimpeachable, that the meetings, at which it was voted to secede were regularly called and held, and that the right to secede existed.—Held, that the judgment in the supreme court cannot be held to be such an adjudication upon the merits upon the controversy as will preclude the examination into the matter in the present proceedings.
    2. The parties to the quo warranto proceedings are slightly different from the parties to this suit, and the issues in this suit are much broader and more various than those presented by the supreme court record. There the sole issue was whether quo warranto proceedings should be instituted to test the title of certain of the defendants herein to the offices of elders and deacons or members of the consistory of the religious society. The bill in this case raises the further question as to whether the defendants and a faction of the congregation have a right to secede from one denomination and join another denomination and take the church property and temporalities with them. A mere statement of these differences is a demonstration that the doctrine of res judicata cannot apply to this case.
    3. Primarily, the title to the office of elder or deacon or trustee must be litigated at common law; but it is likewise true that there is a class of cases in which courts of equity have examined the title to an office where there was some paramount equity to which the question of official title or authority was merely incidental.
    4. According to the decisions in this state the action of the defendants and their adherents is void, in so far as it attempts to subject the property in question to the control of the authorities of the Reformed Church in America; it is a breach of trust on the part of the defendants to assist in or connive at the transfer of the property in question from one ecclesiastical body to another without the consent and concurrence of all concerned, or without a proceeding whose validity and effect is beyond contention.
    5. The proceedings for the transfer of a portion of this congregation and the whole of its property to the Reformed Church in America examined, and held, irregular and disorderly to such an extent as to be voidable on the complaint of any one interested.
    6. The rules of law relating to freedom of action by independent churches and congregations are different from those rules which apply to congregations which are affiliated with, and are subordinate to, higher judicatories. Independent churches may do what they please with their property, provided legal action is taken to that end, but when a religious society becomes affiliated with other religious societies, and they unite to construct and maintain for their mutual advantage higher judicatories to which they subject themselves, then the individual society or worshiping unit holds its property and temporalities under an obligation to continue the affiliation until it can be broken by mutual consent; and if secession is attempted by a faction however large or however small, such faction will not be allowed to carry the church property with it, certainly not so long as there is a loyal body which is recognized by the superior judicatory.

      7. In case of a schism in a church which is in connection with, and a constitutent part of, an ecclesiastical organization, and which has a head invested by its constitution or recognized usage with other supervisory and supreme control over the constitutent parts to determine all questions producing schisms and divisions between members, and to recognize and decide what faction is in the right, it is a well-settled law of the civil courts that the title to the property is in that part of the congregation which is acting in harmony with its own law and the ecclesiastical laws, usages, customs and» principles which were accepted among them before the dispute began, which are the standards for determining which party is in the right.
    S. As to the status of the defendants—they were at one time elected trustees of the Northside church, and it was by virtue of tiheir office as such trustees that they were enabled to obtain and hold possession of the church property, but having voluntarily severed their connection with the Christian Reformed Church, and having become members of another denomination, they have by their own act so far renounced their trusteeship as that they can no longer represent the church society in that capacity or any longer meddle with its property and affairs.
    9. While it is incompetent for this court to oust a trustee from his office of trustee of a religious society, it, however, does have the power and jurisdiction to declare that such a person has by his own act voluntarily renounced his office, and in this case that is what the defendants have done. They no longer act as trustees for the Northside Church of the Christian Reformed Church of Passaic, they are acting as trustees of a church of an entirely different denomination and the effect of that is that they cannot be considered trustees of this society.
    10. The same thing is true of the defendant Van Den Heuvel. He was under ecclesiastical censure at the time the secession took place and had been deprived of his right to minister to the congregation, which action had been sustained by the superior judicatories of the church. It was therefore unlawful for him to occupy the pulpit of that church and to accept a call to be its pastor and to officiate as the minister of the church until the ecclesiastical censures were removed. By his own voluntary act also, he has renounced his connection with the Northside church, and should not be permitted to officiate as its pastor.
    11. The decree should be for the complainants and should adjudicate tihat the complainants are the sole trustees of the Northside church, and that they are entitled as such to the custody and possession of the cihurch property. The defendants should be restrained from intermeddling with the property or from diverting it or attempting to divert it from the denomination known as the Christian Reformed Church of Passaic, and from retaining possession of or holding the property and temporalities of the church. There should likewise be an injunction against Van Den Heuvel restraining him from acting as pastor of the church or in any way ministering to the congregation as pastor.
    On final hearing on bill, answer, replication and proofs.

      Mr. Lewis A. Allen and Mr. Andrew Foulds, Jr'., for the. complainants.

      Mr. George II. Dalrymple and Mr. Charles B. Bradley, for the defendants.
   Howull, V. C.

The hill in this case is filed for the regulation of the affairs of the Northside'Christian Reformed Church of Passaic, upon the ground that there was a misappropriation of the property and temporalities of the church society, the same having been diverted by a faction of the church from the denomination known as the Christian Reformed Church in America. The bill is filed by five individuals who bring the suit not only on their own behalf, but on behalf of all members of the Northside Christian Reformed Church, who are similarly situated. • It alleges, in short, that there is a schism in the church, and that a faction represented by the defendants has seceded therefrom and joined the Reformed Church in America: that the seceders have obtained possession of the church property, and without the consent of the complainants and their adherents are attempting to carry the church property with them and place if under the control of the Reformed Church in America. They claim that this is being attempted not only against the substantive rules of law regulating affairs of religious societies, but that it has been done and is being done in an unlawful and irregular manner, and that the result is that the defendants committed a breach of their trust as trustees of the Northside congregation in despoiling it of its property. They seek a restoration of the property to the denomination to which it originally belonged, and to enjoin the defendants from intermeddling with it or its possession or use as one of the churches affiliated with the Christian Reformed Church oE America.

The facts so far as they relate to the view now taken of the case will fully appear hereafter.

There is an objection raised at the outset of the ease, namely, that the very point presented here was once litigated in the supreme court and decided in favor of the defendants, and hence is ■ res judicata. After the bill had been filed, and on a motion for preliminary injunction, the vice-chancellor before whom the motion was made directed that proceedings be taken at law, for the purpose of testing the right of the defendants to hold the offices of elder and deacon, and, consequently, the office of trustee, he in the meantime advising an order which has preserved the status quo until the final hearing. The proceeding so suggested was taken. It took the form of an order against Martinas J. Bast, John Groenhoíf, John Zylstra, Frank E. Suiter, Martinus Haakmeester and Peter PI. Vanderplatt, on the relation of Nick Hornétra, Herbert Pxiss, John Shilstra, Leonard Wynbeek and William S. Pontier, requiring them to show cause why a writ of quo warranto should not issue to inquire by what warrant or authority they and each of them claimed to have, use and enjoy the offices, liberties, privileges and franchises of trustees and members of the consistory and elders and deacons of the North-side Christian "Reformed Church of Passaic, and why leave to file an information therein should not be granted, and the respondents required to appear and plead or demur thereto. Depositions were taken, and on the argument the rule to show cause was discharged, with costs. In the opinion that was filed the court stated that the title of-the defendants to their office was unimpeachable; that the meetings of January 7th and January 9th, 1912, at which it was voted to secede from the Christian reformed church, were regularly called and held; that the right to secede existed, and that the ease in all its essential features was akin to the case of Pulis v. Iserman, 71 N. J. Law (42 Vr.) 408. The 'opinion proceeds upon the ground that the granting of the motion or the refusal of it is in its discretion; it consequently was dealing with a discretionary motion, from the decision of which there could be no appeal, and .deciding against a motion which in the discretion of the court might be entertained again the next day. Such a situation arose in the case of Selz v. Presburger, 49 N. J. Law (20 Vr.) 396. There the defendant was arrested on a capias issued on the order of a supreme court commissioner, who adjudged that the defendant liad fraudulently contracted the debt sued for and had disposed of his propertjr with intent to defraud his creditors. Subse-’ quently, he applied to one of the justices of the supreme court for his discharge, upon the ground that the affidavits on which the commissioner had made his order were insufficient. This motion was refused; thereupon he sued out a writ of. habeas corpusj the return showing that he was detained by virtue of the capias, he prayed his discharge upon the same ground as that upon which he had based his application to the justice of the supreme court. The plaintiffs met him with the preliminary objection that the determination of the justice was conclusive, but Mr. Justice Dixon held that it was not. He held that the doctrine of res judicata is not applicable to summary determinations by a subordinate tribunal, which are merely incidental, the decision of which not being entered upon the record, cannot be reviewed in the appellate courts. See, also, Pulis v. Iserman, 71 N. J. Law (42 Vr.) 413. Where the effect of a judgment upon a motion is to absolutely settle rights of parties, and a review .can be had, there is no doubt but that the judgment would be res judicata. Such was the opinion of Vice-Chancellor Pitney in the case of West New York Silk Mill Co. v. Laubsch, 53 N. J. Eq. (8 Dick.) 65. There a motion was heard by the Hudson county circuit court to set off one judgment against another. It was refused, with, costs, and one of the parties subsequently filed a bill in chancery for the same purpose. The objection of res judicata was raised; the vice-chancellor held that the former judgment of the circuit court was binding, and that portion of the relief which was prav^ed in the bill was denied; but it will be observed that in that case the original motion dealt with the rights of the parties finally, and that there was a right of review. The doctrine of the Salz Case is upheld by the supreme court of Colorado in Rockwell v. District Court, 17 Colo. 118. In Scherff v. Missouri Pacific Railway Co., 81 Tex. 471; 26 Am. Si. Rep. 828, it was held that a judgment within the authority of res judicata must be a definite judgment of condemnation or dismissal upon the merits of the case. This would seem to be dispositive of the point upon reason and authority; but it will be likewise observed that the parties to the common law litigation are slightly different from the parties in this suit, and that the issues here are much broader and more various than those presented by the supreme court record. There the sole issue was whether quo warranto proceedings should be instituted to test the title of the defendants to the offices of elders and deacons or members of the consistory of the North-side cburc-h. Conceding that thejr are, the bill in this case raises the further question as to whether the defendants and a faction of the congregation, upon the facts presented, have a right to secede from the Christian reformed church and join the reformed church in America, and take the church properly and temporalities with them. A mere statement of these differences is a demonstration that the doctrine of res judicata cannot apply to this case. The argument, however, has the support of authority.

It was said by Mr. Justice Field, in the case of Cromwell v. County of Sac, 94 U. S. 351, that there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action; in the former case the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding the parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.

But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a- judgment rendered upon one cause of action to matters arising upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action—not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.

Tlie doctrine of this case was approved by this court in Paterson v. Baker, 51 N. J. Eq. (6 Dick.) 49, and in Clark Thread Co. v. William Clark, 55 N. J. Eq. (10 Dick.) 658. (See Hoffmeier v. Trost, 83 N. J. Law (54 Vr.) 358.)

It is, therefore, quite apparent on either of tire grounds above stated that the rule which was entered in the supreme court, dismissing the rule to show cause, cannot be held to be such an adjudication upon the merits of the controversy as will preclude the examination into the matter in the present proceeding.

It must be conceded that primarily the title to the office of elder or deacon or trustee must be litigated at common law; but it is likewise true that there is a class of cases in which courts of equity have examined the title to an office, but these are cases where there was some paramount equity to which the question of official title or authority were merely .incidental. Such was tire case of Johnston v. Jones, 23 N. J. Eq. (8 C. E. Gr.) 216. There it is said by Chancellor Zabriskie that if the question of the legality of an election, or- whether a certain person holds such an office arises incidentally in the course of a suit of which equity has jurisdiction, that court will inquire into and decide it as it would any other question of law or fact that arises in the cause, but that decision would be only for the purpose of the suit, and that it did not settle the right to the office or vacate it if the party was in actual possession; and he cites Doremus v. Dutch Reformed Church and Den v. Bolton, supra.

The complainants admit the right of these individual defendants and of the other individual members of the congregation to secede from the Christian reformed church and to affiliate themselves with any body that they may choose. But can they take the church property with them and emancipate it from the control of regularly elected trustees who are adhering to the form of church government and church authority to which the congregation was subject at the time it acquired the property ?

It was held in Doremus v. The Ministers, Elders, &c., 3 N. J. Eq. (2 Gr. Ch.) 332, that “ministers, elders or deacons, lawfully elected and ordained, and thus inducted into office, though they afterwards secede, renounce the authority of the classis and general synod, and unite with another ecclesiastical body, do not thereby divest themselves of their offices, but that there must be a removal or resignation and a total renunciation of the office.

And it was held in the True Reformed Dutch Church of Paramus v. Iserman, 64 N. J. Law (35 Vr.) 506, that as between two opposing factions of a religious association, land acquired by the association before any schism arose will remain the property of that faction which abides by the doctrines, principles and rules of the church government which the united body professed when the land was acquired.

And it was held in the American Primitive Society v. Pilling, 24 N. J. Law (4 Zab.) 653, that a congregation or inferior ecclesiastical corporation which, by its organization, is connected with and subject to the superior jurisdiction of the church to which it belongs, cannot, by the act of the corporation, or a majority, secede from the denomination, declare themselves independent, and take their corporate property with them.

These cases would seem to determine that the action of the ■defendants and their adherents is void in so far as it attempts to subject the property in question to the control of the authorities of the Reformed Church in America, and that it was a breach of trust on the part of the defendants to assist in or connive at the transfer of the property in question from one ecclesiastical body to another without the consent and concurrence of all concerned, or without a proceeding whose validity and effect is beyond contention.

■ The proceeding by which this attempt was made strikes me as irregular and disorderly, to such an extent as to be voidable on the complaint of any one interested. The whole proceeding for the transfer of a portion of this congregation and the whole of its property to the reformed church in America took place between January 4th and January 9th, 1912. Some time prior to January 4th new deacons and elders had been elected. They were to be ordained to their respective offices on January 7th. On January 4th objeetiohs were made to these men or some of them and the consistory of the church determined to delay the ceremony. On Sunday, January 7th, the defendant .Bast announced at the close of the morning service that there would be a meeting of the congregation in the evening to consider the mstallation of the new elders and deacons. On the same day, and at the afternoon service, the clergyman who ministered to the congregation announced that such meeting would be illegal. Nevertheless, a meeting was held in the evening at which forty-nine persons were present. It must be clear that this meeting was irregular, and that its action could bind no one, except possibly those who were present and acting.

The congregation at this meeting decided upon three matters by a vote of forty-six in the affirmative, two in the negative, and one not voting, they were—first, to install the newly elected officers that evening; second, to sever the relationship of the Northside church with the Christian Reformed Church and the classis of Hudson; and third, to call the defendant Van Den Heuvel as pastor, and provide for installing him. On the following day (January 8th) notice of this action was sent to the Hudson classis by a communication purporting to be signed by the president and secretary of the consistory; and on the same day the defendants took proceedings for the calling of a meeting ■ for the evening of the next day (January 9th) ostensibly to ratify the illegal acts of January 7th. This meeting was not called in the usual manner, by the consistory, but was called by nine persons who claimed to be members of the congregation, and who so described themselves in the notice, which reads as follows:

“Passaic, N. J., January 8, 1912.
“■We, undersigned members of the Northside Qhxistian Keformed Church of Passaic, N. J., members in full communion, call a consistory meeting to be held Thursday, January 9, 1912, at eight o’clock, in the church building on the southwest corner of Myrtle avenue and Burgess Place, Passaic, N. J., with the intention to decide concerning the relation in the case of severing from classis of Hudson, and what further lawfully may be brought before the gathering.”

This notice was printed and was served some time during January 8th, partly by personal service, but mostly by leaving-copies at the residence of the members. The supreme court in its opinion declared that this meeting was a valid meeting. From that proposition I most respectfully dissent, and I do it with great reluctance and with great deference to the opinion of that court. My reasons are—first, that it was called by people without authority, and not by the consistory, nor in the usual manner, the consistory had nothing to do with it; second, the notice was for a consistory meeting only, while the meeting that was held was a meeting of the congregation; third, the only matter to be acted up on. according to the notice was “concerning the relations in the case of severing from classis of Hudson, and what further lawfully may be brought before the gathering;” fourth, it was called on too short a notice to be fair or to obtain a fair representation of the general body of the congregation. Most of the members of this congregation are working men, and those who were served with notice of the meeting by leaving the notices at their places of abode could not have received the same until they reached their respective homes at the end of the day, and even then they were only notified of a consistory meeting.

I do not think that any valid action could be taken at a meeting so called and held. It is therefore clear that the action that was taken on January 7th to ordain the elders and deacons to sever the connection with the Hudson classis and to elect the Eev. Mr. Yan Den Heuvel as pastor of the church were irregular and could not be and were not ratified by the meeting held on January 9th. It may be doubted whether the action that was taken at the meeting January 9th had any effect whatever. The minutes state that the president explained to the meeting that it was called for the purpose of approving and ratifying the proceedings of the previous Sunday mentioned in the minutes, a much broader call than is contained in the notice of the meeting; the minutes were read and opportunity given for correction ; the names of all the persons who had voted in favor of the resolution, and also of the five who had later voted in favor, were read, and no adverse vote having been received, the president asked for a rising vote, “which disclosed that the minutes were accepted, approved and established by unanimous vote.”

It next appears that in accordance with the church rules the ■ matters in dispute were submitted to what is known in that denomination as a double consistory, composed of the consistory of the church in which the differences exist, and the consistory of an adjoining church; that this double consistory decided in favor of the complainants, that their action was taken up by the classis of Hudson and there ratified, and finally these decisions were ratified by the general synod of the whole church, which decision is made final by section 18. of the Religious Societies act. Comp. Stat. p. 4316. In my opinion Pulís v. Iserman, supra, does not apply. In that case there was no question of notice, and the action of the congregation was unanimous.

The rules of law relating to freedom of action by independent churches and congregations are different from those rules which apply to congregations which are affiliated with and are subordinate to higher judicatories. Independent churches may do what they please with their property, provided legal action is taken to that end, but when a religious society becomes affiliated with other religious societies and they unite to construct and maintain for their mutual advantage higher judicatories to which they subject themselves, then the individual society or worshiping unit holds its property and temporalities under an obligation to continue the affiliation until it can be broken by mutual consent; and if secession is attempted by a faction, however large or however small, such faction will not be allowed to carry the church property with it, certainly not so long as there is a loyal body which is recognized by the superior judicatory. Such is the case here. This congregation is about evenly divided. The complainants and their adherents are recognized by the Hudson classis as the officers and members of the North-side church; they have kept up the congregation and church exercises without any break. The defendants and their adherents have attempted to secede, and are not recognized by the classis oE Hudson as having official relations with the higher judicatories of the Christian Reformed Church. The worshiping units of this denomination in a particular locality form á classis which has jurisdiction over the churches within its territory. The supreme body is a synod which has jurisdiction superior to that of the classis. This organization makes a compact and zealous body of Christian worshipers who have volnn-tarily bound themselves by the obligation that I have mentioned.

It is not contended that the individual' members may not secede from the individual churches; it is conceded that they may; but may any faction, however large, secede and take with them the church property in a case where there remains a body which is loyal to the former affiliation? This question must be answered in the negative. American Primitive Society v. Pilling, 24 N. J. Law (4 Zab.) 653; True Reformed Church v. Iserman, 64 N. J. Law (35 Vr.) 506; Pulis v. Iserman, 71 N. J. Law (42 Vr.) 408. The principle here adopted is well stated in the article on religious societies (24 Am. & Eng. Encycl. L. (2d ed.) 354), as follows:

“In case of a schism in a church which is in connection with and a constituent part of an ecclesiastical organization, and which has a head invested by its constitution or recognized usage with other supervisory and supreme control over the constituent part to determine all questions producing- schisms and divisions between the members, and to recognize and decide what faction is in the right, it is a well-settled law of tibe civil courts that the title to the property is in that part of the congregation which is acting in harmony with its own law and the ecclesiastical laws, usages, customs and principles which were accepted among- them before the dispute began, are the standards for determining which party is in the right.” Schnorr’s Appeal, 67 Pa. St. 138; 5 Am. Rep. 415.

There remains to be considered but one question, and that is What is the status of the defendants ? They were at one time elected trustees of the Northside church, and it was by virtue of their office as such trustees that they were enabled to obtain and hold possession of the church property, but having voluntarily severed their connection with the Christian reformed church, and having become members of another denomination, have they not by their own act so far renounced their trusteeship as that they can no longer represent the church society in that capacity or any longer meddle with its property and affairs. In my opinion this is the position in which they stand. The whole proceeding looks to me like a highhanded and lawless attempt to appropriate this church building and property to the uses of a faction of the congregation, every one of which has lost his membership in the church and has become a member of a church of a different denomination. While it is incompetent for this court to oust a trustee from Iris office as trustee of a religious society it, however, does have the power and jurisdiction to declare that such a person has by his own act voluntarily renounced his office, and in this case that is what I believe the defendants have done. They no longer act as trustees for the Northside Church of the Christian Reformed Church of Passaic; they are acting as trustees of a church of an entirely different denomination, and (he effect of that is that they cannot be considered trustees of this society. The same thing is true of "Van Den Heuvel. He was under ecclesiastical censure at the time the secession took place and had been deprived of his right to minister to the congregation, which action had been sustained by the superior judicatories of the church. It was therefore unlawful for him to occupy the pulpit of that church and to accept a call to be its pastor and to officiate as the minister of the church until the ecclesiastical censures were removed. By his own voluntary act also he has renounced his connection with the Northside church, and should not be permitted to officiate as its pastor.

I must therefore hold that the complainants constitute the trustees of the Northside church, and that they, and they alone, have authority over the church property, and that they and their adherents constitute the religious society known by the name of the Christian Reformed Church of Passaic, New Jersey.

The decree should be for the complainants and should adjudicate that the complainants are the sole trustees of the Northside church, and that they are entitled as such to the custody and possession of the church property. The defendants should be restrained from intermeddling with the property or from diverting it or attempting to divert it from 'the denomination known as the Christian Reformed Church of America, and from retaining possession of or holding the property and temporalities of the church. Whatever may be necessary to place the complainants in full possession of the church property should be included in the decree. There should likewise be an injunction against Van Den Heuvel restraining him from acting as pastor of the church or in any way ministering to the congregation as pastor.

This decree will carry costs against the defendants.

At the opening of the final hearing thirty-seven persons claiming to be members of the Northside church filed their petition praying leave to intervene as parties complainant under the complainants’ invitation to come in as such parties. The decision of the motion was postponed until the final disposition of the cause. There seems to be no reason why they should not be admitted.


author: I-Iowell, V. C.

text:
    Frederick Pfeifer v. Passaic Valley Sewerage Commissioners et al.
    [Decided October 6th, 1913.]
    P. L. 1907 p. 22 § 5 authorizes the Passaic valley sewerage commissioners. a corporation created to construct a sewer in a sewerage district composed of many municipalities, to construct such sewer under, over, along or across any street, &e., in such way and manner, however, as not necessarily to obstruct or impede travel. In constructing the sewer by a tunnel construction a shaft was constructed from the sufface of the ground to the sewer for the removal of the excavated earth and admission of materials, around which was a framework and fence which originally partly obstructed the sidewalk, though the obstruction on the sidewalk was later removed, and which temporarily entirely destroyed an abutting owner’s access to the roadway of the street.— Held, that the deprivation of his accustomed approach, and the annoyance from the vibration and dust, was not a taking of his property for public use without compensation, since the public domain and public property is subject to the direction and control of the legislature, which may authorize what would otherwise be a nuisance in the street, and any damage caused to an individual by its action is damnum aiseque injuria.

    On motion for preliminary injunction.
    The complainant seeks an injunction to prevent the defendants from doing what he insists is a taking of his property for the public use without having first made him compensation therefor. The Passaic sewerage commissioners is a corporation of this state created in 1903 for the purpose of constructing an intercepting sewer in that territory which the legislature has designated as the Passaic Yalley Sewerage District, and is operating under the following statutes: P. L. 19OS p. 190j P. L. 1902 p. 195; P. L. 1903 p. 158; P. L. 1903 p. 777, and P. L. 1907 p. 22. That portion of the law of 1903 which provided for taxation was declared to be unconstitutional in the ease of Van Cleve v. Commissioners, 71 N. J. Law (1¡.2 Vr.) 57k-; the defect was supplied by the act of 1907 above cited. The commissioners in the performance of their duties let the contract for. the construction of section seven of the sewer which thc-y were required to build, to the defendants Booth & Flinn, in February, 1913, their bid being nearly one and a half million dollars. In the month of March, 1913, they began the work which is now complained of. A portion of the sewer is being constructed many feet under ground by a tunnel construction method longitudinally under Hamburg place, in the city of Newark. The complainant is the owner of a plot of land having a frontage of twenty-five feet on Hamburg place, with an L from the rear giving access to Napoleon street. He claims to oto the title to the land in the street in front of his property to the centre line thereof. The sewer, as laid out, and as it is being constructed, is wholly on that side of the centre line of the street on which ■the complainant’s property is situated. To the eastward of the complainant’s property, and on the corner of Hamburg place and Napoleon street, is a vacant lot. This is occupied by the commissioners and the contractors for storage and other purposes connected with the work. In front of this vacant lot, within the lines of the roadway o£ Hamburg place, and close to the curb line on the complainant’s side of the street, the contractors have constructed a shaft extending from the surface of the ground to the sewer beneath. This shaft is the means by which the excavated earth is removed and the materials for the sewer construction admitted, and. is besides a permanent structure for access to the sewer. In the construction and use of this shaft a frame work has been erected in front of the complainant’s property, and a fence built to enclose the top of the shaft. At the time the bill was filed this fence occupied about four and a half feet of the sidewalk in front of the complainant’s property, but since the bill was filed the defendants’ affidavits show that the shaft has been completed, and the fence moved to the curb line. This leaves the sidewalk in front of the complainant’s property unobstructed, except- by the erection of one post to support some portion of the overhead work connected with the hoisting apparatus used in the shaft.
    The complainant at the time the sewer work began was engaged in the business of butcher on his premises and had free access from the front portion thereof to the sidewalk and across the sidewalk to the curb and across the sidewalk and the curb to the roadway, and he and his customers were accustcmed to use the roadway and the sidewalk in front of the complainant’s premises in the transaction of their business. This access has been entirely destroyed temporarily by the construction of the -fence and hoisting apparatus in front of the complainant’s property and the extension thereof many feet on both sides of his premises. lie claims that he is suffering an injury by these circumstances which is peculiar to his situation, and which is much greater than the injury sustained by any of his neighbors, that there should be a differentiation between the injury suffered by him from the construction in front of his property and the injury sustained by other property owners in front of whose property no such obstruction has been erected, and that these circumstances amount to a taking of his property without compensation within the meaning of the constitutional provision.
    The law of 1907, above referred to, provides that the commissioners mav
    “build and construct said intercepting sewer or sewers, and the necessary-appurtenances thereto, to the point or points of the discharge and disposition determined by said contract, and for this purpose to pass through or partly through territory situated within the bounds of any other municipality than those contracting with it for the construction of said work, and they shall have full power to construct such intercepting sewer or sewers and its appurtenances along, under and over any water course, or under or over or along or across any street, turnpike, road, railroad, highway or other way or public parks or grounds, and in or upon private or public land under water, in such way and manner, however, as not necessarily to obstruct or impede travel or navigation, and may enter upon and dig up any street, highway or private or public lands for the purpose of constructing said work and appurtenances, and for repairing and maintaining the same, and in a general way to do all other acts and things necessary, convenient and proper in connection with the making and maintaining of the improvement contemplated by the provisions of this act.”

      Mr. Wilbur A. Ileislay, for the motion.

      Mr. J. Ilenry Harrison and Mr. Adrian RiTcer, for the defendants.
   I-Iowell, V. C.

. The complainant assumes that there is a rule of law in this state whereby he may obtain compensation for the injuries and inconveniences suffered by him, upon the ground that his damage is peculiar and exceptional, and is to be differentiated from the damage suffered by other members of the public in front of whose property the sewer in question, is being constructed. He admits that the use of the street for the construction of a sewer is a legitimate street use, and he claims no damage on account of the construction of the sewer on his side of the centre line of the highway. Neither does he claim that there has been a physical taking of any of his tangible property within the meaning of the constitutional limitation. What he does say is that he is deprived of the use of his accustomed approach to his premises from the street, and that he is annoyed by vibration and by dust from the works, and that these items of damage exceed those accruing to the other members of the community, and amount to a taking of his property. So far as the acts complained of amount to a trespass, the complainant has his remedy in the common law courts. As to the allegation that the circumstances set out amount to a taking of land without compensation, I find no authority in the cases on the complainant’s brief, nor indeed have I been able to find elsewhere any case which supports his contention.

On the other hand, there is abundant authority in our own state for the contrary proposition. I need cite only the case of Baseman v. Pennsylvania Railroad Co., 50 N. J. Law (21 Vr.) 235; affirmed, 52 N. J. Law (23 Vr.) 221. In that case there was an attempt to recover damages against a railway company for. a nuisance claimed to have arisen out of the manner in which it ran its trains in close proximity to the plaintiff’s dwelling-house. It was held that so long as the railway company operated its trains in the manner prescribed by its charter, and without negligence, it was not liable for the incidental damages from vibration, noise, smoke and smells which were necessarily caused in the conduct of the railway company’s business. What would otherwise amount to a nuisance had been legalized by the authority given to the railway company to construct and operate its railroad. The chief-justice says: “When property has been, incidentally injured, no matter to what extent, as an unavoidable result of a public improvement, such loss has always been deemed remediless, and it has never been supposed that property so injured was Taken’ in the constitutional sense for the public use. All the public improvements in the state have been built and are now resting on this foundation.”

If this rule can be lawfully applied to a railway corporation, which is engaged in both public and private business, with how much greater force does it apply to the present ease in which the defendants are engaged in a great public work—solely public— involving the public affairs of a drainage district composed of many municipalities and inhabited by hundreds of thousands of people. Again, it is well understood that the public domain and all the property of the public is subject to the direction and control of the legislature, and that whatever damage is caused to the individual by the action of the legislature in regard thereto is damnum absque injuria. This body may authorize the erection of what would otherwise be a nuisance in the busiest streets of our public cities, and nobody could claim damages therefor, no matter to what extent he is injured, and such injury cannot amount to a taking of his property. I take it that section 5 of the act of 1907 gives to the commissioners full power and authority to use and occupy the public streets for the purpose for which they appear to have occupied Hamburg place.

The argument of the chief-justice in the Beseman Case is supported by the opinion of Lord Cairns in the case of Hammer- smith Railway Co. v. Brand, L. R. 4 H. L. 171; 38 L. J. Q. B. 265. In that case it was held by the house of lords that the owner of a house and premises adjoining a railway, but not touched by it, which was depreciated in value through vibration, noise and smoke caused by the running of the trains, was not entitled to damages or • compensation. The judgment was not unanimous, but Lord Cairns, who dissented, agreed with the majority in relation to the point now being discussed, and stated as follows: “It appears to me that the effect of the legislation on this subject is to take away entirely any right of action on the part of the landowner against the railway company for damage that the landowner has sustained. It must be taken, I think, from the statements in this case that the railway could not be used for the purpose for which it was intended without the consequences of this vibration. It is clear to demonstration that the intention of parliament was that tire railway should be used. If, therefore, it could not be used without vibration, and if vibration necessarily caused damage to the adjacent landowner, and if it was intended to preserve to the adjacent landowner his right of action, the consequence would be that action after action would be maintainable against the railway company for the damages which the landowner sustained, and after some actions had been brought and succeeded, the court of chancery would interfere by injunction and would prevent the railway being worked, which, of course, is a reductio ad absvrclum, and would defeat the intention of the legislature. I have, therefore, no hesitation in arriving at the conclusion that no action would be maintainable against the railway company.” See, also, Canadian Pacific Railway Co. v. Roy (1902), A. C. 220; 71 L. J. P. C. 51.

To the same effect are the Massachusetts cases, which deal with a situation very similar to that in which the defendants here are engaged. In the case of Lincoln v. Commonwealth, 164 Mass. 1, 368, and Chelsea Dye House v. Commonwealth, 164 Mass. 350, practically the same questions arose that are now being discussed, and the same result was reached as was reached in the Beseman Gase and in the Hammersmith Railway Company Gase.

The very point elaborated by the complainant on the argument arose in the case of the Northern Transportation Co. of Ohio v. Chicago, 99 U. S. 635. There the city of Chicago, tinder legislative authority, was engaged in constructing a tunnel to continue La Salle street under the Chicago river. To do this work it was necessary to erect a coffer-dam in the river immediately in front of the plaintiff’s property. The case was argued on the assumption that the erection of the coffer-dam and the necessary excavations in the street constituted a public nuisance, causing special damage to the plaintiffs beyond those incident to the public at large, and hence it was inferred that the city was responsible to them for the injurious consequences resulting therefrom. It was held that the assumption was unwarranted and that the act complained of could not be a nuisance so as to give a common law right of action, upon the ground that the work that was being done was authorized by the legislature and was being done in a lawful manner. Mr. Justice Strong says in the opinion: “Here the tunnel, of which the plaintiffs complain, or rather its construction, was authorized by an act of the legislature of the state, and directed by an ordinance of the city councils. * * * The state, and the city councils,'as its agents, had full power over the high ■ways of the city, to improve them for the uses for which they were made highways, and the construction of the tunnel was an exercise of that power. Since La Salle street was extended across the river, the city not only had the power but it was its duty to provide for convenience of passage. This it could do either by the erection of a bridge or by the construction of a tunnel under the river and along the line of the street. And the granted power by the legislature to build a bridge or construct a tunnel carried with it, of course, all that was necessary for the exercise of the power. We do not understand this to be controverted by the plaintiffs in error. Their argument is, that though the city had the legal right to construct the tunnel, and to do what was necessary for its construction, subject to the condition that in doing the work there should be no unnecessary interference with private property, yet it was liable to make compensation for the consequential damages caused to persons specially injured. To this we cannot assent.”

It cannot escape notice that the argument made in that case is the precise counterpart of the argument made in this case. That case has had a wide course of citation, and its doctrine has been generally approved throughout the United States. See Rose’s Notes to 99 U. S. 635.

The cases above referred to arrange themselves into two classes, viz., (1), those dealing with questions of damages during the construction of a public work, of which the Chicago Case is an example, and the other (2), questions of damage claimed to arise from the operation of the work after the construction shall have been finished, of which the Beseman Case and the Hammer-smith Railway Case are examples. It appears from the cases cited that there is no difference in principle between the two, and that therefore the claim of the complainant in this case is without foundation.

The result is that the motion for preliminary injunction must be denied.


author: Lewis, V. C.

text:
    John Edward Marsh v. Rolph Marsh et al.
    [Decided May 29th, 1913.]
    While the maximum rates of commission allowed to a trasteé are fixed by statute, the actual rate allowed is within the court’s discretion, depending upon the actual trouble, risks, &e., incurred, according to the particular circumstances.

      Mr. Cornelius Doremus, for the complainant, John Edward Marsh.

      Mr. William D. Edwards, for the defendant Charles Capron Marsh.

      Mr. Alfred F. Skinner, for the defendant Cordelia Bibb.

      Mr. Albert G. Wall, for the defendants Kolph and William Y. Marsh. :

      Mr. Frank G. Turner, for the defendant Frieda Marsh Young.

      Mr.. Harlan Besson, as special guardian for the defendant Lawrence Copley Shaw.
   Lewis, V. C.

The application in this matter is for the court to fix final commissions for the trustee in the estate of John Edward Marsh. The trustee has devoted his entire time to this large estate, which started with a corpus of $900,000, and has been brought to the point where the total passing through his hands has amounted to approximately five millions of dollars. It is true that the heirs, some of them, have urged the earlier closing up of the affairs, and distribution of the proceeds; but the trustee has, under the powers given him by the will, used his judgment and held the bulk of the estate until it has become very valuable. There is no charge of dishonesty or betrayal of trust. The trustee, and those associated with him, both of whom have died, have received, from time to time, commissions, and under the statutory allowances, taking a maximum, the figures as now due, are the'sum of forty-two thousand and fifty-two dollars and seventy-five cents ($42,-052.75). This would be, upon a basis or percentage, as follows: LTpon corpus, two and one-half per cent.; upon income, five per cent.; upon income upon special trust fund, five per cent, -1

It is urged by the solicitors of the defendants that the trustee is not entitled to this, because of the large conmissions previously , allowed; and the court is constrained to agree with them. Beference was made, during the argument upon commissions, to ai discussion over a compromise allowance of $18,000.' This was merely tentative and never consummated. The trustee is not bound nor affected by this, as he was not present at the conference, and declined to accept the suggestion. In fixing the allowanee by way of compensation the court does not consider that conference, and is in no way affected by it; but the allowance is based entirely upon what is deemed to be proper compensation, as gathered from the amount of work done, as shown by the trustee’s accounts, the amount of income and principal handled, and the results obtained. While the maximum rates of commission are fixed by the statute—in this case the maximum rate being five per cent., nevertheless, the actual rate allowed is within the discretion of the court; and the rate allowed depends upon the actual pains, trouble and risk incurred by the executor; each case is to be determined upon its own facts and circumstances. Metcalf v. Colles, 43 N. J. Eq. (16 Stew.) 148; Fluck v Lake, 54 N. J. Eq. (9 Dick.) 638.

In Lyon v. Bird, 79 N. J. Eq. (9 Buch.) 157, the inventory showed corpus $72,000; the increase was $9,000. Held, that five per cent, was excessive; that one per cent, on inventory, and two and one-half per cent, on increase, was sufficient.

In re Hibbler's Estate, 78 N. J. Eq. (8 Buch.) 217, the executor and trustee was allowed three per cent, on $166,000 as executor. After managing the estate for twelve years he resigned, and asked for two per cent., on the corpus for compensation as trustee. This was denied. The three per cent, allowed to him as executor was held excessive, and the court held that it should be deemed to cover commissions as trustee also.

Taking all the facts into consideration in this ease, I think the following computation would be equitable: One and one-quarter per cent, on the total principal; two per cent, on the total income; and two per cent, on the total income, special fund, making an allowance of $18,332.35.


text:
    Willet F. Cooke, executor, &c., of Josephine G. Davis, deceased, v. Women's Medical College of Pennsylvania et al.
    [Decided June 6th, 1913.]
    1. The executor, under a will giving the residue from the proceeds of sale of any. and all the real property of testatrix to a medical college, and imposing' upon him the duty of carrying out and performing the devises of the will, had an implied power of sale to enable him to perform such duty.
    2. A will devising “the residue from the proceeds of sale of any and all my real property” to a medical college, and requiring the executor to carry out and perform the beneficiary devises of the will, was not objectionable for indefiniteness or uncertainty.
    3. Where testatrix, a graduate of the Women’s Medical College of Pennsylvania, made a residuary bequest to the Women’s Medical College of Pennsylvania, it would be construed as referring to the Women’s Medical College of Pennsylvania.
    4. A gift of the residue of an estate to the Women’s Medical College of Pennsylvania, with the wish that the donor’s nieces or their female posterity, if worthy, be given preference in the scholarship, was not invalid because the donor did not point out the particular beneficiary, since she endowed the college with express or implied power to select such beneficiaries.
    5. On bill by an executor for the construction of a will giving the residue to a medical college, the court, on construing the will in favor of the residuary devisee, was authorized to allow costs and counsel fees to each of the parties out of the residuary fund in the executor’s hands.

      Messrs. Lambert & Stewart, for tbe complainant.

      Mr. Howard M. Cooper, for Women’s Medical College of Pennsylvania.

      Mr. William A. Coddington, for the defendants William P. and John H. Griffith.
   Lewis, V. C.

Doctor J osephine G. Davis, the testatrix, owned at the time of her death property in East Orange, New Jersey, subject to a mortgage for $20,000, and three lots in Rockland county, New York, clear of encumbrances. She was a graduate of the Women’s Medical College of Pennsylvania, and the gift in the fifth clause of her will is to the Women’s Medical College of Pennsylvania, and is of “the residue from the proceeds of sale of any and all my real property.” There is no power of sale in words in the will, but in the twelfth clause of the will the duty is put upon the executor to “carry out and perform the beneficiary devises of the will.” Construing the fifth and twelfth paragraphs together, there is no doubt in my mind that to perform his duty the executor must have, by implication, power to make sale. By the twelfth clause of the will the duty is imposed on the executor to carry out and perform the beneficiary devises of the will. This necessarily imposes the power of sale to enable him to perform the duty. He has the power by implication. Haggerty v. Lanterman, 30 N. J. Eq. (3 Stew.) 37; Chandler v. Thompson, 62 N. J. Eq. (17 Dick.) 723: Lindley v. O’Reilly, 50 N. J. Law (21 Vr.) 649.

Further, it does not appear, construing the aforesaid clauses of the will of Doctor Davis, that there is indefiniteness or uncertainty in it. The devise in the fifth clause is the devise of the proceeds of sale of her property in New York and New Jersey. The residue she devised is the residue of all the real estate after the payment of the mortgage of her New Jersey property. Construing the fifth and twelfth clauses together, she has devised the proceeds of sale of her interest in her estate to the Women’s Medical College of Pennsylvania, and has directed her executor to carry out and perform the beneficiary devises of her will. I have heretofore directed the executor to make the sale of all her real estate and he is now further directed to pay the proceeds to the Women’s Medical College of Pennsylvania.

There is no Women’s Medical College of Pennsylvania, and as the testatrix is a graduate of the Women’s Medical College of Pennsjdvania, there is no doubt that she referred to this institution in the fifth paragraph of her will.

It is well established that a gift to a charitable use will not fail of effect because the donor has not pointed out a particular beneficiary to whom he desires his bounty to go, provided that he has endowed some person with express or implied power to select such beneficiaries. The power to dispense the fund carries with it by implication the power to select. Hesketh v. Murphy, 35 N. J. Eq. (8 Stew.) 23; Norcross v. Murphy, 44 N. J. Eq. (17 Stew.) 522; McBride v. Elmer’s Executor, 6 N. J. Eq. (2 Halst. Ch.) 107; Jones v. Watford, 62 N. J. Eq. (17 Dick.) 339.

It is not necessary for the will to designate the persons to be benefited. -The college by its system of examining will determine that. It is not necessary for the will to define the standards of worthiness of the recipients. The college is the best judge of that. It was not necessary for the testatrix to have defined with more 'certainty the beneficiary of her trust. She has named a devisee certain, the college from which she graduated. It is to receive the proceeds from the sale of her real estate. The fund is to be held for the educational purposes for which the corporation was formed, and her expression of a wish that her nieces or their female posterity, if they prove themselves worthy, be given preference in the scholarship', is one of a definite and not an indefinite line of beneficiaries.

There is no doubt that the eases of The Attorney-General v. Moore’s Executors, 19 N. J. Eq. (4 C. E. Gr.) 503, and Larkin v. Wikoff, 75 N. J. Eq. (5 Buch.) 462, authorize the allowance by the court from the residuary fund in the executor’s hands of costs and counsel fees to each of the parties in- this proceeding.


text:
    Samuel Kantor v. Vincenzo Franceschello et al.
    [Decided July 1st, 1913.]
    Evidence examined in a foreclosure suit in which the mortgagor defendants set up by answer that they were induced to purchase a moving picture business and to execute the mortgage in question by fraudulent misrepresentations of the complainant in respect to the moving picture business, to the effect that at the time of their purchase of the same, it was paying expenses, and that it had been highly profitable during the preceding spring and winter; and where the defendants also filed a cross-bill for the surrender and cancellation of the bond and mortgage, and held, that the defendants had failed to sustain the burden of proof as to the fraudulent misrepresentations charged by them, and that the defendants did not rely on them, even if made.
    On bill to foreclose, and cross-bill.

      Mr. Josiah Dadley and Mr. Clifford L. Newman, for the complainant.

      Mr. Addison P. Rosenkrans, for the defendants.
   Lewis, V. C.

This is a bill to foreclose a mortgage. The suit is brought by Samuel Kantor, who was the mortgagee named in the mortgage, against Vincenzo Eranceschello, Mary A. Mott and Joseph Mott, her husband. An additional name is in the mortgage, that of Arcangelo Eranceschello, who was the wife of Vincenzo Erancesehello, but she died prior to the institution of this suit, and as she and her husband held as tenants by the entirety, the survivor is now the owner of whatever title he and his wife had; so that there are now three defendants. The amount of the mortgage was $2,316, less the sum of $80, which the complainant claims has been paid. The mortgage was given by the defendants to secure a part of the purchase price of a moving picture show, conducted at number S3 6 Main avenue, in the city of Passaic. The foreclosure of the mortgage in question is resisted by the defendants on the ground that they were induced to purchase the moving picture business and to execute this mortgage by fraudulent misrepresentations of the complainant, and that such fraudulent misrepresentations consisted in the statement that the moving picture business, at the time of their purchase of the same, was paying expenses, and that it had been highly profitable during the preceding spring and winter. The defendants have also filed a cross-bill for the surrender and cancellation of the bond and mortgage.

The defendants admit the due execution and delivery of the bond and mortgage; and the burden of proof as to the fraudulent representations charged by them, rests upon them, before they can, respectively, defend the foreclosure bill or obtain affirmative relief upon their cross-bill.

It is conceded by both parties that the complainant did represent that the business, at the time of the sale, was paying expenses. The defendants claim that the complainant told them that during the preceding spring and winter he had made from sixty to one hundred dollars a week in profits. The complainant denies this, and says that he

“told them merely, that the place was running along nicely, but it was not on a money-making basis just now, but was making- expenses, and that if somebody had that place and managed it properly, there was a nice profit to be made there when the season comes along, but that time was no time to make any money.”

The complainant further testified that he told them, “Sometimes it pays forty or fifty dollars a week, and sometimes it is not paying anything; it all depends upon the weather.”

It appéars by the evidence that the complainant had owned the place for five and one-half months.

The court is not satisfied that any fraudulent misrepresentations were made by the complainant to the defendants; certainly, the defendants did not rely on them, even if made.

The court also is satisfied that the defendants elected to treat the property as their own, by continuing to operate the business long after they claimed to have discovered the fraud; and they afterwards sold the goods and chattels.

I will advise a decree in favor of the complainant.


text:
    Francis W. Frost, substituted administrator, cum testamento annexo, &c., v. William T. Blackwell et al.
    [Decided August 26th, 1913.]
    1. Language of a will directing payment of $10,000 to R.—Held to constitute a bequest and not a mere direction to pay a debt.
    2. Where a legacy is bequeathed subject to a condition precedent, without limitation over, such a performance of the condition as substantially fulfills the intention of testatrix is sufficient to entitle the legatee to take,. when an adequate reason appears for lack of strict performance.
    3. Where a legacy is bequeathed subject to a condition precedent, and the performance of the condition is made impossible by the act of testatrix, the bequest is absolute.
    On bill, &c., for construction of will.

      Mr. Richard Boardman, for the complainant.

      Messrs. James-ds Malcolm G. Buchanan and Mr. Theodore D. Burling, for the defendants.
   Lewis, V. C.

The complainant in this case, as substituted administrator and trustee of Sophie H. B. Blackwell, deceased, filed his bill, asking the assistance of this court in the construction of the will and praying for directions as to the distribution of the estate.

The will of the testatrix, dated September 12th, 1898, contained the following paragraphs:

“Sixth. I also give and bequeath to my nephews Birney Blackwell and Frank E. Blackwell, Jr., all the surplus which may remain from the sale of property deeded by me to Helen B. Howard or Rodman after the payment of the debt due by me to my husband, William T. Blackwell; which said property is situated in Bay City, Michigan, and was conveyed by me to said Helen B. Howard or Rodman as security for said debt. If the whole of said property shall not be sold to pay such debt, I give, •devise and bequeath such property as shall remain unsold after such payment, to my said nephews absolutely and forever, and I direct that said property shall be conveyed to them by said Helen B. Howard or Rodman.
“Seventh. All the rest, residue and remainder of my property, I give, •devise and bequeath to my executor hereinafter named in trust, nevertheless for the following uses and purposes, to wit—first, to invest and reinvest the same and to pay the income thereof to my husband, William T. Blackwell, as long as he shall live; second, after the death of my said husband, I direct that said property shall be divided by my said executor between my nieces Alice B. Blackwell and Jennet D. Blackwell, equally, share and share alike, or the issue of such as shall be dead, a child, or •children taking his, her or their mother’s share.”

And a codicil of the same date, containing tbe following provisions :

“First. I direct my executors named in my said will to pay to Helen B. Howard or Rodman the sum of ten thousand dollars ($10,000) upon her deeding to my nephews. Birney Blackwell and Frank E. Blackwell, Jr., all the property deeded by me to her and situated in Bay City, Michigan. The said property in Michigan was deeded to said Helen B. Howard or Rodman by me as security for the payment of the sum of ten thousand dollars ($10,000), and upon the return thereof, as above stated, the said sum of ten thousand dollars ($10,000) is to be paid to her. ■Otherwise, the provisions of my will are to remain unaffected by this codicil.”

By a second codicil, bearing date May 15th, 1903, the testatrix made the following provisions:

“The sum of $10,000 to he given to Helen B. Rodman is not' the encroach on at least thirteen thousand ($13,000) which is bequeathed to my nieces, Alice B. and Jennet D. Blackwell, in case the stocks should decline in values.”

The testatrix died oh January 12th, 1909, leaving an estate, of which the balance now in the hands of the complainant for distribution under the clauses of the will and codicils above set forth, amounts approximately to the sum of $31,000.

It appears by the testimony, that subsequent to the making of the will and the first codicil, but during the lifetime of the testatrix, all of the Michigan real estate (the legal title to which was in the name of the defendant Helen B. Howard Bodman, but the equitable title to which was in the testatrix) was conveyed by Miss Bodman to various parties (other than and not being the nephews, Birney Blackwell and Frank E. Blackwell, Jr.) at the request of the testatrix, and that the testatrix received the entire consideration for these sales.

The defendant Helen B. Howard Bodman claims that by virtue of the provisions of the will and codicil, and the circumstances above mentioned, she is entitled to be paid the sum of $10,000 (after the termination of the life estate of the defendant William T. Blackwell), as a legacy bequeathed to her by the testatrix. On the other hand, the defendants Alice B. Frost and Jennet D. Blackwell take the position that the language of the will does not direct the payment of a legacy of $10,000 to Miss Bodman, but merely directs the payment of a debt to her, and that, inasmuch as Miss Bodman admits that she had no beneficial interest in the property and has filed no proof of claim of any such debt, that she is, therefore, not entitled to be paid the $10,000. These defendants further contend that even if the language of the will does contemplate a legacy of $10,000 to Miss Bodman, such legacy is conditional upon conveyance of the Michigan property by Miss Bodman to the nephews, Birney Blackwell and Frank E. Blackwell, Jr., and that since, admittedly, no such conveyance has been or can be made by Miss Bodman, the condition of the legacy is not performed and Miss Bodman is, therefore, not entitled to the $10,000.

It seems entirely clear to me that the testatrix in and by the will and codicil intended to and did direct the payment of a legacy of $10,000 to Miss Bodman—conditional, it is true, but nevertheless a legacy rather than the payment of a debt. There is nothing in the will itself, nor elsewhere in the case, to show that any debt was owing to Miss Eodman by Mrs. Blackwell— on the contrary, the existence of such a debt is disproved. Judging from- the language of the will and codicil, the fact would seem to have been that Mrs. Blackwell had conveyed the Michigan property to Miss Eodman as a trustee for Mr. Blackwell, by way of securing the payment of a debt of $10,000 owing by the testatrix to her husband. Whether or not the debt, if it in fact existed, was ever paid to Mr. Blackwell, does not appear, nor does it seem to me to be material, for the will does not direct the payment of $10,000 to the possible creditor, but to Miss Eodman, in her own right and with no trust attached thereto Even if there had existed some mutual understanding between testatrix, her husband and Miss Eodman, that this $10,000 should be turned over by Miss Eodman to Mr. Blackwell, or that in some other way the bequest to Miss Eodman should operate as an extinguishment of the debt owing to Mr. Blackwell (and there is no proof of any such agreement), the fact that the will makes the bequest to Miss Eodman would in nowise be altered thereby.

The language of the second codicil further establishes beyond question the fact of the bequest, inasmuch as it provides that in case the residuary estate should prove insufficient to provide a minimum of $13,000 for the nieces, the legacy to Miss Eodman should be diminished to such an extent as might be necessary to preserve to the nieces the minimum of $13,000. If the $10,000 given to Miss Eodman were by way of payment of a debt, obviousty the debt would both legally and in the intention of the testatrix, take precedence over the bequest to the nieces.

The question remains as to whether Miss Eodman is entitled to receive the legacy, inasmuch as it is made subject to a condition precedent. Has this condition been performed, or, if not, has performance thereof been excused ?

The condition is set forth in the paragraph of the first codicil hereinbefore recited. In fact, it is stated twice, and in somewhat different terms. As first stated, the condition is that Miss Eodman shall convey the Michigan property to the two nephews. As secondly stated, it is that Miss Eodman shall “return” the prop erty—i. e., reconvey it to Mrs. Blackwell. It is, of course, true that an actual reconveyance to Mrs. Blackwell would be impossible after the latter’s death; and the additional words “as above stated” can refer only to the conveyance to the nephews. But the later modifying statement shows that such a conveyance was equivalent in the mind of the testatrix to a reconveyance to herself, and that the object of the condition was that the property should pass from the control of Miss Bodman to the control of testatrix of the ultimate destination desired by her. It will be recalled that in the sixth paragraph of the will, executed on the same date as the codicil making the bequest to Miss Bodman, the testatrix devises the Michigan property, or her interest therein, to the nephews. Obviously, her intent end purpose was that Miss Bodman should not retain the property and also receive the legacy.

The proofs show that during the lifetime, and at the request of Mrs. Blackwell, Miss Bochnan sold and conveyed all of the Michigan property to various parties, and that Mrs. Blackwell received all of the consideration moneys arising from such sales. It is contended by Miss Bodman that thereby either the condition of the legacy was performed, i. e., that this was equitably tantamount to a “return” of the property to Mrs. Blackwell; or that if this be not a sufficient performance of the- condition, that the actual performance of the condition is excused, inasmuch as it was made impossible of performance by the act of the testatrix.

This contention, I think, is entirely sound. In my opinion, the direction of the testatrix is that the legacy is to be paid to Miss Bodman on condition that she first shall either have reconveyed the'Michigan property to Mrs. Blackwell (so that it might pass to the nephews under the devise in the will), or conveyed it direct to the nephews; and the conveyance by Miss Bodman of the several portions of this property, in the lifetime of, and at the request of Mrs. Blackwell, and to her nominees and for her benefit, amounted to a substantial performance of this condition. li.0 Oyc. 1717.

But even if I were to hold otherwise, the same result would be reached, for obviously, in so far as default- exists in the strict performance of the condition, it was occasioned by the testatrix herself, and the rule is as to a legacy subject to a condition precedent that where the performance of the condition is made impossible by the act or default of the testator, the bequest is absolute. 2 Jam. Wills 853; Darley v. Langworthy, 7 B. P. C. Toml. 177; Gath v. Burton, 1 Beav. 478; 40 Cyc. 1694.

From the language in the third paragraph of the second codicil,- it seems clear that the payment of tire legacy to Miss Bod-man is postponed until the death of William T. Blackwell.

I conclude, therefore, that the defendant William T. Blackwell is entitled to be paid the entire net income from lire residuary estate remaining after the payment of the bequests other than that to the defendant Helen B. Howard Bodman; that the defendant Helen B. Howard Eodman is entitled upon the death of William T. Blackwell to be paid the sum of $10,000 out of the corpus, unless the fund shall have then been diminished in value below the sum of $23,000, by reason of depreciation in the value of the securities, in which latter event she will be entitled to lie paid only the excess of the fund over and above $13,000; that the defendants Alice Blackwell Frost and Jennet D. Black-4 well, upon the death of William T. Blackwell, are entitled to be paid equally between them, the balance of the corpus, if the corpus then equal or exceed $23,000, otherwise, the minimum sum of $13,000; that the defendants Birney Blackwell and Frank E. Blackwell, Jr., are not entitled to any share or interest in the estate, nor is the defendant Alice B. Blackwell (the sister of the testatrix) other than the legacies which have already been paid to her. I will advise a decree accordingly.


text:
    The Longdock Mills and Elevator v. John Alpen et al.
    [Decided September 24th, 1913.]
    1. The law will protect and reward the junior mortgagee who, by superior diligence, obtains the appointment of a receiver for his own benefit in a foreclosure suit to which a prior mortgagee is not a party.
    2. In such case it is the established practice to permit the receiver, appointed at the instance of a junior mortgagee, to receive the rents and profits until the prior mortgagee takes possession.
    On bill, &c. On petition of Minnie Borgstede.

      Mr. Harry Lane, for the complainant.

      Mr. Frederick K. Hopkins, for the petitioner.
   Lewis, V. C.

This hearing was on an application concerning money in the hands of the receiver, Carlyle Garrison, appointed by the court to collect rents pending the final settlement of the suit. The receiver was appointed, upon application of complainant in the case, the third mortgagee. There was a first mortgage held by Herman Zurlage and a second mortgage held by Minnie Borgsted. John Zurlage and Minnie Borgsted were not parties in the suit brought by the complainant. A bill was subsequently filed by Zurlage to foreclose the first mortgage. No application was made by the first or -second mortgagees for the purpose of having a receiver appointed in the Zurlage case. The property was sold on the 12th day of November, 1912, and at the sale was purchased by Mrs. Borgsted for $27,000. No purchaser appeared offering sufficient to cover her lien, and there is approximately a deficiency due the petitioner of about $5,000. The receiver, appointed upon application of the third mortgagee, had collected, up to the time of the argument in this matter, in the neighborhood of $1,241.60.

The application of the petitioner in the present instance is that the money in the hands of the receiver, subject to the payment of a reasonable allowance to the receiver, be applied in payment of the petitioner’s decree, so far as it will extend. This contention is resisted by the complainant on the ground that the petitioner is not a party to its suit, and therefore cannot obtain any relief in it; and further, that the petitioner has no interest in any money collected by the receiver appointed in this suit, as she is a stranger to the suit.

There is no doubt that if Zurlage and Boehmoke had been made parties they could have had the bill dismissed as to them. When proceedings were instituted on the Zurlage mortgage they made no application whatsoever for the purpose of having a receiver appointed in the ease or for any protection from the court by way of a receiver, or by way of having the rents of the property held as further security for their mortgages. They chose to litigate, hoping that at the sale the property would bring sufficient to satisfy their liens. The law will protect and reward the junior mortgagee who, by superior diligence, obtains the appointment of a receiver for his own benefit. New Jersey Title, Guarantee and Trust Co. v. Cone & Co., 64. N. J. Eq. (19 Dick.) 45; Coddington v. Bispham, 36 N. J. Eq. (9 Stew.) 574-

If the mortgagor had remained in possession and collected the rents himself and then paid them over to the defendant he would have had a right to control their appropriation, and if he had failed to exercise such right the right of appropriation would have then belonged to the defendant, and he might have exercised it in such a manner as would best protect his security.

An examination of the eases leads to the conclusion that the practice is well established of permitting the receiver, appointed at the instance of a junior encumbrancer, 'to receive the rents and profits until the prior mortgagee takes possession.

In the case under consideration the junior mortgagee has acquired a specific lien on the rents and is entitled to retain them and apply them on its mortgage.

I will advise an order accordingly.


text:
    Charles H. Blohm v. John M. Hannan and Isabella Hannan.
    [Decided September 29th, 1913.]
    K., haying a first mortgage on defendants’ land for $6,950, which defendants claim was tainted with usury, surrendered his mortgage for $6,000 cash and a second mortgage for $1,500, permitting defendants to place a first mortgage on the property for $18,000'.—Eeld, that such second mortgage was based on a new consideration and was not affected by any usury involved in the first transaction.
    On bill to foreclose.

      Messrs. McDermott & Enright, for the complainant.'

      Mr: J. Emil Walscheid, for the defendants.
   Lewis, V. C.

The complainant in this case seeks to foreclose a mortgage of fifteen hundred dollars ($1,500) given by the defendants. The answer admits the execution of the bond and mortgage but denies that the amount of money claimed or any other sum was due to the complainant.

The transaction between the parties had its origin when Slipper agreed with Hannan that he would loan, first, seventy-five hundred dollars ($7,500), out of which he was to get fifteen per cent, for making the loan, and later would loan twenty-five hundred dollars ($2,500), out of which he was to get fifteen per cent, for making the loan.

Slipper did advance seventy-five hundred dollars ($7,500), less fifteen per cent., and later the twenty-five hundred dollars ($2,500), less fifteen per cent. For these two advances Slipper got, first, a mortgage for seventy-five hundred dollars ($7,500), dated the 17th day of February, 1908, and second, a mortgage for twenty-five hundred dollars ($2,500), dated the 18th day of June, 1908. Interest was subsequently paid on these two mortgages up to and including the payment dire on the 17th day of November, 1909, and at that time there had also been paid on account of the principal of these two mortgages the sum of seventeen hundred and fifty dollars ($1,750); that made the principal sum due then eighty-two hundred and fifty dollars ($8,250) with interest from the 17th day of November, 1909. Default was then made in the payment of interest by Hannan and he began'negotiations to obtain a mortgage from the Provident Institution for Savings in Jersey City. When Klipper asked Hannan to settle with him, Hannan said that he was endeavoring to get a large loan from the Provident institution and said that he had been advised that he could recover from IClipper the money Klipper had taken out of the loans when they were made to him. As an outcome of these conversations, it was agreed between these two men that if Klipper would not demand the interest due on the eighty-two hundred and fifty dollars ($8,250), and would throw oil seven hundred and fifty dollars ($750) of the principal, that Hannan upon obtaining the larger mortgage from the Provident institution, would give six thousand dollars ($6,000) in cash to Klipper and a second mortgage for fifteen hundred dollars ($1,500). This agreement was carried out and Hannan made a mortgage for fifteen hundred dollars ($1,500) to Blohm, the complainant, at Klipper’s direction, and also paid the six thousand dollars ($6,000). He at that time gave Klipper a release of all rights of action against Klipper. Thereafter Hannan made three payments of principal and three payments of interest on the fifteen hundred dollars ($1,500) mortgage, as follows: He paid fifty-two dollars and fifty cents ($52.50) of principal in July, 1910; fifty-three dollars and thirty cents ($53.30) in November, 1910, and fifty-four dollars and nine cents ($54.09) in February^ 1911, and he paid interest up to January 25th, 1911. Since that time he has not paid any interest or principal.

The defendants claim that since this mortgage for fifteen hundred dollars ($1,500) was for a portion, if not all, of the money retained by Klipper out of the loan to Hannan, it cannot be foreclosed; that is to say, it has no validity as against Hannan, because it either lacks consideration or because it is tainted with usury or for money which was usury. I cannot take this view of the case. Klipper had a valid first lien for sixty-nine hundred and fifty dollars ($6,950); he gives this up for six thousand dollars ($6,000) cash and a second mortgage for .fifteen hundred dollars ($1,500), permitting the defendants to place a first mortgage upon their property for eighteen thousand dollars ($18,000).' This is a bona ¡ida arrangement, bearing no evidence of fraud and the consideration is legal. I cannot see how the law of usury applies in this case. A settlement of the usurious transaction had been accomplished and a new consideration made between the parties. Usury is taking or agreeing to receive more than the legal rate of interest for the loan of money. At the time of the giving of the fifteen hundred dollars ($1,500) mortgage in this suit, there was no loan of money whatever. When the fifteen hundred dollars ($1,500) mortgage was .given Klipper had the right to foreclose his mortgages. He refrained from doing so and the defendants made the new arrangement with him to pay him off in cash and give a second mortgage for the fifteen hundred dollars ($1,500); iu other words, he gives up Ms lien allowing a large mortgage to be placed on the property and taking in return six thousand dollars ($6,000) in cash and this second mortgage of fifteen hundred dollars ($1,500).

Our decisions, no doubt, sustain the proposition that no new transfer of the usurious transaction, even accompanied by a new loan, makes the transaction free from usurious taint, but in the case in hand, we have’the element of new consideration. As soon as this new consideration intervened, the original taint of usury ceased to attach to the transaction.

I have not dealt with the question of the eifeet of the release given at the time of the making of the new contract by Hannan to Klipper, or the complainant’s contention that usury had never been adequately pleaded, deeming the discussion of neither of these questions necessary at this time to the determination of this case. A decree will be advised in favor of the complainant for the amount appearing due on the mortgage under foreclosure, and costs.